I have committed a felony. A child was involved. The crime scene was well documented with photographs and notes. The images I took from this and other days of my crime spree have not been confiscated. I’m turning myself in to the attorney general of the State of Utah. If Michael Jackson had the kind of evidence against him that I have against me, he’d be moon-walking his way to life in prison.
The felony, my felony, is more like a string of class B misdemeanors in the shape of a hangman’s noose. I have cinched the knot around my neck and I’m presenting the rope to any prosecutor who wants his or her day in court. Merry Christmas in May, Attorney General Mark Shurtleff.
In fact, by taking me to court, by winning the case against the evil deeds I have done, every schoolchild—even the kid who was Bonnie to my Clyde—will benefit from my conviction. This is the mother of Mother’s Day gifts. Schools in Utah won’t be overcrowded. Every teacher will get a raise and, possibly, every child can have a pony. Yes, my crime is so dastardly, devious and deviant that with my successful conviction, there will be enough money to revamp the entire Utah school system.
And, according to Utah State law (76-10-1108), all I have promised (with possible exception of the pony) can come true to school kids across the state. Attorney General Mark Shurtleff and District Attorney David Yocom, please pay attention to this story and prosecute me to the fullest extent of the law. Give me a felony and give the young learners of Utah the schools they deserve.
Why admit to a felony? For the kids—of course.
I don’t feel guilty about the crimes I’ve committed. I’m proud of them, plus I’m richer as a result. I have violated Utah State Code 76-10-1101, 76-10-1102, 76-10-1103 and 76-10-1104. My 5-year-old nephew, Calvin, was victimized according to USC 76-10-1103, but he willfully and gleefully took place breaking USC 76-10-1102 and 76-10-1101. Five years old and the boy should already have a rap sheet as long as his teddy bear’s arm.
The good news about Calvin being a gangster is we’ll both go to jail together. If—hopefully when—Shurtleff and Yocom prosecute us, maybe Calvin can be my cellmate. Can you even begin to imagine how many packs of candy cigarettes Calvin will sell me for at the Point of the Mountain?
I live in Utah and I am a gambler. Don’t count your money when you’re sitting at my table.
According to USC 76-10-1104, “Gambling promotion is a class B misdemeanor, provided, however that any person who is twice convicted under this section shall be guilty of a felony of the third degree.”
This being said (if caught) I’m committing a felony every week.
Technically, there is a difference between “Gambling” and “Gambling Promotion.” But this law is written with such specificity an entire Relief Society sitting around crocheting dice on Homemaking night could be sent to jail for thinking of the word “Bunko.” Suffice it to say, by the law as written, I’m committing a felony. But guess what? You probably have, too.
Let’s Gamble by the Books
Utah and Hawaii are the only two states without any form of state-run lottery or “legalized” form of gambling. This fact was even pointed out by Gordon B. Hinckley, the president of The Church of Jesus Christ of Latter-day Saints, at the LDS General Conference in April.
Hinckley said, “The pursuit of a game of chance may seem like harmless fun. But there attaches to it an intensity that actually shows on the faces of those who are playing. And in all too many cases this practice, which appears innocent, can lead to an actual addiction … If you have never been involved in poker games or other forms of gambling, don’t start.”
April was not only the month of the LDS general conference, but also the month when The Salt Lake Tribune printed a story where Salt Lake County District Attorney David Yocom said, “These Texas Hold ’Em games are gambling. The laws will be enforced. We are uniformly, across the county, going to start to prosecute these folks.”
“These folks” Yocom is so opposed to are the class B misdemeaning, possibly felonious folks playing a “gambling” game called “Texas Hold ’Em.”
Who are these folks Yocom wants to prosecute? Folks like me.
I have been playing poker for as long as I can remember. Which means I don’t remember being taught to be potty trained, and I also don’t remember learning when a flush beats a straight. My dad taught me how to count by handing me a deck of cards through the slots in my crib. My mom invited me to my first game of poker when I was in the fourth grade. She’d had some friends over from work, and after most everyone had left for the evening, she realized they needed a fourth player to play five-card draw.
Stories like this generally end with “and then the fourth-grader and his innate sense of cards cleaned up.” The reality of that night, however, is I lost my allowance and I have been chasing after that $3 ever since.
Having President Hinckley come out against the intensity of my poker games or any other adult choice is nothing new. However, when District Attorney Yocom says he is going to “prosecute these folks” by slapping them with class B misdemeanors, I had to step back and evaluate the situation. The president of the LDS Church can throw me to perdition and toss away the key. But Yocom can lock me in actual prison for up to six months and fine me a thousand dollars. Right now, we’re on my time, and I don’t have a thousand dollars or six months to spare.
