State v. Owens
| Decision Date | 18 October 1984 |
| Docket Number | No. 7669,7669 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. T.L. OWENS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his convictions on twelve counts of commercial gambling in violation of NMSA 1978, Section 30-19-3(B) (Repl.Pamp.1984), raising three issues. First, defendant contends the trial court erred in holding that the statute setting forth commercial gambling as a felony does not require proof that defendant was involved in a gambling business having profit as its primary aim. Second, and closely related to the first issue, defendant raises the question as to whether, assuming the trial court was correct in its ruling, Section 30-19-3(B) is unconstitutionally vague or whether it creates an irrational relationship to a legitimate state goal. Finally, defendant contends the introduction of taped conversations between himself and a third party violated defendant's right of confrontation when the third party did not testify at trial. We will discuss the first two issues together. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).
The state's evidence consisted primarily of a series of tape recordings of telephone conversations between defendant and a man by the name of Herbert "Speedy" Newman. Mr. Newman's phone had been tapped under a court order based on information provided by the Governor's Organized Crime Commission. Defendant's phone was not tapped. A witness for the state, qualified as an expert in commercial gambling, explained the terminology of commercial gambling, including such terms as "the line," "over and under" bets, "parlay" bets and "teaser" bets. He also explained how commercial gamblers refer to given amounts of money. For example, a "nickel" means five hundred dollars. This expert then analyzed each of the taped conversations. He testified that twelve bets had been placed by Mr. Newman with defendant on football games during a three-week period in late 1980 for a total of $26,500.
A state police officer accompanied by a special agent of the F.B.I. went to defendant's house to make the arrest. When they entered defendant was talking on one of five phones installed in his house. The officers seized booklets, "line sheets" and note pads. During the next hour the officers observed that defendant's phone rang between fifteen and twenty times. One of the exhibits introduced was a writing containing a series of bets between defendant and Newman which corresponded with the bets made during the phone conversations.
At the conclusion of the state's case, defendant moved in chambers for a directed verdict on the ground that the commercial gambling statute was unconstitutionally vague. The trial court denied the motion and stated, during a colloquy with counsel, that the only difference between "gambling" and "commercial gambling" is that the former consists of making an offer to bet whereas the latter consists of accepting an offer to bet. The trial court further stated:
You are correct that I have ruled and will rule that the distinction between that offense which is defined as commercial gambling and that misdemeanor offense which is defined as gambling being the placing of a bet does not depend upon the number of transactions, nor is it my view that commercial gambling named as such requires that there be established that betting was done as a profit making business or undertaking and I am prepared to rule in respect to that and I am prepared to deal with your proposed instructions addressing that issue squarely in holding that. I am going by the plain language of the statute and propose to instruct on it.
On the basis of the trial court's ruling that the state did not have to establish a profit-making motive and that a social bet could form the basis for a commercial gambling conviction, defendant elected not to take the stand and testify. He made a tender of proof that he would have testified that he did not operate a gambling business and that he made only social bets for his own amusement.
The trial court refused defendant's requested instructions which drew a distinction between commercial gambling and social gambling and defined commercial gambling as "a business operation ... having financial profit as it's [sic] primary aim." The trial court gave separate instructions for each of the twelve counts which simply tracked the language of Section 30-19-3(B), included the date of each alleged offense, and told the jury that to convict they need only find beyond a reasonable doubt that defendant "did knowingly receive, record or forward bets or offers to bet."
Section 30-19-3 reads in pertinent part:
Commercial gambling consists of either:
* * *
* * * B. receiving, recording or forwarding bets or offers to bet;
* * *
* * *
Section 30-19-2 provides in pertinent part:
Gambling consists of:
A. making a bet;
* * *
* * *
NMSA 1978, Section 30-19-2 (Repl.Pamp.1984).
Commercial gambling is a fourth degree felony, while gambling is a petty misdemeanor.
Defendant argues that the trial court's interpretation of commercial gambling would necessarily include simple gambling; therefore, defendant did not take the stand because his testimony would amount to an admission of guilt.
Further, defendant argues that to construe the "commercial gambling statute to include social gambling would raise a host of constitutional problems," including void-for-vagueness and an irrational relationship to a legitimate state goal. Because we decide that commercial gambling under Section 30-19-3(B) requires more than a single act of gambling under Section 30-19-2(A), we have eliminated the premise for defendant's constitutional claims, even assuming he has standing to raise them. See State v. Marchiondo, 85 N.M. 627, 515 P.2d 146 (Ct.App.1973).
We recognize that a statute violates due process if men of ordinary intelligence must guess at its meaning and differ as to its application. State v. Carr, 95 N.M. 755, 626 P.2d 292 (Ct.App.1981). We also recognize that statutes which permit the state to subject one person to the possibility of greater punishment than another who has committed an identical act violate the equal protection clauses of the state and federal constitutions. State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966).
Defendant would have us exclude "social gambling" from Section 30-19-3(B) in order to prevent unequal punishment for the same act and to clarify the legislature's intent in enacting the two provisions. As we interpret the statute, however, the legislature did not intend the distinction for which defendant contends.
The trial court commented that the only difference between Section 30-19-2(A) and Section 30-19-3(B) depends on whether the bet is offered or accepted. This interpretation by the trial court is not reasonable. Section 30-19-2(A) makes it a misdemeanor to make a bet. NMSA 1978, Section 30-19-1(A) (Repl.Pamp.1984) defines a "bet" as "a bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement." Thus, a bet is made when two or more people agree. By definition, a bet is made when one accepts an offer to bet. Under the trial court's definition, one who makes the bet in a social context is guilty of a petty misdemeanor but one who accepts the offer is guilty of a fourth degree felony. We agree with defendant that in the context of social betting it is more often than not impossible to differentiate making a bet from receiving a bet. Which participant is the misdemeanant and which is the felon?
The trial court's comment that the distinction between gambling and commercial gambling "does not depend upon the number of transactions" is likewise incorrect. Section 30-19-3(B) clearly requires more than one bet or offer to bet. While it takes two parties to make a bet under Section 30-19-2(A), one bet or offer to bet received, recorded or forwarded does not constitute commercial gambling under Section 30-19-3(B).
In distinguishing between gambling under Section 30-19-2(A) and commercial gambling under Section 30-19-3(B), defendant urges us to interpret commercial gambling as meaning "gambling as a business operation, having financial profit as its primary aim." He relies on Judge Sutin's specially concurring opinion in State v. Marchiondo, from which the quoted language is taken. 85 N.M. at 631, 515 P.2d 146. Defendant argues that in interpreting a statute, a court must give words their ordinary meaning. State ex rel. Bingaman v. Valley Savings & Loan Association, 97 N.M. 8, 636 P.2d 279 (1981). While we have no quarrel with that principle of statutory construction, defendant's emphasis on the word "commercial" is misdirected.
The word "commercial" is used in the name of the offense "commercial gambling." Commercial gambling may be committed in any of the six ways stated in Section 30-19-3. Our concern is with the meaning of subsection B, which, in contrast to subsection A () and subsection D (), does not depend on earnings or gain and, in our opinion, does not require a profit motive, although profit may be involved. We have no authority to expand the offense to include a profit motive when the substantive offense, as defined, does not include that language. Such would be adding to the legislative definition. State v. Ellenberger, ...
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