[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




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