State v. Whites Landing Fisheries, L.L.C.

[Cite as State v. Whites Landing Fisheries, L.L.C., 2017-Ohio-7537.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY

State of Ohio Court of Appeals No. E-16-040

Appellee Trial Court No. CRB-14-02342

v.

Whites Landing Fisheries, LLC DECISION AND JUDGMENT

Appellant Decided: September 8, 2017

*****

Mike DeWine, Ohio Attorney General, Robert W. Cheugh II
and Kenneth H. Egbert, Jr., Assistant Attorneys General,
for appellee.

William H. Smith, Jr. and Samuel A. J. Sidoti, for appellant.

*****

JENSEN, P.J.

{¶ 1} Appellant, Whites Landing Fisheries, Inc. (“WLF”), is an Ohio corporation

engaged in the commercial fishing industry. Dean Koch is WLF’s corporate

representative. During the 2014 commercial fishing season, WLF engaged in trap net
commercial fishing in Lake Erie. On June 16, 2014, WLF was charged with one count of

possession of undersize fish in violation of R.C. 1533.63, a misdemeanor of the first

degree. WLF was found guilty at a trial by jury. WLF appeals. For the reasons that

follow, we affirm the judgment of the trial court.

{¶ 2} WLF raises seven assignments of error for our review.

{¶ 3} First Assignment of Error

{¶ 4} In its first assignment of error, WLF asserts:

Jury’s finding of guilty is not supported by sufficient probative

evidence and the Trial Court erred by overruling Whites Landing [sic]

motions to dismiss under Crim.R. 29.

{¶ 5} Whether the evidence presented at trial is legally sufficient to sustain a

verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-

3205, ¶ 9. Therefore, “[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.” State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

2.
 {¶ 6} WLF was convicted of possession of undersize fish under R.C. 1533.63,

which states, in pertinent part:

No person shall * * * possess a container, quantity, boat load, catch, or haul

with more than ten per cent by weight of undersized fish * * * either round,

filleted, or headless mentioned in this section or division rule.

***

Except as otherwise provided by division rule, no person shall * * * possess

* * * a yellow perch less than eight and one-half inches in length.

{¶ 7} Because the language defining the offense of possession of undersized fish

neither specifies culpability nor plainly indicates a purpose to impose strict liability, the

state was required to establish that WLF acted recklessly. R.C. 2901.21(C)(1). A person

acts recklessly when, “with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a

certain result or is likely to be of a certain nature.” R.C. 2901.22(C).

{¶ 8} WLF asserts that the state failed to establish its catch contained more than

ten percent, by weight, of undersized fish. The crux of WLF’s argument focuses on the

credibility of two Ohio Department of Natural Resources (“ODNR”) officers who

testified on behalf of the state.

{¶ 9} On June 13, 2014, Officer Brian C. Bury and Officer Jared Abel, inspected a

yellow perch catch in WLF’s possession. After measuring and weighing the 1,069

yellow perch in the catch, Officer Bury concluded that 75 pounds of the 320 pounds of

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yellow perch were less than 8 3/8 inches in length.1 Bury issued a citation asserting that

WLF possessed “320 lbs. of yellow perch in the round2, with 30% being undersized.”

{¶ 10} At trial, Officer Bury testified that when he turned over the first container

of yellow perch, he observed that the fish on the bottom of the container were smaller

than the fish at the top. He indicated that in the business, this type of container packing is

called shingling.

{¶ 11} Officer Bury explained, in some detail, how he weighed and measured all

of the yellow perch in the WLF catch. Officer Bury was unable to produce the measuring

board he used during the investigation because months after he used the board in this

case, it fell off the back of his truck onto the highway and was run over by another

vehicle.

{¶ 12} Officer Abel testified that he observed Officer Bury measure and weigh the

yellow perch in WLF’s possession on the day in question. His contemporaneous

handwritten notes were admitted into evidence. The notes indicate “30.9 lbs short” in

container one and “short 46.8 lbs” in container two. The third container of yellow perch

contained no short fish. Officer Abel explained that his handwritten notes further

indicate that 245.4 pounds of yellow perch—76.5% of WLF’s total yellow perch catch—

1
Officer Bury testified that he gave WLF “an eighth of an inch benefit” when measuring
the fish.
2
“‘Round’ when used in describing fish means with head and tail intact.” Ohio
Adm.Code 1501:31-1-02(BBBBB).

