State v Burkhart, 9804-CC-00174
| Decision Date | 06 December 1999 |
| Docket Number | 9804-CC-00174 |
| Parties | STATE OF TENNESSEE, Appellant, v. RHONDA LEIGH BURKHART, Appellee.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY 1999 SESSION OPINION FILED: |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Montgomery County
(Possession of Gambling Devices)
The state appeals as of right from the Montgomery County Circuit Court's dismissal of an indictment charging the defendant, Rhonda Leigh Burkhart, with knowingly possessing gambling devices, specifically, six "One-Armed Bandit" video machines, in violation of Tenn. Code Ann. 39-17-505. The state contends that the trial court erred in finding portions of Tenn. Code Ann. 39-17-501 and -505 unconstitutionally vague and overbroad. We hold that the statutes are constitutionally sound and we reverse the dismissal of the indictment.
For the Appellant:
Paul G. Summers Attorney General of Tennessee and Michael E. Moore Solicitor General and Daryl J. Brand Assistant Solicitor General 425 Fifth Avenue North Nashville, TN 37243
John Wesley Carney, Jr., District Attorney General and Daniel Brollier Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040
For the Appellee:
Mark Olson, 114 Franklin Street, Clarksville, TN 37040 (AT TRIAL)
Robert M. Friedman, 100 N. Main Street, Suite 3400, Memphis, TN 38103 (ON APPEAL)
William McDaniels and Malachi B. Jones, Jr., 725 Twelfth Street, N.W., Washington, D.C. 20005-5901 (ON APPEAL)
REVERSED AND REMANDED
The Clarksville Police Department seized six video machines from the defendant's bar. At the preliminary hearing, Raymond Mario Marcias, an alcohol beverage control agent with the Clarksville Police Department, testified that on January 10, 1997, he went to the Pit Row Pool Room to check for violations of alcohol control ordinances. He said that the manager, Ms. Poston, gave him permission to look around. He said that while walking through the building, he noticed a door marked "office." He said the manager permitted him to enter, and he noticed that the wall did not extend completely to the ceiling. He said he also noticed a door with a deadbolt lock. He said he asked the manager what was behind the door, and she told him video machines. He said he asked to see behind the door, and the manager retrieved a set of keys, none of which would open the door. He stated that the manager agreed to allow Agent Crow to look over the wall. He said that Agent Crow reported that the room held six video machines and that the door could be unlocked from the inside. Agent Marcias said the manager allowed Agent Crow to climb over the wall and to unlock the door.
Agent Marcias testified that the room contained video machines and a heater. He said that each machine had a stool. He said the screens were on, and the machines automatically demonstrated a certain number of games. He said he noticed two switches on the top of each machine, one of which appeared to be a "knock-off" switch. He said he noticed that each machine had a bill acceptor, which took one-dollar bills, five-dollar bills, and twenty-dollar bills. He said that he found a total of seventy dollars in the machines. He said he advised the manager that he was confiscating the machines as gambling devices. He admitted that he did not see anyone playing the machines.
Ross Elbert Haynes testified that he worked for the Knox County District Attorney General's Office and was assigned to a federal task force which investigated gambling operations and trained local officers to recognize gambling devices. He said that he examined the six machines from the defendant's bar. He said the machines' lack of serial numbers violated federal law. He said that the machines required no skill to play and that once a player pushed the button starting the game, the player had no further control over the game. He stated that each machine had a knock-off switch, which allowed the credits to be removed ostensibly once the player was paid for them. He said the only way to remove the score on a true amusement device is to insert another coin for a new game. He said he believed the machines were gambling devices because the game took an inordinately short time to play in relation to the amount of money required to play, because they had knock-off switches, and because each machine had a meter which retained the credits run off the machine. He noted that one could adjust the odds of winning on these machines. He admitted that the machines could not pay out money.
