Opinion
No. 21475
November 24, 1993
Appeal from the Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
Thomas E. Perkins, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott Doyle, District Attorney, and Michael P. Gibbons, Deputy District Attorney, Douglas County, for Respondent.
OPINION
This is the second time appellant Timothy John Childs has challenged, on appeal to this court, judgments of conviction for gaming crimes stemming from the exploitation of slot machines that are vulnerable to a form of play referred to as "handle popping." The instant appeal challenges Childs' judgment of conviction, pursuant to a bench trial, of one count of attempted fraudulent slot machine manipulation and one count of fraudulent slot machine manipulation. NRS 465.070(7); NRS 193.330. Reversal is mandated by this court's ruling in Childs v. State, 107 Nev. 584, 816 P.2d 1079 (1991) (hereinafter Childs I).
FACTS
Childs has developed an expertise in locating and exploiting slot machines that are vulnerable to a form of handle manipulation that substantially increases the machines' pay out. Unfortunately, Childs is not the only person to discover that certain malfunctioning slot machines may be manipulated to yield greater winnings simply by altering the pull of the handle. Moreover, the method of play may reveal itself to the novice as well as the seasoned predator. The procedure, frequently referred to as "handle popping," involves varying the motion and strength of the pull on the handle in order to stop one of the reels at a point of advantage to the player. The "handle popper" inflicts no damage to the machines and introduces no artificial device to cause the machines to malfunction. The "handle popping" player merely takes advantage of what a slot machine with a misaligned stop bracket will accommodate by skillful manipulation of the handle. See generally Lyons v. State, 105 Nev. 317, 775 P.2d 219 (1989); El Dorado Hotel v. Brown, 100 Nev. 622, 691 P.2d 436 (1984) (STEFFEN, J., dissenting).
In the instant case, Childs was observed "handle popping" a slot machine at Bill's Casino. At trial, a slot supervisor testified that he saw Childs pull down on the handle of the machine and then jerk it in such a way that one of the three reels would stop spinning prematurely. The day after the incident at Bill's Casino, Childs was seen and arrested at the High Sierra for engaging in the same method of play with the same results.
The district court found Childs guilty of attempted fraudulent slot machine manipulation and fraudulent slot machine manipulation and sentenced him to concurrent terms of five and ten years in the Nevada State Prison.
DISCUSSION
Childs is the same party who successfully sought relief from this court in Childs I. Although Childs was also convicted of burglary in the first case, the conduct underlying his earlier convictions is identical to the conduct that formed the basis for the convictions that prompted this appeal.
Childs I addressed the legislative response to our decision in Lyons that declared NRS 465.015 (cheating at gambling) unconstitutionally vague as applied to non-damaging manipulation of slot machine handles (handle popping). The new statutory provision, NRS 465.070(7), which specifically grappled with the problem of defining the unlawful manipulation of a slot machine handle, was also declared invalid in Childs I because the new law failed to adequately define the proscribed conduct.
In pertinent part, NRS 465.070(7) provides:
It is unlawful for any person:
. . . .
7. To manipulate, with the intent to cheat, any component of a gaming device in a manner contrary to the designed and normal operational purpose for the component, including, but not limited to, varying the pull of the handle of a slot machine, with knowledge that the manipulation affects the outcome of the game or with knowledge of any event that affects the outcome of the game.
Childs I is dispositive of this appeal. There has been no transfusion of clarity in NRS 465.070(7), the slot machine statute that we declared deficient in Childs I, and the conduct prosecuted in that case is, as previously noted, identical to the conduct involved here.
The dissent would affirm Childs' convictions on grounds that he intended to cheat or not play by the rules. Committing a noncriminal act with criminal intent is not a crime. One of the most basic tenets of criminal law is that thoughts alone do not constitute a crime. As the venerable Blackstone explains:
Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment.
