{ "id": 2549503, "name": "STATE OF NEW MEXICO ex rel. NEW MEXICO GAMING CONTROL BOARD, Plaintiff-Appellant, v. TEN (10) GAMING DEVICES and their contents of $3.25 in United States Currency, and Cortney Gwynne, Kerry Gwynne, Gamer's Choice, and Cecil L. Lunceford, Claimants-Appellees", "name_abbreviation": "State ex rel. New Mexico Gaming Control Board v. Ten (10) Gaming Devices", "decision_date": "2005-07-26", "docket_number": "No. 24,479", "first_page": "426", "last_page": "431", "citations": [ { "type": "official", "cite": "138 N.M. 426" }, { "type": "parallel", "cite": "120 P.3d 848" }, { "type": "parallel", "cite": "2005-NMCA-117" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "253 Ga. 508", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1201007 ], "weight": 3, "year": 1984, "pin_cites": [ { "parenthetical": "\"The functional use test ... only require[s] a showing that the equipment could be used for gambling purposes to establish that [it is] subject to confiscation.\"" }, { "page": "249", "parenthetical": "\"The functional use test ... only require[s] a showing that the equipment could be used for gambling purposes to establish that [it is] subject to confiscation.\"" } ], "opinion_index": 0, "case_paths": [ "/ga/253/0508-01" ] }, { "cite": "2003-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15945 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/133/0097-01" ] }, { "cite": "2002-NMCA-087", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260745 ], "weight": 3, "pin_cites": [ { "page": "\u00b615" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0490-01" ] }, { "cite": "2003-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15713 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0214-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "\u00b6 10", "parenthetical": "alteration in original" }, { "parenthetical": "alteration in original" }, { "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "715 S.W.2d 356", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9974674 ], "pin_cites": [ { "page": "358-59" } ], "opinion_index": 0, "case_paths": [ "/sw2d/715/0356-01" ] }, { "cite": "10 Or.App. 587", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2110110 ], "weight": 2, "year": 1972, "pin_cites": [ { "parenthetical": "\"We think it is the use of a described machine in violation of the statute [for cash or profit] which is proscribed.\"" }, { "page": "499", "parenthetical": "\"We think it is the use of a described machine in violation of the statute [for cash or profit] which is proscribed.\"" } ], "opinion_index": 0, "case_paths": [ "/or-app/10/0587-01" ] }, { "cite": "91 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571126 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "275", "parenthetical": "alteration in original" }, { "page": "209", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0275-01" ] }, { "cite": "113 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723280 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "99", "parenthetical": "\"[Forfeitures are not favored at law and statutes are to be construed strictly against forfeiture.\" (quoting State v. Ozarek, 91 N.M. 275, 275, 573 P.2d 209, 209 (1978) (alteration in original))" }, { "page": "341", "parenthetical": "\"[Forfeitures are not favored at law and statutes are to be construed strictly against forfeiture.\" (quoting State v. Ozarek, 91 N.M. 275, 275, 573 P.2d 209, 209 (1978) (alteration in original))" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0097-01" ] }, { "cite": "111 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715058 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "748-49" }, { "page": "1276-77" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0746-01" ] }, { "cite": "2005-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929233 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0642-01" ] }, { "cite": "2004-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1427947 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0472-01" ] }, { "cite": "2004-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224615 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0247-01" ] }, { "cite": "2004-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224601 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0211-01" ] } ], "analysis": { "cardinality": 873, "char_count": 20333, "ocr_confidence": 0.691, "pagerank": { "raw": 7.736152507775605e-08, "percentile": 0.4549535513460437 }, "sha256": "43b2e5de559b26090ecc73ad14047b8fc95790cc22368c3d68af07174fec9a4f", "simhash": "1:2de90e754667b109", "word_count": 3327 }, "last_updated": "2023-07-14T22:16:47.861903+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NEW MEXICO ex rel. NEW MEXICO GAMING CONTROL BOARD, Plaintiff-Appellant, v. TEN (10) GAMING DEVICES and their contents of $3.25 in United States Currency, and Cortney Gwynne, Kerry Gwynne, Gamer\u2019s Choice, and Cecil L. Lunceford, Claimants-Appellees." