[Cite as State v. Miller, 2018-Ohio-2221.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

GARY S. MILLER 

Defendant-Appellant 

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Appellate Case No. 27725 

Trial Court Case No. 2017-CR-827 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 8th day of June, 2018. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 

West Third Street, 5th Floor, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

CANDI S. RAMBO, Atty. Reg. No. 0076627, P.O. Box 66, Springboro, Ohio 45066 

 Attorney for Defendant-Appellant 

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FROELICH, J. 

{¶ 1} After the trial court overruled his motion to dismiss the indictment on double 

jeopardy grounds, Gary S. Miller was convicted after a bench trial of receiving stolen 

property (motor vehicle), a felony of the fourth degree. The trial court sentenced him to 

up to five years of community control. 

{¶ 2} Miller appeals from his conviction, claiming that the trial court erred in 

denying his motion to dismiss. For the following reasons, the trial court’s judgment will 

be affirmed. 

I. Background and Procedural History 

{¶ 3} The joint exhibits at the combined motion to dismiss hearing and bench trial 

establish the following facts. 

{¶ 4} At approximately 4:00 a.m. on October 30, 2016, Wayne Neal contacted the 

police to report that his 1995 light-blue Oldsmobile Cutlass was missing from his 

residence in Greenville, Darke County, Ohio. The vehicle had been in his driveway at 

approximately 11:30 p.m. the night before. The keys to the vehicle and approximately 

$700 were in the vehicle. The police entered information about the vehicle into LEADS 

at approximately 5:00 a.m. on October 30. 

{¶ 5} At 6:12 a.m. on October 30, 2016, Officer David Naas was dispatched to a 

McDonald’s restaurant in Butler Township, Montgomery County, Ohio, on a report of two 

people sleeping in a vehicle. Miller was in the front passenger seat; a female companion 

was in the driver’s seat. Officer Naas ran the vehicle’s registration and learned that it 

had been reported as stolen. 

{¶ 6} After Miller and his companion were awakened and it was determined that 
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health issues were not a concern, they were placed in separate cruisers. Officer Chris 

Hammond, an evidence technician, processed the vehicle, and Detective Kevin Sink 

arrived on the scene. The detective noticed, among other things, that the column and 

part of the dashboard were “obliterated” and a wire was used to unlock the tumbler on the 

key mechanism. Ultimately, Miller and his companion were transported to the police 

station, where the detective separately interviewed them. After the interviews, Miller and 

his companion were charged with receiving stolen property. 

{¶ 7} On November 21, 2016, Miller was indicted in Darke County for grand theft 

(Neal’s motor vehicle), vandalism, and theft from an elderly person ($700). On April 20, 

2017, Miller was indicted in Montgomery County for receiving stolen property; this 

indictment also arose out of the October 30, 2016 incident, and the property at issue was 

Neal’s automobile. 

{¶ 8} Miller pled guilty to the offenses in Darke County, and on June 12, 2017, the 

Darke County Court of Common Pleas sentenced him to up to five years of community 

control with several specific conditions. 

{¶ 9} On July 26, 2017, Miller filed a motion to dismiss the Montgomery County 

indictment on double jeopardy grounds. He asserted that he had been prosecuted and 

convicted in Darke County of grand theft of a motor vehicle, which arose from the same 

facts and circumstances as this case. Miller attached the Darke County indictment and 

judgment entry to his motion. 

{¶ 10} The trial court held a joint hearing on the motion to dismiss and a bench trial 

on the merits. The parties stipulated to five exhibits, which were to serve as evidence 

for both the motion and the bench trial. The exhibits were (1) the Butler Township Police 
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Department reports for the October 30, 2016 incident, (2) the Montgomery County 

indictment, (3) the Greenville Police Department reports regarding the October 30, 2016 

incident, (4) the Darke County indictment, and (5) the judgment entry in Miller’s Darke 

County case, State v. Miller, Darke C.P. No. 16-CR-00244. The trial court took the 

matter under advisement. 

