State v. Koo

• Decision Date: 16 June 1982
• Docket Number: No. O-81-75,O-81-75
• Citation: 647 P.2d 889
• Parties: STATE of Oklahoma, Appellant, v. Gary KOO and Anthony Salvatore Jacene, Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 889

647 P.2d 889

STATE of Oklahoma, Appellant, v. Gary KOO and Anthony Salvatore Jacene, Appellees.

No. O-81-75.

Court of Criminal Appeals of Oklahoma.

June 16, 1982.

Rehearing Denied July 12, 1982.

An Appeal from the District Court of Cleveland County; Thomas Walker, Associate District Judge.

Gary Koo and Anthony Salvatore Jacene, appellees, were charged in Cleveland County District Court individually on several counts of Commercial Gambling, State v. Jacene, CRF-80-300, CRF-80-319; State v. Koo, CRF-80-322, CRF-80-325, CRF-80-326, CRF-80-333, but a demurrer to the charges was sustained by the magistrate and district judge, and the State appeals. REVERSED.

Kay E. Huff, Dist. Atty., W. Frank Muret, First Asst. Dist. Atty., Twenty-First Judicial District, Norman, for appellant.

William E. Boswell, Jr., John M. Traw, Norman, for appellees.

OPINION

BUSSEY, Judge:

The State has appealed under Rule 6 of the Rules of the Court of Criminal Appeals from an order of the magistrate sustaining demurrers to the Information in the cases of the State of Oklahoma v. Salvatore Jacene, CRF-80-300 and CRF-80-319, and the State of Oklahoma v. Gary Koo, CRF-80-322, CRF-80-325, CRF-80-326, CRF-80-333. The magistrate's decision was affirmed by a judge of the district court. All six cases were filed as separate appeals. However, upon application by the State all six cases were consolidated under one appeal, due to their similarity and, in an effort to deal with them more efficiently.

In each information the defendants were charged with the crime of commercial gambling. The information against Jacene in case number CRF-80-300 states:

For violation of 21 Oklahoma Statutes § 982(A-1)

COMMERCIAL GAMBLING

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OKLAHOMA, KAY E. HUFF, District Attorney, comes into Court and states upon this Affidavit that the above-named Defendant on or about the 5th day of October, 1979, at Tony J's Club, 2404 S. Classen, Norman, Cleveland County, State of Oklahoma, did unlawfully, wilfully and feloniously receive from Robert Sinor, a Norman police officer, at a gambling place, nine hundred dollars ($900.00) good and lawful currency of the United States of America, said currency being received from the said Robert Sinor to place a bet between the parties based on chance, to wit: the outcome of the Iowa, Carolina and Houston football games to be played on the 6th day of September, 1979, and the outcome of the Buffalo, New England, Washington and Dallas professional football games to be played on the 7th day of September, 1979, ...

Copies of the information in CRF-80-319, CRF-80-322, CRF-80-325, CRF-80-326, CRF-80-333 appear in appendices form at the end of this opinion. ¹

In each case a demurrer to the information was filed and sustained by the same magistrate. The magistrate found that in each case, 1975 Okla.Sess.Laws, ch. 283, § 2, now 21 O.S.1981, § 982, specifically subsections A-1 and A-2 were unconstitutionally vague and indefinite. The magistrate further found that 1975 Okla.Sess.Laws, ch. 283, § 1, now 21 O.S.1981, § 981, subsection 4 which defines a "gambling place" to be unconstitutionally broad and vague. The magistrate also found the information to be so "duplicitous as to be unclear and uncertain as to the offense allegedly committed."

At the State's request, pursuant to a Rule 6 appeal, the matter was brought before a district court judge. The district court judge issued an "Order Affirming Magistrate" in each case. In making his decision the district judge found that 21 O.S.1981, § 982A-2 was the statute under which the defendant had been charged regardless of the fact that 21 O.S.1981, § 982A-1 had been specifically cited in the information. It was the district court judge's decision that 21 O.S.1981, § 982 was so broad in its scope and vague in its application that it was unconstitutional.

In order to determine the nature of an offense described in an information one must look to the charging part and its content. Menifee v. Page, 423 P.2d 478 (Okl.Cr.1967); Raybourn v. State, 339 P.2d 539 (Okl.Cr.1959). It is the opinion of this Court that the district court was correct in finding that the offense described in the body of each information stated an offense pursuant to 21 O.S.Supp.1980, § 982A-2, as opposed to § 982A-1.

