Documente Academic
Documente Profesional
Documente Cultură
v.
COURT USE ONLY
KEVIN RALEY, Defendant-Appellee.
ANSWER BRIEF
Introduction ............................................................................................................................... 5
Argument ..................................................................................................................................16
I. The Trial Court Correctly Determined Mr. Raley Had The Right To Present
The Expert Opinion That The Form Of Poker Involved In This Case Was A Bona
Fide Contest Of Skill. .........................................................................................................16
3. The Cases Cited By The Prosecution Do Not Establish That Each And
Every Poker Game Meets The Definition Of “Gambling” As A Matter Of
Law. ..............................................................................................................................24
Conclusion ................................................................................................................................30
ANSWER BRIEF
People v. Kevin Raley, Weld District Court 2009CV168
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TABLE OF AUTHORITIES
Cases
Bd. of County Comm’rs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo. 2004) .....27
Berckefeldt v. Hammer, 44 Colo.App. 320, 616 P.2d 183 (Colo.App. 1980) .............. 14, 21
Charnes v. Central City Opera House Association, 773 P.2d 546 (Colo. 1989) ......... 15, 26, 27
Gallatin County v. D & R Music Vending, 208 Mont. 138, 676 P.2d 779 (1984) ..............28
Ginsberg v. Centennial Turf Club, Inc. et al., 251 P.2d 926 (Colo. 1952) ...............................23
Houston v. Younghans, 580 P.2d 801 (Colo. 1978) ................................................... 14, 24, 25
Klinger v. Adams County Sch. Dist. No. 50, 130 P .3d 1027 (Colo. 2006) ...........................27
Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) .....................18
ANSWER BRIEF
People v. Kevin Raley, Weld District Court 2009CV168
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Statutes
§ 18-10-102(2)(a), C.R.S..........................................................................................................17
Constitutional Provisions
Rules
CRE 702....................................................................................................................................19
Other Authorities
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INTRODUCTION
In this criminal case, the trial court ruled Colorado’s illegal gambling statute
does not specifically enumerate what games are considered bona fide contests of skill
versus illegal gambling and, therefore, allowed Defendant, Mr. Raley, to present expert
testimony that the game of Texas Hold’ Em poker played in a tournament format is a
bona fide contest of skill. Mr. Raley was acquitted by a jury and the Prosecution now
Kevin Raley was the Defendant in the trial court and is Appellee in this Court.
Plaintiff in the trial court and Appellant in this Court, will be referred to as the
Prosecution or the People. The trial court is the Weld County Court, the Honorable
The trial court’s ruling at issue was announced from the bench and is found in
the partial transcript of the proceedings held on January 21, 2009, at page 5, line 24,
through page 7, line 11. For simplicity and clarity, this ruling will be referred to
2009, the record consists of the trial court’s file, which contains the pleadings and
other documents filed in the trial court. The trial court’s file has not been paginated;
therefore, references to any document contained in the file will be by name and date
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filed, if known. References to any portion of a transcript of the proceedings in the
expert testimony that the game of Texas Hold’ Em poker played in a tournament
format is a bona fide contest of skill, when the definition of illegal gambling provides
an exception for bona fide contests of skill and the same statute does not specifically
trial, on December 5, 2008, the Prosecution amended the charges against Mr. Raley to
one petty offense. Then, on the morning of the first day of trial, the Prosecution
moved to dismiss the Professional Gambling charge against Mr. Raley. This motion
was granted and Mr. Raley ultimately faced prosecution for one count of Gambling.
On January 9, 2009, Mr. Raley filed notice of his intent to present the expert
testimony of Robert Hannum, Ph.D. Included with this notice was an affidavit
executed by Dr. Hannum which discussed his qualifications and his opinion in detail
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that poker is a bona fide contest of skill. In response, the Prosecution filed a “Motion
to Preclude Expert Testimony,” on January 12, 2009, which sought a ruling from the
trial court preventing Dr. Hannum from testifying. Mr. Raley then responded on
January 20, 2009, with his “Response to Motion to Preclude Expert Testimony.”
