Twelfth District: Appeal Denied for Man Seeking Acquittal in Child Endangerment Case Where Pedestrian Was Killed
The Twelfth District Court of Appeals rejected a man’s appeal to have all of his charges acquitted. Anthony Ossege was driving with his two kids in Amelia on November 29, 2011 when he hit two pedestrians, killing one of them.
The officer dispatched to the scene said he did not believe Ossege was impaired but asked Ossege to provide a urine sample. It was later determined that Ossege had marijuana in his system.
At the jury trial at Clermont County Municipal Court, Ossege filed a motion to suppress his urine sample claiming involuntary consent. Ossege said the officer did not tell him he could choose whether to provide the sample. He also said since the officer left off his name on the sample, it could not be proved that it was his sample.
Ossage also said the sample failed to comply with Ohio Adm. Code 3701-53-05(E), and later he filed a subsequent motion to suppress the constitutionality of certain provisions of R.C. 4511.19. Ossege said the state couldn’t prove he was actually under the influence of marijuana at the time he hit the pedestrians. The judge denied all motions.
The jury convicted Ossege of one count of driving while under the influence of alcohol or drugs (OVI) and two counts of child endangerment. All three charges are first degree misdemeanors. Ossage asked the judge to acquit all charges, but was denied. Ossege was sentenced to 180 days in jail with all but 4 days stayed according to the Clermont County Municipal Court clerk’s office. He also received three years probation.
Ossege appealed his convictions to the Twelfth District Court of Appeals, which affirmed the lower court’s decision. In regard to suppressing his urine sample, Judge Robert A. Hendrickson wrote in the unanimous decision: “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. State v. Smith, 12th Dist. Warren No. CA2012-03-022, 2012-Ohio-5962.”
In regard to the exclusion of Ossege’s name on the urine sample label, Judge Hendrickson wrote: “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…, which 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.”
The court also said the Clermont County Municipal Court judge was correct in denying Ossege’s subsequent motion to suppress certain provisions of R.C. 4511.19.
“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 drug of abuse in one’s system,” Judge Hendrickson wrote.
Judge Hendrickson wrote the court found no merit in Ossege’s motions for acquittal of all charges.
“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. 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. 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.”
Judges Stephen W. Powell and Michael E. Powell concurred in the decision that overruled all of Ossege’s assignment of errors.
State v. Ossege, 2014-Ohio-3186
Criminal Appeal From: Clermont County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 21, 2014
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