State v. Vento

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:35:58 2012.10.11
Certiorari Granted, September 21, 2012, No. 33,779
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMCA-099Filing Date: July 26, 2012
Docket No. 30,469
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHAEL T. VENTO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Mary Barket, Assistant Public Defender
Santa Fe, NM
for Appellant
OPINION
GARCIA, Judge.
{1} Defendant was convicted of one count of commercial gambling (profits or operation
of a gambling place), a fourth degree felony, in violation of NMSA 1978, Section 30-19-
3(A) (1963). On appeal, Defendant argues that (1) the district court improperly instructed
the jury, (2) the evidence was insufficient to sustain a conviction for commercial gambling,
and (3) the statute is unconstitutionally vague as applied to Defendant’s conduct. We
determine that the district court erred when it instructed the jury on the charge of commercial
gambling based upon the alternative yet factually inapplicable theory of betting. Since we
are unable to discern the theory upon which the jury’s finding of guilt was based, we reverse
Defendant’s conviction and remand for retrial on the charge of commercial gambling.
BACKGROUND
{2} Defendant owned and operated an internet café. Customers could rent internet time
using the computer terminals located throughout the café. Customers would purchase time
on the internet by buying a card that was then swiped at a card reader near the computer
terminal. For every ten minutes of internet time purchased by a customer, the customer
would receive one hundred entries into a sweepstakes that awarded cash prizes. However,
the purchase of internet time was not required to obtain a sweepstakes card and enter the
sweepstakes. Defendant’s café would give one card with one hundred free sweepstakes
entries to each customer requesting a card, however, these free cards were limited to one
card per customer per twenty-four hour period. The rules of the sweepstakes were posted
throughout Defendant’s café on large posters, and printed on a form that customers signed
before obtaining the card to swipe at a computer terminal.
{3} Defendant’s computer system pre-determined the winning sweepstakes entries, and
customers had a choice in determining how the computer would reveal whether an entry was
a winner. Customers could either instantly reveal whether they had a winning entry, or they
could have the outcome of their entry revealed at a computer terminal through what appeared
to be a selection of video casino-like games. Neither method of revealing the sweepstakes
results diminished the customer’s purchased internet time. In addition, customers were not
required to purchase internet time or use a computer terminal in order to reveal whether their
free entry was a winner.
{4} The New Mexico Gaming Control Board (the Board) conducted a raid at the café,
and Defendant was charged with commercial gambling by “participating in the earnings of
or operating a gambling place.” Defendant asserted that the sweepstakes was a legal
promotion intended to entice customers to his recently opened café and did not constitute
commercial gambling. Defendant compared his sweepstakes to other sweepstakes programs
offered by businesses such as McDonald’s, Cola-Cola, and Albertsons stores. The State
asserted that Defendant’s sweepstakes promotion was illegal because customers rarely used
any of their internet time and could not obtain a refund for the internet time that they did not
use. Additionally, the majority of customers only participated in the sweepstakes and did
not actually use the internet time that they purchased with their sweepstakes winnings.
{5} To prove its case, the State presented evidence establishing that only 330 of 140,000
hours of internet time purchased with cash or sweepstakes winnings were actually used by
customers to access the internet. This equated to a usage rate of less than one quarter of one
percent (00.25%). Sweepstakes winnings of approximately $650,000 were used to purchase
internet time of approximately 110,000 hours. After presenting its evidence, the State
argued that Defendant’s gambling operation was accomplished under a guise of purchasing
internet time.
{6} Defendant was convicted after a jury trial. Judgment and an order suspending
Defendant’s sentence was entered on April 22, 2010. Defendant filed a timely appeal to this
Court.
ANALYSIS
I. The General Verdict
{7} Defendant asserts that reversal is required because the jury returned a general verdict
that did not identify the basis of conviction within the commercial gambling statute. He
argues that the jury should have been required to specify the basis on which the verdict relied
because the commercial gambling statute identifies bets and lotteries as mutually exclusive,
and therefore, it would be legally inadequate for a jury to find that Defendant’s café
constituted a gambling place based on both alternate theories. Thus, because the record does
not identify the basis for the jury’s finding that Defendant’s café was a gambling place,
Defendant asserts that his conviction may have relied on a legally inadequate basis and
reversal is necessary. In response, the State contends that all of the enumerated bases of
conviction are applicable as a matter of law to Defendant’s sweepstakes promotion and that
jury unanimity was not required as to which alternative type of gambling constituted the
principal purpose of Defendant’s café.
