Are video sweepstakes games predominately games of chance or games of skill and dexterity?
A Bladen County jury may, in part, answer that question when its expected to continue deliberations Tuesday morning in the trial of a 77-year-old Columbus County man who owns a small grocery store along N.C. 211 in the Bladen County community of Council. Its verdict, if reached, could have ramifictions statewide on an industry that has drawn the attention of law enforcement for years.
Richard McRoy Taylor Jr., of Tabor City, is on trial during a special session of Bladen County Superior Court on charges of operating a video gaming machine, gambling, and misdemeanor electronic sweepstakes.
At issue is whether the four Gift Surplus video sweepstakes machines confiscated from a room of K&R Grocery in August 2015 are legal under North Carolina law. State law prohibits, in most cases, games of chance.
Taylor’s defense team contends the games involve skill and dexterity since players have to know how to operate the machine to win the sweepstakes and that players receive credit to make purchases from the Gift Surplus web site equal to the amount of money put into the machine.
The jury of nine men and three women deliberated for about 90 minutes late Friday afternoon after listening to testimony and arguments for three days, but reported they were deadlocked and unable to reach a verdict. Judge Ebern T. Watson ordered jurors to return Tuesday in an effort to reach a unanimous verdict.
The trial is the latest in a series of cases pitting district attorney’s and law enforcement agencies across the state against video sweepstakes machine manufacturers and operators of the once-popular sweepstakes businesses.
Taylor’s case began May 14, 2015, when Bladen County Sheriff’s Office deputies were called to K&R Grocery to investigate a break-in, according to testimony. Investigator Matt Hester testified that while searching for evidence, he noticed the four gaming machines in a side room of the store.
On Aug. 11, 2015, David Borresen of the Cumberland County Sheriff’s Office testified that he entered the store and played one of the machines. He testified that he put $20 in one of the machines, played the Lucky Shamrock 2 game once and won $31. An 11-minute surveillance video was played of Borresen’s undercover operation.
The video showed Borresen entering the grocery and purchasing a drink, then entering the room where the sweepstakes machines were located. Borresen puts $20 into the machine, then chooses to play the Lucky Shamrock 2 game. He presses several incorrect buttons before pressing a button that matches a winning pattern. It’s not clear on the video whether Borresen received a receipt which would have contained a code for $20 credit at the Gift Surplus web site as its designed to do, and, he testified, he couldn’t recall if he received a receipt.
After getting the winning pattern, Borresen calls on the store clerk, who is the defendant’s son, Jeffrey, to help him cash out. Borresen received $31.
The four Gift Surplus sweepstakes machines were confiscated Aug. 12, 2015. Taylor was charged with operating a video game machine on Dec. 7, 2015, gambling on June 6 and misdemeanor electronic sweepstakes on Aug. 1.
Taylor is represented by former judge Bill Gore of Columbus County, Michael Grace of Winston-Salem and George Hyler of Asheville. The state is represented by District Attorney Jon David and assistant District Attorney Quintin McGee.
The defense called three expert witnesses to testify about Gift Surplus’ business model, the machines’ compliance with regulations, and the skill and dexterity involved in playing the games.
Dr. Robert Robicheaux is a professor in the Marketing, Industrial Distribution and Economics Department at the University of Alabama at Birmingham. He testified about the growth of “gamification,” which is defined as an application of typical elements of game playing to other areas of activity, typically as an online marketing technique to encourage engagement with a product or service.
“Gift Surplus’ business model is fascinating,” Robicheaux testified. “They target e-commerce sales and offer products online. Part of that is to attract customers to kiosks to play games and take people to their web site.”
Gift Surplus has no inventory, Robicheaux said. The company acts as a shopping site for several vendors. The vendors send the products to the customers.
Nick Farley of Nick Farley & Assoc. of Ohio, operates a regulatory compliance test laboratory and electronic gaming device consulting service. He testified that among the requirements to be a sweepstakes game is to offer a “no purchase necessary” option and the machines in question offered that option.
Dr. Neil Mulligan, who is a professor and director of Cognitive Psychology at the University of North Carolina in Chapel Hill, testified about his research involving chance and skill and dexterity.
“Skill,” Mulligan testified, “is the ability to learn through instruction and practice.”
In the Gift Surplus machine in court, Mulligan talked about the different patterns needed to win the sweepstakes and how a novice playing the game would improve with practice.
In closing arguments Friday afternoon, Grace talked about the four law enforcement witnesses the state called and “they offered us nothing,” he said. “This is your opportunity to tell the DA that we expect a better investigation.”
David, in his closing argument, told jurors that “you don’t have to be a weatherman to know if it’s raining. This is a gambling machine. … In Bladen County, gambling is illegal. It’s not Cherokee. It’s not Las Vegas. Internet sweepstakes is gambling in disguise.
“People have no idea they are getting credits to buy gifts, or are confused or the codes don’t work.”
In the O.J. Simpson trial, David said, “you heard that if the gloves don’t fit, you must acquit. In this case, if you can’t redeem, it must be a scheme.”
About Author