At the combined hearing on the defendant's motion to suppress and motion to dismiss the indictment, Agent Marcias again described his discovery of the machines. He testified that he believed the machines to be gambling devices because they had a knock-off switch and lacked an amusement sticker, but he admitted that at the time, he was thinking strictly in terms of the prior statute's definition of a gambling device. He admitted that the machines had no slot to distribute money and that he found no evidence that anyone had been gambling in the room. He said the defendant's arrest was prompted by the fact that the room was hidden, the door locked from the inside, and the machines' speakers had been disconnected to prevent them from emitting sound. Agent Marcias stated that dice, playing cards, and poker chips all could be considered gambling devices in the right setting. He said that the only thing preventing a grocery store employee who stocked these items from being arrested under the current statute was his decision not to arrest that person.
Carl McClanahan testified that he was a registered lobbyist for gambling- related issues and that he had studied Tennessee's gambling laws. He said that in his opinion, dice, poker chips, and playing cards were all gambling devices under the current law, even without someone using them to gamble, because they were designed for use in gambling. He testified that objectively no difference exists between these items and the video machines at issue in this case. He stated that the current definition of a gambling device provides no standard for law enforcement.
Mr. McClanahan admitted that one can play cards or use dice without gambling. He said he was familiar with the video machines owned by the defendant. He said video poker is a generic term for games with a gambling theme and that the defendant's machines have a slot-machine theme. He said he believed these machines were designed for recreation and entertainment. He said the knock-off switches simply allow the machine's owner to prevent a subsequent user from taking advantage of unused free plays.
The trial court dismissed the indictment with prejudice, concluding:
having carefully considered . . . 39-17-505, and . . . having determined that application of the definitions [in] 39-17-501 regarding "gambling devices" and "gambling" and the resulting application of . . . 39-17-505 is so overly broad and unduly vague in proscribing "gambling devices" that application of the criminal statute . . . 39-17-505 constitutes a denial of equal protection under the law and due process guaranteed citizens under the Constitution of the United States and the Constitution of the State of Tennessee such that prosecution . . . under this statute is constitutionally prohibited.
The state contends that Tenn. Code Ann. 39-17-501 and -505 comport with due process, arguing that the statutes are not overbroad because they implicate no constitutionally protected rights. It asserts that the statutes are not vague because the Sentencing Commission Comments, the case law under the prior statute and the opinions of the attorney general serve to guide citizens and law enforcement as to the meaning of the statutes. The defendant contends that 39-17-501 and -505 are unconstitutionally vague because they fail to provide fair notice and allow arbitrary and discriminatory enforcement.
Under the due process clause, a party may facially attack the constitutionality of a statute under two doctrines: overbreadth and vagueness. The overbreadth doctrine provides that a statute is invalid on its face if it reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S. Ct. 1186, 1191 (1982). Constitutionally protected conduct is generally viewed as the exercise of First Amendment rights. City of Clarksville v. Moore, 688 S.W.2d 428, 430 (Tenn. 1985); see City of Chicago v. Morales, ___U.S. ___, ___, 119 S. Ct. 1849, 1857 (1999); Hoffman Estates, 455 U.S. at 496, 102 S. Ct. at 1192; Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct 2908, 2915-16 (1973); see also United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2100 (1987) (); Schall v. Martin, 467 U.S. 253, 269 n.18, 104 S. Ct. 2403, 2412 n.18 (1984) ().
A criminal statute is vague if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858 (1983); Morales, ___ U.S. at ___, 119 S. Ct. at 1857; State v. Wilkins, 655 S.W.2d 914, 915 (Tenn. 1983). The more important of these two factors is the presence of minimal guidelines to direct law enforcement. Kolender, 461 U.S. at 359, 103 S. Ct. at 1858; Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 532 (Tenn. 1993). "The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of the enactment." Hoffman Estates, 455 U.S. at 499, 102 S. Ct. at 1193. Criminal statutes are held to...
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