STATE OF OHIO, Plaintiff-Appellee, - vs - ANTHONY OSSEGE, Defendant-Appellant.
CASE NOS. CA2013-11-086, CA2013-11-087
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
7/21/2014
[Cite as State v. Ossege, 2014-Ohio-3186.]
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case Nos. 12 CRB 6454 and 12 TRC 18403
Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellant
HENDRICKSON, P.J.
{1} Defendant-appellant, Anthony Ossege, appeals from his convictions in the Clermont County Municipal Court for driving while under the influence of alcohol or drugs (OVI) in violation of
I. FACTS
{2} Ossege was involved in an automobile accident when his vehicle struck two
{3} Officer Greg Marsh of the Amelia Police Department was dispatched to the scene. Upon arriving, Officer Marsh did not observe any objective signs of impairment in Ossege. Officer Marsh asked if Ossege had consumed any drugs or alcohol, which Ossege denied. While at the scene, Officer Marsh requested Ossege write a statement; however, based on his distraught state, Ossege was unable to provide any details surrounding the accident. Accordingly, Officer Marsh asked Ossege, “if he‘d like to go back to the office where it was a nice, quiet setting,” in order to write his statement. According to Officer Marsh, Ossege “agreed and [he] transported him to the office.” At the station, Ossege provided a second statement and at the request of Officer Marsh, also provided a urine sample. Ossege was not arrested or charged with any crimes relating to the accident or the death of the pedestrian.
{4} The urine sample was kept in the refrigerator at the Amelia Police Department for two days and then it was mailed to the Ohio State Highway Patrol crime lab for analysis. Test results indicated the presence of 356.16 nanograms of marihuana metabolite per milliliter of his urine. On December 9, 2012, Ossege was charged with one count of operating a motor vehicle with at least 35 nanograms of marihuana metabolite in his urine and two counts of endangering children.
{5} Ossege filed a motion to suppress the urine analysis claiming (1) his consent was not voluntary; and (2) the testing of the sample failed to comply with
{6} The case proceeded to a jury trial. At the close of the state‘s case and again at the close of his own case, Ossege moved for acquittal on all charges. The trial court denied both motions. Prior to submitting the case to the jury, Ossege requested the trial court to provide three jury instructions regarding the weight to be given to certain evidence. The trial court found the requested instructions were not proper statements of law and denied his request.
{7} The jury found Ossege guilty on all three counts. Ossege was subsequently sentenced and now appeals his convictions raising four assignments of error for our review.
II. ANALYSIS
A. MOTION TO SUPRESS
{8} Assignment of Error No. 1:
{9} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED OSSEGE‘S MOTION TO SUPRESS.
{10} In his first assignment of error, Ossege contends the trial court erred in failing to suppress the results of his urine test. Ossege asserts these test results should have been suppressed because his urine was seized in violation of his constitutional rights, and the urine was not properly handled or analyzed pursuant to the Ohio Department of Health (ODH) regulations,
{11} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶ 10, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist. Warren No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Dugan at ¶ 10. After accepting the trial court‘s factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. State v. Lange, 12th Dist. Butler No. CA2007-09-232, 2008-Ohio-3595, ¶ 4. Keeping this standard in mind, we review Ossege‘s specific arguments.
1. Seizure of Ossege‘s Urine
{12} Ossege argues the trial court erred in denying his motion to suppress because the evidence failed to demonstrate he voluntarily consented to the seizure of his urine. Ossege contends the state failed to prove his consent was constitutionally valid because his urine was obtained without a warrant and because he was never informed he did not have to provide the urine sample. The state, however, asserts Ossege voluntarily consented to the gathering and testing of his urine.