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} The question presented in this case is whether slot machines in a private home that are not used for illegal gambling are gaming machines or gambling devices and therefore subject to forfeiture because they are not licensed under the Gaming Control Act, NMSA 1978, \u00a7\u00a7 60-2E-1 to -62 (1997, as amended through 2003)(Act). The Gaming Control Board (Board) appeals from a summary judgment granted to Cortney Gwynne, Kerry Gwynne, and Cecil L. Lunceford (Owners) in its suit seeking to forfeit the machines. We agree that the machines are not subject to forfeiture and affirm.\nBACKGROUND\n{2} The material facts are not disputed. The machines at issue are slot machines in Owners\u2019 home. They are not licensed under the Act. Owners acquired them from a distributor licensed in Nevada in November 1997, shortly after the Act took effect. The only persons who played the machines were Owners and their social acquaintances, and the Board does not allege that Owners were involved in illegal gambling. Nevertheless, Board agents seized the machines from the Owners\u2019 home in Alamogordo, New Mexico. The Board then filed a forfeiture complaint seeking to forfeit the slot machines. The complaint alleges that the machines are \u201cunlicensed gaming devices\u201d and therefore subject to forfeiture under Section 60-2E-13(D) of the Act and under NMSA 1978, \u00a7 30-19-10 (2002) of the Criminal Code. Section 60-2E-13(D) states that \u201c[a]ny unlicensed or illegal gaming machine, except one in the possession of a licensee while awaiting transfer to a gaming operator licensee for licensure of the machine, is subject to forfeiture and confiscation by any law enforcement agency or peace officer.\u201d Section 39-19-10 provides for forfeiture of a \u201cgambling device\u201d not licensed under the Act.\n{3} The Board and Owners filed motions for summary judgment. The district court concluded that in the absence of proof that anyone made money or profit from operating the slot machines except through winnings as a player, there was no \u201cgame,\u201d no \u201cgaming activity,\u201d no \u201cgaming devices,\u201d and no \u201cgaming machines\u201d as defined ip the Act. Therefore, the district court concluded the machines are exempt from the Act and not subject to forfeiture. The district court accordingly denied the Board\u2019s motion for summary judgment and granted Owners\u2019 motion for summary judgment. The Board appeals.\nSTANDARD OF REVIEW\n{4} We review the order of the district court de novo for two reasons. First, neither party argues that genuine issues of material fact exist, so the only issue remaining is a legal one of whether the law was correctly applied to those facts. See State Farm Mut. Auto. Ins. Co. v. Barker, 2004-NMCA-105, \u00b6 4, 136 N.M. 211, 96 P.3d 336 (stating that when the existence of genuine issues of material fact is not contested, we review the disposition of motions for summary judgment de novo). Second, this case involves statutory construction, which is also a legal question, subject to de novo review. See Cerrillos Gravel Prods., Inc. v. Bd. of County Comm\u2019rs, 2004-NMCA-096, \u00b6 4, 136 N.M. 247, 96 P.3d 1167.\nSTATUTORY BACKGROUND\n{5} The machines were seized in November 1999, and the complaint was filed in December 1999. Thereafter, portions of the Act and the Criminal Code were amended in March 2002. See 2002 N.M. Laws ch. 4, \u00a7 14; 2002 N.M. Laws ch. 102, \u00a7 8; 2002 N.M. Laws ch. 103, \u00a7 1. Because the \u201cgeneral rule is that statutes apply prospectively unless the [legislature manifests clear intent to the contrary,\u201d Gill v. Pub. Employees Ret. Bd., 2004-NMSC-016, \u00b6 3, 135 N.M. 472, 90 P.3d 491 (internal quotation marks and citation omitted) (alteration in original), and the amendments to the Act and the Criminal Code are silent as to whether they apply retroactively, see 2002 N.M. Laws ch. 4, \u00a7 23; 2002 N.M. Laws ch. 102, \u00a7 19; 2002 N.M. Laws ch. 103, \u00a7 2, the amendments only had prospective effect. We therefore decide this case based on the Act and the Criminal Code as they existed prior to the 2002 amendments.