DISTRICT COURT, WELD COUNTY, COLORADO 901 9th Ave.

Greeley, CO 80631 Appeal from Weld County Court, Div. 5 The Honorable Michele Meyer, Presiding Judge Weld County Court Case No. 08M2463 THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellant, v. KEVIN RALEY, Defendant-Appellee. Attorneys for Defendant-Appellee Kevin Raley: Todd Taylor, Esq., Atty. Reg. #: 21128 TAYLOR & RAPP, LLP 710 11th Ave., Suite 300 Greeley, CO 80631 Phone: (970) 346-8500; FAX: (970) 353-8178 E-mail: ttaylor@northcolaw.com
COURT USE ONLY

Case No.: 2009CV168 Div.: 1

ANSWER BRIEF
KEVIN RALEY, Defendant-Appellant, by and through counsel, TAYLOR & RAPP, LLP, by Todd Taylor, Esquire, hereby submits his Answer Brief:

TABLE OF CONTENTS Table of Authorities .................................................................................................................. 3  Introduction ............................................................................................................................... 5  Issue Presented For Appeal ..................................................................................................... 6  Statement of the Case ............................................................................................................... 6  Statement of Facts ..................................................................................................................... 8  A.  A Friendly Poker Game.......................................................................................... 8  B.  Dr. Hannum ............................................................................................................. 9  C.  The Prosecution’s Objection & Trial Court’s Ruling ......................................12  Summary of Argument ...........................................................................................................14  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  A.  Standard of Review ...............................................................................................16  B.  Law & Analysis ......................................................................................................17  1.  The Trial Court’s Decision To Allow Dr. Hannum To Testify As An Expert Witness Was Required In Order Not To Violate Mr. Raley’s Right To Present A Defense. ....................................................................................................17  2.  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 Exceptions To The Definition Of “Gambling.”......21  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
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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 Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) ................................................18 Charnes v. Central City Opera House Association, 773 P.2d 546 (Colo. 1989) ......... 15, 26, 27 Frazier v. People, 90 P.3d 807, 811 (Colo. 2004) ...................................................................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 Golob v. People, 180 P.3d 1006 (Colo. 2008)..........................................................................18 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 People v. Bastin, 937 P.2d 761 (Colo.App. 1996) ..................................................................18 People v. Hampton, 696 P.2d 765 (Colo. 1985) ......................................................................18 People v. Martinez, 74 P.3d 316 (Colo. 2003) .........................................................................16 People v. Shreck, 22 P.3d 68 (Colo. 2001) ...............................................................................19 People v. Wheatridge Poker Club, 569 P.2d 324 (Colo. 1977).................................................23 State v. Coats, 158 Or. 122, 74 P.2d 1102 (1938) .................................................................28 Taylor v. Illinois, 484 U.S. 400 (1979) .....................................................................................18

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Statutes § 18-10-101, C.R.S. ..................................................................................................................25 § 18-10-102(2)(a), C.R.S..........................................................................................................17 § 18-10-102(2), C.R.S. ...................................................................................................... 13, 16 § 18-10-102, C.R.S. ..................................................................................................................17 § 18-10-103(1), C.R.S ....................................................................................................... 13, 16 Constitutional Provisions Colo. Const. Art.II, §25 ..........................................................................................................18 U.S. Const. amend. XIV .........................................................................................................18 Rules CRE 702....................................................................................................................................19 Other Authorities Formal Opinion No. 93-5, 1993 WL 380757 (Colo.A.G.) ...............................................28

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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 appeals the trial court’s ruling. Kevin Raley was the Defendant in the trial court and is Appellee in this Court. He will be referred to by name or as Defendant. The People of the State of Colorado, 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 Michele Meyer, presiding. 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 throughout this brief as the “Trial Court Ruling.” In addition to the partial transcript of the proceedings held on January 21, 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 trial court will also include specific line numbers.

ISSUE PRESENTED FOR APPEAL I. Whether the trial court manifestly erred in ruling that Mr. Raley could present 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 prohibit the game of poker as illegal gambling?

