THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

OROZCO, Judge.

¶1 Harold Smith Lee, Jr. (Defendant) appeals his convictions for promotion of gambling, a class five felony; illegal conduct of an enterprise, a class three felony; and conspiracy, a class three felony.

¶2 Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, and he has done so. Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). During our review of the record, we found no reversible error and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶3 In the wake of poker's increasing popularity in the early 2000's, Defendant formed Arizona Card Room, Inc. (ACR) in 2005 and International Card & Game Players Association, Inc. (ICGPA) in 2008. The purpose of the companies was to create "a uniform set of rules or guidelines" in the hopes of organizing poker "for safe venues away from the gambling industry." Defendant served as the sole officer and owner of both companies. Defendant's charter agreement (Agreement) for both ACR and ICGPA highlighted how the companies would operate in conjunction with the poker rooms licensed under the Agreement. ACR would serve as a "policing agency" that would provide safety services for the venues, while ICGPA would be operated by an association of membership players focused on organizing the poker competitions. According to the Agreement, in order to become a licensed venue, each card room had to pay ACR (1) an annual fee of $5000, (2) five percent of the gross revenue for advertising purposes, and (3) a weekly fee of ten percent of the accessory charges, i.e., button fee. A button fee is the "fee players pay on the rotating dealer button, for the venue and accessories provided by the license holder." In addition, in order to become an ICGPA member, players had to pay a $20 membership fee.

¶4 Michael Orlando (Orlando) met Ronald Curcio (Curcio)1 at a social club, and agreed to open a card room. Both men met Defendant at a card club called Poker Nation2 and eventually reviewed the Agreement with him. After the discussion, Orlando and Curcio agreed to most of the terms; however, Curcio testified that he and Orlando did not agree to the $5000 annual fee. Rather, both men agreed that Defendant would receive an advanced payment of $1000 that became contingent on Defendant assisting in securing a business license for their club Ace High Arizona Card Room and Social Club (Ace High). Defendant received the payment and traveled to Surprise, Arizona with Orlando and Curcio to obtain the business license; eventually, the license application for Ace High was granted, and the card room opened in the summer of 2008.

¶5 Curcio testified that once the license had been acquired, Defendant did little to assist in operating Ace High. The day-to-day operations of Ace High, as well as the start-up and overhead costs, were all managed by Orlando and Curcio.

¶6 Based on the Agreement's requirement for a button fee, Ace High decided to make Texas Hold'em3 the game of choice at the club. Beginning in June 2009, Arizona Department of Gaming Agent B. (Agent B.) entered Ace High as part of an undercover investigation. On his first visit, Agent B. met Orlando and discovered that in order to play poker at Ace High, a player needed to pay a $20 membership fee and become an ICGPA member. Curcio testified that each $20 ICGPA membership fee went to Defendant in the form of a check made out to ICGPA.

¶7 To enter into the poker game, Agent B. purchased poker chips from a cashier located in Ace High. Agent B. testified that while he played poker, he was instructed to search for "button fees."4 On three of his four visits to Ace High, Agent B. noticed a button fee being incorporated into the poker game, and on his final visit, he recorded the collection of the button fee through a visual and audio bugging device. Orlando and Curcio both testified that a certain percentage of the revenue generated from the collection of the button fees was sent to Defendant in a check made out to ACR.

¶8 In 2008, the combined dollar amount Ace High paid to ACR and ICGPA amounted to $3313. That total increased to $3480 in 2009 and decreased to $720 in 2010. Starting in October 2009, Ace High struggled to acquire new ICGPA members and its earnings were insufficient to cover Ace High's overhead costs. Beginning in 2010, Ace High did not earn any profits and ultimately closed in July 2010.

¶9 On August 4, 2010, after Ace High closed, Arizona Department of Gaming Agent V. (Agent V.) conducted a voluntary interview with Defendant. During the interview, Defendant admitted to knowing that Club Royale5 had shut down and the people associated with the club had been prosecuted. Furthermore, Defendant told Agent V. that he would continue to grow his "league" despite the closing of Club Royale. Agent V. testified that Defendant's ultimate goal was the creation of a "union of poker rooms that would fall under . . . an umbrella system."

¶10 On August 23, 2010, Defendant was indicted by a grand jury and charged with one count of promotion of gambling, one count of illegal conduct of an enterprise, and one count of conspiracy. A jury convicted Defendant as charged. The trial court suspended Defendant's sentence, sentenced him to twelve months of unsupervised probation on each count, to be served concurrently, and ordered him to pay restitution to the Arizona Department of Gaming and probation fees.

¶11 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010).

DISCUSSION

Sufficiency of the Evidence

¶12 When considering the sufficiency of the evidence, "we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). "`Substantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976).

Promotion of Gambling

¶13 A person is guilty of promoting gambling if he knowingly "[f]urnishes advice or assistance for the conduct, organization, management, direction, supervision or financing of gambling" and does so for a benefit. A.R.S. § 13-3303.A.2 (2010). Gambling is defined as an "act of risking or giving something of value for the opportunity to obtain a benefit from a game or contest of chance or skill . . . but does not include bona fide business transactions which are valid under the law of contracts." A.R.S. § 13-3301.4 (2010). Gambling not conducted as a business and involving players who compete on equal terms is classified as social gambling, and is therefore excluded under A.R.S. § 13-3303, if all of the following apply: (1) no player receives or is entitled to receive any benefit other than the player's winnings from the gamble, (2) no other person receives or becomes entitled to receive any benefit from the gambling activity, (3) no players are under twenty-one years of age, and (4) no player enjoys an advantage over any other player. A.R.S. § 13-3301.7.