\nDISCUSSION\n{6} \u201cOur principal objective in interpreting a statute is to determine and give effect to the intent of the legislature.\u201d Aguilera v. Bd. of Educ., 2005-NMCA-069, \u00b6 10, 137 N.M. 642, 114 P.3d 322, cert. granted, Sup.Ct. No. 29,190 (internal quotation marks and citations omitted). The \u201cprimary indicator\u201d of the legislature\u2019s intent is the plain language of the statute, and we are to give the words used in the statute their ordinary meaning unless the legislature indicates a different intent. Id. However, \u201c[w]here the legislature defines words used in the statute, we must interpret the statute according to those definitions.\u201d Id. In construing the applicable statutes, we are also guided by the principles that forfeiture statutes are to be construed strictly against forfeiture because forfeitures are not favored at law and that forfeitures \u201cshould be enforced only when within both the letter and the spirit of the law.\u201d In re Forfeiture of Two Thousand Seven Hundred Thirty Dollars and No Cents, 111 N.M. 746, 748-49, 809 P.2d 1274, 1276-77 (1991); see also In re Forfeiture of One 1970 Ford Pickup Truck, 113 N.M. 97, 99, 823 P.2d 339, 341 (Ct.App. 1991) (\u201c[Forfeitures are not favored at law and statutes are to be construed strictly against forfeiture.\u201d (quoting State v. Ozarek, 91 N.M. 275, 275, 573 P.2d 209, 209 (1978) (alteration in original))).\nA. Forfeiture Under the Gaming Control Act\n{7} The Act declares the State\u2019s policy on gaming to be that \u201climited gaming activities should be allowed in the state if those activities are strictly regulated to ensure honest and competitive gaming that is free from criminal and corruptive elements and influences[.]\u201d Section 60-2E-2(A). Accordingly, \u201cgaming activity\u201d is illegal in New Mexico unless \u201cconducted in compliance with and pursuant to\u201d the Act or some other state or federal law which \u201cexpressly permits the activity or exempts it from the application of the state criminal law[.]\u201d Section 60-2E-4.\n{8} In keeping with the declared public policy, the Act specifies activities which require licensing pursuant to its provisions: (1) \u201cA person shall not conduct gaming unless he is licensed as a gaming operator.\u201d Section 60-2E-13(A); (2) \u201cA person shall not sell, supply or distribute any gaming device ... for use or play ... unless he is licensed as a distributor or manufacturer.\u201d Section 60-2E-13(B); (3) \u201cA person shall not manufacture, fabricate, assemble, program or make modifications to a gaming device ... unless he is a manufacturer licensee.\u201d Section 60-2E-13(C) (1997) (amended 2002); (4) \u201cA gaming operator licensee or a person other than a manufacturer licensee or distributor licensee shall not possess or control a place where there is an unlicensed gaming machine.\u201d Section 60-2E-13(D) (1997) (amended 2002); and (5) \u201cA person shall not service or repair a gaming device ... unless he is licensed as a manufacturer, is employed by a manufacturer licensee or is a technician certified by a manufacturer and employed by a distributor licensee or a gaming operator licensee.\u201d Section 60-2E-13(E) (1997) (amended 2002). Accordingly, the Act provides for manufacturer, distributor, gaming operator, and gaming machine licenses. Section 60-2E-14(A).\n{9} Consistent with the foregoing provisions, the Act states that \u201ca person shall not purchase, lease or acquire possession of a gaming device ... except from a licensed distributor or manufacturer.\u201d Section 60-2E-13(G) (1997) (amended 2002). The Act provides for severe penalties. \u201cA person who knowingly possesses any gaming device that has been manufactured, sold or distributed in violation of the [Act] is guilty of a fourth degree felony.\u201d Section 60-2E-53. Finally, and directly pertinent to this case, the Act provides, \u201c[a]ny unlicensed gaming machine, except one in the possession of a licensee while awaiting transfer to a gaming operator licensee for licensure of the machine, is subject to forfeiture.\u201d Section 60-2E-13(D) (1997) (amended 2002).