STATE OF SOUTH CAROLINA COUNTY OF CHARLESTON Robert L. Chimento, Scott Richards, Michael Williamson, Jeremy Brestel, and John T. Willis, Appellants, vs. Town of Mount Pleasant, Respondent. IN THE COURT OF COMMON PLEAS Case No. 2009-CP-10-001551 Appellants’ Brief and Memorandum of Law in Support of Appeal from Conviction in Municipal Court William W. Wilkins NEXSEN PRUET, LLC 55 East Camperdown Way (29601) Post Office Drawer 10648 Greenville, South Carolina 29603-0648 864.370.2211 Jeffrey A. Phillips PHILLIPS LAW FIRM 1425 Augusta Street Greenville, South Carolina 29605 864.233.7373 Attorneys for Appellants TABLE OF CONTENTS FACTUAL BACKGROUND ……………………………………………………………………………………….. 1 STANDARD OF REVIEW ………………………………………………………………………………………….. 3 ARGUMENT …………………………………………………………………………………………………………….. 3 I. NON-CONSTITUTIONAL BASIS FOR OVERTURNING APPELLANTS’ CONVICTIONS: Appellants’ Conduct Did Not Violate S.C. Code Ann. § 16-1940(a)………………………………………………………………………………………………………………. 3 A. B. C. D. II. When faced with the issue, the South Carolina Supreme Court will likely adopt the dominant factor test …………………………………………………………………….. 5 Under the dominant factor test, Texas Hold’em is not “gaming” or “gambling.” …………………………………………………………………………………………….. 9 A residence in which Texas Hold’em is played is not a “house used as a place of gaming.”……………………………………………………………………………………. 10 Alternatively, § 16-19-40(a) is ambiguous and must be construed in favor of Appellants……………………………………………………………………………………………… 10 Section 16-19-40(a) is unconstitutionally vague and therefore unenforceable ……. 12 Section 16-19-40(a) is unconstitutionally overbroad……………………………………… 15 1. 2. Section 16-19-40(a) is overbroad and unenforceable ……………………………… 15 Section 16-19-40(a) is severable and may be invalidated without invalidating the remaining portions of § 16-19-40………………………………….. 16 Constitutional Basis for Overturning Appellants’ Convictions ……………………………….. 12 A. B. CONCLUSION ………………………………………………………………………………………………………… 16 ii TABLE OF AUTHORITIES Cases Page(s) In re Allen 377 P.2d 280, 281 (Cal. 1962) ………………………………………………………………………………………. 7 Berry v. State 381 S.C. 630, 633-34, 675 S.E.2d 425, 426-27 (2009) …………………………………………………… 5, 9 City Council of Los Angeles v. Taxpayers for Vincent 466 U.S. 789, 796 (1984)……………………………………………………………………………………………. 15 City of Columbia v. Felder 274 S.C. 12, 13, 260 S.E.2d 453, 454 (1979) …………………………………………………………………… 3 Colautti v. Franklin 439 U.S. 379, 391 (1979)……………………………………………………………………………………………. 14 Commonwealth v. Plissner 4 N.E.2d 241, 244 (Mass. 1936) ……………………………………………………………………………………. 6 Darlington Theatres v. Coker 190 S.C. 282, 2 S.E.2d 782, 786 (1939) …………………………………………………………………… 5, 6, 9 First South Sav. Bank, Inc. v. Gold Coast Assocs., Inc. 301 S.C. 158, 160, 390 S.E.2d 486, 487 (Ct.App.1990) …………………………………………………….. 4 Gandolfo v. Louisiana State Racing Comm’n 78 So.2d 504, 509 (La. 1954)………………………………………………………………………………………… 6 Gravned v. City of Rockford 408 U.S. 104, 108-09 (1972)……………………………………………………………………………………….. 12 Guinyard v. State 260 S.C. 220, 226, 195 S.E.2d 392, 394 (1973)………………………………………………………………. 12 Horner v. United States 147 U.S. 449, 459 (1893)……………………………………………………………………………………………… 5 Johnson v. Collins Entm’t Co. 333 S.C. 96, 113, 508 S.E.2d 575, 584 (1998) …………………………………………………………. passim Johnson v. Phinney 218 F.2d 303, 306 (5th Cir. 1955)………………………………………………………………………………….. 6 Kolender v. Lawson 461 U.S. 352, 357 (1983)………………………………………………………………………………………. 12, 14 iii Morrow v. State 511 P.2d 127, 129 (Alaska 1973) …………………………………………………………………………………… 5 Nat’l Football League v. Governor of Del. 435 F. Supp. 1372, 1383 (D. Del. 1977)………………………………………………………………………….. 6 Pennsylvania v. Dent No. 733-2008, slip op. at 13 (Pa. Ct. Com. Pl. Jan. 14, 2009)……………………………………………… 7 Sojourner v. Town of St. George Op. No. 26680 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 30 at 13). …………… 16 State ex rel. Tyson v. Ted’s Game Enters. 893 So.2d 355, 376 (Ala. 2002) …………………………………………………………………………………….. 7 State v. Blackmon 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991)………………………………………………………………… 5 State v. Coats 74 P.2d 1102, 1106 (Or. 1938)………………………………………………………………………………………. 7 State v. Curtis 356 S.C. 622, 591 S.E.2d 600 (2004)……………………………………………………………………………. 12 State v. Henderson 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct.App.2001) …………………………………………………….. 3 State v. Neuman Op. No. 26676 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 29 at 14) ……………. 12 State v. Sweat 379 S.C. 367, 377, 665 S.E.2d 645, 651 (Ct.App.2008) …………………………………………………… 11 State v. Wilson 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001) ………………………………………………………………………. 