State v. Consilio
2017 Ohio 7913
Ohio Ct. App.2017Background
- On October 22, 2015, Craig Consilio was involved in a single-vehicle crash; syringes and heroin were found in the vehicle and he admitted to being the driver. A hospital urine screen (for diagnostic purposes) detected amphetamine, cocaine, opiate, and THC; blood testing did not show drugs of abuse.
- A Summit County grand jury indicted Consilio on multiple counts including OVI under R.C. 4511.19(A)(1)(a), possession/aggravated possession of drugs, and driving under suspension; a supplemental indictment added an OVI specification alleging five or more prior OVI-related offenses.
- After a two-day jury trial, Consilio was convicted of Count I (OVI), Count III (possession of heroin), Count IV (driving under suspension), and the Count I specification; he was acquitted on Count II.
- Consilio appealed, raising: (1) denial of motion to suppress medical drug tests (Fourth Amendment/Ohio Const.), (2) ineffective assistance of counsel, and (3) manifest weight challenge to his OVI conviction.
- The trial court limited the suppression hearing because the State said hospital diagnostic tests offered at trial need not meet the Ohio Admin. Code "substantial compliance" standard when the defendant is not charged under statutory concentration-based offenses; Consilio did not object at the hearing and stipulated to the medical records at trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Consilio) | Held |
|---|---|---|---|
| 1. Denial of motion to suppress hospital drug screens | Hospital urine/blood records admissible for diagnostic purposes and not subject to OAC substantial-compliance rules when not charging concentration-based offense | Tests (blood/urine) should be suppressed for failing to substantially comply with R.C./OAC requirements; suppression hearing improperly limited | Court affirmed denial: Consilio forfeited objections by not preserving them; urine was not challenged below and blood did not show drugs of abuse; no prejudice shown |
| 2. Ineffective assistance of counsel | Counsel’s strategy (not pressing suppression based on statutory interpretation) was reasonable; evidence without tests supported convictions | Counsel failed to challenge blood/urine at suppression, failed to argue Crim.R. 29 motions, and failed to communicate re: plea/trial | Court rejected ineffective-assistance claim: no prejudice shown under Strickland; even excluding tests, evidence supporting OVI remained strong; communication claims lack record support and better addressed in postconviction relief |
| 3. Manifest weight of the evidence for OVI conviction | Eyewitnesses, officer observations (slurred speech, stagger, constricted pupils), Consilio’s admissions, and positive urine toxicology support conviction | Accident could explain demeanor; neither officer saw him driving; tests should have been suppressed | Court held conviction was not against manifest weight: jury could credit State witnesses and medical records; not an exceptional case to reverse |
Key Cases Cited
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard in criminal cases)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain-error reversal is disfavored and reserved for exceptional circumstances)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance of counsel test)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency-of-the-evidence standard)
- State v. Otten, 33 Ohio App.3d 339 (9th Dist. 1986) (manifest-weight standard and deference to jury credibility determinations)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (discussion of manifest-weight standard)
- State v. Madrigal, 87 Ohio St.3d 378 (2000) (prejudice inquiry for excluded evidence and effect on acquittal probability)
- State v. Brown, 115 Ohio St.3d 55 (2007) (defendant must show basis to suppress to prove prejudice from counsel’s failure to move to suppress)