                             SECOND DIVISION
                               DOYLE, C. J.,
                         MILLER, P. J, and REESE, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      May 18, 2017




In the Court of Appeals of Georgia
 A17A0067. PATEL et al. v. STATE OF GEORGIA.                                 DO-003

      DOYLE, Chief Judge.

      The State of Georgia filed a complaint for forfeiture in rem against the owners

of a Citgo gas station based on alleged illegal commercial gambling on the premises

using video gaming machines. The trial court granted the relief sought, and

Tejaskumar Satish Patel and Dharmasut, LLC (“the defendants”), the owners of the

station, appeal. For the reasons that follow, we affirm.

      “We begin by noting that the interpretation of a statute is a question of law,

which we review de novo on appeal. Moreover, because the trial court’s ruling on a
legal question is not due any deference, we apply the ‘plain legal error’ standard of

review.”1

      The evidence in this case is undisputed. In 2015, the Hall County Sheriff’s

Department was informed that employees at the gas station were paying out cash to

winners using the store’s coin-operated amusement machines. On May 25, 2015, a

confidential informant placed $40 in a machine and redeemed the accumulated $20

credit with a store employee in exchange for two scratch-off lottery tickets.2 On June

1, 2015, the informant returned to the gas station, again placed $40 in a machine, and

obtained a credit of $60. In exchange for the credit, a store employee gave the

informant a $10 scratch-off lottery ticket and $40 in cash, and she put $10 in her own

pocket.

      On June 4, 2015, police executed a search warrant for the gas station and seized

$12,027.50 in cash from video gaming machines, the registers, a cash bag, a safe,

drawers, boxes, Patel’s wallet, and an ATM machine. The State then filed a complaint

for forfeiture in rem pursuant to OCGA § 16-12-32.         Following a hearing, the



      1
      (Citations and punctuation omitted.) State v. Howell, 288 Ga. App. 176 (653
SE2d 330) (2007).
      2
          The events were recorded on video surveillance equipment.

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trial court approved the forfeiture, concluding that by paying out cash and lottery

tickets as winnings for customers using the amusement machines, the appellants

converted the machines to “gambling devices”; the gas station qualified as a gambling

place; and the currency was “used in, intended for use in, used to facilitate, derived

from, or realized through” gambling activity. This appeal followed.

      The defendants contend that the trial court erred by granting the forfeiture

because the video gaming machines at issue were not “gambling devices” under

Georgia law. We disagree.

      OCGA § 16-12-20 (a) (2) (2015) defines “a gambling device” as “[a]ny

contrivance which for a consideration affords the player an opportunity to obtain

money or other thing of value, the award of which is determined by chance even

though accompanied by some skill, whether or not the prize is automatically paid by

contrivance.”3 Because the gaming machines in this case offer players the opportunity

      3
         OCGA § 16-12-35 (a) defines the term “some skill” as “any presence of the
following factors, alone or in combination with one another: (1) A learned power of
doing a thing competently; (2) A particular craft, art, ability, strategy, or tactic; (3)
A developed or acquired aptitude or ability; (4) A coordinated set of actions,
including, but not limited to, eye-hand coordination; (5) Dexterity, fluency, or
coordination in the execution of learned physical or mental tasks or both; (6)
Technical proficiency or expertise; (7) Development or implementation of strategy
or tactics in order to achieve a goal; or (8) Knowledge of the means or methods of
accomplishing a task. The term some skill refers to a particular craft, coordinated

                                           3
to obtain value, and the award they receive is determined by chance even though they

do involve an element of skill, they qualify as gambling devices under OCGA § 16-

12-35.4 OCGA § 16-12-35 (d) (1) (2015), however, provides an exception, stating

that Georgia’s gambling statutes do not apply to

      a coin operated game or device designed and manufactured only for
      bona fide amusement purposes which involves some skill in its
      operation if it rewards the player exclusively with: (A) [f]ree replays;
      (B) [m]erchandise limited to noncash merchandise, prizes, toys, gift
      certificates, or novelties, each of which has a wholesale value of not
      more than $5.00 received for a single play of the game or device; (C)
      [p]oints, tokens, vouchers, tickets, or other evidence of winnings which
      may be exchanged for rewards set out in subparagraph (A) of this
      paragraph or subparagraph (B) of this paragraph or a combination of
      rewards set out in subparagraph (A) and subparagraph (B) of this
      paragraph; or (D) Any combination of rewards set out in two or more of
      subparagraph (A), (B), or (C) of this paragraph.



effort, art, ability, strategy, or tactic employed by the player to affect in some way the
outcome of the game played on a bona fide coin operated amusement machine as
defined in paragraph (2) of Code Section 50-27-70. If a player can take no action to
affect the outcome of the game, the bona fide coin operated amusement machine does
not meet the ‘some skill’ requirement of this Code section.”
      4
        At the hearing, the defendants introduced exhibits indicating that in March
and July, respectively, the Georgia Lottery Corporation (“the GLC”) and a company
employed by the GLC, inspected the gaming machines in the Citgo and concluded
that they were compliant with Georgia law and the GLC regulations.

                                            4
      Here, the machines themselves do not produce cash or lottery tickets to players

as rewards to players. The trial court concluded, however, that by giving players cash

and lottery tickets as rewards for winning games on the machines, the gas station

employees effectively converted them into gambling devices. OCGA § 16-12-32 (b)

(4) (2015) permits the State to seize via forfeiture “[a]ny property located in this state

which was, directly or indirectly, used or intended for use in any manner to facilitate

a violation of this article or of the laws of the United States relating to gambling and

any proceeds.” Thus, pretermitting whether the cash payouts from the employees

converted the machines into “gambling devices” as defined by statute, these actions

clearly violated the gambling laws of Georgia, which prohibit cash payouts for

winning games on machines when the winnings are determined by chance even if

they involve an element of skill.5 Accordingly, the trial court did not err by finding

in favor of the State and approving the forfeiture.

      Judgment affirmed. Miller, P. J., and Reese, J., concur.




      5
        See, e.g., Patel v. State, 289 Ga. 479, 485 (3) (713 SE2d 381) (2011) (“[E]ven
property that is lawful to possess and operate can be used to violate the law, and thus
would be subject to forfeiture under the RICO statute if it is used in racketeering
activity.”).

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