The trial court addressed the Prosecution’s motion on the morning of the first
day of trial, January 21, 2009. After argument of counsel, the trial court denied the
Prosecution’s motion and allowed Dr. Hannum to testify. At the conclusion of the
evidence the trial court instructed the jury as to the legal definition of Gambling in
Instruction No.10. This instruction included the “no control,” “bona fide contests of
C.R.S. (discussed below). The Prosecution did not object to this instruction. The
Court provided the jury with one form of verdict—a general form of verdict—with
no objection from the Prosecution. The Prosecution did not request any type of
On January 22, 2009, Mr. Raley was acquitted by a jury of having engaged in
Gambling. It is unclear whether the jury acquitted Mr. Raley because the Prosecution
failed to proved beyond a reasonable doubt that the “bona fide contest of skill”
exception did not apply or because the “bona fide social relationship” exception did
not apply, or because the Prosecution failed to prove some other essential element of
their case.
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In any event, the Prosecution thereafter filed a notice of appeal and now seeks
disapproval of the trial court’s ruling allowing Dr. Hannum to testify as an expert
witness.
STATEMENT OF FACTS
A. A Friendly Poker Game
Mr. Raley and his friends enjoy playing poker together. One place where they
played poker together was at Rafferty’s, a restaurant and bar in Greeley, Colorado.
league, but later cancelled this arrangement when management became unsatisfied
with the cost. Mr. Raley and his friends then approached management and requested
Raley and his friends formed a private club, the All In Bombers, to play one specific
bylaws and rules of this poker club were introduced as an exhibit at trial (People’s
Exhibit 3).
In order to play in the poker tournaments organized by Mr. Raley and his
friends, a person had to be a member of the All In Bombers poker club. The entry fee
for members for any one tournament was $20.00. Because Mr. Raley and his friends
were playing in the tournament format, players were not paid money on the basis of
any one poker hand. Instead, the top two or three players divided the prize pool based
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People v. Kevin Raley, Weld District Court 2009CV168
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on how well they did in the tournament, which was the result of an individual player’s
one such tournament, but was not allowed to do so because he was not a member of
the club. However, under a false identity, Agent Rule convinced one of the club
members to sponsor him. After Agent Rule became a club member under his false
identity, Agent Rule returned on another day and was allowed to play in the
tournament.
On August 12, 2008, Agent Rule returned to Rafferty’s for a third time and
played in the poker tournament for a second time. However, this time Agent Rule had
made arrangements with the Greeley Police Department and other CBI agents to stop
the tournament and charge individual players with Professional Gambling. The
officers charged into the room, all players were told to place their hands on the tables
in front of them, and the officers then attempted to interrogate each player before
either releasing them or charging them. Ultimately, Mr. Raley and four other
B. Dr. Hannum
Mr. Raley filed a notice disclosing his intent to present expert testimony
through Robert Hannum, Ph.D. Included with this notice was an affidavit executed
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by Dr. Hannum which discussed in detail his qualifications and his opinion that poker
is a bona fide contest of skill. (Defendant’s Expert Witness Disclosure, & attached
affidavit.) Dr. Hannum is a full professor of statistics at the University of Denver and
member of the expert faculty at the Gaming Studies Research Center at the University of
Nevada, Las Vegas. (Id.; Affidavit, p. 1.) Dr. Hannum is an active member in good
the Decision Sciences Institute, and the International Masters of Gaming Law. (Id.)
Dr. Hannum’s primary research interests are the mathematics of gaming and
operations. (Id., Affidavit, p. 2). Dr. Hannum is also the co-author of Practical Casino
Math (2nd Ed. 2005), a comprehensive 300-page book on the mathematics underlying
casino games. He has written numerous articles and reports relating to the
design and analysis, a number of which are listed in his Affidavit. (Id.)
Dr. Hannum has also worked as a consultant in these areas for both private
companies and state governments. (Id., Affidavit, p. 3). In addition, Dr. Hannum has
testified as an expert witness for both the Wisconsin Department of Revenue and the
Dr. Hannum expressed the opinion that “[p]oker differs in substantial respect
from the various activities often classified as gambling, such as lotteries and most
casino-style games . . . because poker has many elements of skill not present in
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traditional games of chance and is predominated by skill elements, not chance.” (Id.,
Affidavit, p. 4.) Dr. Hannum pointed out, “In a game of chance the player can
exercise no control over the outcome, whereas in a game of skill the player alters the
enhanced decision-making ability. (Id., p. 5.) Thus, “[i]n these skill games [like Texas
Hold’Em poker], decisions and strategies affect the outcome, and the percentage of
money won or lost is a direct reflection of the player’s level of skill.” (Id.)
research to reach his opinion that poker is a game of skill, not chance. For example,
Dr. Hannum has employed the “decision tree approach” to mathematically analyze
the difference between a player who utilizes skill in his or her play versus a player who
utilizes chance and plays randomly. (Id., Affidavit, p. 7.) In one case study, Dr.