4 William Blackstone, Commentaries *21. See also Model Penal Code § 2.02 (proposed official draft 1962); Wayne LaFave Austin Scott, Jr., Criminal Law 177 (1972). In Childs I we held that NRS 465.070(7) did not define the proscribed conduct. Without defining the crime in terms sufficiently clear to impart notice and understanding of the proscribed conduct to persons of ordinary intelligence, there is no prosecutable offense. Childs I at 585, 816 P.2d at 1079-80 (quoting from Lyons, 105 Nev. at 320, 775 P.2d at 221).
CONCLUSION
Because Childs I is dispositive of this appeal, the judgments of convictions entered against Childs are reversed.
YOUNG and SHEARING, JJ., concur.
I refuse to join in an opinion which would overrule Childs v. State, 107 Nev. 584, 816 P.2d 1079 (1991) ("Childs I"), a case which is only two years old. I disagreed with the previous Childs' case and registered my dissent. Once, however, that it became the law of this state, I must accept it as the law; and it is, of course, bad practice to overrule a case that has been in effect for such a short time. I am prepared to accept the adjudication of this court that the statute in question is unconstitutionally vague; nevertheless, I conclude that it is not vague when applied to the facts of this case. Childs, a professional slot machine cheat, was clearly cheating and acting in violation of NRS 465.070(7), and the conviction must be upheld.
Appellant Childs stands convicted of two felonies, both involving the cheating of slot machines. The first conviction is on an information charging "Attempted Fraudulent Slot Machine Manipulation," committed on January 7, 1990, at Bill's Casino at Lake Tahoe. The second conviction is based on an information charging "Fraudulent Slot Machine Manipulation," committed on January 8, 1990, at the High Sierra Casino, also at Lake Tahoe. Because Childs clearly attempted to manipulate a slot machine fraudulently at Bill's Casino on January 7 and because he clearly did manipulate a slot machine fraudulently at the High Sierra Casino on January 8, I would uphold both convictions.
There was no evidence introduced at trial. The parties stipulated that the case "be tried to the court without a jury" and that "the evidence presented at trial shall consist of the transcript of the preliminary hearing and nothing else."
To put the facts of these two convictions into proper context, it is helpful to analyze, early on, the criminal statute upon which the convictions are based. NRS 465.070(7) is set out in a footnote to the Plurality Opinion. Breaking the statute into its elements, it was unlawful for Childs:
1. To "manipulate" the handle of a slot machine "in a manner contrary to the designed and normal operational purpose";
2. "[W]ith the intent to cheat"; and
3. "[W]ith knowledge that the manipulation affects the outcome of the game." NRS 465.070(7).
To be guilty of violation of this statute, Childs must have, with fraudulent intent, manipulated a slot machine handle in a manner contrary to its designed and normal purpose, with knowledge that his manipulation of the machine was going to change the designed and normal outcome of slot machine play. In the context of Childs' present criminal involvement, it appears to me that each of the elements of this statutory crime have been established.
I. Attempted Fraudulent Slot Machine Operation Bill's Casino
The transcript of the preliminary hearing upon which this conviction is based shows that a security officer on duty at Bill's Casino on January 7, 1990, had occasion to observe Childs in the act of "obviously manipulating the reels." (Emphasis added.) The officer watched Childs "pulling the handle and causing one of the reels not to spin." The manner in which Childs caused one of the reels not to spin was to pull the handle down "a little bit" and then to give it "a little pop, [a] little jerking motion." The officer testified without objection that a slot machine is not designed to have a handle pulled in that manner, that is to say, in the manner in which Childs was observed to be manipulating the machine. The officer observed that this manipulation resulted in Childs' winning money from the machine. The officer also observed that Childs was putting the money into his pocket immediately instead of leaving it in the tray; the officer considered this to be "unusual behavior" and said, "You don't see it too often."