{13} The collection and testing of urine indeed constitutes a search and seizure under the Fourth Amendment. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 617, 109 S.Ct. 1402 (1989). The
{14} When the state attempts to justify a warrantless search on the basis of consent and the subject of the search is not in custody, the Fourth and Fourteenth Amendments require the state to demonstrate that the consent was, in fact, voluntarily given and not the result of duress or coercion, express or implied. State v. Smith, 12th Dist. Warren No. CA2012-03-022, 2012-Ohio-5962, ¶ 18, citing Schneckloth at 248-249; see also State v. Robinette, 80 Ohio St.3d 234, 242-243 (1997). In addition to coercion or duress, other factors to be considered when determining whether consent was voluntary include: (1) the suspect‘s custodial status and the length of the initial detention; (2) whether the consent was given in public or at a police station; (3) the presence of threats, promises, or coercive police procedures; (4) the words and conduct of the suspect; (5) the extent and level of the suspect‘s cooperation with the police; (6) the suspect‘s awareness of his right to refuse consent; and (7) the suspect‘s education and intelligence. State v. Dean, 12th Dist. Fayette No. CA2013-03-007, 2014-Ohio-448, ¶ 12; State v. Sinha, 12th Dist. Butler No. CA2012-11-237, 2013-Ohio-5203, ¶ 15. While the subject‘s knowledge of a right to refuse is indeed a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Smith at ¶ 19, citing Robinette at 244-243 and Schneckloth at 248-249.
{15} The burden is on the state to prove by clear and convincing evidence that the defendant‘s consent was freely and voluntarily given. State v. Vansickle, 12th Dist. Fayette No. CA2013-03-005, 2014-Ohio-1324, ¶ 66, citing State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 43. Voluntariness is a question of fact to be determined from all of the circumstances. Smith at ¶ 19.
{16} There is simply nothing in the record to suggest Ossege‘s decision to submit to the urine test was anything but voluntary. At the suppression hearing, Officer Marsh testified that while at the scene of the accident, Ossege denied having consumed any alcohol or
{17} After considering the totality of the circumstances and weighing the factors set forth above, we find Ossege voluntarily consented to providing the urine sample. Although the record indicates Ossege gave his consent while at the police station and he argues he was not informed of his right to refuse consent, the remaining factors demonstrate that Ossege‘s consent was voluntary and freely given.1 Specifically, at the time the urine sample was requested, Ossege was not in custody or otherwise detained. Rather, the record demonstrates he voluntarily agreed to be transported to the police department by Officer Marsh in order to provide a more detailed statement of the incident. As such, Ossege was merely being cooperative in facilitating the investigation into this fatal accident. In addition, there is nothing in the record that indicates any threats or promises were made by Officer Marsh or that Ossege‘s submission to the test was a result of coercive police procedures. There is also no indication that Ossege is of limited intelligence or was otherwise unable to understand the officer‘s requests or instructions. Finally, we note, although Ossege was
emotionally distraught while at the scene, there is every indication that while at the police
{18} Based on the foregoing, there is simply nothing in the record to suggest Officer Marsh compelled or coerced Ossege in any way to provide the urine sample. Accordingly, we find the trial court did not err in denying Ossege‘s motion to suppress on the basis that he voluntarily consented to the urine test.3
2. Failure to Comply with Ohio Adm.Code 3701-53-05(E)(1)
{19} In Ossege‘s motion to suppress, he also argued his urine sample was not collected or tested in substantial compliance with
{20} In the prosecution of offenses for driving with a prohibited concentration of a
(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:
(1) Name of suspect;
(2) Date and time of collection;
(3) Name or initials of person collecting the sample; and
(4) Name or initials of person sealing the sample.
{21} Once a defendant challenges the validity of a chemical analysis test by filing a motion to suppress, the state has the burden of proving substantial compliance with the regulations prescribed by the Ohio Department of Health (ODH). State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, ¶ 49; Burnside at ¶ 24. “Substantial compliance is limited to excusing only deviations from the regulations that are ‘clearly de minimis,’ i.e. irregularities amounting to ‘minimal procedural deviations.‘” Dugan, 2013-Ohio-447 at ¶ 32, quoting Burnside, 2003-Ohio-5372 at ¶ 34. Deviations from the regulations such as minor misspellings of the defendant‘s name on the sample have been found to be “nothing more than a de minimus error.” State v. Balog, 9th Dist. Medina No. 08CA0001-M, 2008-Ohio-4292, ¶ 25. Once the state has met its burden, a presumption of admissibility is created, and the burden then shifts to the defendant to rebut that presumption by demonstrating he was prejudiced by anything less than strict compliance. Dugan at ¶ 32, citing Burnside at ¶ 24.