4.
were “GOOD” while 75.2 pounds of yellow perch—23.4% of WLF total yellow perch

catch—were “SHORT.”

{¶ 13} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a rational trier of fact could have found that WLF recklessly possessed a

catch of yellow perch and that more than ten percent of the catch, by weight, were

undersized. WLF’s conviction was supported by sufficient evidence. WLF’s first

assignment of error is not well-taken.

Second Assignment of Error

{¶ 14} In its second assignment of error, WLF asserts:

Guilty verdict is against manifest weight of the evidence.

{¶ 15} In determining whether a verdict is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, and determine whether, in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387,

678 N.E.2d 541. “Weight of the evidence concerns ‘the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.’” Id. In making its determination, a reviewing court is not required to view the

evidence in a light most favorable to the prosecution, but may consider and weigh all of

the evidence produced at trial. Id. at 390.

5.
 {¶ 16} Here, WLF’s argument centers on the methods the ODNR officers used to

measure the fish. While both officers testified that the fish were measured properly,

WLF presented testimony from WLF captain Drew Koch that Officer Bury did not

follow proper protocol while measuring the fish. Specifically, Koch indicated that

Officer Bury did not pinch the mouth shut or flatten out the tail when placing the fish on

the measuring board. Koch insisted that WLF “does not take undersize fish.” Rather,

when WLF employees catch fish in the net that are undersize, they throw the fish back

into the water.

{¶ 17} After reviewing the record and deferring to the trier of fact’s credibility

assessment, we are unable to conclude that the trier of fact lost its way and created a

manifest injustice. WLF’s conviction is therefore not against the manifest weight of the

evidence. WLF’s second assignment of error is not well-taken.

Third Assignment of Error

{¶ 18} In its third assignment of error, WLF asserts:

The Trial Court erred when it did not qualify Robert Calala as an

expert witness and abused its discretion by not allowing him to testify at

trial as to his out of court experiment.

{¶ 19} Prior to trial, the state filed a motion in limine seeking to preclude Calala

from reporting the results of an experiment he performed which tested the theory that

yellow perch shrink when placed on ice. The state argued that the evidence should be

excluded because it was irrelevant and would mislead the jury. The state further argued

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that the methodology employed by Calala in implementing the test was flawed because

“the facts and circumstances of the purported fish shrinkage experiment * * * are

different than the facts and circumstances present in this case.”

{¶ 20} On May 11, 2016, the trial court conducted a hearing pursuant to Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993). At the hearing, Calala indicated that while he has no formal education in the

aquatic sciences, he has experience in the industry. Calala, and his family, have been

involved in aquaculture and raising fish, including yellow perch, for over 50 years.

Calala served as president of the Ohio Aquaculture Association for more than 12 years.

Further, Calala has presented to the ODNR at budget meetings, testified against

commercial fisherman, and served on advisory panels for aquatic nuisance species.

{¶ 21} Calala testified that he was commissioned by Dean Koch, WLF’s corporate

representative, to conduct a test “and document the possibility that the length of fish

shorten after they have been placed on ice for a period of time.” Calala explained that on

the morning of July 14, 2015, the WLF crew pulled in several nets from the lake. Calala

selected 12 “random samples” of yellow perch from the first net and 13 “random

samples” of yellow perch from the last net. Calala measured and tagged the samples. He

placed the samples, along with WLF’s other yellow perch catch, in containers of ice.

When Calala and the crew took the fish to the processor at the end of the day, Calala re-

measured the samples. According the Calala, “the majority of the fish shrank a quarter of

an inch.” One of the fish did not shrink at all.

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 {¶ 22} At the end of the Daubert hearing, the trial court indicated that it would not

allow Calala to testify at trial regarding the results of his experiment. Without

articulating a specific rational behind its decision, the trial court asserted, “I’m going to

find that Mr. Calala is not an expert with regards to the measurement – with regard to

expert testimony regarding shrinkage; rate, amount width, length, time, size, etc. of

yellow perch caught in Lake Erie[.]”

