[Cite as State v. Gasparac, 2017-Ohio-8711.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. John W. Wise, J.
-vs-                                           :
                                               :   Case No. 17CA22
                                               :
RONALD GASPARAC                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court
                                                   of Common Pleas, Case No. 16 CR 346



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            November 20, 2017




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

GARY BISHOP                                        RANDALL E. FRY
RICHLAND CO. PROSECUTOR                            10 West Newlon Place
JOSEPH C. SNYDER                                   Mansfield, OH 44902
38 South Park St.
Mansfield, OH 44902
Richland County, Case No. 17CA22                                                         2



Delaney, P.J.

       {¶1} Appellant Ronald Gasparac appeals from the February 24, 2017

Sentencing Entry of the Richland County Court of Common Pleas. Appellee is the state

of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on February 11, 2014, when an undercover investigator

with the Ohio Department of Natural Resources (ODNR) Wildlife Division found a

posting on Craig’s List advertising sale or trade of “yellow perch.” In three transactions,

appellant sold or traded “yellow perch” to the undercover agent in the following

amounts:

                      November 25, 2014: 11 pounds, or 66 perch, valued by

                ODNR at $1320.00;

                      March 26, 2015: 20 pounds, or 120 perch, valued by ODNR

                at $2,400.00;

                      January 17, 2016: 20 pounds, or 120 perch, valued by

                ODNR at $2,400.00.

       {¶3} Appellant was charged by indictment with three counts of illegal sale of

wildlife in an amount greater than $1000 pursuant to sections 1531.201(B), 1531.02,

and 1531.99(D) of the Ohio Revised Code, and sections 1501:31-16-01(A) and (B)(56)

of the Ohio Administrative Code. Each offense is a felony of the fifth degree. Appellant

entered pleas of not guilty.

       {¶4} On January 17, 2017, appellant filed a “Motion to Dismiss” in which he

argued “[t]he applicable statutes under Chapter 1531 of the Ohio Revised Code are
Richland County, Case No. 17CA22                                                         3


arbitrary and capricious as they apply to [appellant],” and “violate the separation of

powers of the legislative branch and the executive branch of the State of Ohio.”

Appellee responded with a memorandum in opposition on February 3, 2017.

                      The Evidentiary Hearing: Valuation of Yellow Perch

       {¶5} Appellant then changed his pleas to ones of no contest but “reserved the

right to raise the valuation or constitutional defenses” (T. 4). An evidentiary hearing for

that purpose was held on January 23, 2017. The parties focused on the valuation of

“yellow perch” and whether the legislature can delegate law-making power to

administrative agencies. (T. 10-12).

       {¶6} A law enforcement administrator from ODNR testified how the rules

originate and become administrative code. In late 2007, the legislature updated R.C.

1531.201 to permit the Chief of the Division of Wildlife to establish rules determining

how much each wild animal is worth. The administrative code section is based on

distinct criteria, a graduated scale based upon the species’ aesthetic and economic

value, rarity, and status as endangered. Around 50 species were determined to be

“biologically significant” and values were specifically assessed. Any animals which did

not reach the value of ten or above on the graduated scale fall into the category of “all

other wild animals,” set at $20.

       {¶7} “Yellow perch” fall into the “all other wild animals” category.

       {¶8} The administrator further testified that valuation of the fish takes into

account fluctuating market value determined by biologists at Lake Erie who track lake-

wide commercial fishery and sport fishery values. In the commercial market, seven and

a quarter fish per pound are found in a pound of commercial fish filets. In recreational
Richland County, Case No. 17CA22                                                     4


fishing, however, there are ten fish per pound of filets. The difference arises because

recreational fishermen are allowed to take smaller fish and “there is not quite as much

meat on their filets” as those of a commercial fish cutter. (T. 21).

       {¶9} When asked how the value of the fish was determined in the instant case,

the administrator testified as follows:

                     [WITNESS]: * * *. For the purpose of I guess the sanctity of

              the fish, we bought the fish [from appellant] frozen. When we got

              them they were frozen to us. They were in one pound packages.

              We had the presence enough to know those are one pound

              packages. [Appellant] did a pretty good job of that, measuring out

              his fish. Knowing that we didn’t want to thaw the fish, if we would

              have thawed the fish we would have had to throw the fish away at

              the end of the case. Our goal in all of these cases is to preserve

              the evidence the best we can. If we have a positive outcome in the

              case, we try to donate that fish to someone else who can use it, a

              soup kitchen, needy families, whichever that happens to be. As

              soon as you thaw those fish they would have been destroyed.

