MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Sep 28 2017, 9:14 am
the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark W. Rutherford                                       Curtis T. Hill, Jr.
Thrasher Buschmann & Voelkel, P.C.                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas P. Donovan,                                       September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         78A01-1705-CR-1013
        v.                                               Appeal from the Switzerland
                                                         Circuit Court
State of Indiana,                                        The Honorable W. Gregory Coy,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         78C01-1406-FC-161



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017    Page 1 of 8
                                       Statement of the Case
[1]   Thomas Donovan appeals his conviction for using a device to assist in

      analyzing the probability of the occurrence of an event relating to a gambling

      game, a Class D felony, following a bench trial. He presents two issues for our

      review:

              1.      Whether the State presented sufficient evidence to support
                      his conviction.

              2.      Whether the trial court erred when, in its written judgment
                      of conviction, it described Donovan’s conviction as use or
                      possession with the intent to use a device to assist in
                      “cheating at gaming.”


[2]   We affirm and remand with instructions.


                                 Facts and Procedural History
[3]   On June 21, 2014, Donovan was playing five-card-draw poker on a “hundred

      play slot machine” at Belterra Casino in Florence. Tr. at 5. To play that game,

      the player “presses [a] button and five cards come up and [the player] decide[s]

      whether or not . . . to keep any of those and then [the player] can discard

      whatever [he] choose[s] not to keep and then [he] get[s] new cards[.]” Id. The

      player “can play up to [one] hundred hands . . . on one touch of the button.”

      Id. at 5-6. The maximum bet was $50.


[4]   While Donovan played, someone with the casino’s “surveillance department”

      called Indiana Gaming Commission Agent Jeffrey Davies to report that “they


      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 2 of 8
      had a male individual [later identified as Donovan who] was using something

      and they weren’t sure what it was.” Id. at 4. Agent Davies walked over to get a

      closer look at Donovan, and Agent Davies

              could see that [Donovan] had something that appeared cupped in
              his hand . . . [with] like a counter sticking out at the top. Initially
              [Donovan] had a piece of paper [and a pen or pencil] laying there
              on the . . . control panel of the game. . . . [Agent Davies] still
              didn’t know what it was that [Donovan] had [in his hand] and
              [he] wasn’t ready to confront him on it yet. [Agent Davies]
              wanted to take a little closer look. So [he] responded back to the
              surveillance room and asked that [they] just monitor for a few
              minutes and see what was going on.

                                                      ***

              Once [Agent Davies] was able to see that [Donovan] was
              manipulating the device by clicking something on his phone or in
              his hand . . . , [Agent Davies] made another pass past [Donovan]
              and [he] . . . noticed that [Donovan] had laid . . . [the] clicker . . .
              on the deck of the gaming [machine] and it was at that point
              [Agent Davies] recognized it from past experience . . . [and
              wanted] to talk to him about it.


      Id. at 5-6.


[5]   Agent Davies picked up the counter and two sheets of paper from the deck of

      the slot machine and identified himself to Donovan. Agent Davies asked

      Donovan “what he was doing,” and Donovan replied that he was using the

      counter “to help him track the results of the hands.” Id. at 7. Agent Davies

      asked Donovan whether that “helped him decide how to play,” and Donovan

      responded, “Yes.” Id. Agent Davies asked Donovan to go with him to a

      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 3 of 8
      nearby stairwell so that they could talk in a quieter setting, and Donovan

      agreed. Once in the stairwell, Agent Davies asked Donovan whether he would

      make a written statement, and Donovan agreed.


[6]   Donovan accompanied Agent Davies to his office. Donovan then completed a

      written statement and denied having used the counting device to help him play

      the slot machine poker game. Donovan stated that the device was “no different

      than counting on a sheet of paper, in [his] head, or using the points displayed

      on the player’s card display, or a cell phone calculator.” State’s Ex. 5.


[7]   The State charged Donovan with “Use or Possess [sic] with the Intent to Use a

      Device to Assist in Cheating at Gaming,” a Class D felony, under Indiana

      Code Section 4-33-10-2(3)(C) (2013). Appellant’s App. Vol. 2 at 12. At the

      conclusion of the bench trial, the court stated as follows:


              The things that are proven beyond a reasonable doubt here are
              pretty clear. The defendant was using a device. He was playing
              a game at Belterra. What has come to issue here is the
              interpretation of the statute. . . . So Indiana Code [Section] 4-33-
              10-2 says “a person who knowingly or intentionally does any of
              the following commits a Class D Felony” and under paragraph 3,
              it says “uses or possesses with the intent to use a device to a.
              either project the outcome of the game, b. keeping track of the
              cards played, c. analyzing the probability of the occurrence of
              and event relating game, or d. analyzing the strategy for playing
              or betting to be used in the game except as permitted by the
              commission.” The Court finds that the evidence here, which
              shows that there was a device used and it was used to keep track
              of the number of hands but I note in the notes that were kept here
              and were one of the exhibits, Exhibit #1, I believe that the
              evidence establishes beyond a reasonable doubt that the device

      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 4 of 8
              was used, at the very least, to assist in keeping track of cards
              played. Whether that presented an advantage to the player, I
              don’t think the statute requires the Court to find that, it just says
              “uses or possess with the intent to use a device to assist in
              keeping track of the cards played.” And it could be used in
              analyzing the probability of the occurrence of an event relating to a
              gambling game. So I do believe that the statute, the State has met
              its burden here and it has been proven beyond a reasonable doubt
              that the defendant did commit a Class D Felony as defined by
              Indiana law at the time. Some judge up the line may say
              otherwise and that would be fine. But I believe[,] strictly
              interpreting the statute, a device was used and it was helped to
              keep track of cards played and at least assist in the probability of an
              occurrence relating to the game. So I’m going to find the defendant
              guilty of a Class D Felony, use or possess to use a device to assist
              in cheating at gaming.