Title 21 O.S.1981, § 982A, provides in pertinent part that A. Commercial Gambling is:

1. Operating or receiving all or part of the earnings of a gambling place:

2. Receiving or forwarding bets or offers to bet or, with intent to receive, record or forward bets, or offers to bet, possessing facilities to do so; (emphasis ours)

It is clear that in the charging part of each information the commercial gambling offense of "Receiving ... bets" was alleged. 21 O.S.1981, § 982A-2.

The issue which remains is whether or not the commercial gambling offense of receiving bets is constitutional. Before specifically addressing each of the purported reasons for unconstitutionality, it should be noted that statutes are presumed constitutional and the persons alleging their unconstitutionality have the burden of proof. Hilliary v. State, 630 P.2d 791 (Okl.Cr.1981); Williamson v. State, 463 P.2d 1004 (Okl.Cr.1969). Further, when reasonably possible, and within the bounds of legitimate construction, statutes should be construed so as to uphold their constitutionality. Ex parte Arnett, 93 Okl.Cr. 116, 225 P.2d 381 (1950).

The magistrate held and defendants argue that § 982A-2 is unconstitutionally vague. In justification for his ruling the magistrate stated that:

... it is impossible for a person of common understanding to know what, if any, activity is thereby prohibited.

The defendants argued that the statute is so vague that it does not give the accused fair notice of the "nature and cause" of the accusations against him as required by the Oklahoma Constitution, art. 2, § 20. The defendants further argue that the statute is so vague that it gives excessive discretion to police, judges and juries.

This Court recognizes, the requirement of specificity in penal statutes. In Switzer v. City of Tulsa, 598 P.2d 247 (Okl.Cr.1979), we stated that:

... There are essentially two independent reasons for the requirement of specificity in penal statutes. First, due process requires that citizens be afforded fair notice as to what conduct is forbidden. Secondly, explicit standards are necessary in order to prevent arbitrary arrests and convictions resting solely on the unfettered discretion of the police, judges and juries. Papachristou v. Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

Nevertheless, defendants must take upon themselves the burden of proof when alleging unconstitutionality. Hilliary v. State, supra.

In support of their vagueness theories, the defendants argue that it is impossible for a person to be able to tell in advance of what "receiving bets" consists. First it is argued that since the statute does not specifically require knowledge or intent that it is unclear as to under which circumstances the statute applies. It is this Court's opinion that the nature of this offense is such that it contains within its terms an averment of knowledge. See, State v. Lisbon Sales Book Co., 176 Ohio 482, 200 N.E.2d 590 (1964). The contention that to be constitutional this statute must specifically state a requirement of knowledge, intent or guilty purpose is without merit.

Second, it is argued that failure of the legislature to define the term "receive" makes it impossible to determine whom to prosecute. However, it is the opinion of this Court that the term "receive" is clearly understood by all. It was not the intent of the statute to prosecute those who unknowingly or without criminal intent "receive" bets. We do not find any vagueness in the term "receive."

Third, it is argued that the term "bets" is not sufficiently defined because the statutory definition of the word "bet" which is found in § 981 part 1 is unclear. Title 21 O.S.1981, § 981 part 1 defines a bet as follows:

1. A "bet" is a bargain in which the parties agree that, dependent upon chance, or in which one of the parties to the transaction has valid reason to believe that it is dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet does not include a. bona fide business transactions which are valid under the law of contracts including, but not limited to, contracts for the purchase of sale at a future date of securities or other commodities and agreements to compensation for loss caused by the happening of the chance including, but not limited to, contracts of indemnity or guaranty and life or death and accident insurance; or

b. any bingo game or a game of chance with comparable characteristics by or for participants conducted by an authorized nonprofit organization under the laws of this state pursuant to Title 21, Oklahoma Statutes, Sections 995.1 to 995.18; or

c. offers of purses, prizes or premiums to the actual participants in public and semipublic events, as follows, to wit: Rodeos, animal shows, expositions, fairs, athletic events, tournaments and other shows and contests where the participants qualify for a monetary prize or other recognition. This subparagraph further excepts an entry from the definition of "a bet" as applied to enumerated public and semipublic events.

Part of the ambiguity, the defendants argue, arises from the legislature's failure to define the word "chance." It is argued that football and baseball games are games of skill and not chance. While it is true that the outcome of certain activities are solely dependent upon skill and include no elements of chance, it would be an improper interpretation of the statute to say that it was void as it applied to football and baseball games because the participant exercised skill or a lack thereof in determining the outcome of a game. Any result over which a party...