{8} Defendant was charged with commercial gambling on the basis of his participation
in the profits of or operation of a gambling place. Section 30-19-3(A). “[G]ambling place”
is statutorily defined as:
a building . . . or a room . . . not within the premises of a person licensed as
a lottery retailer or that is not licensed pursuant to the Gaming Control Act,
one of whose principal uses is:
(1) making and settling of bets;
(2) receiving, holding, recording or forwarding bets or offers to bet;
(3) conducting lotteries; or
(4) playing gambling devices[.]
NMSA 1978, § 30-19-1(D) (2002). Thus, the statutory definition of a “gambling place”
enumerates four possible bases for a commercial gambling conviction and three different
types of illegal gambling: bets, lotteries, and gambling devices. Id. The statutory definition
of a bet expressly excludes a lottery from classification as a bet. See § 30-19-1(B)(3).
{9} The jury was instructed on all the alternative bases for a commercial gambling
conviction, including the definitions of a bet, a lottery, and a gambling device. See § 30-19-
1(B), (C), (D) & (E). However, the jury returned a general verdict that only identified guilt
on the basis of “commercial gambling as charged,” and did not identify the underlying basis
for the gambling conviction among the numerous alternatives set forth in the commercial
gambling statute. As a result, we are unable to determine from the record whether the jury
found that Defendant’s café was a gambling place because it had a principle use related to
betting, conducting a lottery, or playing gambling devices. We also cannot determine
whether the jury unanimously agreed on one of the alternatives, or whether some jurors
convicted Defendant based on a finding that his café was principally used for one type of
illegal gambling, while other jurors found that his café was principally used for a different
type of illegal gambling.
{10} Because we do not know which theory resulted in Defendant’s conviction, we agree
with Defendant that we must reverse if any of the enumerated alternatives in Section 30-19-
1(D) are legally inadequate to support the jury’s verdict. See State v. Mailman, 2010-
NMSC-036, ¶ 12, 148 N.M. 702, 242 P.3d 269 (“[A] conviction under a general verdict must
be reversed where it is based on more than one legal theory and at least one of those theories
is legally . . . invalid.”). Reversal is necessary under such circumstances because “‘[j]urors
are not generally equipped to determine whether a particular theory of conviction submitted
to them is contrary to law.’” State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92, 99 (Ct. App.
1994) (quoting Griffin v. United States, 502 U.S. 46, 59 (1991)), aff’d in part, set aside in
part by, 120 N.M. 740, 741, 906 P.2d 731, 732 (1995). Thus, we cannot assume that jurors
will know to avoid an alternative basis for reaching a guilty verdict that would result in a due
process violation. See id.{11} We must begin our analysis by determining whether Defendant’s conviction for
commercial gambling was based upon inadequate legal grounds or merely inadequate
evidence. We will do so by addressing the applicability of the commercial gambling
statute’s classifications of illegal gambling to Defendant’s sweepstakes promotion. We shall
also address the interpretation and construction of our existing gambling statutes as applied
to a sweepstakes promotion used to attract customers to a business establishment. This issue
is one of first impression for this Court.
{12} “Issues of statutory construction and interpretation are questions of law and are
reviewed de novo.” State v. Guerra, 2001-NMCA-031, ¶ 6, 130 N.M. 302, 24 P.3d 334.
When analyzing the construction of a statute, our primary purpose is to give effect to the
intent of the Legislature. Bd. of Educ. v. N.M. State Dep’t of Pub. Educ., 1999-NMCA-156,
¶ 16, 128 N.M. 398, 993 P.2d 112. “The plain language of the statute is our primary guide
to legislative intent, and we will give persuasive weight to any administrative construction
of statutes by the agency charged with administering them.” Santillo v. N.M. Dep’t of Pub.
