State v. Ossege

[Cite as State v. Ossege, 2014-Ohio-3186.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :
CASE NOS. CA2013-11-086
Plaintiff-Appellee, : CA2013-11-087

: OPINION
- vs - 7/21/2014
:

ANTHONY OSSEGE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case Nos. 12 CRB 6454 and 12 TRC 18403

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

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 R.C. 4511.19(A)(1)(j)(viii)(II), and two counts of endangering children in

violation of R.C. 2919.22(C). For the reasons set forth below we affirm.

I. FACTS

{¶ 2} Ossege was involved in an automobile accident when his vehicle struck two
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pedestrians on November 29, 2011. The incident occurred at 5:30 p.m. when Ossege, while

proceeding eastbound on State Route 125 in Amelia, Ohio, struck two pedestrians who had

entered the roadway. One pedestrian died as a result of the accident. Ossege's two children

were also in the vehicle, but were not injured.

{¶ 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 Ohio Adm.Code

3701-53-05(E). The trial court denied the motion. Ossege filed a subsequent motion to

suppress or motion in limine challenging the constitutionality of certain provisions of R.C.
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4511.19. The trial court also denied this motion.

{¶ 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, Ohio Adm.Code 3701-53-05(E)(1)(a).

{¶ 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,

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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 Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution protect individuals from unreasonable searches

and seizures. State v. Dennis, 12th Dist. Warren No. CA2012-01-004, 2012-Ohio-4877, ¶

13. Searches and seizures conducted without a warrant are per se unreasonable unless

they come within one of the few specifically established and well-delineated exceptions.

State v. Durham, 12th Dist. Warren No. 2013-03-023, 2013-Ohio-4764, ¶ 31. One such

exception occurs when a person consents to a warrantless search. State v. Oberding, 12th

Dist. Warren No. CA2011-09-101, 2012-Ohio-3047, ¶ 13, citing Schneckloth v. Bustamonte,

412 U.S. 218, 219 93, S.Ct. 2041 (1973).
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{¶ 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
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illegal drugs. Furthermore, Officer Marsh's interactions with Ossege on the night of the

accident did not cause Officer Marsh to believe Ossege was under the influence of alcohol or

drugs. Officer Marsh testified the reason Ossege was transported to the police department

was because Ossege was too "distraught" to provide an adequate statement at the scene.

Moreover, Officer Marsh stated he simply asked Ossege to submit to the urine sample, "to

cover my bases. In a severe injury or fatal accident we like to do a full investigation to make

sure that there are no stones left unturned." According to Officer Marsh, Ossege voluntarily

consented and provided the sample. Ossege did not testify or offer any evidence which

disputed the officer's statements.

{¶ 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

1. Although Ossege argues he was not informed he could refuse to provide the urine sample, the record from
the suppression hearing is silent regarding what Officer Marsh told him prior to taking the sample. Officer Marsh
testified he requested the sample and Ossege "agreed;" he voluntarily "consented." The record is silent
regarding any other details surrounding Officer Marsh's request for the urine sample.
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emotionally distraught while at the scene, there is every indication that while at the police

station, he was capable of questioning Officer Marsh's motives in requesting the urine

sample, and therefore did not simply submit to the officer's claim of lawful authority. See

Smith at ¶ 20.2

{¶ 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
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voluntarily consented to the urine test.

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 Ohio Adm.Code 3701-53-05(E).

Specifically, he asserted the state failed to show his name was placed on the urine sample

as required by Ohio Adm.Code 3701-53-05(E)(1). Due to this violation of the regulations and

because the sample remained in the refrigerator where approximately nine people had

access to it prior to it being sent for testing, Ossege contends it is questionable whether the

urine sample actually belonged to him. Accordingly, Ossege argues the test results should

have been suppressed.