{22} At the suppression hearing, Emily Adelman, a criminalist with the Ohio State
{23} Officer Marsh testified he observed Ossege urinate in a clean bottle. Officer Marsh then sealed the bottle, marked it with his name, the date of collection, sealed it back into the box, placed the box into a paper evidence bag, and then placed the bag in the refrigerator at the Amelia Police Department. The sample was mailed to the Ohio State Patrol crime lab two days later by Chief Wallace. At the time he collected the sample, Officer Marsh stated he also filled out the Ohio State Highway Patrol evidence submission sheet (submission sheet). The submission sheet was admitted into evidence and essentially detailed the chain of custody for the sample. This form listed Ossege‘s name, the date and time of collection, and Marsh‘s initials as he collected and sealed the sample. Adelman also identified the submission form and further detailed the movement of the sample through the lab, including receiving it, logging it, and conducting the requisite tests. Finally, on further redirect examination, Officer Marsh identified the sample as the particular bottle he saw Ossege urinate in and stated he was certain the urine was Ossege‘s.
{24} Based on this record, we find that the omission of Ossege‘s name on the sample was nothing more than a de minimus error. The sample contained other information, including Officer Marsh‘s initials and the November 29, 2011 date of collection, which
{25} Moreover, there is no evidence Ossege suffered any prejudice as a result of this single procedural deviation from strict compliance with the code. “The purpose of the sealing requirements described in
{26} Based on the foregoing, we find the state established substantial compliance with the applicable regulations regarding urine testing and Ossege failed to establish he was prejudiced by the state‘s failure to strictly comply with
{27} As the trial court properly denied Ossege‘s motion to suppress, his first
B. Motion to Suppress or in Limine
{28} Assignment of Error No. 2:
{29} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED OSSEGE‘S MOTION TO SURPESS OR IN LIMINE.
{30} In his second assignment of error, Ossege argues the trial court erred by denying his motion to suppress or in limine. In this motion, Ossege again sought to exclude or otherwise suppress the evidence of the amount of marihuana metabolites found in his urine from being introduced at trial. Ossege argued that certain provisions of
{31} On appeal, Ossege asserts
{32} The First District Court of Appeals recently considered and rejected arguments similar to those now presented by Ossege. State v. Whalen, 1st Dist. Hamilton No. C-120449, 2013-Ohio-1861. In Whalen, appellant pled no contest to operating a motor vehicle with at least 35 nanograms of marihuana metabolite in his urine in violation of
[T]he presence of a marihuana metabolite in one‘s system indicates that one has used marihuana, an illegal drug in Ohio. Furthermore, THC, the active ingredient in marihuana, leaves the body relatively quickly. Unlike the case with Breathalyzer tests, which are commonly administered by police during roadside stops, it may take some time before police are able to transport and administer a blood or urine test to a suspected drugged driver. Accordingly, the legislative decision to include marihuana metabolites within the per se prohibition is not unreasonable.
{33} We agree with the First District and find the legislature‘s decision to include marihuana metabolites within the per se prohibitions of
{34} Moreover, we note the trial court still maintains its gatekeeping function in the prosecution of
{35} Based on the foregoing, we find no merit to Ossege‘s constitutional challenges to
C. Jury Instructions
{36} Assignment of Error No. 3:
{37} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO CHARGE THE JURY AS REQUESTED BY OSSEGE.
{38} In his third assignment of error, Ossege argues the trial court erred in refusing to give his requested jury instructions because the instructions simply and accurately reflected the concept that “any defendant in an OVI case” is free to challenge the weight to be given to any test result admitted at trial.
