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State V. Ossege, 2014-Ohio-3186.]

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State V. Ossege, 2014-Ohio-3186.] [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 : O P I N I O N - 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 Clermont CA2013-11-086 CA2013-11-087 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. - 2 - Clermont CA2013-11-086 CA2013-11-087 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, - 3 - Clermont CA2013-11-086 CA2013-11-087 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). - 4 - Clermont CA2013-11-086 CA2013-11-087 {¶ 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 - 5 - Clermont CA2013-11-086 CA2013-11-087 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.
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