sc poker brief - wilkins phillips (07 29 09)

8/14/2019 SC Poker Brief - Wilkins Phillips (07 29 09)

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STATE OF SOUTH CAROLINA

COUNTY OF CHARLESTON

IN THE COURT OF COMMON PLEAS

Robert L. Chimento, Scott Richards, MichaelWilliamson, Jeremy Brestel, and John T.Willis,

Appellants,

vs.

Town of Mount Pleasant,

Respondent.

Case No. 2009-CP-10-001551

Appellants Brief and Memorandum of

Law in Support of Appeal from

Conviction in Municipal Court

William W. WilkinsNEXSEN PRUET, LLC55 East Camperdown Way (29601)Post Office Drawer 10648Greenville, South Carolina 29603-0648

864.370.2211

Jeffrey A. PhillipsPHILLIPS LAW FIRM1425 Augusta StreetGreenville, South Carolina 29605864.233.7373Attorneys for Appellants


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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. 16-19-40(a)............................................................................................................................... 3

A. When faced with the issue, the South Carolina Supreme Court will likelyadopt the dominant factor test ................................................................................ 5

B. Under the dominant factor test, Texas Holdem is not gaming orgambling. ........................................................................................................... 9

C. A residence in which Texas Holdem is played is not a house used as aplace of gaming.................................................................................................. 10

D. Alternatively, 16-19-40(a) is ambiguous and must be construed in favor of

Appellants............................................................................................................ 10

II. Constitutional Basis for Overturning Appellants Convictions ...................................... 12

A. Section 16-19-40(a) is unconstitutionally vague and therefore unenforceable ....... 12

B. Section 16-19-40(a) is unconstitutionally overbroad............................................. 15

1. Section 16-19-40(a) is overbroad and unenforceable .................................... 15

2. Section 16-19-40(a) is severable and may be invalidated withoutinvalidating the remaining portions of 16-19-40......................................... 16

CONCLUSION........................................................................................................................ 16


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TABLE OF AUTHORITIES

Cases Page(s)

In re Allen377 P.2d 280, 281 (Cal. 1962) .................................................................................................... 7

Berry v. State381 S.C. 630, 633-34, 675 S.E.2d 425, 426-27 (2009) ............................................................ 5, 9

City Council of Los Angeles v. Taxpayers for Vincent466 U.S. 789, 796 (1984).......................................................................................................... 15

City of Columbia v. Felder274 S.C. 12, 13, 260 S.E.2d 453, 454 (1979) .............................................................................. 3

Colautti v. Franklin439 U.S. 379, 391 (1979).......................................................................................................... 14

Commonwealth v. Plissner4 N.E.2d 241, 244 (Mass. 1936) ................................................................................................. 6

Darlington Theatres v. Coker190 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 Rockford408 U.S. 104, 108-09 (1972)..................................................................................................... 12

Guinyard v. State260 S.C. 220, 226, 195 S.E.2d 392, 394 (1973)......................................................................... 12

Horner v. United States147 U.S. 449, 459 (1893)............................................................................................................ 5

Johnson v. Collins Entmt Co.333 S.C. 96, 113, 508 S.E.2d 575, 584 (1998) ................................................................... passim

Johnson v. Phinney218 F.2d 303, 306 (5th Cir. 1955)............................................................................................... 6

Kolender v. Lawson461 U.S. 352, 357 (1983).................................................................................................... 12, 14


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Morrow v. State511 P.2d 127, 129 (Alaska 1973) ................................................................................................ 5

Natl 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. GeorgeOp. No. 26680 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 30 at 13). ............... 16

State ex rel. Tyson v. Teds Game Enters.893 So.2d 355, 376 (Ala. 2002) .................................................................................................. 7

State v. Blackmon304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991)........................................................................... 5

State v. Coats74 P.2d 1102, 1106 (Or. 1938).................................................................................................... 7

State v. Curtis356 S.C. 622, 591 S.E.2d 600 (2004)........................................................................................ 12

State v. Henderson347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct.App.2001) .............................................................. 3

State v. NeumanOp. No. 26676 (S.C.Sup.Ct. filed June 29, 2009) (Shearouse Adv. Sh. No. 29 at 14)................ 12

State v. Sweat379 S.C. 367, 377, 665 S.E.2d 645, 651 (Ct.App.2008) ............................................................ 11

State v. Wilson345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001) .................................................................................. 3

Whitner v. State328 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 AuthoritiesAudioEnglish.net ......................................................................................................................... 14

7 S.C. Jur. Gaming 3 (2008) ....................................................................................................... 3


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Op. S.C. Atty 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


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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 Holdem poker. The buy-in1 for the game

was between $5.00 and $20.00, the blinds2 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 Holdem. 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 orin any house used as a place of gaming, barn, kitchen, stable or otherouthouse, street, highway, open wood, race field or open place at (a) any game

1 A buy-in is the initial purchase of chips by the individual players.2 The blinds are required bets posted by the two players to the left of the dealer button. Thesmall blind (which is posted by the player to the left of the dealer button) is equal to half of theminimum bet (25 in this case) and the big blind (which is posted by the player to the left of theperson sitting in the small blind) is equal to the minimum bet (50 in this case).