Stating the obvious, the security officer testified that the reels are supposed to spin. Indeed, they are. When the wheels can be manipulated so that they do not spin, the slot machine "handle-popper" is advantaged in at least two ways. As the security officer explained, one way is to keep a reel from spinning, holding it in the win position on a pay symbol such as a cherry. This creates a no-lose mode for the machine in which the machine "pays on cherries[;] it would pay constantly if you can get it not to spin." The witness also testified that another method of cheating is to hold the third reel so it won't spin, with a jackpot bar in the win position; and, if "it won't spin, you've got a considerable more better odds of getting three bars." There can be no question in my mind that this activity is cheating and that it is a clear and understandable violation of the statute in question.
"Handle-popper" is a well-known description of persons who cheat slot machines in the manner described by the security officer. The purpose of the jerking or "popping" is to cause a malfunction of one of the reels so that the handle popper can gain an advantage over the machine and over other players by the means explained in the text.
II. Fraudulent Slot Machine Manipulation High Sierra Casino
Stephen Wegmann, a surveillance agent for the High Sierra Casino, a man trained in detecting cheating techniques by slot machines cheaters, described Childs' activities at the High Sierra. Wegmann saw Childs' way of manipulating the slot machine handle as first "slow moving and then a slam at the bottom, and the first reel held, the cherry stayed there, and then he received a pay off for that." Wegmann gave a very precise explanation of what is "wrong with playing the slot machine in that manner." Wegmann explained:
Normally, it's a random selection. The reels, all the reels fire, and they turn and random spin, and then the — by a clock timer inside . . . it could stop them anywhere. So you're taking a chance of winning or not winning. But when . . . you hold it, there's no chance of not winning. You're going to win all the time.
Childs it appears, was manipulating a slot machine, plainly and simply, so that he could "win all the time." This is called "cheating"; slot machine players are not supposed to cheat in order to win all the time.
This is not a difficult case. Childs was not an ordinary slot machine player. There is more than ample evidence to support the trial judge's almost inescapable conclusion that Childs was "manipulating" the slot machines at the mentioned casinos with the fraudulent or cheating intent of "winning all the time." Slot machines are designed, as pointed out by Wegmann, to be played in a manner in which the three reels are allowed to spin freely and then be stopped by a timing device in random fashion. When a player intentionally interferes with this randomness, such a player is clearly manipulating the machine "in a manner contrary to the designed and normal operational purpose" of a slot machine. The designed and normal operation purpose is, as Wegmann described, to pay or not to pay in accordance with the random spinning of three reels. Childs was rather clearly intentionally violating and interfering with this normal purpose.
When one reviews the enumerated elements of the crime set out above, the following comes to light:
1. Childs did "manipulate" the machines' handles "in a manner contrary to the designed and operational purpose." A slot machine is not designed to let the player win every time or even to give the manipulating player an advantage above that created by the random spin of three reels.
2. There is ample evidence of Childs' "intent to cheat." It is clear that Childs was cheating in the ordinary sense of the word. He simply was not playing by the rules. Some of the time, at least, he could not lose.
"Cheat," by statute, means to alter the selection of criteria which determine the result of a game or the amount or frequency of payment in a game. NRS 465.015. Childs intended to and did alter the selection of criteria. The criteria for winning on a slot machine are selected at random by three reels, consecutively stopped by a timing device. Childs altered the selection of criteria and in doing so altered the result and the frequency of payment.
"Cheat," by statute, means to alter the selection of criteria which determine the result of a game or the amount or frequency of payment in a game. NRS 465.015. Childs intended to and did alter the selection of criteria. The criteria for winning on a slot machine are selected at random by three reels, consecutively stopped by a timing device. Childs altered the selection of criteria and in doing so altered the result and the frequency of payment.
3. Childs certainly had knowledge that what he was doing affected the outcome of his slot machine manipulation. He could not manipulate these machines without intending and knowing that he was going to profit by these activities.
All three necessary elements of the statute are well-established with reference to his activities at Bill's Casino and at the High Sierra Casino. Childs is clearly guilty of both charges.