{¶ 23} The admissibility of expert testimony is a matter committed to the sound

discretion of the trial court, and the trial court’s ruling will not be overturned absent an

abuse of that discretion. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850

N.E.2d 683, ¶ 9. An “abuse of discretion” means more than an error of law or of

judgment, it “implies an attitude * * * that is unreasonable, arbitrary, or unconscionable.”

State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419,

¶ 18.

{¶ 24} Evid.R. 702 permits a witness to testify as an expert in the following

circumstances:

(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony;

8.
 (C) The witness’ testimony is based on reliable scientific, technical,

or other specialized information. To the extent that the testimony reports

the result of a procedure, test, or experiment, the testimony is reliable only

if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted in a

way that will yield an accurate result.

{¶ 25} “A witness is not presumed to be an expert and the party offering the

testimony has the burden to show the witness has the qualifications to testify as an

expert.” Hartman v. Erie Ins. Co., 6th Dist. Wood No. WD-16-022, 2017-Ohio-668,

¶ 61, citing Tully v. Mahoning Exp. Co., 161 Ohio St. 457, 119 N.E.2d 831 (1954),

paragraph two of the syllabus.

{¶ 26} For purposes of this analysis, we assume that Calala’s testimony “relates to

matters beyond the knowledge or experience” of the average juror and that he does

possess “specialized knowledge, skill, experience, training, or education.” Evid.R.

702(A) and (B). We further assume that the trial court’s decision not to allow Calala to

testify was based on WLF’s failure to demonstrate that the anticipated testimony

9.
complied with the requirements of Evid.R. 702(C), i.e., that the testimony reliably reports

the result of a procedure, test, or experiment.

{¶ 27} The theory upon which Calala’s experiment is based—that fish shrink

when placed on ice—is objectively verifiable and derived from the widely accepted

principle that matter contracts when cooled. Evid.R. 702(C)(1) and (2). Thus, the

determinative issue is whether the experiment was conducted in a way that would yield

an accurate result as required by Evid.R. 702(C)(3).

{¶ 28} The state attacks the methodology employed by Calala in both executing

the experiment and recording its results. First, the state argues that Calala did not

generate a written report detailing his findings. Photographs were taken of the fish

samples both upon retrieval from the nets and upon arrival at the fish processor at the end

of the day. Black and white photocopies of the photographs are included in the record.

However, the photocopies are of poor quality and have limited evidentiary value.

{¶ 29} Second, the state argues that Calala “had no knowledge whether his tests

were conducted under the same conditions as the yellow perch catch in this case.” At the

Daubert hearing, Calala was unable to report what time the fish were caught. He also did

not know what time the fish were measured once the samples arrived at the processor.

When asked how long the samples were on ice, he simply indicated that the fish were on

ice for “approximately five hours.”

{¶ 30} Calala referenced a fish shrinkage experiment that had been conducted in

South Dakota, the experiment had been performed on walleye—a fish from the same

10.
genus, but different species as the fish in question here. Notably, the South Dakota study

made it clear that water temperature played a role in the amount of shrinkage

documented. Here, Calala did not record any data regarding water temperature, nor is

there any indication that the water temperature on the day of the test was comparable to

the water temperature on the day of the WLF citation.

{¶ 31} Third, the state argues that the sample size was too small; only 23 fish were

measured in the Calala experiment. “A small sample size rarely provides the statistician

enough information to draw credible inferences.” Todaro, The Admissibility of Medical

Testimony in Ohio: Daubert, Joiner and Ohio’s Relevance-Reliability Standard, 46

Clev.St.L.Rev. 319, 345 (1998).

{¶ 32} Under Evid.R. 702(C), the trial court was taxed with the duty to

independently examine the methodology utilized in Calala’s experiment and evaluate the

reliability and accuracy of Calala’s testimony. Under commonly accepted principles of

scientific method, time and temperature are important variables when conducting an

experiment of this sort. Data matters, as do sample sizes. All of these issues effect the

reliability of Calala’s “scientific” experiment.

{¶ 33} We find that it was not unreasonable for the trial court to conclude that

Calala’s experiment was not conducted in a way that would yield an accurate result under

Evid.R. 702(C)(3). Thus, the trial court’s decision to exclude Calala’s testimony was not

an abuse of discretion. WLF’s third assignment of error is not well-taken.