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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 Generals 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 courts 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 APPELLANTSCONVICTIONS: Appellants Conduct Did Not Violate S.C. Code Ann. 16-

19-40(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

Holdem, a game played with cards, thus satisfying the second element. However, they maintain

3The 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


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that because, as the lower court expressly found, Texas Holdem 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 Websters New World

Dictionary (definition of gambling).

The Town apparently takes the position that playing Texas Holdem 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 Towns 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 Holdem 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 . . . .).


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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 lenitythe 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 Entmt 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 havesufficient data upon which to calculate an informed judgment. . . . (2) Participantsmust have the opportunity to exercise the skill, and the general class ofparticipants must possess the skill. . . . (3) Skill or the competitors' efforts mustsufficiently govern the result. . . . [and] (4) The standard of skill must be knownto 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


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Websters 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 Burnetts 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 Natl 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


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(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 Holdem and determining that it is

apparent that skill predominates over chance in Texas Holdem poker); State ex rel. Tyson v.

Teds 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 Alabamas 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 Burnetts determination that the video games at issue met the definition

an unrelated ground.


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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 chanceit uses place of gaming. S.C. Code Ann. 16-19-40. Thus,

the majoritys equation of gaming (in the statute) to games of chance (in the majoritys

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. In an Opinion dated

January 22, 2004 the Attorney General stated:

We have consistently stated that the test of whether a particular game is a game ofchance or skill is governed by the so-called predominance test. This test wasdescribed in a recent [Attorney Generals] opinion, dated May 5, 2003 as follows:[h]istorically, it has been the opinion of this Office, as well as a majority ofjurisdictions in this country, that a game of chance is one in which the elementof chance predominates over any skill involved. On the other hand, a game ofskill is one in which the element of skill is predominant over the element ofchance. See, Ops. S.C. Atty. Gen., August 2, 2001; September 5, 1995;December 5, 1978; Op. No. 3629 . . . . While the South Carolina Supreme Courthas never squarely adopted this so-called Dominant Factor test, the dissent inJohnson v. Collins Entertainment Co. . . . indicates that the Court would accept


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this rule.5

Op. S.C. Atty 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 issueincluding

the current Chief Justiceboth 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. Atty 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 Holdem is not gaming or

gambling.

The uncontroverted evidence presented at trial supports the trial courts factual finding

5 This advisory opinion incorrectly stated that poker is a game of chance. Perhaps the opinionsmisunderstanding of 16-19-40 led to this error. The opinion incorrectly stated that 16-19-40prohibited the playing of any game with cards or dice. In fact, this section prohibits the playing


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that Texas Holdem 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

Holdem poker). Since there is no question that Texas Holdem is predominately a game of skill,

application of the dominant factor test necessarily results in the conclusion that Texas Holdem is

not gaming or gambling.

C. A residence in which Texas Holdem is played is not a house used as

a place of gaming.

Since the evidence presented at trial clearly demonstrates that Texas Holdem is a game

of skill and because the South Carolina Supreme Court will likely adopt the dominant factor test,

Texas Holdem 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 fiance 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.


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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 Websters 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 Holdem 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 Holdem

6 In 1802, when 16-19-40 was drafted, it was commonplace for the kitchen to be detached fromthe 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,


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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 manis free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what isprohibited so that he may act accordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary and discriminatory enforcementis to be prevented, laws must provide explicit standards for those who applythem. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with theattendant dangers of arbitrary and discriminatory application.

living room, dining room, etc., but prohibited in the outbuildings and servants quarters.


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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 Holdem 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

its being run as a business for profit. I think it makes a difference. Trial Tr. at 39. He then


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testified that if its 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. Thats 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 Websters 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 Holdem 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
http://www.audioenglish.net%29./http://www.audioenglish.net%29./http://www.audioenglish.net%29./


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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 childrens card game Go Fish while waiting on

dinner at an Applebees 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.


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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, 16-19-

40(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 Holdem compels the

conclusion that playing Texas Holdem is not gambling. Thus, even under the Towns 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


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that the Stallings residence was not a house used as a place of gaming.

4. Section 16-19-40(a) is unconstitutionally vague and therefore unenforceable.

5. Section 16-19-40(a) is unconstitutionally overbroad and unenforceable.

July 29, 2009Greenville, South Carolina

/s/ William W. Wilkins

William W. WilkinsNEXSEN PRUET, LLC55 East Camperdown Way (29601)Post Office Drawer 10648Greenville, South Carolina 29603-0648

864.370.2211

Jeffrey A. PhillipsPHILLIPS LAW FIRM1425 Augusta StreetGreenville, South Carolina 29605864.233.7373Attorneys for Appellants

sc poker brief - wilkins phillips (07 29 09)

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