Plus, if all class B misdemeanors are treated equally, not only is gambling a crime, but according to state law, (76-7-104) “fornication between unmarried persons” is also a class B misdemeanor. Talk about fear. If Yocom were to come to my house and I was playing strip poker with my unmarried girlfriend, would he: 1. arrest me, 2. give me a misdemeanor or 3. ask to be dealt in?
Is Yocom playing with a full deck, or is he out of aces? For a taste of my whiskey, I could give him some advice.
For card players in Utah, this could be the time to know when to hold ’em, and know when to fold ’em.
Texas Hold ’Em
The only times I’ve played Texas Hold ’Em in Utah are in basements, back rooms or when I’m feeling really flagrant—and the weather is nice—on the front porch of my friend’s house.
Reading a story about the poker clubs and card games being sponsored at bars was like an advertisement and an invitation to search out these public card games. The fact that the story was written because these games face the possibility of getting shut down only hurried my decision to go out and play.
For the past five years, I’ve belonged to a group of friends who meet once or twice a month to play Texas Hold ’Em.
Last Tuesday night I sent out an e-mail to my poker group, the Shirt Losers, and asked them to meet me at a bar in Salt Lake City that advertised a Texas Hold ’Em Tournament.
These publicly held tournaments in bars are the rattlesnakes upon which Yocom and Shurtleff seem to really have their six-guns drawn. The reason these private club tournaments are target No. 1, God only knows. It could have something to do with mixing alcohol and cards, the pope dying or some other divine intervention.
According to a position letter written by Assistant Attorney General Thom D. Roberts to Earl Dorius of the Department of Alcoholic Beverage Control (DABC), “Gambling is of concern to the (DABC) because liquor laws make it a violation for any licensee to engage in or permit any form of gambling.”
The DABC is so concerned with gambling they can “suspend the liquor license from ten days to revocation and/or a fine from one to 25 thousand dollars.”
It would seem ridiculously stupid for any private club to hold a Texas Hold ’Em tournament with these kinds of penalties, unless there were loopholes or inconsistencies in the law. There are.
Roberts’ letter to the DABC says there must be three things present to constitute gambling in a bar.
1. It is among people who have given something of value in order to participate.
2. There is “an element” of luck in the game.
3. Something of value may be received.
Roberts says if all three of these elements are present then “there is probably illegal gambling.”
Wouldn’t it be great if all laws were written this way? Let’s say you were traveling 60 mph in a 20 mph school zone and the cop pulls you over and says, “You were exceeding the speed limit by 40 mph—you’re probably guilty. But, maybe not? I don’t know? The law is written so vaguely you might be allowed to go that fast. So you should probably obey the speed limit?”
For the time being, it was the loophole in the laws which allowed 42 people to probably show up at the Texas Hold ’Em tournament on this particular Tuesday night.
Even if all three elements from Roberts’ letter are in play at a private club there is still only a probability or chance of gambling. Therefore, it would seem probable a club could hold a poker tournament by eliminating any one of Roberts’ Three Elements to Probability Gambling in Utah.
This is how the tournament took place.
Of the 42 people playing cards, six of us were Shirt Losers. There was no cash entry to play. The dealer introduced himself and let us know it was customary, but certainly not necessary, to tip the dealer. Most everyone put in $5, some put in $10 and I let the cup pass right by my wallet. I played for free. I’m an ass.
By being the player persona non grata, by not paying, I had single-handedly eliminated one of the elements necessary for the possibility of gambling. No longer was the game being played by persons “who have given something of value in order to participate” — it was now being played by 41 people who (may have) tipped the dealer and by one jerk. Me.
The dealer had to have known I’d slighted his cup five bucks, but this didn’t seem to matter when the cards were dealt. I was looking at a pair of kings and was the winner of the first pot.
Sitting to my right throughout the first round of this tournament was my Shirt Loser buddy, Bryan Mannos. We kept track of the different ways the other 11 people were playing at our table. There was the waif of a girl who pre-flopped raised the table and drew a straight on the river. She held an unsuited seven and nine in her hands.
The talk among Texas Hold ’Em players is that since the card game is one of skill, like golf, bowling or chess—a tournament should be legal.
Roberts’ Rule Number Two: Is there “an element” of luck in the game?
The case which Assistant Attorney General Roberts cites in his letter to the DABC “D’orio v. Startup Candy Company (Utah 1920[sic]),” card playing is still considered a game of chance. This Candy Company case actually took place in 1928, but the law is still on the books. This law lets us know that “any game played with cards” or dice in Utah is a game of chance and if money is involved—it’s gambling.