2. We note Ossege argued in his reply brief that he was in custody at the time his urine was seized, and that
Officer Marsh should have therefore advised him of his Miranda rights. However, the record indicates Officer
Marsh simply engaged in general questioning at both the scene and at the police department, and requested the
urine sample from Ossege in order to conduct a "full investigation" into the motor vehicle accident and the related
fatality. Furthermore and as noted above, Ossege was not in custody at this time. Accordingly, Officer Marsh
was not required to inform Ossege of his rights under Miranda. See State v. Barrett, 12th Dist. Butler No.
CA2003-10-261, 2004-Ohio-5530, ¶ 32 (finding Miranda warnings are not required where an officer's roadside
questioning of a motorist at the scene of an automobile accident is done as part of the normal fact-finding
process and not a custodial interrogation).

3. Ossege also argues he did not implicitly consent to the seizure of his urine as permitted pursuant to R.C.
4511.191. Because we have found he provided actual consent, we need not discuss whether there was also
implied consent for providing the urine sample. See also City of Fairfield v. Regner, 23 Ohio App.3d 79, 85 (12th
Dist.1985) (finding voluntary consent constitutes actual consent and relieves the state from establishing the
prerequisites of implied consent under R.C. 4511.191).
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{¶ 20} In the prosecution of offenses for driving with a prohibited concentration of a

controlled substance or its metabolite, the court may admit evidence of the concentration of

metabolites in a defendant's urine at the time of the alleged violation as shown by a chemical

analysis. R.C. 4511.19(D)(1)(b). However, the sample must be analyzed in accordance with

methods approved by the director of health. R.C. 4511.19(D)(1)(b); see also R.C. 3701.143;

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 9. Accordingly, the Director of

Health promulgated the following blood and urine testing regulations in Ohio Adm.Code

3701-53-05(E):

(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
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Highway Patrol testified the state had failed to strictly comply with the regulations.

Specifically, Adelman noted that neither the label on the sample nor the container itself

contained the suspect's name. Adelman explained the container had an adhesive label that

went over the top of the sample, which contained spaces for the suspect's name, the

collector's initials or name, and the date and time of collection to be written in, and all of

these fields were filled out except for the suspect's name. Accordingly, the state failed to

strictly comply with Ohio Adm.Code 3701-53-05(E). However, the record supports the trial

court's conclusion that Officer Marsh's collection of the urine sample substantially complied

with Ohio Adm.Code 3701-53-05(E).

{¶ 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
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uniquely identified the sample as Ossege's sample. Moreover, the submission sheet

submitted with the sample contained all of the information required by Ohio Adm.Code 3701-

53-05, including Ossege's name. Accordingly, when the label is viewed as a whole, and in

conjunction with the submission sheet, we find the state substantially complied with the ODH

regulations. See Burnside at ¶ 34; Balog at ¶ 25.

{¶ 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 Ohio Adm.Code 3701-53-05(E) is to insure that the blood

or urine specimen is the same specimen that was placed in its the container by the person

who collected it from the defendant, and that it is in the same condition as when it was put

there." State v. Roberts, 1st Dist. Hamilton No.C-080474, 2009-Ohio-1799, ¶ 6. Ossege

suggests the sample could have been tampered with because approximately nine people had

access to it before it was sent to the crime lab. However, there was no evidence presented

which indicated the sample had been tampered with or disturbed. In fact, Officer Marsh

testified he sealed the sample prior to placing it in the refrigerator and Adelman confirmed

that the crime lab's internal records indicated the sample was sealed at the time it was

received. In addition, Officer Marsh testified he was certain the urine in the sample was the

urine he collected from Ossege. Finally, the testimony of Officer Marsh and Adelman

demonstrated a clear chain of custody for the sample. Therefore, there was little doubt the

sample belonged to Ossege.

{¶ 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 Ohio Adm.Code 3701-53-05(E).

Therefore, the trial court did not err in denying his motion to suppress on this basis.

{¶ 27} As the trial court properly denied Ossege's motion to suppress, his first
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assignment of error is overruled.

