State v. Coll , 96 N.E.3d 947 ( 2017 )

[Cite as State v. Coll, 2017-Ohio-7270.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio/Division of Wildlife Court of Appeals No. S-16-022
Appellee Trial Court Nos. CRB 1600265 A
CRB 1600265 B
v.
Shamir L. Coll DECISION AND JUDGMENT
Appellant Decided: August 18, 2017
*****
James F. Melle, for appellee.
Shamir L. Coll, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} Pro se appellant, Shamir Lee Coll, appeals the June 27, 2016 judgment of
the Fremont Municipal Court which, following a jury trial convicting him of the
misdemeanor charges of fishing in a closed zone and taking/possessing a walleye of less
than 15 inches, sentenced him to ten-day suspended jail sentences, two years of non-
reporting probation, 48 hours of community service, a $200 fine, and $100 in restitution.
Appellant was also banned for two years from fishing in the Lake Erie sport fishing
district. Because we find that the conviction was supported by sufficient evidence and
the sentence was not contrary to law, we affirm.
{¶ 2} The relevant facts of this case are not in dispute. On March 28, 2016,
appellant and two other individuals were cited under R.C. 1531.02. The three men were
also cited under Ohio Adm.Code 1501:31-13-01(F), fishing in a closed zone. In addition,
appellant was cited under Ohio Adm.Code 1501:31-13-09(B), taking a walleye less than
15 inches in length in the Lake Erie sport fishing district.
{¶ 3} Appellant entered not guilty pleas to the charges and the matter proceeded to
a jury trial. At trial, testimony was elicited from sole witness Ohio Division of Wildlife
officer Austin Dickinson. Officer Dickinson testified that on March 28, 2016, at
approximately 3:00 p.m., the office received a tip that a violation was occurring in
Fremont, Ohio. Dickinson responded to the call. Upon arrival he observed three men
fishing below the Ballville bridge; he witnessed them cast and reel in multiple times.
{¶ 4} Officer Dickinson approached the men and asked to see their fishing
licenses. The two men with appellant produced their licenses. Appellant indicated that
he did not have his on his person; Officer Dickinson was able to verify that he did have
an active license. The men were informed that they were fishing in a closed zone and
were asked to go up the bank to Officer Dickinson’s vehicle so he could observe the fish
they had caught.
{¶ 5} Officer Dickinson explained that the area was a “closed zone” during a
period in the spring because the walleye from the lake use adjacent rivers and streams to
2.
spawn, or lay their eggs. Dickinson explained that the area closes due to the sheer
number of walleye spawning in the area and the risk of anglers catching and keeping
more than the legal limit. Dickinson stated that the closure is “publicly known” and is
posted in the written regulations, online, and on signage in the area.
{¶ 6} Officer Dickinson testified that one of appellant’s three fish measured at 14
and one-half inches, one-half inch short of the 15-inch state minimum. Photographic
evidence of the fish was admitted into evidence. Citations were then issued.
{¶ 7} Following closing arguments and jury deliberations appellant was convicted
on the counts charged and was immediately sentenced. This appeal followed.
{¶ 8} Appellant now raises three assignments of error for our review:
1. It is an error of law for the trial court to decide that ORC §
1531.02 is a strict liability statute. Therefore, appellant’s conviction is
against the sufficiency of the evidence.
2. ORC section 1531.02 is unconstitutionally vague.
3. Trial court abused its discretion by sentencing defendant
disproportionately harsher compared to other defendant’s in identical
situations with a sentence that is inconsistent with principles of
misdemeanor sentencing ORC section 2929.21.
{¶ 9} In appellant’s first assignment of error, he contends that because a mens rea
was not proven at trial, his conviction under R.C. 1531.02 was against the sufficiency of
the evidence. We note that the question of whether there is sufficient evidence to support
a conviction is one of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541
3.
(1997). In reviewing a challenge to the sufficiency of evidence, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St. 3d 89, 113,
684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh
the evidence or assess the credibility of the witnesses. State v. Walker, 55 Ohio St. 2d
208, 212, 378 N.E.2d 1049 (1978).
{¶ 10} Appellant was convicted of violating R.C 1531.02, in conjunction with
Ohio Adm.Code 1501:31-13-01(F) and 1501:31-13-09(B). R.C. 1531.02 provides, in
relevant part:
The ownership of and the title to all wild animals in this state, not
legally confined or held by private ownership legally acquired, is in the
state, which holds such title in trust for the benefit of all the people.
Individual possession shall be obtained only in accordance with the Revised
Code or division rules. No person at any time of the year shall take in any
manner or possess any number or quantity of wild animals, except wild
animals that the Revised Code or division rules permit to be taken, hunted,
killed, or had in possession, and only at the time and place and in the
manner that the Revised Code or division rules prescribe. * * *.
A person doing anything prohibited or neglecting to do anything
required by this chapter or Chapter 1533. of the Revised Code or contrary
to any division rule violates this section. * * *.
