State v. Hahn

• Court: Wisconsin Court of Appeals
• Writing for the Court: VERGERONT
• Citation: State v. Hahn, 586 N.W.2d 5, 221 Wis.2d 670 (Wis. App. 1998)
• Decision Date: 20 August 1998
• Docket Number: No. 97-3065-CR,97-3065-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lester E. HAHN, Defendant-Appellant. d

Page 5

586 N.W.2d 5

221 Wis.2d 670

STATE of Wisconsin, Plaintiff-Respondent, v. Lester E. HAHN, Defendant-Appellant. ^d

No. 97-3065-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 9, 1998.

Opinion Released Aug. 20, 1998.

Opinion Filed Aug. 20, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Dennis J. Miller of Pittsburgh, Pennsylvania, and Bruce Elbert of Juneau.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Alan R. Kesner, asst. attorney general.

Before DYKMAN, P.J., and VERGERONT and DEININGER, JJ.

VERGERONT, Judge.

Lester E. Hahn appeals a judgment of conviction on six counts of intentionally collecting proceeds of a gambling machine, as a party to the crime, pursuant to § 945.03(5), STATS. ¹ Hahn argues that § 945.01(3), which defines a gambling machine, is unconstitutionally vague. He also argues there was insufficient evidence at trial to convict him and the State did not timely meet its obligations to disclose certain information under the court's discovery order. We conclude the statute is not unconstitutionally vague and there was sufficient evidence to support the guilty verdicts. We also conclude the trial court properly exercised its discretion regarding violations of its discovery order. Therefore we affirm.

BACKGROUND

The six charges arose from events occurring at three taverns in Jefferson County--J & J Mileaway, Pirke's Pub and Jacks R Better--on two dates, November 19, 1990 and November 26, 1990. Pursuant to search warrants, a video poker machine was seized from each tavern on November 26, 1990.

According to the testimony of Thomas Hintz and Tom Farr, Hahn employed them to help him manage video poker machines in taverns in Jefferson County. They testified that Farr, who was Hintz's uncle and was already employed by Hahn, recruited Hintz to the job and helped train him, and Hahn also helped train Hintz. Hintz testified that on November 19, 1990 and November 26, 1990, he collected money from the three taverns and that these funds were the net proceeds of the machines, after payments to the winners had been deducted. Hintz's job was to deliver the proceeds from those taverns to a designated spot at Hahn's house or a shed on property owned by his family. Hahn paid Hintz. Hahn had earlier shown Farr how to collect the proceeds from the machines, and, before Hintz was hired, Farr had collected the proceeds at the three taverns and given them to Hahn; later he left the proceeds either at Hahn's house or the shed.

Hintz described the process he used when he collected the weekly proceeds of the machines. After checking with the tavern owner, he opened the machine, did cleaning and needed repairs, read the meter which showed the amount of money brought in during the week and the amount of points redeemed, and split the difference between those amounts on a 50/50 basis with the tavern owners. Farr testified that he followed this same procedure before Hintz took over this route. According to the evidence presented by the State, one or more of the three--Hahn, Hintz or Farr--had installed each of the three machines.

The owners of the three taverns each testified to the operation of the machines. They testified that the machines played a video version of the game of poker and required money to play. The tavern owners explained that if a round of play resulted in a winning hand, the machine would award credits, depending on the particular winning hand. The player could use these credits to play more hands, or the credits could be erased from the machine by a remote control device, which was usually located behind the bar. The machine recorded the credits erased, and the bar owners or their employees would then pay the players for the credits they accumulated.

There was also testimony from undercover law enforcement personnel that they had played the video poker machines at each of the three taverns and received payments of cash for accumulated credits from the bartenders.

Hahn testified that he sold his amusement business to Farr in the spring of 1990 and that the taverns in question were not part of his (Hahn's) business at the time of the events charged. Hahn stated that he did not recognize any of the machines at issue, and, during the weeks at issue, he did not own any video machines in the three taverns, collect proceeds from them, receive any proceeds from the machines or know of any payouts made during that period of time.