Hannum discovered that a skilled player wins 97.8% of the hands, while a player
playing randomly would only win 2.2% of the hands. (Id., p. 8.) Overall, Dr. Hannum
concluded that a skilled player versus a random player would result in the skilled
player winning 96.86% of the hands to only 3.14% of the hands for the random
Dr. Hannum has also used “large scale simulations” in which he simulated one
billion poker hands played between a skilled player and a random player. The results of
this simulation proved consistent with Dr. Hannum’s mathematical analysis in that the
skilled player once again won 96.86% of the hands, while the random player won only
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People v. Kevin Raley, Weld District Court 2009CV168
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3.14% of the time. (Id., p. 9-10.) From these results, Dr. Hannum concluded that—
“[s]ince a player making random decisions would fare just as well as any other player
in a game of pure chance and no skill (such as roulette)”—“these figures for the Texas
Hold ‘Em game speak to the overwhelming dominance of the role of skill, expressed
Dr. Hannum also stressed that “betting skill is the sole factor in determining the
outcome” when one player successfully convinces the remaining players to fold their
hands before the showdown (where the best hand would normally win). (Id.) “Betting
strategy in poker—whether to fold or bet and how much to bet—is a decision made
of a player’s own free will and is something a player can become skillful at. A player’s
Ultimately, Dr. Hannum concluded that “the players with strong poker skills
win convincingly over the players with weak poker skills,” and that poker “is
the Prosecution filed a “Motion to Preclude Expert Witness” with the trial court. Mr.
Raley then filed a Response, and a hearing was held the morning of the first day of
trial. After hearing argument from counsel, the trial court denied the Prosecution’s
motion. First, the trial court noted that the statute defining Gambling, § 18-10-102(2),
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C.R.S., “does not specifically indicate or list what the legislature is considering a game
of skill versus a game of chance, and what specifically is included within or under the
exception of a bona fide contest of skill.” (Tr., p. 6, ll. 5-8.) The trial court then
analyzed the case law cited by the Prosecution and concluded that
the Ginsberg case, 251 P.2d 926, … deals with horse and dog track
betting and does not specifically deal with an issue of poker,
which then leaves the Charnes case, 773 P.2d 546, and that case the
Court is also finding factually distinguishable from the facts of
this case. It is not a poker tournament. It’s not specifically a Texas
Hold ’Em game as far as the Court can tell from reading the case.
(Tr., p. 6, ll. 12-19.) The trial court also concluded that the issue of bona fide contest
of skill had not been raised in Charnes, and thus was not an issue to be decided on
The trial court further concluded there was no basis in either the statute or
prior case law “[t]hat makes it clear that a Texas Hold ’Em tournament is in fact a
game of skill or chance.” (Tr., p. 7, ll. 5-7.) Finally, the trial court recognized that
whether or not Texas Hold ‘Em is a game of skill or chance was a fact in issue in Mr.
Raley’s trial and, accordingly, denied the Prosecution’s request to preclude Dr.
Dr. Hannum testified at trial consistent with his Affidavit. The Prosecution did
not present any expert testimony to contradict Dr. Hannum’s testimony. Ultimately,
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People v. Kevin Raley, Weld District Court 2009CV168
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Mr. Raley was acquitted by a jury of having engaged in Gambling. The Prosecution
now appeals the trial court’s ruling allowing Dr. Hannum to testify.