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 R.C. 4511.19

are unconstitutional and urged the trial court to undertake its "gatekeeper function" and

ascertain whether the stated amount of metabolites of marihuana provided in R.C.

4511.19(A)(1)(j)(viii)(II), as a matter of scientific fact, resulted in impairment. Ossege

requested the court exclude the tests results based on Officer Marsh's testimony from the

motion to suppress hearing that he did not believe Ossege was under the influence of alcohol

or drugs. The trial court denied the motion.

{¶ 31} On appeal, Ossege asserts R.C. 4511.19(A)(1)(j)(viii)(II) is unconstitutional

because it includes a conclusive presumption that one is under the influence by virtue of the

presence of a marihuana metabolite which may not have any "relationship to being under the

influence of, or being impaired by the use of marihuana." Ossege argues this statutory

scheme is unconstitutional as it usurps the trial court's gatekeeping function. Although he

asserts the statute is constitutionally questionable because it encroaches upon the trial

court's gatekeeping function, Ossege's real objection to the statute seems to be the General

Assembly's decision to criminalize driving with the presence of a marihuana metabolite in

one's system as science has arguably found such metabolites may not itself cause or equate

to impairment.
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{¶ 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 R.C.

4511.19(A)(1)(j)(viii)(II). Appellant also filed a motion to suppress, arguing R.C.

4511.19(A)(1)(j)(viii)(II) was unconstitutional. Although appellant's arguments were couched

in terms of vagueness and overbreadth, the court noted his "real quibble seems to be with

the legislative decision to criminalize driving based upon the presence of a marihuana

metabolite that may not itself cause impairment." Whalen at ¶ 16. In rejecting appellant's

constitutional challenges, the First District stated:

[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.

Whalen at ¶ 16.

{¶ 33} We agree with the First District and find the legislature's decision to include

marihuana metabolites within the per se prohibitions of R.C. 4511.19 is not unreasonable.

Id. The General Assembly has made it illegal to not only operate a vehicle under the

influence of alcohol or a drug of abuse, but also to operate a vehicle with a proscribed level

of alcohol or a drug of abuse in one's system. See R.C. 4511.19; State v. Mayl, 106 Ohio

St.3d 207, 2005-Ohio-4629, ¶ 18. R.C. 4511.19(A)(1)(b)-(j) and (B), the "per se" offenses,

prohibit the operation of a motor vehicle with certain concentrations of alcohol and/or drugs of

abuse in a person's blood, breath, or urine. See State v. Davenport, 12th Dist. Fayette No.

CA2008-01-011, 2009-Ohio-557, ¶ 11, fn. 2. R.C. 4511.19(A)(1)(j)(viii)(II), like the other per
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se offenses, simply defines the point at which the legislature has determined an individual

cannot drive without posing a substantial danger, not only to himself, but to others. See State

v. Barrett, 12th Dist. Butler No. CA2003-10-261, 2004-Ohio-5530, ¶ 15, citing Newark v.

Lucas, 40 Ohio St.3d 100, 103 (1988). Contrary to Ossege's arguments, the General

Assembly was well within its police powers to set a prohibited amount of marihuana, an

illegal substance in Ohio, which may be in one's system while operating a vehicle, and

consequently criminalize driving with more than 35 nanograms of marihuana metabolites in
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one's system. Driving is a privilege rather than a constitutional right, and the state has a

legitimate interest in highway safety and keeping impaired drivers off the road. State v.

Tanner, 15 Ohio St.3d 1, 3 (1984); see also Whalen at ¶ 17.