STATEMENT OF THE CASE On August 12, 2008, Mr. Raley and four others were charged with Professional Gambling, in violation of § 18-10-103(2), C.R.S., a class one misdemeanor. Prior to trial, on December 5, 2008, the Prosecution amended the charges against Mr. Raley to include an additional allegation of Gambling, in violation of § 18-10-103(1), a class 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 skill,” and “bona fide social relationship” exceptions contained in § 18-10-102(2), 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 special verdict form or special interrogatories be submitted to the jury. 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. Originally, Rafferty’s employed the services of an outside business to run a poker league, but later cancelled this arrangement when management became unsatisfied with the cost. Mr. Raley and his friends then approached management and requested permission to continue playing poker at Rafferty’s. After receiving permission, Mr. Raley and his friends formed a private club, the All In Bombers, to play one specific type of poker—Texas Hold’ Em—in one specific format—tournament style. The 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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on how well they did in the tournament, which was the result of an individual player’s overall success spread over many numbers of hands. Agent Mark Rule of the Colorado Bureau of Investigation attempted to play in 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 individuals were charged with engaging in Professional Gambling, in violation of § 1810-103(2), a class one misdemeanor.

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 standing in the American Statistical Association, the American Mathematical Society, the Decision Sciences Institute, and the International Masters of Gaming Law. (Id.) Dr. Hannum’s primary research interests are the mathematics of gaming and casino games, applications of mathematics in gaming law, and casino gaming 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 mathematics of gambling, game analysis, statistical modeling, regression, and sampling 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 Connecticut Department of Revenue. (Id., Affidavit, p. 4). 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 expected outcome through such vehicles as judgment, learning, experience, and/or 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.) Dr. Hannum has conducted various types of statistical and mathematical 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 player. (Id., p. 9.) 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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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 through betting strategy, in poker.” (Id., p. 11.) 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 betting methods can get better or worse.” (Id.) Ultimately, Dr. Hannum concluded that “the players with strong poker skills win convincingly over the players with weak poker skills,” and that poker “is predominated by the elements of skill, not chance.” (Id., p. 11.)

C. The Prosecution’s Objection & Trial Court’s Ruling After receiving notice of Mr. Raley’s intent to call Dr. Hannum as an expert, 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 appeal in that case. (Tr., p.6, l. 20 - p. 7, l. 1.) 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. Hannum from testifying as an expert on this issue, assuming a proper foundation could be laid for his opinion. (Tr., p. 7, ll. 8-11.) 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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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 exceptions to the definition of “gambling.” The Prosecution fails to recognize that an activity may properly be considered to be “gambling” in one context but then properly be considered not to be “gambling” in another context. This distinction was intentionally built into the definition of gambling by the Colorado legislature, as demonstrated in Berckefeldt v. Hammer, 44 Colo.App. 320, 616 P.2d 183 (Colo.App., 1980). The Berkefeldt case establishes that the definition of “gambling” relies on questions of fact. The concept of any activity—poker or anything else—being considered “gambling,” as a matter of law, does not exist in Colorado law. 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 removed from the definition of “gambling.” 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 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 jury would benefit from the expert assistance of Dr. Hannum.

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 to the jury.” Id.

B. Law & Analysis
1. The Trial Court’s Decision To Allow Dr. Hannum To Testify As An Expert Witness Was Required In Order Not To Violate Mr. Raley’s Right To Present A Defense. In order for the Prosecution to prove beyond a reasonable doubt that Mr. Raley engaged in “Gambling,” in violation of § 18-10-103(1), C.R.S., the Prosecution had to prove that Mr. Raley’s conduct met the definition of “gambling,” as set forth by § 18-10-102(2), C.R.S.: (2) “Gambling” means risking any money, credit, deposit, or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device, or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include: (a) Bona fide contests of skill, speed, strength, or endurance in which awards are made only to entrants or the owners of entries; (b) Bona fide business transactions which are valid under the law of contracts; (c) Other acts or transactions now or hereafter expressly authorized by law;
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(d) Any game, wager, or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only, and in which no person is participating, directly or indirectly, in professional gambling; or (e) Repealed by Laws 1984, S.B.217, § 2. (f) Any use of or transaction involving a crane game, as defined in section 12-47.1-103(5.5), 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 if it meets any of the enumerated exceptions found in § 18-10-102(2). One of these exceptions is that an activity is a “bona fide contest of skill.” § 1810-102(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.” § 18-10102, 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.) Since § 18-10-103(1) refers to “gambling” and that definition is found in § 1810-102(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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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 any of the exceptions found in § 18-10-102(2). 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. “It is a 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 beyond a reasonable doubt. 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 exclusion of relevant and competent evidence offered in defense of a criminal charge 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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(“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”). Professor Hannum’s expert testimony negated at least two elements of the 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” (Hannum Affidavit, p. 11) is relevant to the exception found in § 18-10-102(2), which required the Prosecution to prove that Mr. Raley and the other players had no control over the outcome of their contest. 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 recognize what the Prosecution is not challenging. The Prosecution raised no 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 unqualified or unhelpful to the jury, in violation of the principles announced in People v. Shreck, 22 P.3d 68 (Colo. 2001). And see CRE 702.
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The trial court properly allowed Mr. Raley to introduce Dr. Hannum’s 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 from a qualified expert witness.

