State v. Nixa
| Decision Date | 03 October 1984 |
| Docket Number | No. 83-1939-CR,83-1939-CR |
| Citation | 360 N.W.2d 52,121 Wis.2d 160 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, * v. Kenneth NIXA, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Richard D. Martin, Asst. State Public Defender, for defendant-appellant.
Gerald Ptacek, Dist. Atty., and William Honrath, Asst. Dist. Atty., Racine, for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Kenneth Nixa appeals from a judgment of conviction finding him guilty of illegally making a bet pursuant to sec. 945.02(1), Stats., and of illegally remaining in a gambling place pursuant to sec. 945.02(2). Nixa also appeals the trial court order denying post-conviction relief. The principal issue on appeal is the interpretation of the phrase "gambling place" as used in sec. 945.01(4), Stats. Based upon our construction of the gambling place statute, we conclude that the evidence was insufficient to establish the premises in question as a gambling place. We therefore reverse Nixa's conviction on the charge of remaining in a gambling place. However, we affirm Nixa's conviction of illegally making a bet.
Nixa was arrested about three months after allegedly participating in a gambling party in the recreational building of the Concord Apartments in Caledonia. He was charged with one count of making a bet contrary to sec. 945.02(1), Stats., and one count of entering and remaining in a gambling place, contrary to sec. 945.02(2). Nixa's arrest followed an investigation of the gambling party by the Racine county sheriff's department and the city of Racine police. The sheriff's department had learned of the gambling party by an anonymous telephone call. Upon arriving at the Concord Apartments, the police discovered a room fully equipped with gambling tables and related paraphernalia and crowded with people eating, drinking and gambling.
After securing the facility and obtaining a search warrant, the police questioned some of those persons present at the party. Also questioned were certain individuals named on confiscated raffle ticket stubs. Nixa was identified by several people as an organizer of the party. Eventually, an undercover detective met Nixa when the agent attempted to cash in poker chips from the party. During their encounter, Nixa allegedly claimed to be a professional gambler.
Nixa was subsequently arrested, charged and convicted by a jury on both counts. Several times during the proceedings, Nixa moved to dismiss the charge of remaining in a gambling place on the grounds that a one-time use of the apartment recreational building for gambling did not constitute a gambling place under sec. 945.01(4), Stats.
Nixa's pretrial motion to dismiss the complaint contended that insufficient facts were alleged to qualify the apartment recreational facility as a gambling place. The court denied this motion stating the complaint set forth sufficient facts to draw an inference that there was a violation of the statute. The court further ruled that whether the recreational building was a gambling place was a question of fact to be determined by the jury. The court similarly denied Nixa's motion to dismiss at the close of the state's case declaring that the state had established a prima facie case and that the jury could draw the inference that this was not the first time the recreational building had been used for this purpose. At the post-conviction motions, the trial court concluded that it was not unreasonable for the jury to have found the recreational building to be a gambling place. Nixa also requested a new trial on the making a bet charge on the grounds that such conviction was tainted by evidence on the gambling place charge.
As to the charge of illegally remaining in a gambling place, we must first interpret the statute and then determine whether the evidence sustains the conviction.
Statutory construction involves a question of law, and a reviewing court is not required to give any special deference to the trial court's determination. State v. Folk, 117 Wis.2d 42, 45, 342 N.W.2d 761, 763 (Ct.App.1983). Section 945.01(4), Stats., provides as follows:
(a) A gambling place is any building or tent, any vehicle (whether self-propelled or not) or any room within any of them, one of whose principal uses is any of the following: making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries; or playing gambling machines.
(am) "Gambling place" does not include a place where bingo or raffle is conducted under ch. 163.
(b) Evidence that the place has a general reputation as a gambling place or that, at or about the time in question, it was frequently visited by persons known to be professional gamblers or known as frequenters of gambling places is admissible on the issue of whether it is a gambling place.
(c) Any gambling place is a public nuisance and may be proceeded against under ch. 823.
We conclude that the phrase "one of whose principal uses," which is the criterion in determining whether a location constitutes a gambling place, is ambiguous. "Ambiguity arises when more than one reasonable, although not necessarily correct, meaning can be attributed to a word, phrase, or statute." West Allis School District v. DILHR, 116 Wis.2d 410, 418-19, 342 N.W.2d 415, 420 (1984). The phrase itself admits of degrees of use which necessarily allow for more than one reasonable conclusion which could flow therefrom. When construing an ambiguous phrase of a statute, the intent of the legislature in the use of the phrase should be determined. Id. 116 Wis.2d at 419, 342 N.W.2d at 420. This analysis is conducted in relation to the statute's scope, history, context, subject matter, and object to be accomplished. Id. 116 Wis.2d at 419, 342 N.W.2d at 421.
Various terms in the statute suggest that prior gambling activity is essential for a location to be considered a gambling place. The definition in subsection (a) provides that a location may be considered a gambling place if one of its principal uses is gambling. Subsection (b) provides that evidence showing a place has a reputation for gambling or is frequently visited by gamblers or people known as frequenters of gambling places is admissible on this question. The term "one of whose principal uses" implies a pattern of similar use on a prior occasion or occasions.
The legislative history of sec. 945.01(4), Stats., supports this interpretation. The Judiciary Committee Report on the 1953 Criminal Code revision states that a "tavern where customers occasionally play cards for money is not a gambling place because that is not one of its principal uses." Assembly Bill No. 100, A. (1953) (comment attached to proposed sec. 345.01, Stats.), which can be found in 5 Wisconsin Legislative Council 153 (1953). This language indicates that, even with multiple event gambling evidence, the statute is not violated if a principal use for gambling purposes is not demonstrated.
The predecessor statute to the present sec. 945.02(2), Stats., was sec. 348.174, Stats. (1953), which made it "unlawful for any person to ... become an inmate of any ... place ... within which is carried on any of the acts or things mentioned in section 348.172, ...." Nothing in the language of this statute nor any of the other statutes then applicable measured whether a location was a gambling place in terms of its principal use. Under this former statute, a single gambling event would suffice. By enacting sec. 945.02(2), we conclude the legislature intended to narrow the concept of a "gambling place" from that contemplated in former sec. 348.174.
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