SUMMARY OF ARGUMENT
First, the trial court was vested with broad discretion to determine the
admissibility of expert testimony, and the exercise of that discretion will not be
overturned unless manifestly erroneous. The Prosecution had the burden of proving
beyond a reasonable doubt that Mr. Raley had engaged in “Gambling,” in violation of
§ 18-10-103(1), C.R.S. This burden means the Prosecution had to prove none of the
exceptions found in § 18-10-102(2), C.R.S., applied to the facts of this case. One of
these exceptions is that an activity is a “bona fide contest of skill.” Another exception
is that the person taking the risk has some control over the happening or event on
which the wager is being made. These three exceptions are part of the essential
elements the Prosecution had the burden of proving did not apply in Mr. Raley’s case,
and the trial court properly instructed the jury as such—with no objection from the
Prosecution.
The question of whether or not Mr. Raley’s conduct meets one of the
exceptions found in § 18-10-102(2) is a question of fact, not a question of law. Mr. Raley
had the constitutional right to present evidence in his defense and to have the jury
consider all relevant evidence that might tend to negate an element of the offense—
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including expert testimony. Professor Hannum’s expert testimony negated at least two
elements of the offense the Prosecution was required to prove. The trial court would
have violated Mr. Raley’s fundamental, constitutional right to present a defense had
the trial court prevented Dr. Hannum from testifying. The trial court did not commit
manifest error. To the contrary, the trial court followed its constitutional duty by
allowing Mr. Raley to present a relevant defense to negate the essential elements of
the Prosecution’s claim in the form of an opinion from a qualified expert witness.
Second, simply because poker may have been considered “gambling” in another
case doesn’t limit Mr. Raley’s right to claim his conduct in this case meets one of the
1980). The Berkefeldt case establishes that the definition of “gambling” relies on
Third, the cases cited by the Prosecution do not establish that each and every
poker game meets the definition of “gambling” as a matter of law, which is the crux
of the Prosecution’s case. One case cited by the Prosecution, Houston v. Younghans, 580
P.2d 801 (Colo., 1978), proves just the opposite. As opposed to holding that poker is
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“gambling” as a matter of law for all intents and purposes and in all contexts, the
Colorado Supreme Court held otherwise. The Supreme Court didn’t flinch at the idea
that poker—in the context of the facts of the Houston case—had effectively been
Central City Opera House Association, 773 P.2d 546 (Colo. 1989) is also misplaced—as
The fact that other states’ appellate courts or fact-finders in other cases have
concluded that poker is not a game of skill doesn’t render the trial court’s ruling in
this case “manifestly erroneous.” If other appellate courts and a past Colorado
Attorney General can reasonably conclude that poker is a game of skill, then surely
the jury that heard Mr. Raley’s case rightfully had the opportunity to consider whether
the Prosecution had proven otherwise—and the trial court properly concluded the
ARGUMENT
I. THE TRIAL COURT CORRECTLY DETERMINED MR. RALEY HAD THE
RIGHT TO PRESENT THE EXPERT OPINION THAT THE FORM OF POKER
INVOLVED IN THIS CASE WAS A BONA FIDE CONTEST OF SKILL.
A. Standard of Review
The standard of review for this issue is not review de novo, as the Prosecution
claims. In the contrary, the standard of review related to the admissibility of expert
testimony is highly deferential. Trial courts are vested with broad discretion to
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determine the admissibility of expert testimony, and “the exercise of that discretion
will not be overturned unless manifestly erroneous.” People v. Martinez, 74 P.3d 316,
322 (Colo. 2003). “A trial court has a superior opportunity to determine the
competence of the expert as well as assess whether the expert’s opinion will be helpful
had to prove that Mr. Raley’s conduct met the definition of “gambling,” as set forth
by § 18-10-102(2), C.R.S.:
Thus, while an activity at issue may be contingent, in part, upon lot or chance
or the outcome of a happening or event, that same activity is not considered gambling
One of these exceptions is that an activity is a “bona fide contest of skill.” § 18-
10-102(2)(a), C.R.S. Not as obvious (because it’s not enumerated like the other
exceptions) is the requirement that the happening or event over which a person is
risking money be one “over which the person taking a risk has no control.” § 18-10-
102, C.R.S. (emphasis added). Thus, if a person has some control over the event or the
happening being wagered on, the person’s activity does not meet the definition of
“gambling.” (Henceforth, this brief refers to the “no control” language as another
exception.)