      Tr. at 50-51 (emphases added). The trial court sentenced Donovan to eighteen

      months suspended to probation. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[8]   Donovan contends that the State presented insufficient evidence to support his

      conviction. In our review of such claims, “we consider only the evidence and

      reasonable inferences most favorable to the conviction[,] neither reweighing

      evidence nor reassessing witness credibility.” Griffith v. State, 59 N.E.3d 947,

      958 (Ind. 2016). “We affirm the judgment unless no reasonable factfinder could

      find the defendant guilty.” Id.




      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 5 of 8
[9]    To prove that Donovan committed the alleged offense, the State was required

       to show that Donovan knowingly or intentionally used a mechanical counting

       device to assist him in analyzing the probability of the occurrence of an event

       relating to the slot machine poker game he was playing at Belterra. Ind. Code §

       4-33-10-2(3)(C). Donovan contends that the State did not present evidence

       showing that the counting device he used “related” to the poker game. He also

       contends that the State did not present evidence showing that the slot machine

       poker game was a “gambling game” as defined in Indiana Code Section 4-33-2-

       9. We address each contention in turn.


[10]   At trial, the State presented Agent Davies’ testimony that Donovan admitted

       that he was using the counter “to help him track the results of the hands,”

       which, in turn, “helped him decide how to play.” Tr. at 7. That evidence,

       alone, is sufficient to prove that the counting device related to the poker game.

       To the extent Donovan contends that the State was required to present evidence

       to explain how the game worked “regarding its gambling aspects,” we are not

       persuaded. Appellant’s Br. at 10-11. In any event, Donovan’s contention

       amounts to a request that we reweigh the evidence, which we cannot do.


[11]   Next, Donovan maintains that the State did not prove that the slot machine

       poker game was a “gambling game” as defined in Indiana Code Section 4-33-2-

       9. That statute provides that a gambling game “includes any game approved by

       the [Indiana Gaming C]ommission as a wagering device[,]” and Donovan

       points out that the State did not present evidence that the slot machine poker

       game he had been playing had been approved by the Commission. (Emphasis

       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 6 of 8
       added). But the statute does not limit “gambling games” to only those approved

       by the Commission. Rather, it includes such games, but does not exclude

       gambling games that have not been approved by the Commission. In any

       event, under Indiana Code Section 4-33-10-2(3)(C), the State was required to

       show that Donovan was playing a “gambling game.” “Gambling” is defined as

       “the act or practice of betting.” Webster’s Third New Int’l Dictionary 932

       (2002). The State presented evidence that the slot machine poker game

       Donovan played was a device where bets could be placed, and Agent Davies

       observed Donovan “adjust[ing] his bet” at one point. Tr. at 11. The State

       presented sufficient evidence to support Donovan’s conviction.


                                   Issue Two: Judgment of Conviction

[12]   Donovan contends that the judgment of conviction “does not provide any

       citation to an Indiana Code criminal violation for which [he] has been

       convicted” and “does not conform to the sole charge brought by the State of

       Indiana” against him. Appellant’s Br. at 14. In particular, in its written

       judgment of conviction, the trial court stated that Donovan was “guilty of the

       offense Use or Possession with the Intent to Use a Device to Assist in Cheating

       at Gaming, [a] Class D Felony.” Appellant’s App. Vol. 2 at 8. But the statute,

       which was at the time of the instant offense titled “Class D felonies,” includes

       no such descriptor for subsection (3)(C), which is the offense with which




       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017   Page 7 of 8
       Donovan was charged and convicted. Donovan maintains that this is reversible

       error.1


[13]   The State points out that “the statute at issue does not title the actual offense”

       and acknowledges that “the judgment of conviction could cite to the specific

       statute to be more clear.” Appellee’s Br. at 20 n.2. The court’s written

       judgment order is the official trial court record and controlling document

       regarding the defendant’s conviction and sentence. See Robinson v. State, 805

       N.E.2d 783, 794 (Ind. 2004). We affirm Donovan’s conviction, but we remand

       to the trial court with instructions that the court enter a new judgment of

       conviction that properly identifies Donovan’s conviction under Indiana Code

       Section 4-33-10-2(3)(C) and states the offense as the use or possession with

       intent to use a device to assist in analyzing the probability of the occurrence of

       an event relating to a gambling game. See I.C. § 4-33-10-2(3)(C).


[14]   Affirmed and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




       1
          To the extent Donovan states that he had the right to be aware of the charges against him and prepare a
       defense, he does not present cogent argument in support of that contention and it is waived. In any event,
       our Supreme Court has held that, when a charging information erroneously titles the alleged offense using a
       label for an offense that does not exist, the charging information by itself does not demonstrate reversible
       error if the substantive allegation in the charge puts the defendant on notice that the State is actually charging
       an existing offense. Head v. State, 443 N.E.2d 44, 51 (Ind. 1982). Moreover, the State charged Donovan
       under Indiana Code Section 4-33-10-2(3)(C); the State argued and presented evidence to support the elements
       of that charge; and the trial court found, at the conclusion of the bench trial, that “a device was used and
       it . . . helped [Donovan] to keep track of cards played and at least assist in the probability of an occurrence relating
       to the game.” Tr. at 51 (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1013 | September 28, 2017                   Page 8 of 8