Tavern owners and law enforcement officers who played poker on the machines testified that they had no control over the cards they were dealt. Sometimes, they testified, players would be able to use some degree of skill to increase their chances of winning, but even skilled players would lose at times. Hahn testified that on these machines a player can become skilled in the operation of the game and that if one plays long enough he or she would know what cards are going to come up next; he also explained how a player can become skilled in playing the machines.

Vagueness Challenge

Hahn moved to dismiss the charges against him on the ground that the definition of a gambling machine in § 945.01(3), STATS., is unconstitutionally vague and therefore violates due process. The trial court denied the motion, concluding that the statute was not unconstitutionally vague because it provided adequate notice of the conduct prohibited. On appeal, Hahn repeats his contention that the statute is unconstitutionally vague.

Section 945.01(3), STATS., defines a "gambling machine" as follows:

(a) A gambling machine is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine.

(b) "Gambling machine" does not include any of the following:

2. Any amusement device if it rewards the player exclusively with one or more nonredeemable free replays for achieving certain scores and does not change the ratio or record the number of the free replays so awarded.

Because the resolution of the constitutionality of § 945.01(3), STATS., does not depend on findings of adjudicative facts, it is a question of law, which we review without deference to the decision of the trial court. State v. Kay Distrib. Co., 110 Wis.2d 29, 33, 327 N.W.2d 188, 192 (Ct.App.1982).

The party challenging the constitutionality of a statute has the burden of overcoming the presumption of constitutionality beyond a reasonable doubt. Wis. Bingo Supply & Equip. Co. v. Wis. Bingo Control Bd., 88 Wis.2d 293, 301, 276 N.W.2d 716, 719 (1979). The court is to indulge in every presumption to sustain the statute. Id. A criminal statute is unconstitutionally vague if it either fails to afford proper notice of the conduct it seeks to proscribe, or fails to provide an objective standard for enforcement. State v. Smith, 215 Wis.2d 84, 91, 572 N.W.2d 496, 498 (Ct.App.1997). In order to give proper notice, a criminal statute must sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area. Id. The statute must not be so obscure that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. Kay Distrib., 110 Wis.2d at 34, 327 N.W.2d at 192. A statute, however, is not void for vagueness because in some instances certain conduct may create a question about its impact under the statute. Smith, 215 Wis.2d at 91-92, 572 N.W.2d at 498. With respect to the enforcement element of the test, a statute is vague only if a trier of fact must apply its own standards of culpability rather than those set out in the statute. Id.

If, by the ordinary process of statutory construction, we can give a practical or sensible meaning to the statute, a criminal statute is not void for vagueness. Id. The ordinary process of statutory construction begins with the language of the statute, which we interpret according to its common meaning, and for that purpose we may use a recognized dictionary. See State v. Sample, 215 Wis.2d 486, 494, 498, 573 N.W.2d 187, 190, 192 (1998). We do not look beyond the statutory language if the statutory language is not ambiguous, see id. at 494, 573 N.W.2d at 190-91, and use of a dictionary to ascertain the usual meaning of a word does not render the word ambiguous. Id. at 498-99, 573 N.W.2d at 192. However, even if a statute is ambiguous, that alone does not render it unconstitutionally vague if the ordinary rules for construing an ambiguous statute result in a practical or sensible meaning. See State v. Chippewa Cable Co., 21 Wis.2d 598, 606, 124 N.W.2d 616, 620 (1963).

The statutory definition of gambling machine consists of: (1) a contrivance (2) which for consideration (3) affords the player an opportunity to obtain something of value (4) the award of which is determined by chance, even though accompanied by some skill (5) whether or not the prize is automatically paid by the machine. Section 945.01(3), STATS. It is further defined by excluding an amusement device, which, in essence, serves to further define "something of value," in the third element, so as to permit rewards that are exclusively "nonredeemable free replays for achieving certain scores," so long as the device "does not change the ratio or record the number of free replays so awarded." Id. Hahn first argues that § 945.01(3) is unconstitutionally vague because the word "contrivance" and the phrases "some skill" and "automatically paid by the machine" are unacceptably vague.

With respect to "contrivance," Hahn argues that, although this word "is easily definable by 'Mr. Webster,' [it] has no meaning which may be overlaid upon the myriad of devices and machines available in Wisconsin." Hahn makes no argument that he did not have fair notice that the machines...