10-102(2), the essential elements of the charge against Mr. Raley are found among the
exceptions set forth there. The trial court recognized the importance of these
exceptions and provided the jury with these exceptions in Instruction No. 10—an
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People v. Kevin Raley, Weld District Court 2009CV168
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instruction to which the Prosecution had no objection. The Prosecution bore the
burden of proving beyond a reasonable doubt that Mr. Raley’s conduct did not meet
The question of whether or not Mr. Raley’s conduct meets one of the
question of fact whether an essential element of an offense charged has been proven
beyond a reasonable doubt, and the presiding judge may not usurp the jury’s
important function in this regard.” People v. Bastin, 937 P.2d 761, 766 (Colo.App. 1996)
(citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)).
Whether or not Mr. Raley’s conduct fell into an exception found in § 18-10-102(2)
was for the jury to decide, and the Prosecution had the burden of proving otherwise
Mr. Raley had the constitutional right to present evidence in his defense and to
have the jury consider all relevant evidence that might tend to negate an element of
the offense—including expert testimony. U.S. Const. amend. XIV; Colo. Const.
Art.II, §25; Taylor v. Illinois, 484 U.S. 400, 408-09 (1979) (defendant must be permitted
“to put before a jury evidence that might influence the determination of guilt”). The
implicates a defendant’s right to present a defense and ultimately the right to a fair
trial. Golob v. People, 180 P.3d 1006, 1013 (Colo. 2008); People v. Hampton, 696 P.2d 765,
778 (Colo. 1985); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049 (1973)
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People v. Kevin Raley, Weld District Court 2009CV168
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(“Few rights are more fundamental than that of an accused to present witnesses in his
own defense.”).
offense the Prosecution was required to prove. First, Dr. Hannum’s opinion that the
form of poker played by Mr. Raley—Texas Hold ‘Em—and the format in which it
was played—a tournament—was a bona fide contest of skill was relevant to the
exception found in § 18-10-102(2)(a). Second, Dr. Hannum’s opinion that there are
situations in poker when “betting skill is the sole factor in determining the outcome”
required the Prosecution to prove that Mr. Raley and the other players had no control
The standard of review the Prosecution must meet on appeal—that the trial
court’s ruling was manifestly erroneous—is very high. The Prosecution has failed to
meet that standard by explaining why they should have been excused from proving
the essential, material elements of the charge against Mr. Raley. It’s also important to
objection to Dr. Hannum’s qualifications as an expert, nor did the Prosecution raise
any objection to the basis of Dr. Hannum’s opinion. The Prosecution has made no
attempt to allege the trial court erroneously admitted an expert opinion that was either
testimony. The trial court would have violated Mr. Raley’s fundamental, constitutional
right to present a defense had the trial court prevented Dr. Hannum from testifying.
The trial court did not commit manifest error. To the contrary, the trial court
followed its constitutional duty by allowing Mr. Raley to present a relevant defense to
negate the essential elements of the Prosecution’s claim in the form of an opinion
Colorado’s illegal gambling laws. The Prosecution’s position seems to be that once an
activity has been found to be “gambling” by an appellate decision, then that activity is
Prosecution complains that “for several decades no one even tried to contend that
poker met the exception for a bona fide contest of skill, speed, strength or
endurance.” (Opening Brief, p. 7.) By failing to recognize that an activity may properly
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be “gambling” in another context, the Prosecution misunderstands the statutory
This distinction was intentionally built into the definition of gambling by the
Colorado legislature. For example, betting on the outcome of a golf game in which
depending on whether the bets you make are incidental to a bona fide social
relationship. However, even if you were betting with persons you had never met
before, betting on the outcome of a golf game in which you’re one of the players
In Berckefeldt v. Hammer, 44 Colo.App. 320, 321, 616 P.2d 183, 184 (Colo.App.
1980), the Court of Appeals addressed whether a debt arising from wagers between
the parties to an informal golf match could be collected. The facts were undisputed.
The plaintiff came to Colorado from Kansas specifically to participate in a golf match
with the defendant and two others not involved in the case. During the golf game, the
plaintiff and the defendant entered into several bets concerning their golfing skills,
and at the end of the match the defendant owed $24,600 to the plaintiff. Some bad
checks were exchanged, and plaintiff sued to collect. The trial court found that the
golf wagers were not incidental to a bona fide social relationship and denied relief to
the plaintiff based on the trial court’s finding he was trying to collect a “gambling”
debt.