11.
 Fourth Assignment of Error

{¶ 34} In its fourth assignment of error, WLF asserts:

The Trial Court erred when it instructed the jury that, “the yellow

perch counted, measured and weighed related to the undersized fish catch

charge are shown in the exhibits introduced as photographs and the

testimony relating to them has been introduced. The Court has ruled that

the actual fish will not be introduced in the courtroom during the trial and

the presence or absence of the actual fish in the courtroom is not an element

of the offense charged.”

{¶ 35} WLF contends that the trial court abused its discretion when instructing the

jury about exhibits, or in this case, the absence of exhibits, introduced at trial. The

instruction regarding exhibits, in its entirety, states:

A number of exhibits and testimony relating to them have been

introduced. You may consider whether the exhibits are the same objects

and are in the same condition as originally taken by the officers. You will

determine what weight the exhibits should be given in light of all the

evidence. The yellow perch counted, measured and weighed related to the

underside fish catch charge are shown in the exhibits introduced as

photographs, and the testimony relating to them has been introduced. The

Court has ruled that the actual fish will not be introduced in the courtroom

12.
 during the trial and the presence or absence of the actual fish in the

courtroom is not an element of the offense charged.

{¶ 36} WLF argues the above instruction was “prejudicial” to them “by

highlighting why the yellow perch were not in the courtroom and singling out the fish

and misleading the jury into thinking they should not consider the actual fish

measurement when they are making their determination.” We disagree.

{¶ 37} For purposes of appellate review, “[t]he decision to issue a particular jury

instruction rests within the sound discretion of the trial court.” State v. Nichols, 11th

Dist. Lake No. 2005-L-017, 2006-Ohio-2934, ¶ 28. “When considering the

appropriateness of a jury instruction, or when a specific jury instruction is in dispute, a

reviewing court must examine the instructions as a whole.” Cook v. Admr. Bureau of

Workers’ Compensation, 12th Dist. Butler No. CA2017-01-004, 2017-Ohio-5849, ¶ 22,

citing Enderle v. Zettler, 12th Dist. Butler No. CA2005-11-484, 2006-Ohio-4326, ¶ 35.

“If, taken in their entirety, the instructions fairly and correctly state the law applicable to

the evidence presented at trial, reversible error will not be found merely on the possibility

that the jury may have been misled.” (Citations omitted). Id.

{¶ 38} Contrary to WLF’s assertion, the instruction does not “instruct the jury to

infer” that WLF “possessed” undersize yellow perch. Rather, the instruction explains

why the state did not introduce 1,069 dead fish when presenting its case in chief. The

instruction places the onus of the decision to exclude the evidence on itself, rather than on

one party or the other. Further, the instruction prevents any juror from jumping to an

13.
inappropriate conclusion regarding the fate of the fish. Upon our review of the

instructions as a whole, we find the trial court did not abuse its discretion when it

instructed the jury that it had ruled the “actual fish [would] not be introduced” at trial.

Accordingly, WLF’s fourth assignment of error is not well-taken.

Fifth Assignment of Error

{¶ 39} In its fifth assignment of error, WLF asserts:

The Trial Court erred when it ruled two internal investigation reports

created by the Division of Wildlife concerning two separate complaints

Dean Koch filed concerning his treatment by officers on the day in question

and in a 1989 investigation were inadmissible to be used as evidence in

trial.

{¶ 40} Under this assignment, WLF first contends that the trial court abused its

discretion when it refused to allow WLF to introduce evidence concerning an

investigation into a complaint Dean Koch filed with the ODNR accusing Officer Bury

with “rude and unprofessional behavior.” Second, WLF further contends that the trial

court abused its discretion when it refused to allow WLF to introduce evidence regarding

a 1989 investigation regarding alleged unfair treatment of Dean Koch by ODNR officers.

{¶ 41} Evid.R. 401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Id. “Although

relevant, evidence is not admissible if its probative value is substantially outweighed by

14.
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Evid.R. 403(A).

