[Cite as State v. Davis,

.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 21CA000004 : BRIAN L. DAVIS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Cambridge Municipal Court, Case No. 20CRB00793

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 7, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM H. FERGUSON MARK A. PERLAKY CAMBRIDGE LAW DIRECTOR 120 N. Broadway St. 150 Highland Ave., Suite 2 P.O. Box 249 Cambridge, OH 43725 New Philadelphia, OH 44663 Guernsey County, Case No. 21CA000004 2

Delaney, J.

{¶1} Defendant-Appellant Brian L. Davis appeals his January 29, 2021

conviction and sentence by the Cambridge Municipal Court. Plaintiff-Appellee is the State

of Ohio.

FACTS AND PROCEDURAL HISTORY

The Root of All Evil

{¶2} Pursuant to R.C. 1533.87, the State of Ohio established “in the department

of natural resources the Ohio ginseng management program, which shall be administered

by the chief of the division of wildlife. The program shall be administered to achieve and

maintain a sustained yield of ginseng so that harvesting of the plant is not detrimental to

the survival of the species. The chief shall do all things necessary to regulate the

harvesting of wild ginseng and the buying, possession, transportation, sale, offering for

sale, or exposure for sale of wild or cultivated ginseng.” R.C. 1533.87. In 2020, the Ohio

Division of Wildlife and the United States Fish and Wildlife Service were working together

to conduct an undercover operation to root out systemic violations of the harvesting of

wild ginseng. The undercover operation was named “The Root of All Evil” and involved

investigations in three states. (T. 27).

{¶3} As part of the undercover operation, Ohio State Wildlife Officers Jarrod

Allison and Michael Budd were provided information that Defendant-Appellant Brian L.

Davis and a companion might be selling illegally harvested ginseng at a gas station

located in Guernsey County, Ohio. On September 10, 2020 at 8:57 a.m., Officers Allison

and Budd observed Davis’s vehicle pull into the gas station. The officers identified

themselves to Davis and his companion and asked why they were at the gas station. Guernsey County, Case No. 21CA000004 3

Davis stated they were meeting someone to sell them ginseng. The officers explained

Davis’s Miranda rights and he agreed to speak with them. Davis showed the officers three

containers of ginseng and admitted that he had dug some of the ginseng on August 15,

2020, prior to the legal start date of September 1st. Upon inspection, it was determined

that some of the ginseng was dried.

{¶4} The officers asked Davis for his record system as required by Ohio statute

and Ohio Administrative Code regulating the harvesting of ginseng. Davis responded he

kept records, but they were not with him. Upon further investigation, Davis could not

produce the required records.

{¶5} On September 15, 2020, Davis was charged in the Cambridge Municipal

Court with Possessing Ohio Dry Uncertified Ginseng at a Time Other Than September

15, 2020 to August 31, 2021, a first-degree misdemeanor in violation of R.C. 1533.88 and

Ohio Adm.Code 1501:31-40-02(B); and Failure to Keep Accurate Records showing

weight or number of roots collected in each county by date of collection, a first-degree

misdemeanor in violation of R.C. 1533.88 and Ohio Adm.Code 1501:31-40(E). The State

amended the charges to Count A: Possession of Uncertified Ginseng, in violation of R.C.

1533.882(E), and Count B: Possession of Ginseng Without Records, in violation of

1533.882(F). Davis entered pleas of not guilty to the amended charges.

Motion to Dismiss

{¶6} On November 6, 2020, Davis filed a Motion to Dismiss the Complaint. He

first argued that the charge of Possessing Ginseng Without Records should be dismissed

because this Court previously found R.C. 1533.882(F) unconstitutional in State v. Hayes,

,

(5th Dist.). While Ohio Adm.Code 1501:31-40-01, related Guernsey County, Case No. 21CA000004 4

to R.C. 1533.882(F), was amended after State v. Hayes, Davis contended the

amendment was insufficient and the statute remained void for vagueness. Davis next

argued the charge of Possession of Uncertified Ginseng, in violation of R.C. 1533.882(E),

was likewise void for vagueness due to the language in the related Ohio Adm.Code

1501:31-40-02(B).