3 Whitner v. State 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997) ………………………………………………………………………. 4 Statutes South Carolina Code Ann. § 16-19-40 ………………………………………………………………………. passim South Carolina Code Ann. § 18-3-10………………………………………………………………………………… 1 Other Authorities AudioEnglish.net …………………………………………………………………………………………………………. 14 7 S.C. Jur. Gaming § 3 (2008) …………………………………………………………………………………………. 3 iv Op. S.C. Att’y Gen. (Jan. 22, 2004) ………………………………………………………………………………….. 9 Random House College Dictionary…………………………………………………………………………………… 4 The Free Dictionary by Farlex ……………………………………………………………………………………….. 14 Webster’s II New College Dictionary………………………………………………………………………………. 11 Webster’s New World Dictionary …………………………………………………………………………………….. 4 v Appellants Robert L. Chimento, Scott Richards, Michael Williamson, Jeremy Brestel, and John T. Willis, by and through their undersigned counsel, pursuant to South Carolina Code Ann. § 18-3-10, submit this Brief and Memorandum of Law in support of their appeal to the Court of Common Pleas for the Ninth Judicial Circuit from the final order of the Honorable J. Lawrence Duffy, Jr., Charleston County Municipal Court, Mount Pleasant, South Carolina, entered on February 19, 2009. FACTUAL BACKGROUND On April 12, 2006, approximately seventeen individuals, including Appellants, gathered at the home of Nathaniel Stallings to play Texas Hold’em poker. The “buy-in”1 for the game was between $5.00 and $20.00, the “blinds”2 were 25¢ and 50¢, and the average pot size was between $5.00 and $10.00. Trial Tr. at 93, 98-99 (Appellants’ Exhibit A). Periodically, 50¢ was taken from the pot to reimburse Stallings for the food and beverages consumed by the players. Trial Tr. at 93. According to the testimony at trial, the players came together once or twice a week to play Texas Hold’em. No one profited from the playing of the game other than the winning players. About one hour into the game, police officers in full “SWAT gear,” some armed with semi-automatic weapons, burst into the home. After all of the players had been handcuffed, a search was conducted of Stallings’ entire house, the players, and the players’ vehicles and all currency was seized. The arresting officers cited Appellants and other players for violating South Carolina Code Ann. § 16-19-40 which states: If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game 1 2 A “buy-in” is the initial purchase of chips by the individual players. The “blinds” are required bets posted by the two players to the left of the dealer button. The “small blind” (which is posted by the player to the left of the dealer button) is equal to half of the minimum bet (25¢ in this case) and the big blind (which is posted by the player to the left of the person sitting in the small blind) is equal to the minimum bet (50¢ in this case). 1 with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense. S.C. Code Ann. § 16-19-40 (emphasis added). The relevant portion of this statute is: “If any person shall play . . . in any house used as a place of gaming . . . any game with cards . . . upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars.” Id. A bench trial was conducted on February 13, 2009. The court heard testimony from Nathaniel Stallings who, along with his fiancée, resided in the home where the arrests were made; Appellant Jeremy Brestel, one of the players; Michael Sexton, a “World Poker Tour” player and commentator; Robert Hannum, Ph.D., a professor of statistics and probability; and Justin Hembree, one of the arresting officers. Sexton and Hannum testified as expert witnesses, and presented uncontroverted testimony and evidence that Texas Hold’em is predominately a game of skill. See Trial Tr. at 140-192 (Sexton Testimony) & 193-217 (Hannum Testimony). The trial court expressly found that “Texas Hold’em is a game of skill. The evidence The court and studies are overwhelming that this is so.” Order at 3. (Appellants’ Exhibit B). also stated that, since Texas Hold’em is a game of skill, Appellants would not be in violation of § 16-19-40 if South Carolina used the dominant factor test to define gaming. However, the court 2 stopped short of applying the dominant factor test, stating that it “has no clear guideline from the Legislature or from the majority of [the] Supreme Court [of South Carolina],” and found the Appellants guilty. Order at 4. Apparently, the court based its decision, in part, on an Attorney General’s opinion which “indicates the Legislature prohibits playing of