Safety, 2007-NMCA-159, ¶ 17, 143 N.M. 84, 173 P.3d 6. We “give the words used in the
statute their ordinary meaning unless the [L]egislature indicates a different intent.” High
Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413,
970 P.2d 599 (internal quotation marks and citation omitted). “Only if an ambiguity exists
will we proceed further in our statutory construction analysis.” Marbob Energy Corp. v.
N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. In
addition, “[t]he statute must be read as a whole, construing each section so as to produce a
harmonious whole.” State v. Wilson, 2010-NMCA-018, ¶ 9, 147 N.M. 706, 228 P.3d 490.
We apply these principles to our analysis of whether any of the alternative theories
enumerated in Section 30-19-1(B), (C), (D), and (E) was legally inadequate to support
Defendant’s conviction for commercial gambling.
{13} The plain language of the commercial gambling statute specifically excludes a lottery
from the statutory definition of a bet. Section 30-19-1(B)(3) (“[A] bet does not include . .
. a lottery as defined in this section.”). Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349,
1360. Thus, Defendant may be properly charged with commercial gambling based on using
his café either for betting related activities or for conducting a lottery, but his sweepstakes
promotion must be classified as either a bet or a lottery. See State ex rel. Clark v. Johnson,
120 N.M. 562, 572 n.1, 904 P.2d 11, 21 n.1 (1995) (explaining that a particular form of
gaming or gambling would necessarily fall under the definition of a lottery or under the
definition of a bet, but not both). Once a sweepstakes promotion meets the statutory
definition of a lottery, it cannot also be classified as a bet, and vice versa. Thus, we agree
with Defendant that the alternate theories of betting and lottery are legally inconsistent.
{14} Based upon the mutual exclusivity of betting and lottery activities, legal error
occurred when the jury was asked to convict Defendant of commercial gambling without
identifying whether Defendant’s promotion constituted a lottery or a bet. Griffin, 502 U.S.
at 49-51 (finding no due process requirement to set aside general guilty verdict where
evidence was inadequate to support a conviction as to one of the alternative theories of the
crime presented). However, we may remand for new trial if sufficient evidence was
presented to support a conviction based on any legally adequate alternative theory. Id.; see
also State v. Dowling, 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930 (double jeopardy
does not bar retrial if sufficient evidence was presented to support a conviction at trial); See,
e.g., State v. Saiz, 2008-NMSC-048, ¶ 63, 144 N.M. 663, 191 P.3d 521 (noting that two
alternative theories used to support a conviction were not factually contradictory or
otherwise mutually exclusive and reasoning that it was therefore not error to instruct the jury
on both theories), abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146
N.M. 357, 210 P.3d 783. As a result, we must address whether sufficient evidence supported
Defendant’s conviction on the legally adequate alternative theories. We must first determine
whether Defendant’s sweepstakes promotion is more appropriately classified as a lottery or
as a bet.
{15} Defendant’s sweepstakes promotion was initially identified by the parties as a lottery.
A lottery is defined as:
an enterprise wherein, for a consideration, the participants are given an
opportunity to win a prize, the award of which is determined by chance, even
though accompanied by some skill.
Section 30-19-1(E). A bet, on the other hand, involves a more specific agreement to win or
lose an item of a specifically identified value. See § 30-19-1(B) (defining a bet as “a bargain
in which the parties agree that . . . one stands to win or lose anything of value specified in
the agreement”). Thus, a lottery differs from a bet in that it provides participants with a
general opportunity to win a prize.
{16} In the present case, Defendant’s sweepstakes promotion was used as a business tool
to attract customers and, therefore, provided the opportunity for a wide number of potential
customer participants to win a variety of pre-determined, non-specific, cash prizes. See G.A.
