Portage County Legal News

Angler loses appeal for assault and abduction of a walleye

ANNIE YAMSON
Special to the Legal News
Published: November 26, 2014

A man convicted in the Fremont Municipal Court of snagging a walleye had his conviction affirmed in a recent opinion released by the 6th District Court of Appeals.

Defendant Yiying Fan was found guilty of snagging the fish in violation of R.C. 1531.02 and ordered to pay a $110 fine, plus court costs.

On appeal, Fan challenged the sufficiency and manifest weight of the evidence supporting the conviction.

According to the facts of the case, Fan was fishing for walleye on the Sandusky River on April 9, 2014.

Brian Bury, an officer for the Ohio Division of Wildlife, was using a high-powered spotting scope when he saw Fan snag a fish.

Under Ohio law, it is illegal to hook or pierce a fish in any part of the body other than inside the mouth from Sept. 1 through April 30.

Bury approached Fan and informed him that he was observed snagging a walleye.

Bury then examined the fish and found it was hooked between the eyes. The fish was seized and Fan was cited.

Three weeks later, a bench trial was held at which Fan appeared pro se. Bury testified on behalf of the state and told the court that he saw Fan reel in a fish that was snagged.

The walleye, which had been frozen, was offered into evidence by the state as its sole exhibit.

During his testimony, Bury noted the snag marks on the fish.

Fan and his fishing partner, Haodong Wang, testified they had snagged several fish that day but had released them. Fan maintained that he only retained fish that were legally caught.

In an attempt to discredit Bury, Fan claimed it was scientifically impossible for Bury to view the placement of the hook in the fish from Bury’s vantage point, even with the use of the high-powered scope.

The court allowed Fan to offer the testimony only after he explained that he was a professor at Cleveland State University with advanced degrees in mathematics and statistics.

Nevertheless, Fan was found guilty, a verdict that was affirmed on appeal when a three-judge reviewing panel held that there was plenty of evidence to uphold the guilty finding.

“In this case, (Fan) calls into question the procedures used by Bury to preserve the fish’s chain of custody,” wrote Presiding Judge Stephen Yarbrough for the court of appeals.

Fan noted that Bury did not tag the fish at the time that he seized it.

“Despite this argument, (Fan) acknowledges that Bury testified that he saw appellant snag a walleye between the eyes and that there was a snag mark on the walleye he seized from appellant,” wrote Judge Yarbrough.

The appellate panel noted Bury’s testimony that the fish was placed in an evidence freezer upon seizure and kept there until it could be admitted into evidence at the trial.

“When viewing Bury’s testimony in a light most favorable to the state, we conclude that a rational trier of fact could find that appellant snagged a walleye on the date in question,” wrote Judge Yarbrough.

Fan went on to argue that the state’s evidence did not account for the fact that he could have released the fish that Bury observed being snagged before Bury approached.

The appellate panel agreed that such a scenario was possible but unlikely, especially considering the fact that Bury examined Fan’s caught fish from that day and found one that was snagged.

“In light of such evidence, we do not find that this is the exceptional case in which the evidence weighs heavily against the conviction,” Judge Yarbrough concluded.

The judgment of the Fremont Municipal Court was affirmed with judges Mark Pietrykowski and Arlene Singer concurring.

The case is cited Ohio Div. of Wildlife v. Fan, 2014-Ohio-4864.

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