{¶7} The State filed a memorandum contra on January 27, 2021. The State

argued the amendment to Ohio Adm.Code 1503:31-40-01 remedied the issue raised in

State v. Hayes. The State next argued that Davis’s motion to dismiss under R.C.

1533.882(E) raised issues of the sufficiency of the charging document, not the

constitutionality of the statute.

{¶8} On January 29, 2021, the trial court held a hearing on the motion to dismiss.

After considering the parties’ arguments, the trial court denied the motion to dismiss.

Davis then entered a plea of no contest to the charges. The trial court found Davis guilty

of both charges and imposed a suspended sentence of 30 days in the Guernsey County

Jail, a $250 fine, and one year of community control sanctions. The trial court stayed all

penalties pending appeal of the January 29, 2021 sentencing entry to the Fifth District

Court of Common Pleas.

ASSIGNMENT OF ERROR

{¶9} Davis raises one Assignment of Error:

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

TO SUPPRESS BY NOT FINDING THAT REVISED CODE SECTION 1533.882 IS

UNCONSTITUTIONAL.” Guernsey County, Case No. 21CA000004 5

ANALYSIS

{¶11} In his sole Assignment of Error, Davis contends the trial court erred in

denying his motion to dismiss the charges of Possession of Uncertified Ginseng and

Possession of Ginseng Without Records. We disagree.

Ohio Statutory and Regulatory Protection of Ginseng

{¶12} Pursuant to R.C. 1533.88, the State of Ohio authorized the chief of the

division of wildlife to adopt rules as necessary to carry out the purposes of sections

1533.86 to 1533.90 including, but not limited to establishing a harvest season for wild

ginseng, establishing a buying season for ginseng that has not yet been certified in

accordance with the rules adopted under R.C. 1533.88(B), and establishing a record

system to be kept by collectors, dealers, and growers of ginseng.

{¶13} Davis was charged with Possession of Uncertified Ginseng, in violation of

R.C. 1533.882(E). The statute reads:

No person shall do any of the following:

***

(E) Except during the buying season as established by rule adopted

pursuant to section 1533.88 of the Revised Code, buy, otherwise acquire,

or sell uncertified ginseng.

{¶14} Ohio Adm.Code 1501:31-40-02(B) is applicable to R.C. 1533.882(E). It

reads:

(B) No person shall buy or otherwise acquire or possess Ohio dry uncertified

wild or dry uncertified cultivated ginseng from April first through September

fifteenth of each year, or green uncertified wild or green uncertified Guernsey County, Case No. 21CA000004 6

cultivated ginseng from April first through August thirty-first without written

authorization from the chief of the division of wildlife. Live immature

cultivated ginseng plants and seeds from cultivated ginseng plants sold by

commercial growers for propagation purposed within the United States are

not regarded as harvested and are exempt from the certification

requirement and may be possessed at any time provided any person

possessing such cultivated ginseng supplies proof of purchase, upon

demand, to any law enforcement office having jurisdiction.

{¶15} Davis was also charged with Possession of Ginseng Without Records, in

violation of R.C. 1533.882(F). The statute reads:

No person shall do any of the following:

***

Fail to keep records as established by rule adopted pursuant to section 1533.88

of the Revised Code.

{¶16} Ohio Adm.Code 1501:31-40-01(E), (F), and (I) are applicable to R.C.

1533.882(F). The regulations read:

(E) It shall be unlawful for any person collecting ginseng to fail to keep accurate

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

green and/or dry weight, or the number of roots, collected in each Ohio county

by date of collection.

(F) It shall be unlawful to fail to record the information required in paragraph (E)

of this rule before midnight on the date of harvest of ginseng.

*** Guernsey County, Case No. 21CA000004 7

(I) It shall be unlawful to fail to make all records required under paragraph (E)

of this rule available for inspection at all reasonable times upon the request of

a wildlife officer, constable, sheriff, deputy sheriff, police officer, or other law

enforcement officer.

