                                         NO. COA14-369

                           NORTH CAROLINA COURT OF APPEALS

                                 Filed: 18 November 2014


STATE OF NORTH CAROLINA


       v.                                             Edgecombe County
                                                      Nos. 13 CRS 51229—30
KAWANA SPRUILL and RICHARD CONOLEY
CHAPMAN



       Appeal       by    defendants     from    judgments       entered     18   December

2013    by    Judge       Walter   H.     Godwin,       Jr.,    in   Edgecombe      County

Superior Court.           Heard in the Court of Appeals 9 September 2014.


       Attorney General Roy Cooper, by Special Deputy                             Attorney
       General David J. Adinolfi II, for the State.

       Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen, for
       defendant-appellants.


       BRYANT, Judge.


       Because the jury was presented with substantial evidence of

each essential element of the charge that defendants operated or

placed       into    operation      an     electronic        machine    to      conduct   a

sweepstakes         through      the     use     of     an     entertaining       display,

including      the       entry   process    or   the     “reveal”      of   a   prize,    we

affirm the trial court’s denial of defendants’ motion to dismiss

and find no error in the judgment of the trial court.
                                             -2-
    On 23 April 2013, a magistrate in Edgecombe County issued

arrest     warrants       for     defendants        Kawana       Spruill        and     Richard

Conoley    Chapman        on    the    charge      of   violating      North          Carolina

General    Statutes,       section       14-306.4       (“Electronic        machines       and

devices for sweepstakes prohibited”).                       The matter came on for

trial before a jury in Edgecombe County Superior Court on 17

December    2013,        the    Honorable       Walter      H.    Godwin,        Jr.,    Judge

presiding.

    The      evidence          presented     at     trial    tended        to    show     that

defendant Chapman was the owner of Past Times Business Center

(“Past Times”), an internet café, located at 2100 St. Andrews

Street, Tabor City, and defendant Spruill was the manager.                                   An

undercover officer with the Tabor City Police Department went to

Past Times to determine if the café was operating an electronic

sweepstakes       in    violation      of    N.C.    Gen.    Stat.    14-306.4.             The

undercover officer testified that he went to Past Times on 11

April     2013,        equipped       with   a      surveillance       camera.              The

surveillance video was played for the jury while the officer

narrated.     The officer presented the cashier with $25.00.                               The

cashier presented the officer with a disclaimer which states, in

part:

            I understand that I am purchasing computer
            time to be used at this location.   I also
                                        -3-
               realize that I can request to participate in
               the promotional game for free. . . .

               . . .

               I understand that I am not gambling. I am
               playing a promotional game in which the
               winners are predetermined.    The games have
               no effect on the outcome of the prizes won.

       The undercover officer played internet games with the names

“Keno,”       “Lucky’s    Loot,”    Lucky’s   Loot     bonus   round    named    “Pot

O’Gold,” “Lucky Sevens,” “Lucky Ducks,”                  and “Lucky Lamb.”        The

undercover officer testified that his understanding was “[y]ou

cannot win any more money than what it says you're already going

to win before the game starts. So it's irrelevant what you click

on.”     The lead investigator, Detective Sergeant Bruce Edwards,

testified that Past Times’ electronic games used a pre-reveal

system.        The     pre-reveal   system    showed     the   prize    amount    the

patron would win prior to the patron playing a game.                      Once the

game was completed, the prize amount revealed prior to the start

of     the    game     would   be   displayed        again.     Kevin    Morse,     a

representative from the video game manufacturer Figure Eight,

testified that the software used to make the electronic games

available in Past Times was developed and controlled by Figure

Eight and that Past Time paid a user licensing fee to access the

games        via   the    internet.          Morse     distinguished      a     “true
                                       -4-
sweepstakes,” where        the prize is revealed after the game is

completed, from the electronic games used in Past Times, where

the prize is revealed before a game is played.                   At Past Times,

the patron has the option of whether to play the game after the

prize has been revealed.         If the patron does not timely choose

to play a game, the system prompts the next reveal opportunity.

      At the close of the evidence, the jury returned verdicts

against Chapman and Spruill finding each “[g]uilty of operating

or placing into operation an electronic machine or device for

the purpose of conducting a sweepstakes through the use of an

entertaining       display,    including      the    entry    process      or    the

revealing of a prize[.]”          The trial court entered judgment in

accordance with the jury verdicts.             Spruill was sentenced to an

active term of 45 days.         The sentence was suspended, and she was

placed on unsupervised probation for a period of 12 months.

Chapman was also sentenced to an active term of 45 days.                        This

sentence     was   suspended,    and     he   was    placed     on   unsupervised

probation for a period of 36 months.              Both defendants appeal.

                      ____________________________________

      On    appeal,   defendants    argue      the    trial     court    erred    in

denying their motion to dismiss.              Defendants contend that there

was   not    substantial      evidence     they     conducted    a      sweepstakes
                                         -5-
through the use of an entertaining display, including the entry

process or the revealing of a prize in violation of N.C. Gen.

Stat. § 14-306.4.       We disagree.

    “We review denial of a motion to dismiss criminal charges

de novo, to determine whether there is substantial evidence (1)

of each essential element of the offense charged, or of a lesser

offense    included     therein,     and   (2)    of    defendant's        being   the

perpetrator of such offense.”              State v. Mobley, 206 N.C. App.