any game with cards or dice.” Order at 4. However, this is not a correct statement of the law; § 16-19-40 only prohibits playing cards in certain specifically enumerated places. See infra note 5. STANDARD OF REVIEW On appeal from a municipal court, the circuit court does not conduct a trial de novo, but reviews for errors of law only. State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct.App.2001) (citing City of Columbia v. Felder, 274 S.C. 12, 13, 260 S.E.2d 453, 454 (1979). Further, the circuit court is “bound by the trial court’s factual findings unless they are clearly erroneous.” State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). ARGUMENT I. NON-CONSTITUTIONAL BASIS FOR OVERTURNING APPELLANTS’ CONVICTIONS: Appellants’ Conduct Did Not Violate S.C. Code Ann. § 1619-40(a). Appellants were convicted of violating S.C. Code Ann. § 16-19-40(a), which prohibits playing at “any game with cards or dice” while “in any house used as a place of gaming.”3 To establish a violation of § 16-19-40(a), the State must prove two elements beyond a reasonable doubt: (1) that the defendant was “in [a] house used as a place of gaming” and (2) that the defendant was playing a “game with cards or dice.” Appellants admit they were playing Texas Hold’em, a game played with cards, thus satisfying the second element. However, they maintain 3 The parties agree that the words “gaming” and gambling” are synonymous and used interchangeably. See 7 S.C. Jur. Gaming § 3 (2008) (“As legal terms, ‘gaming’ and ‘gambling’ 3 that because, as the lower court expressly found, Texas Hold’em is predominately a game of skill, they were not “in [a] house used as a place of gaming,” i.e., a house used for “playing at any game of chance for stakes” or a house used “to play games of chance for money.” S.C. Code Ann. § 16-19-40(a); see Random House College Dictionary and Webster’s New World Dictionary (definition of “gambling”). The Town apparently takes the position that playing Texas Hold’em in a residence automatically makes that structure a “house used as a place of gaming.” As Appellants explain later (see infra page 11) this approach violates basic rules of statutory construction. That aside, taking the approach the Town advances to its logical conclusion produces a result favorable to Appellants. Even under the Town’s position, in order for card playing to render Stallings’ residence a “place of gaming” the card playing must itself be gaming (gambling). Appellants believe that when faced with the question, the South Carolina Supreme Court will adopt the dominant factor test for determining whether an activity constitutes “gaming” or “gambling.” Under this test, because Texas Hold’em is predominately a game of skill, it is not gambling, and if it is not gambling, then it necessarily follows that Stallings’ residence could not be a “house of gaming.” Therefore, the Appellants’ convictions must be reversed. The question of whether Appellants were in a “house used as a place of gaming” is one of statutory construction. Therefore, the “primary function” of the court “is to ascertain the intent of the legislature.” Whitner v. State, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997). To the extent the statute is clear and unambiguous, it should be applied according to its terms. See First South Sav. Bank, Inc. v. Gold Coast Assocs., Inc., 301 S.C. 158, 160, 390 S.E.2d 486, 487 (Ct.App.1990). Additionally, “when a statute is penal in nature, it must be construed strictly are the same . . . .”). 4 against the State and in favor of the defendant.” State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991); see Berry v. State, 381 S.C. 630, 633-34, 675 S.E.2d 425, 426-27 (2009) (noting that South Carolina adheres to the “rule of lenity—the principle that any ambiguity must be resolved in favor of the accused”). A. When faced with the issue, the South Carolina Supreme Court will likely adopt the dominant factor test. The South Carolina Supreme Court has defined at least “one species of gambling” in finding that S.C. Code §§ 1231 to 1233 (1932) are “undoubtedly directed at a particular type of gaming or gambling which has become commonly known as a lottery.” Darlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782, 786 (1939). Darlington Theatres held that this type of gambling has occurred if a prize, after consideration is paid, is awarded on the basis of chance. Id. Thus, it appears that the Supreme Court applied the dominant factor test, or one close to it, without calling it such. An overwhelming majority of states have now adopted the dominant