{39} Ossege requested the trial court to give the following instructions:
- The fact that the court has admitted evidence of a concentration of marihuana in the defendant‘s urine may be evidence of use but is not conclusive proof that one is under the influence of marihuana. You must decide what weight to give such evidence.
- In weighing the evidence in this case, you may consider that the Ohio Administrative Code requires that a suspect‘s name must be on a label affixed to the container holding the urine sample.
- In weighing the evidence in this case[,] you may consider that the National Highway Traffic Safety Administration has determined that detection of tetrahydracannabinoid (THC) metabolites in urine only indicates prior THC exposure as detection is well past the window of intoxication and impairment.
The trial court rejected the instructions stating: “I declined to give those instructions per se, although some of the concepts to some extent are in the jury instructions I intend to give.”
{40} Jury instructions must contain “all matters of law necessary for the information
{41} After reviewing the three proposed jury instructions, we find the trial court did not abuse its discretion in refusing to include these instructions in the jury charge as the proposed instructions were in part redundant and in part incorrect statements of law.
{42} As argued by Ossege, the aim of each of the proposed instructions was to guide the jury with respect to the weight it should give certain evidence presented. However, the record demonstrates the trial court in fact provided an adequate and correct statement of law regarding the weighing of the evidence by the jury. Specifically, the trial court instructed the jury, in relevant part:
Evidence for your consideration is all of the testimony received from
the witnesses, the exhibits admitted during the trial, facts that may have been agreed to by counsel, and any facts which the court requires you to accept as true. *** STIPULATION: Chain of custody is stipulated by the parties, but the weight to be given the urine test and chain of custody of [sic] for the jury to determine. ***
You are the sole judges of the facts, the credibility of the witnesses and the weight of the evidence.
To weigh the evidence[,] you must consider the credibility of the witnesses. You will apply the tests of truthfulness which you are accustomed to applying in your daily lives.
{43} The instructions provided by the trial court, were a correct, complete and accurate statement of law as warranted by the facts of this case. Moreover, the instructions given by the trial court were neutral, simple, and direct. The instructions therefore provided a fair basis upon which Ossege could and did argue the points sought by his proposed instructions: (1) that marihuana metabolite concentration does not provide conclusive proof of impairment; and (2) that the omission of his name from the sample‘s label should be considered in determining whether it was his urine that was analyzed. In his closing statements, counsel argued, in relevant part:
But one of the things that you‘ve learned is that metabolites mean it‘s already been used, it‘s meaningless in the big scheme of things. Metabolites are the waste from your body. That‘s what it boils down to; that‘s what you find. It has virtually no value. ***. If there‘s one thing that you have with you that should cast doubt upon this whole thing, what brings us all together here today, it‘s Defendant‘s Exhibit A. You heard the testimony with regard to Defendant‘s Exhibit A. An anomaly occurs when the suspect‘s name is not on the bottom. Now, I suggest to you that that casts doubt upon this whole thing, it casts reasonable doubt upon the whole thing. ***. If you reject the State‘s urine evidence, which you are entitled to do fully because it‘s deserving of no weight under the circumstances, then I believe your verdict would have to be not guilty on all counts.
{44} As the trial court provided a correct and clear statement of law regarding the
{45} Based on this record, we find the trial court did not abuse its discretion in refusing to include Ossege‘s requested instructions. Ossege‘s third assignment of error is overruled.
D. Motions for Acquittal
{46} Assignment of Error No. 4:
{47} THE TRIAL COURT ERRED WHEN IT OVERRULED OSSEGE‘S MOTIONS FOR ACQUITTAL.
{48} In his fourth assignment of error, Ossege argues the trial court erred when it denied his motions for acquittal as to the two counts of endangering children and one OVI count for driving with a prohibited concentration of marihuana metabolites in his urine.