2. 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 Exceptions To The Definition Of “Gambling.” The Prosecution misunderstands the statutory mechanism at work in 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 forevermore regarded as “gambling”—as a matter of law—and no criminal defendant can ever again challenge a Colorado prosecutor by suggesting otherwise. The 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 be considered to be “gambling” in one context but then properly be considered not to

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be “gambling” in another context, the Prosecution misunderstands the statutory exceptions found in § 18-10-102(2). 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 you’re not personally playing might be considered “gambling,” or it might not, 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 would not be considered “gambling.” 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 not constitute gambling as defined in § 18-10-102(2).” Id. at 322. The Court of Appeals then concluded it unnecessary to address the social relationship exception, thus demonstrating it’s only necessary to meet one exception to the “gambling” definition to have an activity excluded from the statute’s definition of “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 exceptions in § 18-10-102(2) in order to escape the “gambling” definition. Second, if a 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, the same activity—betting on the outcome of a golf match—can be “gambling” in 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 activity—poker or anything else—being considered “gambling,” as a matter of law, does not exist in Colorado law.

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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, 929 (Colo. 1952). The fact the author of Ginsberg—writing in 1952—could not contemplate 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 dedicated to all forms of poker played in the tournament format—and especially 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 heard of a poker tournament 2 . 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
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.
1

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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 and didn’t address the “bona fide contest of skill” 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 gambling debts. The facts of the case were undisputed: Respondent, Michael A. Younghans, was playing poker with friends at the home of the petitioner, Ervin Houston, in July 1975. All of the players “purchased” poker chips from the petitioner, which were to be redeemed by petitioner at the end of the game. When the game was over, petitioner had lost and, not having paid for his chips, he did not have sufficient funds to redeem all the poker chips which were “cashed in” by the other players. In order to redeem the chips of the other winners, petitioner borrowed from respondent. 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 also frustrated. So Younghans sued Houston to collect, Houston claimed he hadn’t 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 applies with equal force to this case): (1) It is declared to be the policy of the general assembly, recognizing the close relationship between professional gambling and other organized crime, to restrain all persons from seeking profit from gambling activities in this state; to restrain all persons from patronizing such activities when conducted for the profit of any person; to safeguard the public against the evils induced by common gamblers and common gambling houses; and at the same time to preserve

the freedom of the press and to avoid restricting participation by individuals in sport and social pastimes which are not for profit, do not affect the public, and do not breach the peace.
(2) All the provisions of this article shall be liberally construed to achieve these ends and administered and enforced with a view to carrying out the declaration of policy stated in subsection (1) of this section.

(Emphasis added.) The Supreme Court recognized in 1978—in contrast to the 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 “nongambling” 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 decided in a criminal prosecution for engaging in Gambling. 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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outcome of an event over which the person taking the risk had no control” meets the definition of “gambling.” Id. at 551. The reasoning in Charnes, if it was actually applied as suggested by 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 event would automatically come within the definition of “gambling”—regardless of 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 interpreted the “contest of skill” exception right out of § 18-10-102(2)—on the 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 considered by the court. Such an interpretation must be rejected. Courts are to interpret a statute as a 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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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 of states have concluded poker is, in fact, a contest of skill. 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, 1993 WL 380757 (Colo.A.G.) (copy attached to Response to Motion to Exclude 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 expert assistance of Dr. Hannum. There is no legal precedent in Colorado that establishes poker is “gambling” as 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 not manifestly err by allowing Dr. Hannum to testify.
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CONCLUSION WHEREFORE, for the foregoing reasons and authorities, Defendant-Appellee Kevin Raley requests this Court to affirm the trial court’s ruling allowing Dr. Hannum to testify as an expert witness and to dismiss the Prosecution’s appeal. Dated this 20th day of May, 2009. Respectfully submitted,

TAYLOR & RAPP, LLP
___________________________ 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: Steve Wrenn, Chief Deputy District Attorney DA’s Office – 19th Judicial District P.O. Box 1167 Greeley, CO 80632 ______________________________
*E-Filed per Rule 121, C.R.C.P. Duly-signed copy on file at the offices of TAYLOR & RAPP LLP.

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