factor test to determine if an activity is gambling. See Johnson v. Collins Entm’t Co., 333 S.C. 96, 113, 508 S.E.2d 575, 584 (1998) (3-2 decision) (Burnett, J., joined by Toal, J., dissenting) (“Johnson”). Using the dominant factor test, an activity is classified as either one of skill or chance depending on which element is dominant. See Morrow v. State, 511 P.2d 127, 129 (Alaska 1973). The mere presence of some element of chance does not make an activity gambling. Four factors are commonly used to determine if skill predominates over chance: (1) Participants must have a distinct possibility of exercising skill and must have sufficient data upon which to calculate an informed judgment. . . . (2) Participants must have the opportunity to exercise the skill, and the general class of participants must possess the skill. . . . (3) Skill or the competitors’ efforts must sufficiently govern the result. . . . [and] (4) The standard of skill must be known to the participants, and this standard must govern the result. Morrow, 511 P.2d at 129; see Horner v. United States, 147 U.S. 449, 459 (1893) (noting that 5 Webster’s Dictionary defines “lottery” as “a distribution of prizes by lot or chance”); see also Johnson v. Phinney, 218 F.2d 303, 306 (5th Cir. 1955) (holding that if chance predominates over skill “the game or device is a lottery”); Commonwealth v. Plissner, 4 N.E.2d 241, 244 (Mass. 1936) (stating that “[w]ith reference to cases where [elements of skill and chance are both] present, the rule generally stated is that if the element of chance rather than that of skill predominates, the game may be found to be a lottery.”). Although the Supreme Court of South Carolina has not yet squarely addressed the issue before this Court, Associate Justice Burnett’s well-reasoned dissenting opinion in Johnson, in which Chief Justice Toal joined, indicates how the South Carolina Supreme Court will likely decide this question. 333 S.C. at 105-120, 508 S.E.2d at 580-88. In Johnson, the court was tasked with determining whether certain types of video gaming machines constituted a “lottery” in violation of the South Carolina Constitution. The majority concluded that because the South Carolina Constitution narrowly defined “lottery” as a game involving “a drawing and ‘tickets’ or other indicium of entitlement to a prize,” the video gaming machines at issue were not a lottery. Johnson, 333 S.C. at 104, 508 S.E.2d at 579.4 Justice Burnett, in dissent, stated that the test for determining whether an activity is a constitutionally prohibited lottery is set forth in Darlington Theatres: “(1) The giving of a prize, (2) by a method involving chance, (3) for a consideration paid by the contestant or participant.” Johnson, 333 S.C. at 108, 508 S.E.2d at 581-82 (citing Darlington Theatres, 190 S.C. at 291, 2 S.E.2d at 786); see Nat’l Football League v. Governor of Del., 435 F. Supp. 1372, 1383 (D. Del. 1977) (“It is unquestioned that there are three elements necessary to a lottery: prize, consideration and chance.”); Gandolfo v. Louisiana State Racing Comm’n, 78 So.2d 504, 509 4 Thus, the majority did not address application of the dominant factor test, deciding the case on 6 (La. 1954) (“Lottery has been defined as a scheme for the distribution of prizes by lot or chance.”); State v. Coats, 74 P.2d 1102, 1106 (Or. 1938) (“Three things are necessary to constitute a lottery, viz., prize, chance, and consideration.”). With respect to the second element of the test, “by a method involving chance,” Justice Burnett stated that he would apply the dominant factor test, which he noted was “supported by the majority of jurisdictions which have considered this question.” Johnson, 333 S.C. at 113, 508 S.E.2d at 584 (Appellants’ Exhibit C lists the cases cited by Justice Burnett in support of this proposition); see also Pennsylvania v. Dent, No. 733-2008, slip op. at 13 (Pa. Ct. Com. Pl. Jan. 14, 2009) (applying the dominant factor test to Texas Hold’em and determining that “it is apparent that skill predominates over chance in Texas Hold’em poker”); State ex rel. Tyson v. Ted’s Game Enters., 893 So.2d 355, 376 (Ala. 2002) (holding that the relevant test in Alabama for whether or not a game is a prohibited lottery under Alabama’s Constitution is “whether the outcome of that game or activity is determined predominately by skill or by chance”); In re Allen, 377 P.2d 280, 281 (Cal. 1962) (applying the dominant factor test to determine that the card game of bridge is a game of skill, thus, not prohibited under a county ordinance). In Johnson, Chief Justice Toal concurred with Justice Burnett that the dominant factor test should control the question of whether an activity constitutes a game of chance. Johnson, 333 S.C. at 120, 508 S.E.2d at 588. She stated that “[Justice Burnett] has set forth the legal standard which should be used to define the term lottery as it appears in South Carolina’s Constitution in a manner which is faithful to our Court’s precedents and well within the mainstream of American court decisions.” Id. Applying the dominant factor test, Chief Justice Toal agreed with Justice Burnett’s determination that the video games at issue met the definition an unrelated ground. 