Constitutionality of Statutory and Regulatory Scheme

{¶17} Davis contends the statutes under which he was charged are

unconstitutional because they are void for vagueness. There is a strong presumption that

all legislative enactments are constitutional. City of Canton v. Burns, 5th Dist. No.

2015CA00163,

,

,

, ¶ 23 citing State v.

Collier,

,

(1991). When it is alleged that a statute

or ordinance is void for vagueness, all doubts must, if possible, be resolved in favor of its

constitutionality.

citing Oregon v. Lemons,

,

(6th Dist. 1984).

{¶18} 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 the person to conform their conduct to the law. State v. Hayes,

.

, ¶ 11 (5th Dist.) citing City of Norwood v. Horney,

,

(2006).

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

scientific precision.

at ¶ 12 citing State v. Anderson,

,

(1991). “Administrative regulations similarly do not require the same degree

of specificity as criminal statutes.” Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing,

,

, ¶ 42 (10th Dist.) citing Serednesky v. Ohio State Bd. Guernsey County, Case No. 21CA000004 8

Of Psychology, 10th Dist. Franklin No. 05A

. 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 constitutionally protected freedoms are not unreasonably

impinged or inhibited.

citing State v. Tanner,

,

(1984).

Collection Records

{¶20} Davis was charged for Possession of Ginseng Without Records, in violation

of R.C. 1533.882(F). The statute requires him to keep collection records as established

by rule adopted pursuant to R.C. 1533.88. In support of his argument that R.C.

1533.882(F) is void for vagueness, he refers this Court to its previous holding in State v.

Hayes,

.

(5th Dist.). In State v. Hayes, the appellant was

engaged in the harvest and sale of ginseng. Upon questioning by law enforcement, the

appellant told the officer she did not have her records kept in accordance with R.C.

1533.882(F) and Ohio Adm.Code 1501:31-40-01(E) on her person, but the records were

in a different location. The appellant admitted that she did not log her records until after

the sale of the ginseng. She was charged with violating R.C. 1533.882(F) and Ohio

Adm.Code 1501:31-40-01(E). Id. at ¶ 2.

{¶21} The appellant filed a motion to dismiss, arguing R.C. 1533.882(F) was void

for vagueness. Id. at ¶ 3. At the time of the charges, R.C. 1533.882(F) stated, “No person

shall do any of the following: * * * [fail] to keep records as established by rule adopted Guernsey County, Case No. 21CA000004 9

pursuant to section 1533.88 of the Revised Code.” Id. at ¶ 8. Ohio Adm.Code 1501:31-

40-01 read in pertinent part:

(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.

Id. at ¶ 9.

{¶22} The appellant contended in her motion to dismiss, and the trial court agreed,

that R.C. 1533.882(F) was void for vagueness because it did not inform a person of

average intelligence what conduct or failure to act will render that person subject to the

statute’s penalties. Id. at ¶ 3. The trial court found the statutory and regulatory scheme

did not give sufficient notice of when the records must be created and produced to law

enforcement personnel regarding the pound and ounces of ginseng collected. Id. Upon

our review of the statute and rule in effect at that time, we affirmed the trial court’s

determination the statutory requirements were void for vagueness because they did not

provide a reasonable person of ordinary intelligence fair notice and sufficient definition

and guidance as to when the records must be made and did not provide a time frame for

when the records must be produced to law enforcement. Id. at ¶ 14. Guernsey County, Case No. 21CA000004 10

{¶23} After our judgment in State v. Hayes, Ohio Adm.Code 1501:31-40-01 was

amended. The amended rules specified a time frame for when the collections records

were to be made and produced to law enforcement upon request. The amended rules

state in pertinent part:

(E) It shall be unlawful for any person collecting ginseng to fail to keep accurate

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

green and/or dry weight, or the number of roots, collected in each Ohio county

by date of collection.

(F) It shall be unlawful to fail to record the information required in paragraph (E)

of this rule before midnight on the date of harvest of ginseng.