                     So we went to a lower number and we used five fish per

              pound. We can see through the packages, you know, they are

              frozen in water so you can see pretty well, but we used a five fish

              per pound, which is fifty percent of what the state-wide numbers

              would be on catch per pound.
Richland County, Case No. 17CA22                                                    5


                    [PROSECUTOR]: But even at that five fish per pound with

             this twenty dollar—

                    [WITNESS]: You are still at a felony level.

                    [PROSECUTOR]: He was still over a thousand dollars?

                    [WITNESS]: Yes. We bought in total seventy-five pounds of

             perch from [appellant].

                    THE COURT: What is the price per pound you are using?

                    [WITNESS]: We used five fish per pound, and then twenty

             dollars per fish.

                    THE COURT: I see how you are getting the numbers of fish,

             but—so your total valuation is twenty dollars per fish?

                    [WITNESS]: Correct. That’s the standard that has been set

             for us in the revised code. That has been tested to your discussion

             that you had—

                    THE COURT: Well, it wasn’t set in the revised code. It was

             set by you pursuant to the revised code.

                    [WITNESS]: Correct, Your Honor. * * * *.

                    T. 22-23.

      {¶10} On February 15, 2017, the trial court filed an “Order and Decision on

Defendant’s Motion to Dismiss” overruling appellant’s motion and finding him guilty as

charged upon each of the three counts.

      {¶11} Appellant was subsequently sentenced to a community-control term of 2

years and required make restitution to ODNR in the amount of $6,120.00.
Richland County, Case No. 17CA22                                                         6


         {¶12} Appellant now appeals from the trial court’s February 24, 2017 Sentencing

Entry.

         {¶13} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

         {¶14} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO DISMISS.”

                                        ANALYSIS

         {¶15} Appellant argues the trial court erred in overruling his motion to dismiss

because the applicable statutes under R.C. Chapter 1531 are “arbitrary and capricious”

as applied to him. We disagree.

         {¶16} In his motion to dismiss before the trial court, appellant’s argument was

twofold: 1) “[t]he applicable statutes under Chapter 1531 of the Ohio Revised Code are

arbitrary and capricious as they apply to [appellant]”; and 2) “[t]he applicable statutes

under Chapter 1531 of the Ohio Revised Code violate the separation of powers of the

legislative branch and executive branch of the state of Ohio.” (Motion to Dismiss, 1). In

his argument on appeal, appellant abandons the second branch of his argument to

focus upon the first. (Brief, 9).

         {¶17} We note it is well-established that the granting of authority by the General

Assembly to the Chief of the Division of Wildlife is not an unlawful delegation of

legislative power.     State v. Switzer, 22 Ohio St.2d 47, 257 N.E.2d 908 (1970),

paragraph one of the syllabus. See generally R.C. 1501.01; State v. Whites Landing

Fisheries, 6th Dist. Erie No. E-13-021, 2014-Ohio-1314, ¶ 16, appeal not allowed, 139

Ohio St.3d 1473, 2014 -Ohio- 3012, 11 N.E.3d 1194 [“In furtherance of the division's
Richland County, Case No. 17CA22                                                             7


purpose to preserve natural resources and prevent illegal harvesting, we conclude that

the Chief of the Division of Wildlife had the authority to choose the specific monitoring

system in order to effectuate the intent of the legislature”]; State /Div. of Wildlife v. Coll,

2017-Ohio-7270, --N.E.3d--, ¶ 20 (6th Dist.); State v. Seymour, 4th Dist. Ross No. 1499,

unreported, 1989 WL 98496, *1 (Aug. 22, 1989), appeal not allowed, 47 Ohio St.3d 712,

548 N.E.2d 245.

       {¶18} We thus turn to appellant’s argument that the valuation of yellow perch is

arbitrary and capricious as applied to him. “Arbitrary and capricious” is one level of a

constitutional void-for-vagueness analysis. Neither party has framed their argument in

the context of a void-for-vagueness analysis, but the context is necessary to determine

whether the valuation of yellow perch is arbitrary and capricious as applied to appellant.

Appellant argues the statutes and rule vest too much power in ODNR to arbitrarily

determine the value of wildlife and consequently whether offenses are felonies or

misdemeanors. As applied, he argues the value of $20 per fish in appellant’s case is

arbitrary.