As said, this is not a difficult case, not difficult, that is, until we collide with the case of Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991), in which, without expressly declaring the statute in question to be unconstitutional, we ruled that, under the circumstances of that case, the resourceful and redoubtable Childs could not have understood from the statutory language just what a "`normal' pull" was and that he had "to guess at the lawful method of pulling a slot machine handle." Well, maybe in Childs I, Childs had to guess as to whether his handle-popping activities at the Nugget were "lawful" or not; but he did not have to guess in the present case. He knew he could not lose. Anyone who plays a game of chance, a game based on random selection, who knows that he cannot lose, and cannot, in fact, lose, can probably be safely called a cheater. In Childs I, all we knew about Childs was that he would "jerk" the handle, that "one of the three reels would stop spinning prematurely" and that Childs was able to "`freeze the reels' several times." 107 Nev. at 584-85, 816 P.2d at 1079. It may be within the realm of possibility that an honest player might "jerk" a slot machine handle with the result that one or more of the reels might "freeze" from time to time and that during an honest player's play, for one reason or another, a reel might "stop prematurely"; but we know that a player who deliberately "manipulates" a machine to the extent that pay-out is guaranteed on every play is not playing in accordance with machine design and normal operation. We know that such a player is cheating, as was Childs.
The concern in Childs I was that unwary, innocent slot machine players might find themselves in trouble with the law because there is no description in the statute as to just what kind of handle jerking or slapping or other handle movement constituted unlawful "popping." Concern was expressed in Childs I about the apparent absence of a "statutory definition of the proscribed conduct." 107 Nev. at 588, 816 P.2d at 1081. Childs has now done us the favor of providing definition to the proscribed conduct. We can now define the kind of handle manipulation that is unlawful as that which knowingly destroys the randomness of the slot machine operation. These machines are designed to operate randomly, and their normal operation requires random spinning of the reels. When a person, by "manipulating" a machine mechanically, intentionally impedes or destroys this randomness, that person is cheating. This is not at all the same kind of activity (discussed in Childs I) involved in counting cards in the game of "21." In that game, properly shuffled cards come out randomly. There is a certain degree of skill involved in playing the game of "21," and the memorization of previously-dealt cards may enhance the player's chances of winning; but there is no defeating of the purpose or design of the game by engaging in the practice of card memorizing. It is true that players may believe that pulling slot machine handles slowly or rapidly may in some way give them an edge on the essential randomness of the machine. Certainly under the ruling which I propose, players could continue lawfully to pull slot machine handles at variable velocities. What players cannot lawfully do is intentionally abuse the machine so that the randomness of the spinning reels is interrupted, thereby either making winning a sure thing or increasing the player's chances of winning in a manner that is "contrary to the designed and normal operational purpose" of the machine.
In Childs I, we mentioned that Lyons v. State, 105 Nev. 317, 322, 775 P.2d 219, 222 (1989), assumes that "handle manipulation does not alter `the physical characteristics and potential pay offs of slot machines.'" 107 Nev. at 587, 816 P.2d at 1081. From the record of the case before us, we now have a better and more complete understanding of what was going on, as to what Childs was really up to. We now know that Childs and others like him are quite capable of manipulating the handle of a slot machine in a way that physically guarantees success. Childs was clearly altering the machine's mechanism in such a way as to prevent one or more of the reels from performing its normal function, namely that of spinning freely and randomly until the timing mechanism brings the reel to a random stop. A slot machine with a "frozen" reel is a slot machine with altered physical characteristics, characteristics changed by a skillful manipulator's slow partial pull followed by a sudden "jerk" or "slap." We learn from the record in the present case that handle manipulation can and does alter the potential pay-offs of slot machines. Under these circumstances, the statute loses the vagueness that was the concern of the court in Childs I. Childs is a cheater. He intended to "beat" the slot machines and was successful in doing so. The present case necessarily provides a better understanding of what these kinds of slot machine cheaters are up to. If one reel is frozen and fails, mechanically, to spin, the cheaters are altering the physical makeup of the machines and unfairly changing the pay-off, much in the favor of the cheater and contrary to the normal and designed pay-out of the machine.