Carney, Ltd. v. Brzeczek, 453 N.E.2d 756, 760 (Ill. App. Ct. 1983) (“The controlling fact in
the determination of whether a given scheme or business is a lottery is determined by the
nature of the appeal which the business makes to secure the patronage of its customers. If,
as here, the controlling inducement is the lure of an uncertain prize, then the business is a
lottery.”). No agreement as to the value of the possible prizes existed between Defendant
and the patrons who participated in his promotion. Thus, based on the plain language of the
commercial gambling statute, we conclude that Defendant’s sweepstakes promotion was
structured in the form of a lottery. See 54 C.J.S. Lotteries, § 1, 2 (2010) (“It is essential to
a lottery that the winners be determined by chance alone. . . . The essential test to determine
the existence of a lottery, based on all the facts and circumstances of the particular case, is
not whether it is possible to win without paying but whether those who choose to pay are
paying in part for the chance of a prize.”); see also Johnson, 120 N.M. at 571, 904 P.2d at
20 (noting that “the statutory definition of a ‘lottery’ . . . is extremely broad”); State v. Jones,
44 N.M. 623, 626-27, 107 P.2d 324, 326-27 (1940) (recognizing that an attempt to separate
cause from effect, being the consideration paid through a patron’s registration from the offer
of prizes by chance, is an obvious subterfuge to avoid being recognized as a lottery).
{17} Our conclusion is consistent with our court’s numerous decisions that have addressed
a variety of promotional schemes and classified them as lotteries. See Armijo v. Town of
Atrisco, 62 N.M. 440, 442, 312 P.2d. 91, 92 (1957) (involving a land grant attempting to
distribute common lands of the grant by lottery); Jones, 44 N.M. at 624, 107 P.2d at 325(involving a movie theater bank night promotion); State v. Butler, 42 N.M. 271, 273-74, 76
P.2d. 1149, 1151-52 (1938) (involving a lucky ticket prize based upon baseball team scores).
{18} As we have noted, once Defendant’s sweepstakes promotion is properly classified
as a lottery for the purposes of any commercial gambling statute, it cannot also meet the
statutory definition of a bet. Section 30-19-1(B)(3). A conviction that is potentially
premised upon illegal betting, as enumerated in Section 30-19-1(D)(1) and (2), is improper
as a matter of law if a defendant’s promotion is classified as a lottery. Id. As a result, legal
error occurred when the jury was asked to convict Defendant of gambling based upon the
theory of betting. See Griffin, 502 U.S. at 54-58.
II. Sufficiency of the Evidence
{19} We next address whether sufficient evidence supported Defendant’s conviction on
the legally adequate alternative theories of conducting a lottery and playing gambling
devices. Defendant asserts that his promotion, which encourages customers to visit his store
and purchase internet time, is a legal form of prize gaming called a sweepstakes. Defendant
further asserts that the evidence was inadequate to support a verdict on any of the
enumerated bases because sweepstakes are distinct from any form of gambling in that they
do not require consideration. In response, the State asserts that the evidence presented at
trial was sufficient to prove that Defendant was either conducting an illegal lottery;
providing gambling devices to his customers; or participating in betting activities. Because
we have already determined that it would be legally inadequate to convict Defendant based
on his participation in betting activities, we need not address the evidence related to betting.
We will first determine whether the evidence was sufficient to conclude that Defendant’s
sweepstakes promotion qualified as a lottery. We will then address whether Defendant’s
sweepstakes was conducted in a manner that would also qualify as a gambling device.
1. Standard of Review
{20} “The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-005,
¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). “In
applying this standard, an appellate court reviews the evidence in the light most favorable
to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.” Id. (alteration, internal quotation marks, and citation
omitted). “In reviewing the evidence, the relevant question is whether any rational jury
could have found each element of the crime to be established beyond a reasonable doubt.”
Id. (emphasis, internal quotation marks, and citation omitted). The reviewing court does not
substitute its judgment for that of the jury: “Contrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject [the d]efendant’s version of the
facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Nor will this
Court “evaluate the evidence to determine whether some hypothesis could be designed
which is consistent with a finding of innocence.” State v. Graham, 2005-NMSC-004, ¶ 13,
137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted).
2. Lottery
{21} In Jones, 44 N.M. at 629, 107 P.2d at 328, our Supreme Court observed that a lottery
consists of three elements, “prize, chance[,] and consideration.” Neither party disputes that
Defendant’s sweepstakes provided an opportunity for participants to win a cash prize and
the award of these prizes was determined by chance. The only disputed issue is whether the
State established that the statutory requirement for “consideration” existed in Defendant’s
sweepstakes promotion. Defendant maintains that while his sweepstakes is structured to
resemble a lottery, it cannot be defined as such because it lacks the required element of
consideration. As such, Defendant argues that the evidence was insufficient to support the
necessary element of consideration to establish that a lottery was being conducted under
Section 30-19-1(E).