       {¶19} Because this issue requires interpretation of a statute, which is a question

of law, our standard of review is de novo. State v. Consilio, 114 Ohio St.3d 295, 871

N.E.2d 1167, 2007-Ohio-4163, ¶ 8. We begin with the strong presumption that a statute

is constitutional. State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). The

party challenging the statute as unconstitutional must “show that upon examining the

statute, an individual of ordinary intelligence would not understand what he is required

to do under the law.” Id. at 269. Furthermore, the challenger must show (1) the statute

does not give warning to the ordinary citizen of what is required; (2) the statute does not
Richland County, Case No. 17CA22                                                         8


preclude arbitrary and capricious enforcement; and (3) the statute does not ensure that

constitutionally protected rights are not unduly infringed. Id. at 271. To be considered

vague, “a statute must be vague in all of its applications, assuming the statute

implicates no constitutionally protected conduct.” Id. at 272. When a criminal statute is

involved, the strict construction of criminal provisions must be tempered with common

sense and “evident statutory purpose.” State v. Sway, 15 Ohio St.3d 112, 116, 472

N.E.2d 1065 (1984).

       {¶20} The critical question in all cases as to void for vagueness is whether the

law affords a reasonable individual of ordinary intelligence fair notice and sufficient

definition and guidance to enable him to conform his conduct to the law. State v. Hayes,

2016-Ohio-7373, 63 N.E.3d 184, ¶ 11 (5th Dist.), citing City of Norwood v. Horney, 110

Ohio St.3d 353, 380, 853 N.E.2d 1115 (2006). The void-for-vagueness doctrine does

not require statutes to be drafted with scientific precision. Hayes, supra, at ¶ 12, citing

State v. Anderson, 57 Ohio St.3d 168, 174, 566 N.E.2d 1224 (1991).

       {¶21} Keeping all of these standards in mind, we review the statutes and

regulations at issue in the instant case. Appellant was charged by indictment with three

counts of illegal sale of wildlife in an amount greater than $1000 pursuant to sections

1531.201(B), 1531.02, and 1531.99(D) of the Ohio Revised Code, and sections

1501:31-16-01(A) and (B)(56) of the Ohio Administrative Code, each a felony of the fifth

degree. Those sections state as follows:

                    R.C. 1531.201(B): The chief of the division of wildlife or the

             chief's authorized representative may bring a civil action to recover

             possession of or the restitution value of any wild animal held, taken,
Richland County, Case No. 17CA22                                                      9


            bought, sold, or possessed in violation of this chapter or Chapter

            1533. of the Revised Code or any division rule against any person

            who held, took, bought, sold, or possessed the wild animal.

                   The minimum restitution value to the state for wild animals

            that are unlawfully held, taken, bought, sold, or possessed shall be

            established in division rule.

                   R.C. 1531.02:     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. No

            person shall buy, sell, or offer any part of wild animals for sale, or

            transport any part of wild animals, except as permitted by the

            Revised Code or division rules. No person shall possess or transport

            a wild animal that has been taken or possessed unlawfully outside

            the state.

                   A person doing anything prohibited or neglecting to do

            anything required by this chapter or Chapter 1533. of the Revised
Richland County, Case No. 17CA22                                                        10


            Code or contrary to any division rule violates this section. A person

            who counsels, aids, shields, or harbors an offender under those

            chapters or any division rule, or who knowingly shares in the

            proceeds of such a violation, or receives or possesses any wild

            animal in violation of the Revised Code or division rule, violates this

            section.

                   R.C. 1531.99(D): Whoever violates section 1531.02 of the

            Revised Code concerning the buying, selling, or offering for sale of

            any wild animals or parts of wild animals, the minimum value of

            which animals or parts, in the aggregate, is one thousand dollars or

            more as established under section 1531.201 of the Revised Code, is

            guilty of a felony of the fifth degree.

                   Ohio Adm.Code 1501:31-16-01(A): Each species of wild

            native or naturalized mammal, bird, reptile, amphibian, mussel, fish

            or other aquatic or terrestrial wildlife under the authority of section

            1531.02 of the Revised Code may be assigned a monetary value.

            This value will be derived by a score from each of seven scoring

            criteria listed in paragraph (A)(1) of this rule. The sum of the scores

            for the seven criteria in paragraph (A)(1) of this rule shall be

            multiplied by one of the weighting factors listed in paragraph (A)(2)

            of this rule. This final resulting adjusted criteria score is compared to

            the monetary scale shown in paragraph (A)(3) of this rule to obtain

            the monetary value for the wild animal.
Richland County, Case No. 17CA22                                                    11


                   (1) Each of the following criteria will have possible score of

            zero to three. A wildlife species which is not sought at all shall be

            scored as zero, while a highly sought species shall be scored three.