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On appeal, the Court of Appeals analyzed the case under the definition of
“gambling” found in § 18-10-102(2): “Here, this golf match was a sporting event,
participated in and bet on by the four golfers, in which each of the four, by his
playing, had control over the outcome. Therefore, the wagering on this golf match did
thus demonstrating it’s only necessary to meet one exception to the “gambling”
The Court of Appeals then gave judgment to the plaintiff for his successful golf bet.
The precedent set by Berckefeldt v. Hammer establishes three principles useful for
the Court’s analysis in this case. First, an activity only needs to meet one of the
person making wagers over the outcome of an event is also a player in the event and
has some control over the outcome, that person is not engaged in “gambling.” Third,
one context but not be “gambling” in another context. The Berckefeldt case establishes
that the definition of “gambling” relies on questions of fact. The concept of any
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3. The Cases Cited By The Prosecution Do Not Establish That Each
And Every Poker Game Meets The Definition Of “Gambling” As A
Matter Of Law.
The crux of the Prosecution’s argument on appeal is that poker is considered
“gambling”—as a matter of law. However, the cases cited by the Prosecution fail to
prove this claim; they prove just the opposite. The Prosecution even deems it
necessary to rely on dictum from Ginsberg v. Centennial Turf Club, Inc. et al., 251 P.2d 926,
someone contending that poker is a game of skill is not surprising. The same author
probably could not anticipate cable television, a television network dedicated entirely
to sports coverage, or that one of such a network’s most popular shows would be
Texas Hold ‘Em played in tournaments where sometimes over 5,000 entrants contest
against each other to demonstrate who’s the most skillful player. It’s doubtful
Ginsberg’s author ever heard of Texas Hold ‘Em 1 , and it’s a pretty good bet he never
For the same reasons, it’s not surprising that the defendant involved in People v.
Wheatridge Poker Club, 569 P.2d 324 (Colo. 1977), stipulated that the form of poker
1 Although little is known about the invention of Texas Hold 'Em, the Texas State Legislature officially recognizes
Robstown, Texas as the game's birthplace, dating the game to the early 1900s. 80(R) HCR 109, Texas State Legislature -
House (May 11, 2007). After its invention and spread throughout Texas, Hold 'Em was introduced to Las Vegas in 1967
by a group of Texan poker players, including Crandell Addington, Roscoe Weiser, Doyle Brunson, and Amarillo Slim.
Doyle Brunson, Doyle Brunson's Super System II (2005).
2 The first World Series of Poker tournament was held in 1970.
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involved there constituted “gambling” (so unimportant to the holding of the case that
the decision fails to mention what form of poker was involved). Likewise, Houston v.
Younghans, 580 P.2d 801 (Colo. 1978), focused on the “social relationship” exception
Houston v. Younghans actually proves too much for the Prosecution’s position in
this case. The issue before the Colorado Supreme Court in this 1978 decision was
what effect the Colorado legislature’s amendment, in 1973, of the criminal code
related to gambling had on the common law prohibition against the collection of
Id. at 801. Houston then gave Younghans two checks to cover this debt, these checks
turned out to be bad, and Younghans’ subsequent attempts to collect the debt were
paid the debt because he was cheated in the poker game, and after this claim was
rejected, Houston was ordered to pay up. On appeal, Houston urged the Supreme
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Court to hold that the debt couldn’t be collected because it was a “gambling” debt. Id.
at 802.
In deciding the case, the Supreme Court first recognized the public policy
departure the legislature had made, set forth in § 18-10-101, C.R.S.—the “new”
statute passed in 1973. No longer “new,” § 18-10-101 is still the law in this State (and
Prosecution’s failure to recognize this same principle in the case at hand—that, “[i]n
promulgating this new policy, the general assembly redefined ‘gambling’ to exclude
the activity which is the subject of this litigation.” Houston, 580 P.2d at 802.
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As opposed to holding that poker is “gambling” as a matter of law for all
intents and purposes and in all contexts, the Colorado Supreme Court held otherwise.
The Supreme Court didn’t flinch at the idea that poker—in the context of the facts of
the Houston case—had effectively been removed from the definition of “gambling.”
