Criminal Practice – Section 12-21-2710 of the South Carolina Code – Illegal Gambling Device

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Section 12-21-2710 of the South Carolina Code does not narrowly prohibit only the listed games and games of chance, but instead includes in its prohibitions any licensed device used for gambling.

We reversed the circuit court’s decision.

This case concerned a “Dragon’s Ascent” video game machine. The South Carolina Law Enforcement Division (SLED) confiscated the machine from a business in Hanahan after deciding it was an illegal gambling device. A magistrate found the device to be a game where skill predominated over chance but still concluded the device was illegal under South Carolina law because it was “used for gambling.” Respondents, the game and its owner, appealed to the circuit court. The circuit court agreed the game was one of skill but found this meant the machine was legal based on the view that legality under the relevant statute “begins and ends” with the skill versus chance inquiry. SLED appealed. The sole issue before us was whether the statute in question—section 12-21-2710 of the South Carolina Code—only prohibits games of chance or also prohibits machines and devices that can be used for gambling. The statute’s text, its history, and precedent all strongly support the latter view.

After SLED received a complaint about an illegal gambling device being used at a Hanahan restaurant/bar, “LG’s By the Creek,” a special agent conducted three separate undercover visits to the business. He played the Dragon’s Ascent machine at issue each time before ultimately seizing it. After the SLED agent seized the machine at issue, it was taken to the magistrate court, where a magistrate found it to be an illegal gambling device prohibited by the statute. A post-seizure hearing was held several months later. The magistrate heard extensive arguments, received testimony, and watched as Dragon’s Ascent’s lead designer demonstrated how to successfully play the game. The magistrate issued a written order finding that the game was one “in which skill predominates over chance,” but found that the game was nevertheless illegal because it was used for gambling. The magistrate relied on our supreme court’s opinion in Town of Mount Pleasant v. Chimento, 401 S.C. 522, 737 S.E.2d 830 (2012) (upholding convictions for playing “Texas Hold’em” in a residence), in concluding that “the determination as to whether th[e] Dragon’s Ascent machine is an illegal gambling device is not limited to the skill/chance ratio, but rather on the existence of a wager.” Respondents appealed to the circuit court. The circuit court agreed with Respondents that an analysis of illegality under the statute “begins and ends” with whether the game is one of skill or one of chance. The circuit court distinguished Chimento by reasoning that the case involved a different statute and did not concern the question whether a particular machine was an illegal gambling device.

The case has this narrow focus because SLED does not challenge the finding that Dragon’s Ascent is predominately a game of skill and Respondents have insisted throughout this case that the machine must be deemed legal because the inquiry stops once skill is found to predominate chance. We concluded the statute does not narrowly prohibit only the listed games and games of chance, but instead includes in its prohibitions any licensed device used for gambling.

We do not read Chimento as abolishing the skill versus chance analysis; instead, we read Chimento as recognizing the common-sense fact that a game of chance and a game of skill can both be “used for gambling.” This neatly tracks with what we see as the obvious purpose of the language in question, which is to prohibit gaming machines that attract players to deposit money for the purpose of trying to “win” more, whether by skill or chance. The circuit court erred in ending its analysis with the skill versus chance inquiry. We therefore reinstated the magistrate’s order finding that this Dragon’s Ascent machine was used for illegal gambling.

Reversed.

1 Dragon’s Ascent Video Gaming Machine v. South Carolina Law Enforcement Division (Lawyers’ Weekly No. 011-005-25, 10 pp.) (Blake A. Hewitt, J.) Appealed from Berkeley County Circuit Court (Bentley Price, J.) Adam L. Whitsett, of Columbia, for Appellant; Peter Michael McCoy, Jr., of McCoy Law Group, LLC, of Charleston; Kirsten Elena Small, of Maynard Nexsen, PC, of Greenville; Christopher John Murphy, of Murphy Crantford Meehan, Attorneys at Law, LLC, of Summerville; and William W. Wilkins, of Billy Wilkins Law LLC, of Greenville, all for Respondents. South Carolina Court of Appeals