                   (a) Recreation. The extent to which a species is actively

            sought by users with wildlife interests. Scoring considers both

            harvest and nonharvest use of a species. There is no financial gain

            to the person.

                   (b) Aesthetic. These values represent wildlife species' beauty

            and unique natural history. Aesthetic values for these species exist

            whether or not a person ever would encounter one in its natural

            habitat.

                   (c) Educational. The educational value of a species arising

            from, for example, published materials and other audio-visual media

            about the species, displays and other educational programming or

            the relative frequency with which the species is used to exemplify

            important curricula principles.

                   (d) State-list designation. “Endangered, Threatened, or

            Species of Concern” as defined in Administrative Code and/or

            designated in division of wildlife document “Wildlife That Are

            Considered to be Endangered, Threatened, Species of Concern,

            Special Interest, Extirpated, or Extinct.”

                   (e) Economics. The direct or indirect economic benefit

            attributable to the species as a result of recreational or legal
Richland County, Case No. 17CA22                                                      12


            transactions. Further evaluation for commercially desirable species

            will be considered (i.e., pet trade, for human consumption, traditional

            medicine, religious or cultural trade, etc.).

                   (f) Recruitment. Reproductive and survival potential of a

            species as it relates to the capability for replacement of its

            population following decrease or loss.

                   (g) Population dynamics. Impact of the loss of the individual

            animal to its local or sub-population, and the impact of the loss to

            it[s] Ohio population.

                   (2) The individual scores for each criteria in paragraph (A)(1)

            of this rule are summed to derive a total criteria score. This total

            criteria score is multiplied by one of the following weighting factors

            which will adjust the summed criteria score for variance in public

            demand and/or perception of value for a species. The weighting

            factor relates the overall demand for a species to its existing supply

            and to future opportunity for public use.

                   (a) 1.0--Abundant. Common across its Ohio range with no

            consumptive use.

                   (b) 1.1--Common or species of concern. Common across its

            Ohio range with consumptive recreational demand, or designated as

            a species of concern.

                   (c) 1.3--Threatened. A species designated by the division of

            wildlife as threatened.
Richland County, Case No. 17CA22                                                          13


                     (d) 1.5--Endangered. A species designated by the division of

            wildlife as endangered, which is vulnerable to extirpation from the

            state.

                     (3) The total criteria score multiplied by the weighting factor in

            paragraph (A)(2) of this rule, provides an adjusted criteria score and

            correlates to the restitution value in the following table.

                                   Adjusted Criteria and Value

             Score Range                                     Monetary Value
0-3                                           $20.00
4-6                                           $50.00
7-8                                           $100.00
9-10                                          $250.00
10.1-11.9                                     $500.00
12-16                                         $750.00
17-20                                         $1,000.00
20.1+                                         $2,500.00


                     Ohio Adm.Code 1501:31-16-01(B): The chief of the division

            of wildlife or his authorized representative may bring a civil action to

            recover possession of or the restitution value of any wild animal

            held, taken, bought, sold or possessed in violation of Chapter 1531.

            or Chapter 1533. of the Revised Code or any division rule against

            any person who held, took, bought, sold or possessed, the wild

            animal. The following shall be presumed to be the minimum value

            to the state of wild animals illegally held, taken, bought, sold or

            possessed.

                     * * * *.
Richland County, Case No. 17CA22                                                        14


                      (56): All other wild animals: - $20.00.

          {¶22} In the instant case, appellant was cited under the general statute, R.C.

1531.02, and also charged with violating specific Ohio Administrative Code sections.

See, Coll, supra, 2017-Ohio-7270 at ¶ 21. Where applicable, the relevant statute and

regulation must be read in pari materia to determine whether they provide reasonable

notice of the prohibited conduct. State v. Whites Landing Fisheries, 6th Dist. Erie No. E-

13-021, 2014-Ohio-1314, ¶ 13, citing State v. Disbennett, 4th Dist. Hocking No. 408,

1985 WL 11156, *3 (Sept. 23, 1985). R.C. 1531.02 does not specifically set out

prohibited conduct, but the reference to the division orders in R.C. 1531.02 puts the

public on notice there are regulations which govern the protection of wild animals. State

v. Seymour, 4th Dist. Ross No. 1499, 1989 WL 98496, *1. When Ohio Adm.Code

1501:31-16-01(A) and (B) are read, the prohibitions are “quite specific and not

unconstitutionally vague,” as is the valuation procedure for the wildlife at issue. See,

Seymour, supra.

