[Cite as State v. Hayes, 2016-Ohio-7373.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. CT2016-0011
NICHOLE R. HAYES

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court,
                                               Case No. CRB1500766


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         October 14, 2016

APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

D. MICHAEL HADDOX                              KEVIN VAN HORN
Prosecuting Attorney                           715 Adair Ave.
Muskingum County, Ohio                         Zanesville, Ohio 43701

By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0011                                                       2

Hoffman, P.J.


         {¶1}   Plaintiff-appellant the state of Ohio appeals the January 7, 2016 Judgment Entry

entered by the Muskingum County Court dismissing with prejudice the charge of failure to keep

records of the harvest and sale of ginseng, in accordance with R.C. 1533.882(F) and OAC 1501:

31-40-01(E), against defendant-appellee Nichole R. Hayes.

                                        STATEMENT OF THE CASE1

         {¶2}   On September 14, 2015, Appellee was engaged in the harvest and sale of ginseng,

when she was stopped and investigated by law enforcement. Appellee told the officer she did

not have her records kept in accordance with R.C. 1533.882(F) and OAC 1501:31-40-01E on

her person, but the records were at a different location. Appellee admitted to the officer she did

not log her records until after the sale of the ginseng. As a result, Appellee was charged with

violating of R.C. 1533.882(F) and O.A.C. 1501:31-40-01(E).

         {¶3}   On October 19, 2015, Appellee filed a motion to dismiss the charge arguing the

statute was void for vagueness. On November 20, 2015, the trial court conducted a hearing on

the motion. Via Judgment Entry of January 7, 2016, the trial court held,




                As to the Defendant's motion, the Court sustains Defendant's Motion

         to Suppress as follows:

                (1) The Court finds that the Defendant did not fail to provide Ginseng

         records when asked and even gave the Officer the exact location of said




1   A full rendition of the underlying facts is unnecessary for resolution of this appeal.
Muskingum County, Case No. CT2016-0011                                               3


      record book while she was in custody. The Court finds ORC Section

      1533.882(F) to be unconstitutionally vague for reasons that it does not

      inform a person of average intelligence what conduct or failure to act will

      render that person [subject] to the statutes' penalties. Specifically, the

      statute and regulations do not give sufficient notice of when records must

      be created and produced to law enforcement personnel regarding the

      pound and ounces of ginseng collected.



      {¶4}   The trial court dismissed the charge against Appellee with prejudice.

      {¶5}   The state of Ohio appeals, assigning as error,

      {¶6}   “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND

THAT THE OHIO REVISED CODE SECTION 1533.88 WAS VOID FOR VAGUENESS.”

      {¶7}   The trial court granted Appellee's motion to dismiss finding R.C. 1533.882(F) and

O.A.C. 1501:31-40-01 unconstitutional for reason of vagueness.

      {¶8}   R.C. 1533.882(F) reads,



             No person shall do any of the following:

             ***

             (F) Fail to keep records as established by rule adopted pursuant to

      section 1533.88 of the Revised Code;



      {¶9}   O.A.C. 1501:31-40-01 reads, in pertinent part,
Muskingum County, Case No. CT2016-0011                                                    4


              (E) Any person collecting ginseng is required to keep accurate

       records showing the number of pounds and ounces of ginseng, both green

       and/or dry weight, collected in each Ohio county by date of collection.

              (F) No person collecting wild ginseng shall fail to provide the

       information required by paragraph (E) of this rule and rule 1501:31-40-02 of

       the Administrative Code to buyers or dealers with whom the collector does

       business or, upon demand, to any law enforcement officer having

       jurisdiction.



       {¶10} Appellee testified at the hearing and told the officer she had records of her harvest

and sale of ginseng, but did not have the records on her person. She also stated she recorded

her entries upon sale of the ginseng. Appellee admitted she had not entered her last harvest in

the record book before the demand by law enforcement.

       {¶11} 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. City of Norwood v. Horney, 110 Ohio St.3d 353,

380 (2006).

       {¶12} The void for vagueness doctrine does not require statutes to be drafted with

scientific precision. State v. Anderson, 57 Ohio St.3d 168, 174 (1991). When examining a statute

for vagueness, it should be measured against three values: 1.) to provide fair warning to the

ordinary citizen so their behavior may comport with the statute, 2.) to preclude arbitrary,

capricious, and generally discriminatory enforcement by officials, and 3.) to ensure fundamental
Muskingum County, Case No. CT2016-0011                                                  5

constitutionally protected freedoms are not unreasonably impinged or inhibited. State v. Tanner,

15 Ohio St.3d 1, 3 (1984).

      {¶13} The State argues a record of the harvest of ginseng must be made on the date of

collection, and the harvester must have the record with them at any time law enforcement might

demand to see it. Appellee asserts the language may be read as requiring the harvester to

chronologically record the harvesting of ginseng according to the date of collection, without

reference as to when the record must be completed.

      {¶14} We agree with the trial court the statute and rule do not provide a reasonable

person of ordinary intelligence fair notice and sufficient definition and guidance as to when the

records must be made and do not provide a time frame for when the records must be produced

to law enforcement after demand; We find the statutory requirements void for vagueness.

      {¶15} The judgment of the Muskingum County Court is affirmed.


By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
