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18-10-102. Definitions.

Statute text

As used in this article 10, unless the context otherwise requires:

(1) "Gain" means the direct realization of winnings; "profit" means any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management, or unequal advantage in a series of transactions.

(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;

(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(e) Repealed.

(f) Any use of or transaction involving a crane game, as defined in section 44-30-103 (9).

(3) "Gambling device" means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine; except that the term does not include a crane game, as defined in section 44-30-103 (9).

(4) "Gambling information" means a communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling. In the application of this definition the following shall be presumed to be intended for use in professional gambling: Information as to wagers, betting odds, or changes in betting odds. Legitimate news reporting of an event for public dissemination is not gambling information within the meaning of this article.

(5) "Gambling premises" means any building, room, enclosure, vehicle, vessel, or other place, whether open or enclosed, used or intended to be used for professional gambling. In the application of this definition, any place where a gambling device is found is presumed to be intended to be used for professional gambling.

(6) "Gambling proceeds" means all money or other things of value at stake or displayed in or in connection with professional gambling.

(7) "Gambling record" means any record, receipt, ticket, certificate, token, slip, or notation given, made, used, or intended to be used in connection with professional gambling.

(8) "Professional gambling" means:

(a) Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or

(b) Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one or more of the other participants.

(9) "Repeating gambling offender" means any person who is convicted of an offense under section 18-10-103 (2) or sections 18-10-105 to 18-10-107 or sections 18-20-103 to 18-20-114 or sections 44-30-809 to 44-30-811 or 44-30-818 to 44-30-831 or 44-30-837, within five years after a previous misdemeanor conviction under these sections or a former statute prohibiting gambling activities, or at any time after a previous felony conviction under any of the mentioned sections. A conviction in any jurisdiction of the United States of an offense which, if committed in this state, would be professional gambling shall warrant a prosecution in this state as a repeating gambling offender.

(10) "Vintage slot machine" means any model slot machine, as defined in section 44-30-103 (30), that was introduced on the market prior to January 1, 1984.

History

Source: L. 71: R&RE, p. 477, 1. C.R.S. 1963: 40-10-102. L. 79: (2)(e) added, p. 557, 3, effective July 1. L. 84: (2)(e) repealed, p. 437, 2, effective April 30. L. 91: (9) amended, p. 1582, 8, effective June 4. L. 92: (9) amended, p. 2174, 26, effective June 2. L. 94: (10) added, p. 19, 1, effective March 2. L. 95: (2) and (3) amended, p. 44, 1, effective March 17. L. 2018: IP, (2)(f), (3), (9), and (10) amended, (SB 18-034), ch. 14, p. 239, 13, effective October 1.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 18-10-102 is similar to former CSA, C. 48, 234, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The language of this section is plain and unambiguous. The statute does not prohibit the playing of games. It is only when they are made instruments of winning or losing money or property that a criminal character attaches to them. There being no enumeration of specific games, subjects or things, the general words used must be ascribed their ordinary meaning. Everhart v. People, 54 Colo. 272, 130 P. 1076 (1913).

Gambling defined. Gambling includes physical contests whether of man or beast, when practiced for the purpose of deciding wagers, as well as games of hazard or skill by means of instruments or devices. Everhart v. People, 54 Colo. 272, 130 P. 1076 (1913).

Golf match not "gambling". A golf match, participated in and bet on by four golfers, in which each of the four, by his playing, had control over the outcome did not constitute "gambling" as defined in subsection (2). Berckefeldt v. Hammer, 44 Colo. App. 320, 616 P.2d 183 (1980).

Definition of gambling devices pertains to use. The words "gambling device or apparatus" do not mean literally instrumentalities with appliances adapted and essential to particular games, but include any species of device or apparatus kept and used for gambling, winning, betting, or gaining money or other property. It is the use to which the article or thing is appropriated which renders the keeping or exhibition thereof unlawful within the meaning of the sections here involved. Everhart v. People, 54 Colo. 272, 130 P. 1076 (1913).

"Pinball" machines held gambling devices. Approximately Fifty-Nine Gambling Devices v. People ex rel. Burke, 110 Colo. 82, 130 P.2d 920 (1942).

Paper tickets that contain a coupon on one side and a cash prize game on the other and the machine that dispenses them are gambling devices. The coupon is merely incidental to the game portion of the ticket, and it does not eliminate the element of risk. Sniezek v. Dept. of Rev., 113 P.3d 1280 (Colo. App. 2005).

Video games that had been used in gambling by liquor licensee were "usable in professional gambling activities" so that the games were subject to destruction and the proceeds of such games were subject to forfeiture pursuant to statute, even if the owner did not have actual or constructive knowledge of the use of the games for gambling. State Dept. of Rev. v. Grooms Music Co., 721 P.2d 1225 (Colo. App. 1986).

Nonprofit corporation's fundraising which involved casino-type gambling with play money did not qualify for the permissible social gambling exemption of this section because participants were risking a thing of value for gain contingent in whole or in part upon chance and the gambling, although incidental to a social relationship, was participated in by persons other than natural persons and was conducted under circumstances in which persons participated in professional gambling as intended by the statute. Charnes v. Central City Opera House, 773 P.2d 546 (Colo. 1989).

To determine whether a game is incidental to a bona fide social relationship and thus excluded from the definition of gambling, the critical inquiry is whether the participants came together for any shared purpose other than gambling; where a basketball pool was entered into only by devoted patrons of a neighborhood bar and liquor authority inspectors, it was incidental to a bona fide social relationship. Leichliter v. State Liquor Licensing Auth., 9 P.3d 1153 (Colo. 1999).

Cheating is not an essential element of the offense. Previous legislation was directed against games and bets thereon in which an element of cheating, trickery, or fraud entered, and to places wherein such games and bets continuously occurred; whereas this act, being the law as it now is, is directed against all places used or occupied for gambling, the keeping or exhibiting of gaming tables, establishments, devices, etc., to win or gain money or other property, the practice of gambling for a sum of money or other thing of value, and betting and wagering upon the result thereof. Everhart v. People, 54 Colo. 272, 130 P. 1076 (1913).

Nor is payment of winnings. While a gaming device may "pay nothing", it nevertheless may be used or kept for the purpose of gambling. Walker v. Begole, 99 Colo. 471, 63 P.2d 1224 (1936); MacArthur v. Wyscaver, 120 Colo. 525, 211 P.2d 556 (1949).

The activity reached by this section could not be characterized as free expression or involving any right to privacy as that right has previously been defined. People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

The definition of "profit" in subsection (1) is not unconstitutionally vague. People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

Nor is phrase "aiding or inducing". The phrase "aiding or inducing" as employed in subsection (8)(a) is not unconstitutionally vague. People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

The general definition of "to aid" in 18-1-901 (3)(a) is applicable to the definition of professional gambling in subsection (8). People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

The term "to induce", while not statutorily defined, may be ascribed its ordinary dictionary definition. People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

Active participation in gambling process not required. It is not necessary in this state that someone actively participate in the gambling process in order to be engaged in professional gambling. People v. Wheatridge Poker Club, 194 Colo. 15, 569 P.2d 324 (1977).

Applied in Houston v. Younghans, 196 Colo. 53, 580 P.2d 801 (1978); People v. Miller, 199 Colo. 32, 604 P.2d 36 (1979); United States v. McNulty, 729 F.2d 1243 (10th Cir. 1983).