\n{10} The foregoing summary demonstrates that the Act addresses a game, gaming, gaming activity, and a gaming machine. These concepts are specifically defined by the Act. First, \u201cgaming\u201d is defined as \u201coffering a game for play.\u201d Section 60-2E-3(O). \u201c[Gjaming activity\u201d in turn is defined in pertinent part as \u201cany endeavor associated with ... the conduct of gaming[.]\u201d Section 60-2E-3(P). A \u201cgaming device\u201d is \u201cassociated equipment or a gaming machine,\u201d Section 60-2E-3(Q), and \u201cassociated equipment\u201d is \u201cequipment or a mechanical, electromechanical or electronic contrivance, component or machine used in connection with gaming[.]\u201d Section 60-2E-3(E). Finally, a \u201cgaming machine\u201d is defined as \u201ca mechanical, electromechanical or electronic contrivance or machine that, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate a game, whether the payoff is made automatically from the machine or in any other manner.\u201d Section 60-2E-3(T). The common, consistent, and necessary component of each of these definitions is. a \u201cgame.\u201d The Act specifically defines a \u201cgame\u201d as:\n[A]n activity in which, upon payment of consideration, a player receives a prize or other thing of value, the award of which is determined by chance even though accompanied by some skill; \u2018game\u2019 does not include an activity played in a private residence in which no person makes money for operating the activity except through winnings as a player[.]\nSection 60-2E-3(N) (emphasis added). If there is no \u201cgame\u201d as defined, there is no gaming, no gaming activity, no gaming device, and no gaming machine. If there is no gaming machine, it is not required to be licensed, and it is not subject to forfeiture under the Act. In light of this general background, we now turn to the specific arguments made by the Board.\n{11} The Board\u2019s main argument is that in order to constitute a \u201cgaming machine,\u201d a machine does not have to be actually used to play or operate a \u201cgame,\u201d it only has to be \u201csuitable\u201d or \u201cuseable\u201d to play or operate a \u201cgame.\u201d The Board invites our attention to the definition of a \u201cgaming machine,\u201d focusing on the component that a machine which is \u201cavailable\u201d to play or operate a game is a \u201cgaming machine.\u201d See \u00a7 60-2E-3(T). In making this argument, the Board asserts that the word \u201cavailable,\u201d according to Black\u2019s Law Dictionary 132 (5th ed.1979), means \u201c[s]uitable; usable; ... present or ready for immediate use.\u201d Under the Board\u2019s theory, any mechanical, electromechanical, or electronic contrivance or machine that is \u201csuitable\u201d or \u201cusable\u201d to play or operate a \u201cgame\u201d is illegal per se and subject to forfeiture regardless of how it is kept, used, or stored unless it is licensed under the Act. This has been described as the \u201cfunctional use\u201d test which only requires proof that the machine could be used for gambling purposes to make it subject to forfeiture. See Monte Carlo Parties, Ltd. v. Webb, 253 Ga. 508, 322 S.E.2d 246, 249 (1984) (\u201cThe functional use test ... only require[s] a showing that the equipment could be used for gambling purposes to establish that [it is] subject to confiscation.\u201d). Under this test, a machine is subject to seizure based on the mere possibility that it might be used to play or operate a game, thereby giving the Board almost unfettered discretion in deciding which machines it wants to seize. See id. We reject the Board\u2019s argument.\n{12} The legislature could have easily and plainly defined a \u201cgaming machine\u201d by focusing only on physical characteristics of the machine by defining it as any machine which is \u201ccapable\u201d of playing or operating a \u201cgame\u201d; any machine which is \u201csuitable\u201d to play or operate a \u201cgame\u201d; or any machine which is \u201cusable\u201d to play or operate a \u201cgame.\u201d Instead, the legislature declared that in order to constitute a \u201cgaming machine,\u201d the machine must be \u201cavailable\u201d to play or operate a \u201cgame.\u201d This goes beyond focusing on the physical attributes of the machine itself. See Smith v. One Super Wild Cat Console Mach., 10 Or.App. 587, 500 P.2d 498, 499 (1972) (\u201cWe think it is the use of a described machine in violation of the statute [for cash or profit] which is proscribed.