¶14 Agent B. testified that while playing Texas Hold'em, each player must use two randomly dealt cards in conjunction with the five community cards selected from a shuffled deck. Players may bet at certain points in relation to when the community cards are placed on the table. We find that sufficient evidence exists to conclude that Texas Hold'em fits within the definition of gambling under A.R.S. § 13-3301.4.

¶15 Furthermore, the Texas Hold'em played at Ace High does not fall under social gambling because other persons received a benefit from gambling that was conducted as a business. See A.R.S. § 13-3301.7. Both Orlando and Curcio testified that Defendant, through ACR and ICGPA, received checks resulting from the button fees and membership fees collected.

¶16 Regardless of whether Defendant thought assisting in the opening of Ace High was legal or illegal, "[i]gnorance or mistake as to a matter of law does not relieve a person of criminal responsibility." A.R.S. § 13-204.B (2010). Defendant directly assisted with the Ace High operation by traveling to Surprise, Arizona to secure the initial business license. Moreover, the Agreement required Ace High to implement a button fee into its daily management of the Texas Hold'em poker games. Thus, we find substantial evidence was presented to support the conclusion that Texas Hold'em is a form of gambling and that Defendant knowingly promoted gambling by assisting Orlando and Curcio in acquiring a business license for Ace High and, as a result of requiring a button charge, received a benefit from the poker games in the form of checks made payable to ACR and ICGPA.

Illegal Conduct of an Enterprise

¶17 To secure a conviction for illegally conducting an enterprise, the State must prove beyond a reasonable doubt that Defendant either (1) was employed by or associated with an enterprise and conducted enterprise affairs through racketeering or (2) participated directly or indirectly in the conduct of an enterprise, knowing that such enterprise is being conducted through racketeering. A.R.S. § 13-2312.B (Supp. 2012).6 An enterprise may consist of a partnership. A.R.S. § 13-2301.D.2 (2010). Racketeering is defined as an act, including any preparatory or completed offense, that (1) is chargeable or indictable under the laws of the state in which the act occurred, (2) is punishable by imprisonment for more than one year under the laws of this state and (3) involves gambling committed for financial gain. A.R.S. § 13-2301.D.4(b)(vii).

¶18 First, Curcio testified that Ace High was formed as a partnership. Next, promotion of gambling is a form of racketeering in that the act is chargeable under the laws of this state, is punishable by imprisonment for more than one year and involves gambling. See A.R.S. §§ 13-702 (2010), -3303.A.2. Finally, even after Club Royale closed as a result of a raid in late 2008, Defendant told Agent V. that he intended to grow his "league" and ultimately continued to receive payments from Orlando and Curcio through the Ace High operation. Thus, we find that substantial evidence was presented to conclude that Defendant illegally conducted an enterprise.

Conspiracy

¶19 The State was required to prove that (1) Defendant intended to promote or aid in the commission of an offense, (2) Defendant agreed with one or more persons that at least one of them or another person would engage in conduct constituting the offense, and (3) one of the persons committed an overt act in furtherance of the offense. A.R.S. § 13-1003.A (2010).

¶20 Again, ignorance or mistake as to a matter of law is not a defense. A.R.S. § 13-204.B. Even if Defendant did not believe he was promoting gambling or illegally conducting an enterprise, it does not negate the fact that he directly assisted in the Ace High licensing process, furnished advice as to how the Texas Hold'em poker game should operate, and required a button fee via the Agreement. It was undisputed that Defendant, Orlando, and Curcio all participated in the licensing process; furthermore, Orlando and Curcio were partners in managing the day-to-day operations of Ace High. Lastly, with regards to the overt act, we point to Defendant's actual trip to Surprise for the purpose of acquiring Ace High's business license, Curcio or Orlando's physical taking of the slot boxes containing players' $2 button fees, and the checks Defendant received as payment for those collected fees. Thus, we find sufficient evidence was presented to conclude Defendant conspired to illegally conduct an enterprise.

Motions in Limine

¶21 Although Defendant makes numerous allegations in his supplement that are incomprehensible, he seems to argue that the trial court erred in precluding him from presenting witnesses or evidence based on the State's motion in limine. Before trial, the State filed a motion in limine to preclude Defendant from giving his personal opinions on Indian Gaming. At a pretrial conference, the trial court stated that Defendant's personal views on Indian Gaming were irrelevant to Defendant's case and ruled that Defendant could not present evidence on a number of issues.

¶22 "[A] motion in limine is treated as a motion to suppress, and the ruling of the trial court will not be disturbed on appeal absent a clear abuse of discretion." State v. Superior Court (Gretzler), 128 Ariz. 583, 585, 627 P.2d 1081, 1083 (1981). As shown in the preceding section, it is clear that Defendant's views on Indian Gaming had no relevance to the crimes for which he was convicted. Therefore we find that the trial court did not abuse its discretion in precluding Defendant from presenting evidence regarding Indian Gaming issues.7

CONCLUSION

¶23 We have read and considered counsel's brief and the entire record on appeal. We have carefully searched the entire appellate record for reversible error and have found none. See Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and substantial evidence supported the jury's verdicts of guilt. Defendant was present and was either represented by counsel or assisted by advisory counsel at all critical stages of the proceedings. At sentencing, Defendant and his counsel were given an opportunity to speak, and the court imposed a legal sentence.

¶24 Counsel's obligations pertaining to Defendant's representation in this appeal have ended, and counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.

¶25 For the foregoing reasons, Defendant's convictions and sentences are affirmed.

MICHAEL J. BROWN, Judge, LAWRENCE F. WINTHROP, Judge, concurring.