{¶ 11} On August 7, 2017, the trial court overruled the motion to dismiss. The 

court employed the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 

180, 76 L.Ed. 306 (1932), and concluded that double jeopardy did not bar the successive 

prosecution, because (1) the elements of receiving stolen property and theft are distinct, 

and (2) receiving stolen property is not a lesser included offense of theft. The trial court 

subsequently found Miller guilty of receiving stolen property (motor vehicle), and 

sentenced him to up to five years of community control. 

{¶ 12} Miller appeals from his conviction. 

II. Double Jeopardy 

{¶ 13} In his sole assignment of error, Miller claims that the trial court erred in 

overruling his motion to dismiss the indictment for receiving stolen property. Miller 

argues that the trial court erred in applying Blockburger to his case and that Blockburger

“is not the exclusive means by which the protection against double jeopardy is deemed 

to apply to particular offenses.” Miller emphasizes the “same conduct” test articulated in 

Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.E.2d 548 (1990). He also asserts 

that Ohio courts have employed an “actual evidence” test and a “same transaction” test, 

but he does not cite to any authority for those approaches. 

Double Jeopardy Standard 
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{¶ 14} The protections against double jeopardy provided in the Ohio and United 

States Constitutions are coextensive. Clark v. Adult Parole Auth., 151 Ohio St.3d 522, 

2017-Ohio-8391, 90 N.E.3d 909, ¶ 13, citing State v. Gustafson, 76 Ohio St.3d 425, 432, 

668 N.E.2d 435 (1996). Under both Constitutions, the Double Jeopardy Clause protects 

against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a 

second prosecution for the same offense after conviction, and (3) multiple punishments 

for the same offense. E.g., State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 

892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 

656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 

104 L.Ed.2d 865 (1989). In this case, we are concerned with a successive prosecution 

after conviction. 

{¶ 15} We review de novo a trial court’s denial of a motion to dismiss an indictment 

based on double jeopardy. State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 

N.E.3d 1141, ¶ 13. 

{¶ 16} The Ohio Supreme Court recently reiterated the standard for determining 

whether a prior conviction bars a successive prosecution: 

This court has relied on the Blockburger test to determine whether two 

prosecutions involve the same offense. “In determining whether an 

accused is being successively prosecuted for the ‘same offense,’ the court 

in [State v. Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975)] adopted the 

so-called ‘same elements' test articulated in Blockburger v. United States

(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 * * *.” The 

Blockburger test applies “where the same act or transaction constitutes a 
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violation of two distinct statutory provisions” and requires the reviewing 

court to evaluate the elements of each statutory provision to determine 

“whether each provision requires proof of a fact which the other does not.” 

“ ‘This test focuses upon the elements of the two statutory provisions, not 

upon the evidence proffered in a given case.’ ” The United States Supreme 

Court has summarized the Blockburger test as an inquiry that asks “whether 

each offense contains an element not contained in the other; if not, they are 

the ‘same offen[s]e’ and double jeopardy bars additional punishment and 

successive prosecution.” 

(Citations omitted.) Mutter at ¶ 17. 

{¶ 17} The Ohio Supreme Court has recognized certain exceptions to the 

Blockburger test. Mutter at ¶ 18, citing Diaz v. United States, 223 U.S. 442, 32 S.Ct. 

250, 56 L.Ed. 50 (1912) (prosecution for homicide not barred after conviction for assault 

and battery when victim died after conviction); Garrett v. United States, 471 U.S. 773, 

778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (addressing continuing criminal enterprise); 

and Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (in 

prosecution on multiple offenses, defendant’s plea to certain charges did not bar 

continued prosecution of remaining charges). None of these circumstances applies 

here. 

Same Offense Test 

{¶ 18} Miller was convicted of grand theft of a motor vehicle in Darke County and 

subsequently prosecuted in Montgomery County for receiving stolen property involving 

the same vehicle. 
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{¶ 19} “An offense may be a lesser included offense of another if (i) the offense 

carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily 

defined, * * * be committed without the lesser offense, as statutorily defined, also being 

committed; and (iii) some element of the greater offense is not required to prove the 

commission of the lesser offense.” State v. Pope, 2d Dist. Montgomery No. 27231, 

2017-Ohio-1308, ¶ 15, citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), 

paragraph three of the syllabus, as modified by State v. Evans, 122 Ohio St.3d 381, 2009-

Ohio-2974, 911 N.E.2d 889, ¶ 25. The definition does not incorporate the degree(s) of 

the related offenses. 