{¶ 34} Moreover, we note the trial court still maintains its gatekeeping function in the

prosecution of R.C. 4511.19(A)(1)(j)(viii)(II) cases. In determining whether a defendant

violated R.C. 4511.19(A)(1)(j)(viii)(II), the critical issue is the accuracy of the test, not the

behavior of the accused. See Barrett at ¶ 14, citing Lucas at 103. Accordingly, the result of

such tests and their accuracy are crucial to a determination of guilt or innocence. Even given

the provisions of R.C. 4511.19(D), the trial court still has the authority and responsibility to

regulate the admission of test results and to evaluate whether (1) ODH regulations were

followed, or (2) the operator of the instrument was qualified. See Dugan, 2013-Ohio-447 at ¶

18, 28. In addition, the defendant is also permitted to challenge the reliability of the specific

testing procedure by showing "something went wrong with his test and that, as a

4. The General Assembly, in constructing R.C. 4511.19(A)(1)(j)(viii)(II), expressly considered arguments of
those who claimed the law lacked a direct correlation between the prohibited amount of marihuana and its
metabolite in a driver's system and impairment. Senator Steve Austria, one of the bill's sponsors, recognized
that certain drivers may not be subjectively impaired when driving with the prohibited amount of marihuana in
their system, yet by setting a concrete amount, the bill created a "level playing field." See 2005 OH Sub.S.B. 8,
Third Consideration, available at http://www.ohiochannel.org, Ohio Senate Session (Feb. 16, 2005) 14:15:57
(accessed June 24, 2014). In addition, both Senator Austria and Senator Patricia Clancy noted that during
deliberations on the bill, the forensic experts and toxicologists who testified unanimously agreed that anyone
driving with the levels of the substance listed in the bill would definitely be impaired. Id.; Whalen at ¶ 16, fn. 2.
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consequence, the result was at variance with what the approved testing process should have

produced.'" Id. at ¶ 28, quoting State v. Luke, 10th Dist. Franklin No. 05AP-371, 2006-Ohio-

2306, ¶ 26.

{¶ 35} Based on the foregoing, we find no merit to Ossege's constitutional challenges

to R.C. 4511.19. Ossegee's second assignment of error is overruled.

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:

1. 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.

2. 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.

3. 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
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of the jury in giving its verdict." R.C. 2945.11; State v. Grindstaff, 12th Dist. Clermont No.

CA2013-09-074, 2014-Ohio-2581, ¶ 28. "The trial court should instruct the jury if the

proposed instruction is a correct statement of law, applicable to the facts in the case, and

reasonable minds could reach the conclusion sought by the specific instruction." State v.

Pringle, 12th Dist. Butler Nos. CA2007-08-193 and CA2007-09-238, 2008-Ohio-5421, ¶ 51,

citing State v. Lawson, 12th Dist. Butler No. CA99-12-226, 2001 WL 433121, *8 (Apr. 30,

2001). However, even if these prerequisites are met, it is not mandatory for the trial court to

give the requested instruction verbatim. State v. Midwest Pride IV, Inc., 131 Ohio App.3d 1,

15 (12th Dist.1998), citing State v. Nelson, 36 Ohio St.2d 79 (1973), paragraph one of the

syllabus. Rather, the instruction given must at least in substance, reflect the proposed

instruction. Id. Additionally, the trial court is not required to include proposed jury

instructions which are repetitive and would simply confuse the jury. Id. at 16. "In reviewing a

trial court's decision on jury instructions, an appellate court's role is to ascertain whether the

trial court abused its discretion in refusing to give a proposed instruction, and, if so, whether

that refusal was prejudicial." State v. Ray, 12th Dist. Butler No. CA2012-10-213, 2013-Ohio-

3671, ¶ 25.

{¶ 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
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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

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weight of the evidence, the instructions proposed by Ossege were redundant. In addition,

the proposed instructions were lengthy, biased, and emphasized Ossege's position regarding

the weight certain evidence should be given. Moreover, Ossege's proposed instructions were

at least in part, incorrect statements of law. For instance, the first and third proposed

instructions indicate the jury was entitled, in weighing the evidence, to determine whether

Ossege was actually impaired by the marihuana metabolites in his system at the time of the

offense. However, as explained in our resolution of Ossege's second assignment of error,

Ossege was convicted of violating R.C. 4511.19(A)(1)(j)(viii)(II) which is a per se offense

within the state's impaired driving statute. The focus is not on the conduct of the defendant.