7 of “lottery” and thus were prohibited by the South Carolina Constitution. Johnson, 333 S.C. at 117-20, 508 S.E.2d at 586-88. Moreover, there is no reason to believe that the majority in Johnson would not have applied the dominant factor test if it had not decided the case on other grounds. The majority framed its analysis narrowly by only focusing on whether a certain activity constituted a lottery under the South Carolina Constitution and avoiding the broader question of whether it was a game of chance. Johnson, 333 S.C. at 104, 508 S.E.2d at 579. But the majority did describe § 16-19-40 as “prohibiting games of chance or gambling devices at state and county fairs.” Johnson, 333 S.C. at 101, 508 S.E.2d at 578 (emphasis added). Significantly, the statute does not use the words “games of chance”–it uses “place of gaming.” S.C. Code Ann. § 16-19-40. Thus, the majority’s equation of “gaming” (in the statute) to “games of chance” (in the majority’s description of the statute) is a strong indication that it believes that this section prohibits only games of chance. In addition to the guidance offered by Justice Burnett and Chief Justice Toal in Johnson, the office of the South Carolina Attorney General has consistently applied the dominant factor test when issuing opinions about whether certain activity is legal. January 22, 2004 the Attorney General stated: We have consistently stated that the test of whether a particular game is a game of chance or skill is governed by the so-called ‘predominance’ test. This test was described in a recent [Attorney General’s] opinion, dated May 5, 2003 as follows: [h]istorically, it has been the opinion of this Office, as well as a majority of jurisdictions in this country, that a ‘game of chance’ is one in which the element of chance predominates over any skill involved. On the other hand, a ‘game of skill’ is one in which the element of skill is predominant over the element of chance. See, Ops. S.C. Atty. Gen., August 2, 2001; September 5, 1995; December 5, 1978; Op. No. 3629 . . . . While the South Carolina Supreme Court has never squarely adopted this so-called ‘Dominant Factor’ test, the dissent in Johnson v. Collins Entertainment Co. . . . indicates that the Court would accept In an Opinion dated 8 this rule.5 Op. S.C. Att’y Gen. (Jan. 22, 2004). In summary, when presented with the question, there are compelling reasons to believe that the South Carolina Supreme Court will adopt the dominant factor test for determining whether an activity constitutes “gaming” or “gambling.” First, Darlington Theatres in effect adopted this test without calling it such. See Darlington Theatres, 190 S.C. 282, 2 S.E.2d at 786. Second, in Johnson, the only two Justices of the Supreme Court to address this issue–including the current Chief Justice–both squarely held that they would apply the dominant factor test. Johnson, 333 S.C. at 105-124, 508 S.E.2d at 580-90. This is particularly important in light of the fact that there has never been any indication, even the slightest, that the dominant factor test would not be adopted. Third, the majority in Johnson clearly stated that § 16-19-40 prohibited “games of chance and gambling devices.” Fourth, the office of the South Carolina Attorney General has “consistently stated” that the dominant factor test should be used to determine “whether a particular game is a game of chance or skill.” Op. S.C. Att’y Gen. (Jan. 22, 2004). Fifth, the dominant factor test has been adopted by the overwhelming majority of courts across the country. Finally, if the Court has any doubt that the South Carolina Supreme Court will apply the dominant factor test, the rule of lenity requires that such doubt be resolved in favor of Appellants. See Berry, 381 S.C. at 633-34, 675 S.E.2d at 426. B. Under the dominant factor test, Texas Hold’em is not “gaming” or “gambling.” The uncontroverted evidence presented at trial supports the trial court’s factual finding 5 This advisory opinion