As I see it, the way that Childs performed in this case, the way he manipulated the machines to his advantage, gives added meaning and understanding to the statute in question. Childs, and people who do what Childs did, are clearly violating the statute. I would, therefore, affirm the convictions.
The majority opinion reversing the conviction against Childs is predicated on the court's prior ruling in Childs v. State, 107 Nev. 584, 816 P.2d 1079 (1991) (hereinafter Childs I). The dissent filed by JUSTICE SPRINGER, who dissented in Childs I, refuses to consider overruling Childs I, which he categorized as "a case which is only two years old." The record reflects that the appellant was arrested in January, 1990; convicted on July 9, 1990; and the appeal was filed immediately thereafter. The decision in Childs I was not filed until September 6, 1991, a year later. The appeal in Childs I had not been resolved when appellant committed the acts which resulted in this appeal being filed.
FACTS
On January 7, 1990, appellant was observed "handle popping" a slot machine at Bill's Casino. A slot supervisor testified at trial that he observed appellant pull down on the handle and then jerk on it in such a way that one of the three reels would stop spinning prematurely. On January 8, 1990, appellant was observed "handle popping" at the High Sierra. A surveillance agent testified that he watched appellant pulling the handle down to a certain level and then jerking it down suddenly, at which time the first reel did not move. Appellant was detained at the High Sierra and placed under arrest. The district court found appellant guilty of both charges and sentenced appellant to serve concurrent terms of five and ten years in the Nevada State Prison. On appeal, appellant raises two contentions: (1) that NRS 465.070(7) is unconstitutionally vague as applied to the facts of appellant's case, and (2) that there was insufficient evidence to support the judgment of conviction.
CONSTITUTIONALITY OF NRS 465.070(7)
Appellant contends that his convictions must be reversed in light of this court's decision in Childs I. In Childs I , the court held that NRS 465.070(7) was unconstitutionally vague as applied to the facts of Childs' case. The court also set forth the standard to be applied to NRS 465.070(7):
The court notes that the appellant is the same person who was the appellant in Childs I.
NRS 465.070 provides, in relevant part:
It is unlawful for any person:
. . . .
7. To manipulate, with the intent to cheat, any component of a gaming device in a manner contrary to the designed and normal operational purpose for the component, including, but not limited to, varying the pull of the handle of a slot machine, with knowledge that the manipulation affects the outcome of the game or with knowledge of any event that affects the outcome of the game.
As previously noted in Harriss [United States v. Harriss, 347 U.S. 612 (1954)], persons are deemed to have been given fair notice of a criminal offense if the statutorily proscribed conduct has been described with sufficient clarity to be understood by individuals of ordinary intelligence. 347 U.S. at 617. See also United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir. 1985). And statutes challenged for vagueness are evaluated on an as-applied basis where, as here, first amendment interests are not implicated. Maynard v. Cartwright, 108 S.Ct. 1853, 1858 (1988).
Childs, 107 at 585, 816 P.2d at 1079-1080. The court then concluded that the absence from NRS 465.070(7) of a definition of a "normal" pull rendered it unconstitutionally vague. Without such a definition, Childs was "left . . . to guess at the lawful method of pulling a slot machine handle." Id. at 587, 816 P.2d at 1081. Moreover, the court concluded, the vagueness of NRS 465.070(7) made potential felons of all "innocent, wellintentioned patrons" who "may so easily adopt various methods of handle manipulation in an attempt to change their fortune." Id. at 588, 816 P.2d at 1081 (quoting Lyons v. State, 105 Nev. 317, 323, 775 P.2d 219, 112 (1989)).