4.
{¶ 11} Ohio Adm.Code 1501:31-13-01(F) states:
It shall be unlawful for any person to engage in fishing in the
Sandusky river at any time from March first to May first from the Ballville
dam to the power line, “Toledo Edison,” Old Ballville and Fifth street line,
located at the southeast corner of Roger Young park, city of Fremont,
Sandusky County.
{¶ 12} Ohio Adm.Code 1501:31-13-09(B) states: “It shall be unlawful for any
person to take or possess a walleye, sauger, or saugeye less than fifteen inches in length
while on the following bodies of water: * * * Lake Erie sport fishing district1; * * *.”
{¶ 13} This court has examined a similar regulation involving the offense of
fishing without a license and fishing under a license suspension, State v. Hymore, 6th
Dist. Lucas No. L-95-361, 1996 Ohio App. LEXIS 4231 (Sept. 30, 1996). In Hymore the
appellant’s case proceeded to a jury trial following which he was found guilty. On
appeal, appellant argued, in part, that the trial court erred when it denied his request for
certain jury instructions. After examining the language of the statute which included the
phrase “[n]o person shall,” we noted that such language evidence the intent of the
legislature to impose strict liability. Id. at *7, quoting State v. Cheraso, 43 Ohio App. 3d
221, 223, 520 N.E.2d 326 (11th Dist.1988).
1
Under Ohio Adm.Code 1501:31-1-02: ”‘Lake Erie sport fishing district’ means the Ohio
waters of lake Erie, its embayments including Maumee bay, Sandusky bay, east harbor,
middle harbor, west harbor and the entire length of all tributaries * * *.”
5.
{¶ 14} We then noted:
The legislature used the terminology that establishes fishing in Ohio
while under a license or permit suspension a strict liability crime.
Accordingly, the affirmative defenses of mistake of fact or lack of intent
could not be used by appellant, and the trial court did not err when it
refused to give the requested jury instructions on those defenses. Id. at *7-
8. Accord State v. Bowersmith, 3d Dist. Union No. 14-02-02, 2002-Ohio-
3386 (the failure of a hunter to carry the required deer or wild turkey permit
while hunting is a strict liability offense.)
{¶ 15} In the present case, as in Hymore, we find that the prohibitory language
used in R.C. 1531.02,
[n]o person at any time of the year shall take in any manner or
possess any number or quantity of wild animals except wild animals that
the Revised Code or division rules permit to be taken, * * *, and only at the
time and place and in the manner that the Revised Code or division rules
prescribe, evidences legislative intent to make an offender strictly liable for
the offense.
{¶ 16} Appellant, however, relies on a Supreme Court of Ohio case which
rejected the argument that former R.C. 2919.24, contributing of the unruliness of a
child, was a strict liability offense. State v. Moody, 104 Ohio St. 3d 244, 2004-
Ohio-6395, 819 N.E.2d 268. In Moody, the court first acknowledged that the
statute contained no mental state. Id. at ¶ 16. The court concluded, however, that
6.
there was no plain indication that the General Assembly intended to impose strict
liability. Id. The court then determined that the recklessness mental state applied.
Id. at ¶ 17.
{¶ 17} Acknowledging Moody yet reaching a different conclusion, the Tenth
Appellate District determined that a violation of the sex-offender registration statute,
former R.C. 2950.05, was a strict liability offense. State v. Blanton, 184 Ohio App. 3d
611, 2009-Ohio-5334, 921 N.E.2d 1103 (10th Dist.). The court first noted that the
statute at issue did not contain a mental state element. Id. at ¶ 20. The court then
considered whether the offense was a crime merely because it was prohibited by statute
(malum prohibitum) versus whether the act itself was immoral (malum in se). The court
found that because the act of failing to provide a change of address was malum
prohibitum, it supported the argument that it was a strict liability offense. Id. at ¶ 21.
Finally, the court determined that the General Assembly had taken a “strong stance”
against sex offenders. Id. at ¶ 25. The court then concluded that the statute was a strict
liability offense. Id. at ¶ 26.
{¶ 18} In State v. Bowersmith, supra, involving wildlife division regulation, the
court proceeded through the analysis first finding that the statute, R.C. 1533.11, did not
include a mens rea. Id. at ¶ 13. The court then noted the prohibitive language contained
in the statute: “Every person * * * shall carry the person’s permit ***. Failure to do so
and exhibit such permit constitutes an offense under this section.” Id. at ¶ 16. Finally,
the court observed:
7.