incorrectly stated that poker is a game of chance. Perhaps the opinion’s misunderstanding of § 16-19-40 led to this error. The opinion incorrectly stated that § 16-19-40 prohibited the playing of “any game with cards or dice.” In fact, this section prohibits the playing 9 that “Texas Hold’em is a game of skill. The evidence and studies are overwhelming that this is so.” Order at 3. See Brief of Amicus Curiae The Poker Players Alliance in Support of Defendants (offering an extensive analysis of why skill predominates over chance in Texas Hold’em poker). Since there is no question that Texas Hold’em is predominately a game of skill, application of the dominant factor test necessarily results in the conclusion that Texas Hold’em is not “gaming” or “gambling.” C. A residence in which Texas Hold’em is played is not a “house used as a place of gaming.” Since the evidence presented at trial clearly demonstrates that Texas Hold’em is a game of skill and because the South Carolina Supreme Court will likely adopt the dominant factor test, Texas Hold’em could not be “gambling” or “gaming” under § 16-19-40. Therefore, Appellants were not in “any house used as a place of gaming” at the time of their arrests. Their convictions must be reversed. D. Alternatively, § 16-19-40(a) is ambiguous and must be construed in favor of Appellants. Without adoption of the dominant factor test § 16-19-40(a) remains ambiguous and pursuant to the rule of lenity, § 16-19-40 must be construed in favor of Appellants, resulting in their convictions being reversed. Nathanial Stallings and his fiancée reside in the house where Appellants were arrested. This raises the question of whether a structure used primarily as a personal residence becomes a “house of gaming” simply because the resident of the home periodically invites others into the home to play cards. This is not a likely reading given the surrounding text, which focuses on commercial operations (tavern, inn, and store) and outbuildings (barn, kitchen, stable, or other of “any game with cards or dice” only in certain specifically enumerated places. 10 outhouse).6 It is thus not at all clear that a home used primarily as a residence can constitute a “house of gaming” within the meaning of the statute. It is even more likely that the word “house” in § 16-19-40 is not intended to refer to a residence at all, but rather to a place maintained for the express purpose of gambling. See Webster’s II New College Dictionary 535 (1999) (defining “house” in part as “[a] building used for a particular purpose, as entertainment”). As the trial court noted, neither the language of the statute itself nor the Supreme Court or the Legislature has “explicitly and precisely defined gaming or gambling house.” Order at 3. The term “gaming or gambling house” surely cannot simply refer to a location in which the activities enumerated in subsections (a) through (g) are carried out. Such a construction would render the phrase “house used as a place of gaming” superfluous, in violation of established rules of statutory construction. See, e.g., State v. Sweat, 379 S.C. 367, 377, 665 S.E.2d 645, 651 (Ct.App.2008) (“A statute should be so construed that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous.” (internal quotation marks omitted)). In other words, to violate § 16-19-40(a) two elements must be established beyond a reasonable doubt: (1) that the defendant was in a “house used as a place of gaming” and (2) that in that structure the defendant was playing a “game with cards or dice.” Thus, a violation only occurs when the defendant is in an enumerated prohibited location and in that prohibited location is playing cards. Simply playing Texas Hold’em does not make the location of the card playing a prohibited place. See supra note 6. To make its case the Town had to prove that Stallings’ residence was a “house used as a place of gaming” independent of the fact that Texas Hold’em 6 In 1802, when § 16-19-40 was drafted, it was commonplace for the kitchen to be detached from the main dwelling to reduce the risk of fire damage. It thus appears that under § 16-19-40, playing with cards or dice would be legal within the main dwelling, if in the parlor, sitting room, 11 was played there. In light of these intractable ambiguities, this court should, according to the rule of lenity, construe the statute in Appellants’ favor and reverse their convictions. II. Constitutional Basis for Overturning Appellants’ Convictions The Court need not reach the constitutional issues raised if it recognizes that the dominant factor test applies. However, if it elects to address these issues the Court should find § 16-19-40(a) unconstitutional on the basis of vagueness and because it is overbroad. A. Section 16-19-40(a) is unconstitutionally vague and therefore unenforceable. Procedural due process compels the reversal of Appellants’ convictions. This is because § 16-19-40 does not give reasonable notice to a person of ordinary intelligence of the conduct the statute attempts to make criminal. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004). Put another way, if people of common intelligence “must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.” Guinyard v. State, 260 S.C. 220, 226, 195 S.E.2d 392, 394 (1973); Kolender v. Lawson, 461 U.S. 352, 357 (1983); see State v. Neuman, Op. No. 26676 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 29 at 14) (the latest discussion of the void-for-vagueness doctrine and its application in South Carolina). As stated in Gravned v. City of Rockford, 408 U.S. 104, 108-09 (1972): Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. living room, dining room, etc., but prohibited in the outbuildings and servants’ quarters. 12 Id. (Footnotes omitted). The statute here provides no definitions for the words “gaming” or “gambling.” Does “gaming” and “gambling” mean a game where the outcome is controlled predominately by chance? Texas Hold’em players know full well that skill is the factor that primarily determines who the winner will be. Does this uncontroverted fact, specifically recognized by the trial court, remove this game from the definition of “gaming” or “gambling?” The answer is yes but that determination cannot be found in the words of the statute. The statute first refers to “any tavern, inn, store for the retailing of spirituous liquors” which are all public places. And then it reads “or in any house used as a place of gaming.” Does this mean that a private residence suddenly becomes a “place of gaming” when the occupants of the residence play bridge with neighbors or monopoly with their children? Someone skilled in statutory construction could make a plausible argument that the answer to this question is yes. But surely the average citizen would conclude that this cannot be right – the statute must mean something else – but what is that something else? The interpretation of this statute by the officer charged with enforcing it demonstrates why this statute should be declared void for vagueness. Police Officer Justin Hembree testified that he was one of the officers who served the search warrant and arrested Appellants. Despite the fact that he specialized in narcotics and vice, which included gambling (Trial Tr. at 11), he unquestionably misinterpreted § 16-19-40. On direct examination he gave his opinion, based on his “training and experience,” that Mr. Stallings’ personal residence “was used for the express purpose of gaming, of gambling.” Trial Tr. at 30. Yet, when asked on cross examination about his understanding of what constituted a violation of the statute he testified that “[i]t depends if it’s being run as a business for profit. I think it makes a difference.” Trial Tr. at 39. He then 13 testified that “if it’s a group of people that randomly meet once every six months . . . and they play a game of poker, that is not a house of gaming. My understanding of the statute is a constant use of one location for the purpose of gambling. That’s my understanding of it.” Trial Tr. at 40-41. So Officer Hembree, who was charged with enforcing § 16-19-40, read the statute as defining a place of gaming as one where the house took a profit or a location that was “constant[ly]” used “for the purpose of gambling.” He could reach such conclusions only because the statute is so vague that no one can determine what it really means. Although not empowered with setting public policy, apparently Officer Hembree was interpreting it in a way in which he believed resulted in good public policy. And therein lies the problem – what is good public policy to one individual may not be to another. The only way to find that Appellants’ activity occurred in a prohibited place is to view the residential abode as a “house used as a place of gaming.” A penal statute is required to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357 (1983); Colautti v. Franklin, 439 U.S. 379, 391 (1979). A “house used as a place of gaming” is not defined in the statute, nor can one find direction from a law dictionary or even Webster’s or American Heritage dictionaries. A “Google” search on the term “house of gaming” or “gaming house” produced the following definition