          {¶23} Appellant was also charged under R.C. 1531.201, which authorizes

ODNR’s power to pursue restitution as described in Division rules. As appellee points

out, the Ohio Supreme Court has held R.C. 1531.201 is unambiguous and clearly

expresses the intent of the legislature. Risner v. Ohio Dept. of Nat. Resources, Ohio

Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 14.

          {¶24} The wildlife at issue is yellow perch, with a criteria score determined

pursuant to Ohio Adm.Code 1501:16-01(A)(1), multiplied by the weighting factors of

(A)(2).    Because yellow perch fall into the category of “all other wild animals” not

specifically delineated, the value of each perch is $20.        Upon examining the statutes
Richland County, Case No. 17CA22                                                        15


and applicable regulations, “tempered with common sense and ‘evident statutory

purpose,’” an individual of ordinary intelligence would understand what he is required to

do under the law, or rather, understand what he is prohibited from doing and the

resulting valuation assessed. Sway, supra, 15 Ohio St.3d at 116.

       {¶25} Other courts have found specific prohibitions not void for vagueness.

State /Div. of Wildlife v. Coll, 2017-Ohio-7270, --N.E.3d--, ¶ 20 (6th Dist.) [fishing in

closed zone, taking walleye less than 15 inches]; State v. Seymour, 4th Dist. Ross No.

1499, 1989 WL 98496, *1 [deer hunting after temporary tag detached from special deer

permit].

       {¶26} Appellant cites Stanton v. State Tax Commission, 114 Ohio St. 658, 151

N.E. 760 (1926) for the principle that “arbitrary and capricious laws and rules are subject

to judicial scrutiny within the framework of due process rights,” but Stanton does not

reference “arbitrary and capricious.” In that case, the Ohio Supreme Court reviewed the

constitutional separation of powers and determined whether a court of common pleas

has jurisdiction to review an order of the state tax commission. Id. The Court held “[b]y

virtue of section 4 of article IV of the Ohio Constitution, the Legislature may confer upon

the court of common pleas jurisdiction to review orders of the state tax commission, and

section 5611-2, General Code, conferring such jurisdiction, does not contravene any

provisions of the state or federal Constitution.” Id., at the syllabus. Stanton is thus

inapposite to appellant’s void-for-vagueness argument.

       {¶27} Appellant also cites Urmston v. City of N. College Hill, 114 Ohio App. 213,

175 N.E.2d 203 (1st Dist.1961), for the definition of “arbitrary” and “unreasonable.” In

that case, the court reviewed a zoning board’s refusal to rezone property, finding the
Richland County, Case No. 17CA22                                                            16


action was not arbitrary and unreasonable because the “legislative authority could

reasonably have had considerations of public health, safety, morals or general welfare

in mind, both in the passage of the entire original zoning ordinance and in its refusal of

the plaintiff-appellee's application of a change from residence zone to business zone.”

Id. at 216–17. Applying the same principles to the instant case, the prohibition on

selling wildlife, in this case yellow perch, furthers Ohio’s ownership of and the title to all

wild animals in the state, “which holds such title in trust for the benefit of all the people.”

R.C. 1531.02. The cogent valuation system for countless varieties of wildlife affords a

reasonable individual of ordinary intelligence fair notice and sufficient definition and

guidance to enable him to conform his conduct to the law.

        {¶28} We agree with the trial court that the valuation procedure for yellow perch

is rational and takes into account the sport and economic value of the fish to the state of

Ohio. The valuation of the fish for the purpose of criminal prosecution is not tied only to

its commercial value.     Reading the statutes and rules in pari materia, we find the

valuation to be neither arbitrary nor capricious. “* * *[T]he legislative intent in enacting

R.C. 1531.201 is to preserve Ohio's wildlife for legitimate hunters and naturalists and to

provide a significant deterrent to those individuals who seek to harm the state's

aesthetic, economic, and recreational interests.”          Risner v. Ohio Dept. of Nat.

Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,

¶ 23.

        {¶29} The applicable statutes, regulations, and resulting valuation regarding

illegal sale of wild yellow perch do provide a reasonable person of ordinary intelligence

fair notice and sufficient definition and guidance as to the prohibition and the manner in
Richland County, Case No. 17CA22                                                     17


which the value of the fish is calculated; therefore, we find the statutory requirements

are not void for vagueness. See Hayes, supra.

      {¶30} Appellant’s sole assignment of error is overruled.




                                    CONCLUSION

      {¶31} Appellant’s sole assignment of error is overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Wise, John, J., concur.