Thus, the Court had no problem enforcing the debt associated with this “non-
gambling” poker game. “The particular poker game, which gave rise to the debt that is
the subject of this litigation, is specifically sanctioned by the new code,” the Supreme
Court concluded, and “[s]ince such activity does not constitute ‘gambling’ as
statutorily defined, it is not ‘discountenanced’ by the spirit of our laws.” Id. at 802-803.
The Prosecution’s reliance on Charnes v. Central City Opera House Association, 773
P.2d 546 (Colo. 1989) is also misplaced—as the trial court recognized in making the
ruling at issue. The fact that no appellate cases have addressed the bona fide contest
of skill exception in the context of a poker game doesn’t mean it doesn’t apply to the
facts of this case. The fact that no appellate cases have addressed the bona fide contest of
skill exception for a poker game certainly doesn’t mean it’s not an issue for the jury to
The Prosecution essentially argues that the Charnes case decided the “bona fide
contest of skill” exception related to poker—in all its forms and formats—as a matter
of law. But, to the extent that Charnes can be argued to have addressed the “contest of
skill” exception, the reasoning in the decision misapplies the law by concluding that
any activity “contingent in whole or in part upon lot or chance or the happening or
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People v. Kevin Raley, Weld District Court 2009CV168
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outcome of an event over which the person taking the risk had no control” meets the
Prosecution, would essentially remove the “contest of skill” exception from the
statute because any activity contingent “in part” upon chance or the outcome of an
how much skill was involved. (This result is ultimately the Prosecution’s position in
this case: poker is “gambling,” no matter how much skill may be involved.) If Charnes
truly stands for the proposition urged by the Prosecution, then the Charnes court
grounds that poker “might” involve “some” skill, in a case in which no such argument
was made, and in which no expert testimony on the topic was offered or analyzed and
whole in order to give “consistent, harmonious and sensible effect to all of its parts,”
because it’s presumed the legislature intended all of a statute to be effective. Bd. of
County Comm’rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004).
Courts must also eschew interpretations that defeat the General Assembly’s obvious
intent, Klinger v. Adams County Sch. Dist. No. 50, 130 P. 3d 1027, 1031 (Colo. 2006), or
that would lead to illogical or absurd results, Frazier v. People, 90 P.3d 807, 811 (Colo.
2004).
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People v. Kevin Raley, Weld District Court 2009CV168
Page 28 of 28
The fact that other states’ appellate courts or fact-finders in other cases have
concluded that poker is not a game of skill doesn’t render the trial court’s ruling in
this case “manifestly erroneous.” It simply means some fact-finders have disagreed
about this issue or that different laws exist in other states. It’s also true that a number
In a decision from 1993, Colorado’s Attorney General concluded that poker “is
a game in which skill, not chance, dominates.” Formal Opinion No. 93-5, page 5,
Expert). That opinion recognize that “[t]he Supreme Courts of Montana and Oregon
have decided that poker is a game of skill ‘with one player pitting his skills and talents
against those of other players.’ Gallatin County v. D & R Music Vending, 208 Mont. 138,
141, 676 P.2d 779, 781 (1984); State v. Coats, 158 Or. 122, 74 P.2d 1102, 1106 (1938).”
If other appellate courts and a past Colorado Attorney General can reasonably
conclude that poker is a game of skill, then surely the jury that heard Mr. Raley’s case
rightfully had the opportunity to consider whether the Prosecution had proven
otherwise—and the trial court properly concluded the jury would benefit from the
a matter of law. Mr. Raley had the constitutional right to present Dr. Hannum’s
testimony to negate an essential element of the Prosecution’s case. The trial court did
Kevin Raley requests this Court to affirm the trial court’s ruling allowing Dr. Hannum
Respectfully submitted,
___________________________
TODD TAYLOR, Reg. No. 21128
Attorneys for Defendant-Appellee
*E-Filed per Rule 121, C.R.C.P. Duly-signed copy on file at the offices of TAYLOR & RAPP LLP.
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of May, 2009, a true and correct copy of
the foregoing Answer Brief was sent via LEXIS-NEXIS FILE-AND-SERVE to the
following:
______________________________
*E-Filed per Rule 121, C.R.C.P. Duly-signed copy on file at the offices of TAYLOR & RAPP LLP.
ANSWER BRIEF
People v. Kevin Raley, Weld District Court 2009CV168
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