285, 291, 696 S.E.2d 862, 866 (2010) (citation and quotations

omitted).     “[T]he trial court must analyze the evidence in the

light most favorable to the State and give the State the benefit

of every reasonable inference from the evidence. . . .                             The

trial    court   does    not    weigh    the    evidence,     consider      evidence

unfavorable      to     the     State,     or     determine          any    witness'

credibility.”         State    v.   Trogdon,    216    N.C.   App.    15,    25,   715

S.E.2d 635, 641 (2011) (citations and quotations omitted).

    Pursuant to North Carolina General Statutes, section                           14-

306.4,

            it shall be unlawful for any person to
            operate,   or  place   into   operation,  an
            electronic machine or device to do either of
            the following:

                  (1) Conduct a sweepstakes through the
                  use   of   an  entertaining   display,
                  including the entry process or the
                                               -6-
                         reveal of a prize.

                         (2) Promote a sweepstakes that is
                         conducted   through   the   use   of  an
                         entertaining   display,   including  the
                         entry process or the reveal of a prize.

N.C. Gen. Stat. § 14-306.4(b) (2013).                          “Entertaining display” is

defined      as    “visual       information,           capable      of   being       seen       by   a

sweepstakes entrant, that takes the form of actual game play, or

simulated         game    play    .   .    .   .”        Id.     §   14-306.4(a)(3).                  An

entertaining display can be “[a]ny [] video game not dependent

on skill or dexterity that is played while revealing a prize as

the    result       of    an     entry     into     a    sweepstakes.”            Id.        §    14-

306.4(a)(3)(i).                 “Sweepstakes”           is     defined     as     “any       game,

advertising scheme or plan, or other promotion, which, with or

without payment of any consideration, a person may enter to win

or become eligible to receive any prize, the determination of

which is based upon chance.”                   Id. § 14-306.4(a)(5).

       Defendants contend that because the prize is revealed to

the patron prior to any opportunity to play a game, they have

not    run   afoul        of    the   plain     meaning        of    N.C.G.S.     §    14-306.4.

Previously, games were used to reveal the sweepstakes prize.

But,    according          to     Figure       Eight         representative       Morse,          the

software accessible from Past Times was changed to incorporate
                               -7-
the pre-reveal feature, specifically, to operate in compliance

with N.C.G.S. § 14-306.4.

               [N]o sooner is a lottery defined, and
         the definition applied to a given state of
         facts, than ingenuity is at work to evolve
         some scheme of evasion which is within the
         mischief, but not quite within the letter of
         the definition. But, in this way, it is not
         possible to escape the law's condemnation,
         for it will strip the transaction of all its
         thin and false apparel and consider it in
         its very nakedness. It will look to the
         substance and not to the form of it, in
         order to disclose its real elements and the
         pernicious tendencies which the law is
         seeking to prevent. The Court will inquire,
         not into the name, but into the game,
         however skillfully disguised, in order to
         ascertain if it is prohibited[.] It is the
         one playing at the game who is influenced by
         the hope enticingly held out, which is often
         false    or  disappointing,   that  he  will,
         perhaps and by good luck, get something for
         nothing, or a great deal for a very little
         outlay. This is the lure that draws the
         credulous    and    unsuspecting   into   the
         deceptive scheme, and it is what the law
         denounces as wrong and demoralizing.

Hest Technologies, Inc. v. State ex rel. Perdue, 366 N.C. 289,

289—90, 749 S.E.2d 429, 430—31 (2012) (citing State v. Lipkin,

169 N.C. 265, 271, 84 S.E. 340, 343 (1915)), cert. denied, ___

U.S. ___, ___ L. Ed. 2d ___ (2013).

    It is undisputed that with the use of computers accessing

the internet, defendants operated a sweepstakes wherein a prize

was revealed to a patron not dependent upon the patron’s skill
                                            -8-
or   dexterity    in    playing       a    video    game.        See    N.C.G.S.       §    14-

306.4(a)(3)(i).        That the video game did not have to be played

or played to completion is not determinative.                          Defendants appear

to define “game” only as that interaction between patron and

computer    which      occurs    after       the    sweepstakes         prize    has       been

revealed and the patron presses the “game” button.                         We disagree.

      Under the pre-reveal format, entry and participation in the

sweepstakes,     through        the       pre-reveal,       is   a     prerequisite          to

playing a video game.           Thus, the sweepstakes takes place during

the initial stages of any game played.                      That the sweepstakes is

conducted at the beginning of a game versus its conclusion makes

no   significant        difference:         the      sweepstakes         prize        is    not

dependent upon the skill or dexterity of the patron; it is a

game of chance.         And, in conjunction, the electronic video game

is a display which entices the patron to play.

      Section 14-306.4 seeks to prevent the use of entertaining

displays    in   the    form    of    video        games    to   conduct      sweepstakes

wherein    the   prize    is    determined         by   chance.         See     id.    §    14-

306.4(b)(1).     Therefore, when viewed in the light most favorable

to the State, it is clear that the jury was presented with

substantial evidence of each essential element of the charge

that defendants operated or placed into operation an electronic
                                    -9-
machine   to   conduct     a   sweepstakes    through   the   use   of   an

entertaining display, including the entry process or the reveal

of a prize.    See id.; see also Trogdon, 216 N.C. App. at 25, 715

S.E.2d at 641.      Therefore, we affirm the trial court’s denial of

defendants’ motion to dismiss the charge and find no error in

the judgment of the trial court.          Mobley, 206 N.C. App. at 291,

696   S.E.2d   at   866.       Accordingly,   defendant’s     argument   is

overruled.

      No error.

      Chief Judge McGEE and Judge STROUD concur.