See Barrett, 2004-Ohio-5530 at ¶ 14. Rather, the legislature has set the level at which

motorists cannot drive with marihuana metabolites in their system without posing a

substantial danger to the traveling public. See Barrett at ¶ 15. Therefore, a person may be

convicted of this offense if the state proves the defendant operated a vehicle, and at that

time, had a prohibited amount of marihuana metabolite in his system as shown by a chemical

test. Whalen, 2013-Ohio-1861 at ¶ 8. Ossege's suggestion to the contrary is simply not

appropriate in this case. As to the second requested instruction, substantial compliance with

the ODH regulations goes to the admissibility of tests results, rather than the weight. See

Dugan, 2013-Ohio-447 at ¶ 28, 32. Accordingly, this proposed instruction was also improper.

{¶ 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.
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{¶ 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 Crim.R. 29(C) motion for

acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."

State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 28. 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 (1997); State v. Grinstead, 194 Ohio App.3d

755, 2011-Ohio-3018, ¶ 10 (12th Dist.). 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." Williams at ¶

29, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

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

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as gathered, the subject was under the influence of THC.5

{¶ 51} Ossege was convicted of driving while under the influence of alcohol or drugs,

in violation of R.C. 4511.19(A)(1)(j)(viii)(II), which provides: "No person shall operate any

vehicle * * * if, at the time of operation * * * the person has a concentration of marihuana

metabolite in the person's urine of at least thirty-five nanograms of marihuana metabolite per

milliliter of the person's urine."

{¶ 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 R.C.

4511.19. Accordingly, the state was not required to prove Ossege was impaired. Rather, the

state was only required to prove Ossege had operated a vehicle and, at that time, he had a

prohibited amount of marihuana metabolite in his system-as shown by a chemical test. See

Whalen at ¶ 8. As the state presented such evidence, we find the trial court did not err in

overruling Ossege's motion for acquittal as to this offense.

2. Endangering Children Offense

{¶ 53} Ossege contends he is entitled to a judgment of acquittal because R.C.

2919.22(C) is "structurally defective" as it fails to set forth the requisite mens rea in order to

violate the statute. Ossege also argues the complaint against him was defective because it

failed to set forth a mental state. Finally, Ossege argues the statute violates his equal

protection rights.

5. THC is the active ingredient of marihuana.
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a. Mens Rea

{¶ 54} According to Ossege, as the endangering children statute under R.C.

2919.22(C) does not state a specific mens rea, the appropriate mens rea is reckless.

Ossege asserts the trial court should have granted his motion for acquittal as the record is

devoid of any evidence that his conduct recklessly endangered his children.

{¶ 55} Ossege was convicted of endangering children in violation of R.C.

2919.22(C)(1) which provides: "No person shall operate a vehicle * * * within this state in

violation of division (A) of section 4511.19 of the Revised Code when one or more children

under eighteen years of age are in the vehicle * * *." Ossege urges this court to find the

appropriate mental state for this offense is reckless. Recklessness is the culpable mental

state for endangering children under sections (A) and (B) of R.C. 2919.22. See State v.

McGee, 79 Ohio St.3d 193, 195 (1997); State v. O'Brien, 30 Ohio St.3d 122, 124 (1987);

State v. Dunn, 4th Dist. No. 06CA6, 2006-Ohio-6550, ¶ 19. However, section (C) of R.C.

2919.22 fails to specify the culpable mental state. Accordingly, we look to R.C. 2901.21(B) to

determine the requisite mental state. R.C. 2901.21(B) provides:

(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 R.C. 2901.21(B) to R.C. 2919.22(C) and found:

[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 of
R.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 of R.C. 4511.19(A) are strict liability
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violations. * * *. "[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 by R.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.