{22} We first note that Defendant supports this argument by equating his lottery
promotion as the same type of sweepstake games and promotions offered by McDonald’s,
Cola-Cola, or Albertsons. In essence, Defendant argues that any consideration paid to
participate in his sweepstakes promotion was identical to the promotions offered by these
national companies who have not been subjected to criminal prosecution. Although this
argument could be interpreted as a selective prosecution violation under the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution, Defendant has not
presented any authority or developed an Equal Protection argument, but limits his argument
to the sufficiency of the evidence. See State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873,
215 P.3d 811 (stating that this Court will not review an undeveloped and unclear argument
on appeal); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
P.3d 1076. Despite Defendant’s invitation to do so, we will not substitute our sufficiency
of the evidence analysis with an evaluation of the numerous other sweepstakes-type
promotions conducted in New Mexico by other national companies who are not defendants
in this proceeding. See Collado v. City of Albuquerque, 2002-NMCA-048, ¶ 18, 132 N.M.
133, 45 P.3d 73 (recognizing that the district court is limited to deciding the case before it
and inferences regarding similarities to other non-parties are unwarranted).
{23} Applying our deferential standard of review, we conclude that sufficient evidence
was presented to convict Defendant of commercial gambling by conducting a lottery. At
trial, both parties presented evidence regarding the concept of a sweepstakes promotion and
the case focused on the element of consideration. The State presented evidence that
customers to Defendant’s café paid consideration to participate in his sweepstakes lottery
promotion. Customers could not obtain a refund for any of the internet time that they did
not use, which constituted ninety-nine point seventy-five percent (99.75%) of the internet
time purchased. Only one quarter of one percent (00.25%) of the internet time purchased
by customers was actually used or consumed. The majority of customers who still had
unused internet time utilized their sweepstakes winnings to purchase additional internet time
that they did not use. Defendant also told the Board investigators that he retained only eight
percent (8%) of all the revenue received from the purported sale of internet time, with the
balance paid to patrons as prizes in the sweepstakes promotion. The lopsided percentages
related to internet usage, prizes awarded to patrons, and the significant repurchase of internet
time despite patrons already possessing unused internet time constitute substantive evidence
that Defendant’s café operation was structured as a guise for commercial gambling. Based
upon these facts and the casino-style display of Defendant’s ongoing sweepstakes
promotion, the jury could reasonably determine that the controlling inducement for the
monies being paid by customers for internet time was in fact consideration to participate in
a lottery that was disguised as a legitimate business promotion. See G.A. Carney, 453
N.E.2d at 760.
{24} Despite the Board’s failure to provide regulations or other rules to guide this type of
sweepstakes promotion, we recognize that a flexible-participation lottery promotion can be
abused if the financial structure is designed to effectuate the gambling component of the
scheme rather than the sale of business products actually offered to customers. In this case,
it is the jury’s function as fact finder to determine whether the consideration paid for a
product is in fact an abusive guise to participate in a lottery scheme. As a result,
Defendant’s conviction for commercial gambling should be remanded to the district court
for retrial on the basis of conducting a lottery pursuant to Section 30-19-3(A), as defined
under Sections 30-19-1(D)(4) and 30-19-1(E).
3. Gambling Devices
{25} We next examine the applicability of classifying Defendant’s computer terminals as
gambling devices. A gambling device is defined as: “a contrivance . . . that, for a
consideration, affords the player an opportunity to obtain anything of value, the award of
which is determined by chance, even though accompanied by some skill, whether or not the
prize is automatically paid by the device.” Section 30-19-1(C). The State asserts that the
computer terminals, which reveal winning sweepstakes credits, were similar to “playing the
slot style games,” and meet the definition of a gambling device. In response, Defendant
argues that the computers can not be classified as gambling devices because they merely
revealed whether a participant had a winning or losing entry, and did not affect the player’s
opportunity to obtain anything of value. Our review of the record indicates that Defendant’s
computer terminals cannot meet the statutory definition of a gambling device pursuant to
Section 30-19-1(C).
