Facts
- Timothy John Childs was previously convicted (July 1990) of fraudulent slot-machine manipulation based on “handle popping,” a method of manipulating a slot-machine handle so one or more reels stop spinning early.
- Handle popping used no artificial device and caused no damage; it depended on a slot machine’s mechanical responsiveness to variations in the motion and strength of a handle pull.
- Childs appealed the 1990 conviction, and in September 1991 the Nevada Supreme Court reversed in Childs v. State (“Childs I”), holding NRS 465.070(7) unconstitutionally vague as applied because it failed to define what constituted a “normal” pull of a slot-machine handle.
- While the Childs I appeal was still pending, Childs was again observed in two casinos engaging in the same handle-popping method.
- At Bill’s Casino, a slot supervisor testified he saw Childs pull down on the handle and then jerk it so that one of the three reels stopped prematurely.
- The next day at the High Sierra, Childs was seen using the same method and was arrested.
- For this later conduct, the State charged Childs with one count of fraudulent slot-machine manipulation under NRS 465.070(7) and one count of attempted fraudulent slot-machine manipulation (attempt under NRS 193.330).
- After a bench trial, the district court found Childs guilty on both counts and sentenced him to concurrent prison terms of five and ten years.
- Childs appealed again, arguing that NRS 465.070(7) was still unconstitutionally vague as applied to non-damaging handle popping, and that Childs I required reversal.
Issues
- Whether NRS 465.070(7), which prohibits manipulating a gaming-device component “contrary to the designed and normal operational purpose” (including “varying the pull of a handle”), is unconstitutionally vague as applied to non-damaging handle popping.
- Whether Childs I controlled the outcome where the later convictions were based on conduct materially the same as the conduct in the earlier case.
Decision
- The Nevada Supreme Court reversed Childs’s convictions for fraudulent slot-machine manipulation and attempted fraudulent slot-machine manipulation.
- The court held that reversal was required by Childs I because the conduct supporting the new convictions was materially the same as the conduct previously found outside the statute’s valid reach.
- The court concluded that NRS 465.070(7) remained unconstitutionally vague as applied to handle popping because it still did not give clear notice of what counts as a “normal” handle pull (and therefore what variations become criminal).
- A dissent would have upheld the convictions.
Legal Principles
- Due process forbids enforcing a criminal statute that, as applied, fails to give a person of ordinary intelligence fair notice of what conduct is prohibited or invites arbitrary enforcement.
- Vagueness can be assessed “as applied” to the charged conduct; a statute may be invalid in a particular application even if it might be enforceable in other settings.
- When controlling precedent has already held a statute unconstitutionally vague as applied to the same type of conduct, materially indistinguishable prosecutions under the same statutory language cannot stand.
- A statutory reference to conduct such as “varying the pull of a handle” does not cure vagueness when liability turns on an undefined baseline (what is “designed and normal”) and the statute supplies no workable standard for distinguishing lawful play from criminal manipulation in the handle-popping context.
Conclusion
The Nevada Supreme Court reversed Childs’s bench-trial convictions because NRS 465.070(7) did not clearly define what variations in a slot-machine handle pull separate lawful play from criminal “manipulation” in non-damaging handle popping, and Childs I—addressing the same statutory language applied to the same type of conduct—required the same result.