The loophole card players are betting on in D’orio v. Startup Candy Company (Utah 1928) is the sentence: “The test of the character of the game is not whether it contains an element of chance or an element of skill, but which of these is the dominating element that determines the result of the game.”
Twenty minutes into the tournament and Bryan had the waif girl’s chips in front of him. Her luck had expired. His skill was the dominant element.
Nationally there has yet to be a case where poker was ruled to be a “game of skill.” Therefore, right now, poker is a game of chance. If I were a betting man, and I think we know I am, I wouldn’t put my money on Utah being the state to break legal ground with Texas Hold ’Em going legit. Or, as my dad says, “How many ‘Rs’ in Fat Chance?”
Close to the end of the Texas Hold ’Em Tournament, the 42 contestants had whittled down to seven of us at the final table. Three of the final seven were from the Shirt Losers. According to the law, this was just dumb luck and not skill.
Even though I thought I had most of the players figured out because of the play-by-play commentary Bryan and I had been doing as to who were the better (or consistently luckier) players, I forgot about Bryan. He knocked me out, and I came in seventh place. Three hands later, Bryan came in sixth.
Standing behind the final players, cheering for Shirt Loser Renee, I started talking to a tournament player about cards and gambling in Utah.
I’m an addict, I confessed. I even have to play the “Utah Lottery” when I shop at Smith’s. He asked me what the Utah Lottery was and I said, “You know, those crane games. The ones where you put 50 cents into the machine in hopes the dangling crane will pick up a worthless stuffed animal with its silver claw.”
“Oh those,” he said. “The crane game isn’t gambling. They’re totally rigged. I should know.” It turns out the man was a Utah Lottery machine insider.
This was like finding out Santa Claus wasn’t real. I’ve always considered myself to be a skilled crane-game operator. In fact, that and Whack-a-Mole, I thought, were my God-given talents.
He said, “Let me guess. You probably win a stuffed animal once every four times you play. Maybe once every seven? That’s because the vendor decides how often you win. They program the tension of the crane. It’s computerized. When they put a machine in a new location they program it to win a lot. Those stuffed animals only cost 75 cents. Even if you win one out of three times, they still make money and you lose.”
Even at Smith’s, the house probably always wins.
At the end of the tournament, Renee came in second place. Something of value may have been received, or it may not have. If you’d like to find out, then play Texas Hold ’Em several times a month for five years or get really lucky one night.
It wasn’t the possibility that I had committed a class B misdemeanor by playing Texas Hold ’Em that had me bent out of shape this Tuesday night. But the allegation that the “Utah Lottery” crane game was rigged? It seemed incalculable.
As luck and empty bellies would have it, Bryan and I drove to Denny’s after our night of card playing, and sitting on the right-hand side of the entrance or the left-hand side of the exit, was a crane game full of colorful stuffed animals.
I’d always figured my skill in operating the crane game was in knowing which animal was the ripest for the plucking from its glass enclosure. Now I’ve found my skill is negligible compared to the computer programmed to take my 50 cents four out of five times.
Deciding to test out the words of this mystery crane guru who refused to give his name, I put one dollar into the Denny’s Utah Lottery and lowered the crane directly on top of a bright pink bear. The crane completely grabbed the bear with its talons, but failed to pick Pinky up. The next attempt yielded the same result as the first attempt. Nada.
“Give me a dollar, Bryan,” I said.
“But you already owe me $197.” Bryan is a better card player.
“Just a dollar. I’ve got to win this bear.”
His dollar gave me two more credits in the game. After the first try, I was zero-for-three. My skill hadn’t changed. The position of the crane hadn’t changed, but on the fourth attempt, the crane grabbed that lovable loaf of stuffed-animal love and dropped it in the hopper. Winning this stuffed animal violated all three of Roberts’ tenets of gambling. Money was exchanged, luck was involved and something of value was received.
Corrupting a Youth
The next morning I called my sister in-law, Jen, and asked if my 5-year-old nephew, Calvin, could come out and play with his Uncle Phil. Jen was suspicious. Don’t worry, I told her, I’m just going to give Calvin $20 so he can play as many games as he’d like at an arcade.
“Are you still unemployed?” she asked.
“I just want to take the boy out for a good time,” I said. “Besides, you know I prefer to be called ‘Fun-employed.’ Unemployed sounds so negative.”
Like a mom should really be too concerned about getting rid of one of her kids for the afternoon. Jen said Calvin got out of school at noon. By 12:30, we were gambling.