***

(I) It shall be unlawful to fail to make all records required under paragraph (E)

of this rule available for inspection at all reasonable times upon the request of

a wildlife officer, constable, sheriff, deputy sheriff, police officer, or other law

enforcement officer.

(Emphasis added.) Ohio Adm.Code 1501:31-40-01.

{¶24} The amended regulatory scheme, written pursuant to the authority of R.C.

1533.88, provides the addition of time requirements as to the maintenance of collection

records and the production of collection records to law enforcement upon their request.

Ohio Adm.Code 1501:31-40-01(E) requires the ginseng harvester to keep accurate daily

records. The harvester must record the collection information before midnight on the date

of the harvest. Ohio Adm.Code 1501:31-40-01(F). Finally, the harvester must make all Guernsey County, Case No. 21CA000004 11

collection records available for inspection at all reasonable times when requested by law

enforcement. Ohio Adm.Code 1501:31-40-01(I).

{¶25} Unlike the prior statute and rule examined by this Court in State v. Hayes,

we find the current statutory and regulatory scheme provides a time frame for the

collection and production of records of ginseng harvesting so that a reasonable citizen

of ordinary intelligence with fair notice and sufficient definition and guidance can conform

their conduct to the law. The current statutory and regulatory scheme is not void for

vagueness.

Buying or Possession of Uncertified Ginseng

{¶26} Davis further argues that R.C. 1533.882(E), Possession of Uncertified

Ginseng, is unconstitutional as void for vagueness. He states that while Ohio Adm.Code

1501:31-40-02(B) provides that buying or possession of uncertified ginseng is prohibited

at certain times of the year based on the dry or green condition of the ginseng, R.C.

1533.882(E) is silent as to the delineation between dry or green uncertified ginseng. It is

unlawful to buy or possess Ohio dry uncertified wild or dry uncertified cultivated ginseng

from April 1st through September 15th. Ohio Adm.Code 1501:31-40-02(B). It is unlawful

to buy or possess green uncertified wild or green uncertified cultivated ginseng from April

1st through August 31st. Id. Based on the language of the statute and rule, Davis

contends he did not have fair notice and sufficient definition and guidance to enable him

to conform his conduct to the law. We disagree.

{¶27} R.C. 1533.882(F) specifically references that “[e]xcept during the buying

season as established by the rule adopted pursuant to section 1533.88 of the Revised

Code,” no person shall buy or otherwise acquire uncertified ginseng. R.C. 1533.882(F). Guernsey County, Case No. 21CA000004 12

R.C. 1533.88 authorizes the chief of the division of wildlife to promulgate rules to carry

out the purposes of sections 1533.86 to 1533.90. Ohio Adm. Code 1501:31-40-02(B)

specifies the rules for buying or possessing dry or green uncertified ginseng. Based on

the statutory and regulatory scheme as authorized by R.C. 1533.88, we find that a

reasonable citizen of ordinary intelligence has fair notice and sufficient guidance that if he

or she buys or possesses dry uncertified wild or dry uncertified cultivated ginseng from

April 1st through September 15th, they are in violation of the statute and rule.

{¶28} Davis was stopped by division of wildlife officers on September 10, 2020

and determined to be in possession of dry uncertified wild ginseng. The investigatory case

report included in the case record stated that upon inspection of the ginseng in Davis’s

possession, it was discovered that some of the ginseng was already dried. The officers

cited Davis because based on the statue and rule, it is prohibited to buy or possess dry

uncertified wild or dry uncertified cultivated ginseng before September 16th.

{¶29} We find the statutory and regulatory scheme is not void for vagueness as it

provides fair warning to ordinary citizens that there are specific dates where it is prohibited

or permissible to buy or possess dry uncertified wild or dry uncertified cultivated ginseng.

{¶30} The sole Assignment of Error raised by Davis is overruled. Guernsey County, Case No. 21CA000004 13

CONCLUSION

{¶31} The judgment of the Cambridge Municipal Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.