[T]he General Assembly has assumed a strong stance in support of
the protection and preservation of our natural resources through stringent
licensing and regulation of activities affecting those resources. Moreover,
varying degrees of culpability and exceptions for unintentional violations
have been provided within other sections of the Chapter. Therefore, it is
reasonable to presume, based upon the fact that this is a regulatory statute
enacted in furtherance of the public welfare and that the offense herein is
mala prohibita, that the inclusion of scienter requirements and exceptions
within other sections of the Chapter and the unconditional mandates within
and exclusion of a scienter requirement from R.C. 1533.11, plainly indicate
a purpose to impose strict liability for failing to carry and display a special
permit while hunting upon the lands of another. Id. at ¶ 19.
{¶ 19} Reading Moody and Blanton, in conjunction with Bowersmith, we find that
the violations of the statute and regulations at issue were strict liability offenses. Thus, a
mental state element was not required to be proven at trial. As to the remaining elements
of the offenses, appellant neither contests that he was fishing in a closed zone nor that the
fish he caught was undersized. Accordingly, we find that appellant’s first assignment of
error is not well-taken.
{¶ 20} In appellant’s second assignment of error he contends that R.C. 1531.02 is
void for vagueness. Appellant argues that the statute fails to specifically state what is
prohibited. This argument has been previously raised and rejected. See State v. Seymour,
4th Dist. Ross No. 1499, 1989 Ohio App. LEXIS 3268 (Aug. 22, 1989). The Seymour
8.
court first noted that the legislature could properly delegate to an administrative agency,
including the Division of Wildlife, the authority to “promulgate rules and regulations.”
Id., quoting State v. Switzer, 22 Ohio St. 2d 47, 49, 257 N.E.2d 908 (1970). The court
then noted that R.C. 1531.02, prohibits doing anything contrary to a division rule or order
and that the specific prohibitions are contained in the Ohio Administrative Code. Thus,
the prohibition at issue was specifically set forth and not vague. Id.
{¶ 21} In the present case, appellant was cited under the general statute, R.C.
1531.02. Appellant was also charged with violating specific Ohio Administrative Code
sections. When issuing the citations, the Ohio Division of Wildlife officer wrote out a
description of each violation. Based on the foregoing, we find that R.C. 1531.02 is not
unconstitutionally vague. Appellant’s second assignment of error is not well-taken.
{¶ 22} In his third and final assignment of error, appellant contends that his harsh
sentence was contrary to the principles and purposes of misdemeanor sentencing. See
R.C. 2929.21 and 2929.22. Appellant bases his argument on the fact that the two other
individuals issued citations were given less severe sanctions. Specifically, appellant
contends that his sentence was disproportionate to the other two individuals charged as
they were only sentenced to fines after entering guilty pleas; he was issued a suspended
jail sentence, non-reporting community control, higher fines, community service, and was
ordered not to fish in the Lake Erie sport fishing district. The state asserts that the
sentence was within the trial court’s discretion and within the range of sentences
permitted by law. The state further notes that appellant, unlike the other individuals, was
additionally charged with possessing a walleye of less than 15 inches.
9.
{¶ 23} We agree that we review a misdemeanor sentence for an abuse of
discretion. State v. Cossack, 7th Dist. Mahoning No. 08 MA 161, 2009-Ohio-3327, ¶ 20.
In imposing a sentence for a misdemeanor offense, a trial court must consider the
purposes and principles of misdemeanor sentencing as set forth in R.C. 2929.21, as well
as the sentencing factors set forth in R.C. 2929.22. The failure to do so constitutes an
abuse of discretion. State v. Dominijanni, 6th Dist. Wood No. WD-02-008, 2003-Ohio-
792, ¶ 6. Nevertheless, when a misdemeanor sentence is imposed within the statutory
limits, a reviewing court will presume that the judge followed the statutes, absent
evidence to the contrary. State v. Townsend, 6th Dist. Lucas No. L-01-1441, 2002-Ohio-
4077, ¶ 6, citing Toledo v. Reasonover, 5 Ohio St. 2d 22, 213 N.E.2d 179 (1965),
paragraph one of the syllabus.
{¶ 24} Reviewing the sentencing hearing and the June 27, 2016 judgment entry,
we cannot say that the trial court abused its discretion in sentencing appellant. The
court noted that each fourth degree misdemeanor carried a potential of 30 days in jail
(R.C. 2929.24(A)(4)), a $250 fine (R.C. 2929.28(A)(2)(a)(iv)), a maximum of five years
of community control (R.C. 2929.25(A)(2)), and up to 200 hours of community service
(R.C. 2929.27(A)(3)). Further the $50 value imposed as a fine for each violation is
specifically set forth in the regulations. Finally, the two-year ban from fishing in the
Lake Erie sport fishing district was a permissible condition as it was related to the
offense. See State v. Recker, 3d Dist. Putnam Nos. 12-14-03, 12-14-04, 2014-Ohio-4993,
¶ 13-14.
10.
{¶ 25} Based on the foregoing, we find that the trial court did not abuse its
discretion in sentencing appellant. Appellant’s third assignment of error is not well-
taken.
{¶ 26} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair proceeding and the judgment of the Fremont Municipal
Court is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this
appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
11.