I drove Calvin straight to a “Kiddie Casino” otherwise known as an arcade. This place masquerades as “Fun for all Ages.” In reality, it’s a gateway drug to one-armed bandits and a life of dice, cards and games of chance where there probably could be a violation.
Before we started gambling, I asked one of the arcade game attendants if they’d ever seen a child addicted to the arcade games. The young employee said, “It’s not just kids, I’ve seen adults come in here and spend several hundred dollars.”
I call that Gambling with a capital “G.” Which rhymes with Rambling. Read on.
According to Utah law (76-10-110), “Gambling means risking anything of value for a return … when the return or outcome is based upon an element of chance and … that someone will receive something of value in the event of a certain outcome.”
I gave Calvin $20 to spend however he’d like at the arcade. I said, we could bowl, go to the snack bar or leave the arcade and head to Toys R Us. He quickly stuck the 20 into the token machine and then spent the next hour running around feeding tokens into ticket-dispensing machines with an “intensity on his face” that is hard to describe and yet would sound all too familiar to anyone who trained in Hinckley’s conference speech.
This place had all of the latest video games. It also had a slew of games that dispense tickets depending on how well you scored in the contest. There was Skeeball, basketball and Calvin’s favorite class B misdemeanor, Dunk the Alien.
Several games had lights spinning at dizzying speeds. One game, called “Dozer,” issued tickets according to where a token lands when rolled down a ramp after hitting a bull’s-eye target at the very moment a spinning wheel points an arrow to the distance, a bulldozer will push tokens over an edge, thereby issuing a lot of tickets, no tickets or one ticket. Sound confusing? That’s what I thought, but as I read the instructions on how to play, Calvin hit the jackpot. We won a couple hundred tickets. He was thrilled. I was confused.
Some states have laws affectionately called “Chuck E. Cheese’s Laws,” which allow players to gamble on games of chance, like arcade games at Chuck E. Cheese’s, when the prize value is pennies. Utah is not one of these states.
Not only was Calvin violating law 76-10-110 by trying his luck at winning lots of tickets to be cashed in for prizes when his $20 was spent, but he was possibly being subject to gambling fraud. If the crane games here were also computerized to adjust their tension every third, fourth or seventh try then this game of skill is a game of violations. Class B misdemeanor violations.
Utah law (76-10-1103) states specifically, “A person is guilty of gambling fraud if he … has a lesser risk of losing or greater chance of winning than one or more of the other participants, and the risk is not known to all participants.”
As Calvin fed tokens into the crane game, he had no idea his chance of winning a stuffed animal was less because of the “totally rigged” crane. Even if this crane isn’t totally rigged, by Utah law, it’s still gambling.
In one Texas court case—State v. Gambling Device Tex.App.-Hous, 1 Dist., 1993—the court spent good time and taxpayer money evaluating skill vs. chance in an arcade game called “Bulldozer.” In this case, the conclusion was: “A player’s level of skill may influence the degree of chance involved, but it does not eliminate the element of chance altogether.” In other words, because the game dispensed tickets—very much like the “Dozer” game where Calvin won 200 tickets—and skill could not master the game, it was considered gambling because chance and luck trumped skill—the opposite of Texas Hold ’Em.
What to do about these folks?
District Attorney David Yocom, are you still with me? There are folks at kiddie arcades gambling! Underage minors! But it doesn’t end there. The Utah State Fair is a casino with cowboys. Popping balloons with darts for prizes and the ring toss game—these aren’t games of skill, they are gambling. Plus, since the Utah State Fair sells alcohol, you can get the DABC in on the violations as well. Hell, you could save time by issuing everyone with a ticket to the State Fair his or her very own class B misdemeanor. (Booking photo optional.)
Start your gambling crusades by prosecuting “these folks” at the Texas Hold ’Em Tournaments, but don’t stop there. Family fun centers, fairs and arcades litter our little valley. Oh, oh—I bet those bingo parlors are up to no good, either. Then, when you’re ready to fry the big fish, set your sights on Lagoon. David Yocom and Mark Shurtleff, you can be the Elliott Nesses of Gambling Prohibition.
The best part is, once you prosecute me participating in well over three acts of gambling a week—I really do play the crane game this often—the promise I made to Utah school kids will come true.
According to Utah law (76-10-1108) “Any gambling bets or gambling proceeds which are reasonably identifiable as having been used or obtained in violation of this part may be seized. All sums forfeited under this section shall be paid to the Uniform School Fund.” Come on, Shurtleff and Yocom. Collect those ill-gotten gains and donate the proceeds to our school system. Shut down Lagoon and Fat Cats. Put an end to the Utah State Fair. Good-bye Nickelcade.
Do it for the kids!