{49} “This court reviews a trial court‘s decision on a
1. OVI Offense
{50} Ossege asserts his motion for acquittal should have been granted because the evidence at trial demonstrated he was not under the influence, impaired, intoxicated, or drunk at the time of the accident. In addition, based on the proffer made by Adelman, Ossege argues the state failed to prove he drove while impaired. At the end of the trial, Adelman made a testimonial proffer wherein she testified that the presence of THC metabolites in urine only indicates prior THC ingestion, but does not indicate whether, at the time the urine
{51} Ossege was convicted of driving while under the influence of alcohol or drugs, in violation of
{52} The state presented evidence that Ossege was operating a vehicle on the night of November 29, 2011, with at least 35 nanograms of marihuana metabolite per milliliter of his urine. In fact, the test results indicated the level of marihuana metabolite in his system was more than ten times the permitted amount, at approximately 356.16 nanograms of marihuana metabolite per millimeter of urine. As stated in our resolution of Ossege‘s second and third assignments of error, Ossege was convicted of a per se offenses under
2. Endangering Children Offense
{53} Ossege contends he is entitled to a judgment of acquittal because
a. Mens Rea
{54} According to Ossege, as the endangering children statute under
{55} Ossege was convicted of endangering children in violation of
(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.
{56} The Fourth District Court of Appeals has previously applied the procedure set forth in
[C]ulpability is not required for a person to be guilty of child endangering under
R.C. 2919.22(C) .R .C. 2919.22(C)(1) does not specify a degree of culpability, *** , but evidences an intent to impose strict criminal liability by its dependence upon a violation ofR.C. 4511.19(A) , in connection with the presence of one or more children under eighteen years of age are in the vehicle, streetcar, or trackless trolley. Violations ofR.C. 4511.19(A) are strict liabilityviolations. * * **. “[T]he overall design of the statute is to protect against the hazards to life, limb and property created by drivers who have consumed so much alcohol that their faculties are impaired.” State v. Cleary (1986), 22 Ohio St.3d at 199. Because R.C. 2919.22(C) requires in addition to those elements required byR.C. 4511.19 only proof that one or more children under the age of 18 are in the vehicle when the OVI occurs, by extension, it is also a strict liability crime.
{57} We find the rationale of the Dunn court persuasive and hold, pursuant to
{58} In the present case, as detailed above, the state presented evidence which demonstrated Ossege violated
b. Constitutional Challenge
{59} Ossege also asserts
{60} The
{61} Statutes are presumed constitutional; therefore the level of review depends on the nature of the rights that are claimed to be at issue. Eppley v. Tri-Valley Local Sch. Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, ¶ 12-13. Ossege claims he is presenting a facial challenge to the statute as well as a challenge to the statute as it applies to him. “A statute or ordinance is invalid ‘on its face’ when it is unconstitutional in every conceivable application or when it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.‘” State v. Robinson, 12th Dist. Warren No. CA2008-08-102, 2009-Ohio-3673, ¶ 8, quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118 (1984). Ossege, as the party challenging the constitutionality of the statute, bears the burden of proving it is unconstitutional under the appropriate level of scrutiny. Eppley at ¶ 13. A statutory classification that involves neither a suspect class nor a fundamental right does not violate the Equal Protection Clauses if it bears a rational relationship to a legitimate governmental interest. Levin at ¶ 34. However, if a fundamental right is involved, the strict scrutiny test is used and the statute will be found constitutional as long as it is narrowly tailored to serve a compelling state interest. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 18.
{62} The basis of Ossege‘s facial challenge appears to be a regurgitation of his
{63} As to Ossege‘s applied challenge to
{64} As Ossege has failed to demonstrate how the application of this statute treats people differently on an arbitrary basis or how the statute infringes upon his constitutional
{65} Based on the foregoing, we find that the state presented sufficient evidence upon which the jury could have found each of the essential elements of driving while under the influence of alcohol or drugs and endangering children beyond a reasonable doubt. The trial court therefore did not err in denying Ossege‘s motions for acquittal. Ossege‘s fourth and final assignment of error is overruled.
III. CONCLUSION
{66} Having found no merit to Ossege‘s assigned errors, we hereby affirm the judgment of the trial court.
S. POWELL and M. POWELL, JJ., concur.