Dunn at ¶ 21.

{¶ 57} We find the rationale of the Dunn court persuasive and hold, pursuant to R.C.

2901.21(B), that to be guilty of endangering children under R.C. 2919.22(C), culpability is not

required as the offense is a strict liability crime. Id. Accordingly, to be found guilty, the state

must prove beyond a reasonable doubt that the defendant committed a violation of R.C.

4511.19(A) and that one or more children under the age of 18 were in the vehicle at the time

of the violation. As recklessness is not an element of the offense Ossege was charged with,

the state was not required to prove whether his actions recklessly endangered the children or

to specify a mental state within the complaint. See Dunn at ¶ 21.

{¶ 58} In the present case, as detailed above, the state presented evidence which

demonstrated Ossege violated R.C. 4511.19(A), or more specifically, violated R.C.

4511.19(A)(1)(j)(viii)(II). In addition, Officer Marsh testified that on the night of the accident,

Ossege indicated he had two passengers in the vehicle, his two children, ages three and ten.

Officer Marsh confirmed he saw the two children and believed they appeared to be the ages

indicated by Ossege. Accordingly, as the state presented evidence upon which any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt, the trial court did not err in denying Ossege's motion for acquittal.

b. Constitutional Challenge

{¶ 59} Ossege also asserts R.C. 2919.22(C) is unconstitutional as it violates his equal

protection rights.

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{¶ 60} The Fourteenth Amendment to the United States Constitution provides that

"[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the

laws." Ohio's Equal Protection Clause in turn provides that "[a]ll political power is inherent in

the people. Government is instituted for their equal protection and benefit * * *." Section 2,

Article I, Ohio Constitution. The limitations placed upon governmental action by the state and

federal government are essentially the same. Ohio Apt. Assn. v. Levin, 127 Ohio St.3d 76,

2010-Ohio-4414, ¶ 33. The Equal Protection clauses require all similarly situated individuals

be treated in a similar manner. Id.

{¶ 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
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arguments as to the constitutionality of R.C. 4511.19 set forth in his second assignment of

error. Essentially, Ossege asserts that by relying on a violation of R.C. 4511.19(A) as a

predicate offense, the endangering children statute is unconstitutional as it "creates criminal

liability without regard to whether one is actually impaired and/or functionally unable to drive

as a result of ingestion or use of drugs." For the reasons set forth more fully in our resolution

of Ossege's second assignment of error, we find no merit to Ossege's arguments. The

General Assembly was well-within its police powers to set a prohibited amount of marihuana,

an illegal substance in Ohio, which may be in one's system while operating a vehicle.

Moreover, the endangering children statute bears a rational relationship to the legitimate

governmental interest in protecting children. Ossege has failed to demonstrate how this

statute does not apply equally to all those similarly situated, and therefore how it violates

equal protection.

{¶ 63} As to Ossege's applied challenge to R.C. 2919.22, he asserts the statute

violates his fundamental right to parent. One indeed does have the fundamental right to

parent. In re Brayden James, 131 Ohio St.3d 420, 2007-Ohio-2335, ¶ 16. Yet, Ossege has

failed to demonstrate and this court fails to see how R.C. 2919.22, as applied to Ossege,

infringes upon this right. Driving is a privilege and not a constitutional right. State v. Tanner,

15 Ohio St.3d 1, 3 (1984). By logical extension, one certainly does not have a fundamental

right to drive children, even one's own children, after using an illegal drug. As noted above,

regardless of whether marihuana metabolites are proof of impairment, the state, acting within

its police powers, has criminalized driving with more than 35 nanograms of marihuana

metabolite in one's system. See Whalen at ¶ 17. As the statute does not involve a

fundamental right, it does not require strict scrutiny.

{¶ 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
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right to parent, we find no merit to his constitutional challenges.

{¶ 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.

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