State of Ohio/Division of Wildlife v. Shamir L. Coll
Court of Appeals No. S-16-022
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
August 18, 2017
2017-Ohio-7270
Trial Court Nos. CRB 1600265 A, CRB 1600265 B
James F. Melle, for appellee.
Shamir L. Coll, pro se.
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DECISION AND JUDGMENT
Decided: August 18, 2017
{¶ 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
{¶ 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 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.
{¶ 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:
- 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.
- ORC section 1531.02 is unconstitutionally vague.
- 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
{¶ 10} Appellant was convicted of violating
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. * * *
{¶ 11}
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}
{¶ 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).
{¶ 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
[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
{¶ 17} Acknowledging Moody yet reaching a different conclusion, the Tenth Appellate District determined that a violation of the sex-offender registration statute, former
{¶ 18} In State v. Bowersmith, supra, involving wildlife division regulation, the court proceeded through the analysis first finding that the statute,
[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
{¶ 21} In the present case, appellant was cited under the general statute,
{¶ 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
{¶ 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
{¶ 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 (
{¶ 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
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE
JUDGE