{26} Defendant’s computer terminals were used as the means to access the internet at
Defendant’s café. The sweepstakes entries were actually delivered to customers in the form
of a “swipe card” that was then swiped into a reader for visual display at either the café’s
counter or at the individual computer terminals. For the purposes of a commercial gambling
charge, the computer terminals were nothing more than a visual device used to display the
results of Defendant’s sweepstakes promotion that were loaded onto the swipe card. Actual
money could not be inserted into the computer terminals to participate in the sweepstakes,
and additional entries could only be obtained from the cafe’s counter and then downloaded
upon the computer access swipe card. Although computer terminals and equipment can be
utilized to function as gambling devices, the State has not presented sufficient evidence to
establish that the terminals in this case met the statutory definition. See § 30-19-1(C)
(defining a gambling device as “a contrivance . . . that, for a consideration, affords the player
an opportunity to obtain anything of value.”). Based upon the specific facts presented in this
case, the computer terminals at Defendant’s café did not afford customers the opportunity
to insert monies, obtain anything of value, or to in any way alter the pre-determined outcome
of the data already imbedded onto the swipe card. As a result, the evidence was insufficient
to support a conviction for commercial gambling based upon the definition of “gambling
device” set forth in Section 31-19-1(D)(4).
III. Constitutional Vagueness of the Lottery Statute
{27} Defendant additionally claims that his conviction should be overturned because the
“commercial gambling statute” is unconstitutionally vague as applied in this case. Most
notable in Defendant’s brief and argument to this Court is the failure to identify any
particular statute or section that is specifically considered unconstitutional. Defendant does
not provide one statutory reference or illustrative provision in his briefs to this Court.
Despite providing broad authority regarding the legal basis for analyzing a constitutional
vagueness claim, it is impossible to determine whether Defendant is actually challenging
Section 30-19-3, or alternatively the related definitions under Section 30-19-1(D) and (E),
or perhaps other sections within Chapter 30, Article 19.
{28} In its response, the State appears to assume that Defendant is attacking certain
portions of all the gambling statutes potentially dealing with a lottery-type of scheme.
Effectively, neither party has adequately directed this Court to the particular statutory
provision or provisions that are being challenged as unconstitutionally vague. We are left
with nothing but speculation and assumption regarding Defendant’s constitutional vagueness
challenge. We refuse to address Defendant’s argument on this basis. The issue has not been
properly preserved and presented to this Court for review. State v. Urioste, 2011-NMCA-
121, ¶ 29, 267 P.3d 820 (“[T]his Court’s policy is to refrain from reviewing ‘unclear or
undeveloped arguments which require us to guess at what [a party’s] arguments might be[.]’”
(citation omitted)); see Headley, 2005-NMCA-045, ¶ 15 (concluding that this Court has no
duty to review an argument that is not adequately developed with facts, citation to the
record, and authority); Lovato v. Crawford & Co., 2003-NMCA-088, ¶ 30, 134 N.M. 108,
73 P.3d 246 (“[A party cannot] throw out legal theories without connecting them to any
elements and any factual support for the elements.”). Therefore, we need not address
Defendant’s constitutional vagueness argument any further and hold that it is not adequately
presented for review.
CONCLUSION
{29} For the reasons set forth herein, we conclude that the district court erred when it used
a general verdict form and instructed the jury on the charge of commercial gambling based
upon the mutually exclusive gambling theories of a lottery or a bet. Because the use of a
general verdict form constituted legal error under these circumstances and the only adequate
classification for Defendant’s sweepstakes promotion was a lottery, we reverse Defendant’s
conviction. We remand for a new trial on the charge of commercial gambling based solely
upon the theory of conducting a lottery. We need not address Defendant’s remaining claims
of error.
{30} IT IS SO ORDERED.
____________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
___________________________________
MICHAEL E. VIGIL, Judge
___________________________________
J. MILES HANISEE, Judge
Topic Index for State v. Vento, No. 30,469
APPEAL AND ERROR
Remand
Standard of Review
Substantial or Sufficient Evidence
CONSTITUTIONAL LAW
Vague or Overbroad
CRIMINAL LAW
Gambling
CRIMINAL PROCEDURE
Jury Instructions
Verdict
Verdict Forms
JURY INSTRUCTIONS
Criminal Jury Instructions
Improper Jury Instructions
STATUTES
Interpretation
Vagueness