Frank Azzurro and George Young v. State of Arkansas

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-907

April 4, 2001

FRANK AZZURRO and AN APPEAL FROM WASHINGTON

GEORGE YOUNG COUNTY CIRCUIT COURT

APPELLANTS [CR00-70]

V. HON. WILLIAM A. STOREY, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Frank Azzurro and George Young appeal from their convictions for operating a gambling house and for possessing and operating payoff mechanisms. They argue that the trial court erred in finding that the machines offered for play at their businesses were gambling devices under Arkansas law and that they possessed a payoff mechanism as defined under Arkansas law. Because we find that appellants' arguments are not preserved for appeal, we affirm.

Between June 1999 and September 1999, appellants owned and operated two businesses in Fayetteville and Springdale through which they sold pre-paid long distance calling cards at the rate of $5 for eight minutes of long-distance service. Upon purchasing a phone card, each customer was given the opportunity to play one of several electronic games also located at the businesses. If a customer chose to play, the attendant took a key,opened the machine and placed 500 credits on the machine. The customer would then attempt to line up various symbols on the machine to accumulate points. Each point was equivalent to one cent. The activities were labeled and marketed as a "sweepstakes." Each credit on a machine was termed a "sweepstakes credit." Customers could win from $10 to $1,000.

Appellants also provided for a free method of entry to play the machines. A person who did not wish to purchase a phone card could fill out a free entry form located at either business, mail it in, and receive a form to play the game for free. The procedure for playing was the same as for those customers who paid for a phone card except a person was limited to one free entry per week, whereas a customer purchasing phone cards could continue to play as long has he continued to purchase phone cards.

Pursuant to an investigation by the Fayetteville and Springdale Police Departments, Kathie Kimbrell, a law clerk with the prosecutor's office, visited both establishments, purchased calling cards, and played the machines. As a result of her activity, a search warrant was executed on appellants' businesses on September 28, 1999. The gaming machines, cash, and phone cards were seized. Appellants were subsequently charged with operating a gambling house under Arkansas Code Annotated section 5-66-103 (Repl. 1997), and with possessing and operating payoff mechanisms under Arkansas Code Annotated sections 26-57-402 and 403 (Supp. 1999).1

The parties stipulated that appellants meet the class of persons defined in Arkansas Code Annotated section 5-66-103(a) who would be subject to criminal liability for operating a gambling house if the trial court found the activity as charged to be prohibited by the above statutes. The parties also stipulated that the games involved were games of chance, rather than games of skill, and that the winners of cash prizes were determined randomly.

Appellants waived their rights to a jury trial. A bench trial was held at which Ms. Kimbrell testified as to her activities as noted above. The trial court found that "this entire process was carefully crafted by the defendants to resemble a sweepstakes, but in my judgment it's not a sweepstakes." The trial judge acknowledged appellants' argument that criminal statutes must be strictly construed, but indicated his reluctance to place form over substance. The court stated that "this process designed by the defendants was nothing more than a ruse or device or scheme to avoid our anti-gambling statutes." The trial court found that appellants were guilty as charged and placed them on three years' probation for operating a gambling house, and on one year of probation for operating and possessing a payoff mechanism; these sentences were to run concurrently. In addition, the court fined each appellant $150 as court costs and ordered the forfeiture of all property seized in the execution of the search warrants.

Appellants argue that the State failed to show that their method of operation constituted gambling or involved a payoff mechanism, as those phrases are defined under Arkansas law. They further argue that Arkansas Code Annotated section 5-66-101 (Repl.1997), which provides for a liberal construction of the gambling statutes,2 violates due process, because criminal statutes are to be strictly construed. Finally, they argue that their sweepstakes offer did not violate Article 19, Section 14 of the Arkansas Constitution, which prohibits lotteries.

We hold that none of appellants' arguments are preserved for appeal. Their argument regarding the sufficiency of the evidence supporting the charges is not preserved for appellate review because they failed to move for a directed verdict at the close of the evidence, as is required in a bench trial under Arkansas Rule of Criminal Procedure 33.1. Rule 33.1(b) requires a motion for dismissal to be made at the close of all the evidence, and requires the movant to state the specific grounds therefore. The failure to move for a directed verdict and state the specific grounds therefore at the close of the State's evidence constitutes a waiver of that issue on appeal. See Ark. R. Crim. P. 33.1(c); see also Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). Therefore, appellants' failure to renew their motion for a directed verdict precludes us from addressing their argument regarding thesufficiency of the evidence.3

We also decline to address appellants' statutory construction and constitutional arguments because they have abandoned these issues on appeal. See Holloway v. Stuttgart Reg'l. Med. Ctr., 62 Ark. App. 140, 970 S.W.2d 301 (1998). In their jurisdictional statement, they assert that their appeal "addresses the issues of the interpretation of Arkansas's Constitution and criminal statutes." They also state that "this appeal involves significant issues needing clarification and substantial questions of law concerning the construction and application of Article 19, Section 14 of the Arkansas Constitution and the application of the two statutes under which they were charged." However, appellants only address these issues, and in a cursory manner at best, in the argument portion of their reply brief. They fail to offer any argument or authority in this regard, and merely reiterate the language used in their jurisdictional statement. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Webber v. Arkansas Dep't of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998); Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998).

Further, the trial court did not resort to a liberal construction of the statute, as is allowed under section 5-66-101. Because the trial court did not resort to a liberalinterpretation of the statute, we need not reach the issue of whether a liberal interpretation violates appellant's due process rights. See McDougal v. State, 324 Ark. 354, 922 S.W.2d 323 (1996).

With regard to the constitutional argument, we note that although the State raised the issue in its pretrial brief, the charges were not amended to reflect such a charge. That is, appellants were neither charged with, nor found guilty of, violating the constitutional prohibition against lotteries, and the trial court did not make any findings in that regard. Therefore, appellants have no basis for appealing on this ground.

Because we hold that none of appellants' arguments are preserved for appellate review, we affirm their convictions.

Affirmed.

Crabtree and Baker, JJ., agree.

1 In its pretrial brief, citing Shuffield v. Raney, 226 Ark. 3, 287 S.W.2d 588 (1956), the State also alleged that appellants violated Article 19 Section 14 of the Arkansas Constitution that prohibits lotteries. However, the charges against appellants were not amended to include this charge.

2 This statute provides:

The judges of the several courts in this state shall, in their construction of the statutes prohibiting gaming, construe the same liberally, with a view of preventing persons from evading the penalty of the law by changing of the name or the invention of new names or devices that now are, or may hereafter be, brought into practice, in any and in all kinds of gaming, and all general terms of descriptions shall be so construed as to have effect, and include all such games and devices as are not specially named; and in all cases, when construction is necessary, it shall be in favor of the prohibition and against the offender.

(Emphasis added.)

3 However, we reiterate the statement made by our supreme court in Collins v. State, 308 Ark. 536, 538, 826 S.W.2d 231, 232 (1992): "In no case have we allowed a meritorious argument as to the sufficiency of the evidence to prevail over the defendant's failure to raise it to the trial court."