by two independent sources: “A public building in which a variety of games of chance can be played.” The Free Dictionary by Farlex (available at http://www.thefreedictionary.com); AudioEnglish.net (available at http://www.audioenglish.net). Because Johnson instructs that § 16-19-40 prohibits “games of chance or gambling devices” and because Texas Hold’em is neither, the most logical interpretation is that this statute did not prohibit Appellants’ card playing. At the very least it must be said that this statute (as far 14 as Appellants are concerned) does not alert a person of ordinary intelligence as to what it does prohibit. As such, it is unconstitutionally vague and unenforceable. B. Section 16-19-40(a) is unconstitutionally overbroad. 1. Section 16-19-40(a) is overbroad and unenforceable. A statute may be facially invalid “either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). Section 16-19-40(a)’s prohibition of playing “any game with cards or dice” at or in “any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place” encompasses such a broad range of entirely innocent conduct that it violates elemental notions of fairness. If this statute, as written, constitutionally applies to Appellants, then it is very likely that every citizen of the state of South Carolina has violated or will violate § 16-19-40(a) at some point in his or her life. Any family playing the children’s card game “Go Fish” while waiting on dinner at an Applebee’s restaurant certainly would be flagrantly violating the statute. Another family playing the dice game of Yahtzee in a city park would likewise be guilty. A middle school youth group playing Monopoly on the church playground would be just as culpable. A business traveler playing solitaire in an airport lounge, and potentially the members of a bridge club playing bridge in the clubhouse of a local retirement home, would also be acting in violation of this statute. Simply put, § 16-19-40(a) subjects every man, woman and child in South Carolina who sits down to play a game in which cards or dice are used to potential criminal liability. As such, § 16-19-40(a) is unconstitutionally overbroad on its face and unenforceable. 15 2. Section 16-19-40(a) is severable and may be invalidated without invalidating the remaining portions of § 16-19-40. Section 16-19-40(a) is severable from the rest of the statute and may be declared unconstitutional without invalidating the entire statute. In South Carolina the “test for severability is whether the constitutional portion of the statute remains complete in itself, wholly independent of that which is rejected, and is of such a character that it may fairly be presumed that the legislature would have passed it independent of that which conflicts with the constitution.” Sojourner v. Town of St. George, Op. No. 26680 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 30 at 13). Assuming the remainder of the statute is found to be constitutionally valid, the statute clearly remains complete in itself independent of the removal of § 16-19-40(a)’s unconstitutional prohibition of “any game with cards or dice.” As such, § 16-1940(a) is severable and may be invalidated without invalidating the entire statute. Since § 16-19-40(a) is severable and unconstitutionally overbroad as outlined above, it should be stricken from the language of § 16-19-40 and Appellants’ convictions should be overturned. CONCLUSION Appellants’ convictions should be overturned for the following reasons: 1. Applying the dominant factor test to the game of Texas Hold’em compels the conclusion that playing Texas Hold’em is not gambling. Thus, even under the Town’s approach, the Stallings’ residence could not be a “house used as a place of gaming.” 2. There was no independent showing that the Stallings’ residence was a “house used as a place of gaming.” 3. Because § 16-19-40(a) is ambiguous the rule of lenity requires that it be construed in favor of Appellants. Under the particular facts here such a construction results in a finding 16 that the Stallings’ residence was not a “house used as a place of gaming.” 4. 5. Section 16-19-40(a) is unconstitutionally vague and therefore unenforceable. Section 16-19-40(a) is unconstitutionally overbroad and unenforceable. /s/ William W. Wilkins William W. Wilkins NEXSEN PRUET, LLC 55 East Camperdown Way (29601) Post Office Drawer 10648 Greenville, South Carolina 29603-0648 864.370.2211 Jeffrey A. Phillips PHILLIPS LAW FIRM 1425 Augusta Street Greenville, South Carolina 29605 864.233.7373 Attorneys for Appellants July 29, 2009 Greenville, South Carolina 17