The general American doctrine as applied to courts of last resort is that a court is not inexorably bound by its own precedents but will follow the rule of law which it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. See Samsel v. Wheeler Transport Services, 789 P.2d 541 (Kan. 1990); Helvering v. Hallock, 309 U.S. 106 (1940). It must be further noted that the doctrine of stare decisis is not applicable to statutory construction when it is decided that earlier interpretations are wanting, faulty, or even wrong. See Jepson v. Department of Labor Industries, 573 P.2d 10 (Wash. 1977). Upon careful consideration, I believe that Childs I was erroneously decided. I would hold that NRS 465.070(7) is not unconstitutionally vague as applied to the facts of appellant's case, and that the decision in Childs I should be overruled.
The doctrine of stare decisis, so vehemently supported by JUSTICE SPRINGER in his dissent, should not be applied. ". . . The doctrine is not ordinarily departed from where decision is of long-standing and rights have been acquired under it, unless considerations of public policy demand it. . . ." Black's Law Dictionary, Sixth Edition. Childs I, at the time of appellant's arrest in this case, was not long-standing, rights had not been acquired under it, and considerations of public policy demand the reversal of Childs I.
Our State of Nevada relies heavily on its gaming industry to maintain its economic well-being. The industry, through years of experience and tight regulation, has attained a high degree of professionalism. In view of that, it is repugnant for this court to make the assumption that each time a customer pulled the handle of a slot machine with some irregularity that management would be there charging him with manipulating the machine with "the intent to cheat." The individuals who would be apprehended are the Childs of this world who make their living "intentionally" cheating the gaming industry.
The court's principle concern in Childs I was that NRS 465.070(7) posed a trap for the unwary. A careful reading of NRS 465.070(7) convinces me that the court's fears are unfounded. While the statute does not define a "normal" pull of a slot machine handle, it does precisely set forth the elements of an illegal manipulation with the intent to cheat, in such a way that is "contrary to the [machine's] designed and normal operational purpose." NRS 465.070(7). Thus, patrons may pull as they choose, so long as they do not do so with both an intent to cheat and knowledge that their chosen method affects the outcome of the game. Id.
The gist of appellant's criminality is his "intent to cheat." NRS 465.070(7). The court has previously held that "cheat" as defined in Chapter 465 is not unconstitutionally vague. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983). There is no reason to believe that appellant could not understand the word cheat as it is used in this case.
In this case, appellant's technique is to "freeze" the first reel on the slot machine by means of a sudden force on the slot machine handle. By holding a cherry on the first reel in this manner, appellant is able to assure a winning combination on each slot machine play. Indeed, appellant may not know what constitutes a "normal pull" of a slot machine handle, but he clearly knows that his method of choice, which alters the machine's operation by freezing one of the reels, is not customary. Moreover, when appellant "interferes with the machine's `operational purpose' by pushing, striking, jerking, or other untoward physical insult to the machine which interferes with the machine's normal operation," I consider this to be a "manipulation" which, when accompanied by an intent to cheat, constitutes a crime under NRS Chapter 465. See Childs, 107 Nev. at 589, 816 P.2d at 1082 (SPRINGER, J., dissenting). I would find that the prohibited conduct constituting the crime of fraudulent slot machine manipulation has been set forth with sufficient clarity as to be under stood by individuals of ordinary intelligence. United States v. Harriss, 347 U.S. 612, 617 (1954). I would therefore hold that NRS 465.070(7) is not unconstitutionally vague as applied to the facts of appellant's case.
SUFFICIENCY OF EVIDENCE
Finally, appellant contends that there was insufficient evidence to support the judgment of conviction. In reviewing the lower court's decision, the appellate court is confined to reviewing the evidence most favorable in support of the lower court's decision and determining whether a reasonable interpretation indicates a sufficiency of evidence to support the lower court's decision. See Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981); Crowe v. State, 84 Nev. 358, 366-367, 441 P.2d 90, 95 (1968). There is substantial evidence in the record to support the decision of the district court and, therefore, it should not be overturned on appeal.
Accordingly, the judgment of conviction should be affirmed.
The Honorable Mario G. Recanzone, Judge of the Third Judicial District Court, was designated by the Governor to sit in place of THE HONORABLE ROBERT E. ROSE, Justice. Nev. Const. art. 6, § 4.