{¶ 42} “A trial court has broad discretion in admitting or excluding evidence, and

a trial court’s ruling on the admissibility of evidence will be upheld absent an abuse of

that discretion.” (Citation omitted). State v. Fears, 8th Dist. Cuyahoga No. 104868,

2017-Ohio-6978, ¶ 40. An abuse of discretion implies that the court’s decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

{¶ 43} Upon review of the proffered evidence, we find no indication beyond Dean

Koch’s initial complaints, that the internal investigation found any evidence of bias or

misconduct concerning Officer Bury or Officer Abele. Further, we note that neither

Officer Bury nor Officer Abele were employed by the ODNR at the time of the 1989

investigation. We find the trial court did not abuse its discretion in refusing to allow the

evidence. Accordingly, appellant’s fifth assignment of error is not well-taken.

Sixth Assignment of Error

{¶ 44} In its sixth assignment of error, WLF asserts:

The Trial Court erred when it did not allow Rich Stinson to testify

about his opinion on yellow perch shrinkage.

{¶ 45} Rich Stinson is a 40 percent owner of WLF. However, Stinson was not

qualified as an expert on fish shrinkage and he was not present when the citation was

issued to WLF. Thus, the trial court did not abuse its discretion when it determined that

15.
Stinson could not testify as to any physical change that occurs when yellow perch are

placed in or on ice. WLF’s sixth assignment of error is not well-taken.

Seventh Assignment of Error

{¶ 46} In its seventh assignment of error, WLF asserts:

The Trial Court erred when it did not allow testimony as to an

Inspector General’s report alleging Officer Bury hunted deer on the clock

as a Wildlife officer.

{¶ 47} WLF contends that the trial court abused its discretion when it denied WLF

the opportunity to cross-examine Officer Bury “concerning the allegation that he was

hunting deer while on active duty as a Wildlife officer.” WLF alleges that a 2013 report

from the Ohio Office of the Inspector General is probative of Officer Bury’s truthfulness

and that the report is admissible pursuant to Evid.R. 608(B).

{¶ 48} “[U]nder Evid.R. 608(B), the ability of trial counsel to discredit a witness

through cross-examination concerning particular conduct of the witness is not absolute; it

is limited in its exercise to the court’s sound discretion in determining if the inquiry will

lead to particular instances of conduct which are clearly probative of untruthfulness.”

State v. Williams, 1 Ohio App.3d 156, 158, 440 N.E.2d 65 (10th Dist.1981). “The trial

court may, in the exercise of its sound discretion, decide not to permit such cross-

examination.” State v. Smith, 4th Dist. No. 94 CA 34, 1995 Ohio App. LEXIS 4698

(Oct. 12, 1995).

16.
 {¶ 49} Here, the trial court determined, after hearing testimony from Officer Bury

outside the presence of the jury, that evidence concerning the investigation into Bury’s

“alleged misrepresenting of time worked versus time hunting or bagging a deer [would]

be inadmissible.”

{¶ 50} The report from the Ohio Office of the Inspector General contained the

results of an investigation into ODNR officers across the state who may have harvested

deer during hours of employment. The 15 page report includes an investigative summary

relaying details regarding numerous ODNR employees.

{¶ 51} In regard to Officer Bury, the report indicates that on January 24, 2011,

Officer Bury claimed ten hours of pay. However, the total amount of hours accounted for

in the officer’s unit history log was only 7.5 hours. The report suggests that had Officer

Bury worked 10 hours straight, he “would have harvested the deer while on duty.” The

report further indicates that on January 25, 2011, Officer Bury claimed nine hours of pay.

According to his unit history log, Bury checked the deer in while on duty.

{¶ 52} The report indicates that the Office of the Ohio Inspector General found

“reasonable cause to believe wrongful acts or omissions occurred.” The office

recommended that ODNR review the actions of its employees and “determine whether

their conduct warrants further administrative action or training.” The office further

recommended that ODNR review the applicable “time and attendance police, ODNR

communication policy, and state of Ohio ethics laws with all personnel.” The report was

17.
forwarded for consideration to prosecuting attorneys for 18 counties named in the report.

There is no evidence that Officer Bury was never charged with a crime.

{¶ 53} Upon review of the report and proffered testimony, we find the trial court

did not abuse its discretion in not allowing testimony regarding the inspector general’s

time-keeping investigation to be heard by the jury. The allegation did not lead to a

conviction nor was the line of questioning “clearly probative of truthfulness or

untruthfulness.” Thus, WLF’s seventh assignment of error is not well-taken.

Conclusion

{¶ 54} Based on the foregoing, the judgment of the Sandusky Municipal Court is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).

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
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

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