\u201d). The Board\u2019s argument relies on an incomplete definition of \u201cavailable\u201d from a dated version of Black\u2019s Law Dictionary. The complete definition of \u201cavailable\u201d contained in Black\u2019s Law Dictionary 132 (5th ed.1979) reads, \u201c[s]uitable; useable; accessible; obtainable; present or ready for immediate use. Having sufficient force or efficacy; effectual; valid.\u201d Similarly, Webster\u2019s Dictionary defines the word \u201cavailable\u201d to mean something \u201cthat is accessible or may be obtained\u201d or something that is \u201cat disposal esp. for sale or utilization.\u201d Webster\u2019s Third New International Dictionary 150 (unabridged) (2002). Finally, the words and phrases, \u201caccessible, at one\u2019s disposal, convenient, reachable and within reach\u201d are common synonyms for the word \u201cavailable.\u201d See Burton\u2019s Legal Thesaurus 48 (3d ed.1998). These definitions and the common understanding of the word \u201cavailable\u201d lead us to conclude that the legislature meant that a machine must be accessible to play or operate a \u201cgame\u201d to be a \u201cgaming machine.\u201d Since \u201can activity played in a private residence in which no person makes money for operating the activity except through winnings as a player,\u201d is specifically excluded from being a \u201cgame\u201d under the Act, Section 60-2E-3(N), and it is undisputed that this is the only use of the machines, they are not accessible to play or operate a \u201cgame.\u201d Therefore, they are not a \u201cgaming machine\u201d subject to the Act.\n{13} The Board argues that any person can manufacture, distribute, and possess a gaming machine free from the Board\u2019s regulatory oversight by simply asserting that the machine is manufactured, distributed, or possessed only for non-commercial use in a private residence if we affirm the district court. We disagree. When the exclusion in Section 60-2E-3(N) is asserted, the activity in the private residence at the time the machine is seized determines whether the machine is subject to forfeiture. See T & W Enter., Inc. v. Casey, 715 S.W.2d 356, 358-59 (Tenn.Ct. App.1986) (stating that the legality of a coin operated video device depends on its condition and method of operation at the time it is seized). If the activity in the residence involves playing or operating a \u201cgame\u201d (i.e., it is accessible to gamble with) it is subject to forfeiture unless it is properly licensed under the Act. If the owner or claimant can show the contrary, the machine is not an unlicensed gaming machine. Moreover, if such a device is not physically located in a private residence at the time it is seized, it can be presumed that it is a gaming machine because the definition of a game only excludes \u201can activity played in a private residence in which no person makes money for operating the activity except through winnings as a player.\u201d Section 60-2E-3(N).\nB. Forfeiture Under the Criminal Code\n{14} The Board argues that the slot machines are a \u201cgambling device\u201d under the Criminal Code, and subject to forfeiture under Section 30-19-10 (providing that any \u201cgambling device\u201d shall be seized by a law enforcement officer, and upon application of the district attorney, the district court may order its destruction). The Criminal Code at NMSA 1978, \u00a7 30-19-1(0) (1997) (amended 2002) defines a \u201cgambling device\u201d as:\n[A] contrivance other than an antique gambling device that is not licensed for use pursuant to the [Act] and that, for a consideration, affords the player an opportunity to obtain anything 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 the device}.]\n(Emphasis added.)\n{15} Similar to its argument under the Act, the Board argues that the definition does not require a gambling device to be \u201cactually used\u201d for gambling in order to constitute a \u201cgambling device\u201d; it only needs to afford the player an \u201copportunity\u201d to win a prize. This argument overlooks the requirement of consideration. While \u201cconsideration\u201d is not defined in the subsection defining a \u201cgambling device,\u201d it is defined in the subsection defining a \u201clottery.\u201d Section 30-19-1(E) states that a \u201clottery\u201d is:\n[A]n enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill. \u201cLottery\u201d does not include the New Mexico state lottery established and operated pursuant to the New Mexico Lottery Act [NMSA 1978, \u00a7\u00a7 6-24-1 to -34 (1995) ] or gaming that is licensed and operated pursuant to the [Act], As used in this subsection, \u201cconsideration\u201d means anything of pecuniary value required to be paid to the promoter in order to participate in a gambling or gaming enterprise.\n(Emphasis added.)\n{16} We see no reason to give \u201cconsideration\u201d a different meaning in each subsection. See State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (\u201c[A] statutory subsection may not be considered in a vacuum, but must be considered in reference to the statute as a whole.\u201d (quoting 2A Norman J. Singer, Statutes and Statutory Construction \u00a7 46:05, at 165 (6th ed., rev. 2000) (alteration in original))); Romero v. Valencia County, 2003-NMCA-019, \u00b6 8, 133 N.M. 214, 62 P.3d 305 (\u201c[A] statute is read in its entirety and each part is construed with every other part to achieve a harmonious whole}.]\u201d); BC & L Pavement Servs., Inc. v. Higgins, 2002-NMCA-087, \u00b615, 132 N.M. 490, 51 P.3d 533 (\u2018We will construe the entire statute as a whole so that all the provisions will be considered in relation to one another, (internal quotation marks and citation omitted) ), overruled on other grounds by Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm\u2019n, 2003-NMSC-005, 133 N.M. 97, 61 P.3d 806. The Attorney General has previously arrived at the same conclusion in construing a prior version of the statute. See N.M. Att\u2019y Gen. Op. No. 82-16 (1982) (concluding that where \u201cconsideration\u201d was defined in a subsection defining a \u201clottery,\u201d but it was not defined in a separate subsection defining a \u201cgambling device,\u201d the word would be given the same definition in the subsection defining \u201cgambling device\u201d). The Board does not allege that anything was required to be paid to Owners to play a machine. In fact, there is no allegation that Owners were involved in illegal gambling, and the only persons who played the machines were Owners and their social acquaintances. Finally, there is no allegation or proof that anyone playing a machine made any money except through winnings as a player. Stated another way, no \u201cconsideration\u201d was paid to Owners to play a machine so there is no \u201cgambling device\u201d as defined in the Criminal Code. This is consistent with the Act, which excludes from the definition of a \u201cgame\u201d an \u201cactivity played in a private residence in which no person makes money for operating the activity except through winnings as a player}.]\u201d Section 60-2E-3(N). As we have already discussed, without a \u201cgame\u201d there is no \u201cgaming machine\u201d subject to the Act.\nCONCLUSION\n{17} We hold that the machines are not subject to the Act because they are not a \u201cgaming machine\u201d to make them subject to the Act, and they do not constitute a \u201cgambling device\u201d under the Criminal Code. Therefore, they are not subject to forfeiture and we affirm the district court order granting Owners\u2019 motion for summary judgment.\n{18} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN and IRA ROBINSON, Judges.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Santa Fe, NM, Christopher D. Coppin, Assistant Attorney General, Frank A. Baca, Peggy A. Hardwick, Special Assistant Attorneys General, Albuquerque, NM, Richard E. Olson, Roswell, NM, for Appellant.", "Richard A. Hawthorne, Richard A. Hawthorne, P.A., Ruidoso, NM, for Appellees." ], "corrections": "", "head_matter": "2005-NMCA-117\n120 P.3d 848\nSTATE OF NEW MEXICO ex rel. NEW MEXICO GAMING CONTROL BOARD, Plaintiff-Appellant, v. TEN (10) GAMING DEVICES and their contents of $3.25 in United States Currency, and Cortney Gwynne, Kerry Gwynne, Gamer\u2019s Choice, and Cecil L. Lunceford, Claimants-Appellees.\nNo. 24,479.\nCourt of Appeals of New Mexico.\nJuly 26, 2005.\nCertiorari Granted, No. 29,410, Sept. 21, 2005.\nPatricia A. Madrid, Attorney General, Santa Fe, NM, Christopher D. Coppin, Assistant Attorney General, Frank A. Baca, Peggy A. Hardwick, Special Assistant Attorneys General, Albuquerque, NM, Richard E. Olson, Roswell, NM, for Appellant.\nRichard A. Hawthorne, Richard A. Hawthorne, P.A., Ruidoso, NM, for Appellees." }, "file_name": "0426-01", "first_page_order": 458, "last_page_order": 463 }