{¶ 20} R.C. 2913.02, the theft statute, provides in relevant part: “(A) No person, 

with purpose to deprive the owner of property or services, shall knowingly obtain or exert 

control over either the property or services in any of the following ways: (1) Without the 

consent of the owner or person authorized to give consent[.]” If the property stolen is a 

motor vehicle, the offense is known as grand theft of a motor vehicle and is a fourthdegree felony. R.C. 2913.02(B)(5). 

{¶ 21} R.C. 2913.51(A), receiving stolen property, states: “No person shall receive, 

retain, or dispose of property of another knowing or having reasonable cause to believe 

that the property has been obtained through commission of a theft offense.” When the 

stolen property is a motor vehicle, a violation of R.C. 2913.51(A) is also a felony of the 

fourth degree. R.C. 2913.51(C). 

{¶ 22} A review of the statutory elements indicates that offenses of theft and 

receiving stolen property can be committed separately without committing the other. 

See, e.g., State v. Botta, 27 Ohio St.2d 196, 271 N.E.2d 776 (1971) (theft and receiving 
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stolen property were committed separately where the defendant committed theft only as 

an aider, abettor or procurer, but committed receiving stolen property after the theft as a 

principal offender); State v. Skapik, 2015-Ohio-4404, 42 N.E.3d 790, ¶ 9 (2d Dist.) 

(defendant committed grand theft and receiving stolen property of the same firearms 

through separate conduct; the offenses thus were not allied offenses of similar import). 

{¶ 23} Moreover, it is well established that receiving stolen property is not a lesser 

included offense of theft. E.g., State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 

817 N.E.2d 845, ¶ 99; State v. Workman, 4th Dist. Athens No. 14CA25, 2015-Ohio-4483, 

¶ 27. Accordingly, under Blockburger, double jeopardy does not bar the State’s 

successive prosecution for receiving stolen property after Miller’s conviction for grand 

theft of a motor vehicle. 

Availability of other tests 

{¶ 24} As stated above, Miller asserts that Blockburger is not the only applicable 

test to determine whether double jeopardy applies, and he asserts that we should employ 

the “same conduct” test established in Grady, 495 U.S. 508, 110 S.Ct. 2084, 109 L.E.2d 

548 (1990). In Grady, the United States Supreme Court held that, in addition to passing 

the Blockburger test, a subsequent prosecution must also satisfy a “same conduct” test 

to avoid violating double jeopardy. See United States v. Dixon, 509 U.S. 688, 697, 113 

S.Ct. 2849, 125 L.Ed.2d 556 (1993). “The Grady test provides that, ‘if, to establish an 

essential element of an offense charged in that prosecution, the government will prove 

conduct that constitutes an offense for which the defendant has already been prosecuted,’ 

a second prosecution may not be had.” Dixon, 509 U.S. at 697, quoting Grady, 495 U.S. 

at 510. 
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{¶ 25} However, the United States Supreme Court expressly overruled Grady in 

Dixon. Dixon, 509 U.S. at 704. The Dixon Court stated that the “same conduct” test 

announced in Grady was “wholly inconsistent with earlier Supreme Court precedent and 

with the clear common-law understanding of double jeopardy.” Dixon at 704. 

{¶ 26} When asked to apply a “same conduct” overlay to Blockburger, the Ohio 

Supreme Court declined, stating that this approach was “in substance a feature of the 

now-defunct ‘same conduct’ test” adopted in Grady and rejected in Dixon. State v. Zima, 

102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 35. The Ohio Supreme Court 

further noted that, “[s]ince the present case involves only the issue of successive 

prosecutions, it is not controlled by R.C. 2941.25.” Zima at ¶ 40, fn. 3. In Mutter, 

rendered last year, the Ohio Supreme Court continued to apply Blockburger as the test 

for determining whether successive prosecutions were permitted. Mutter, 150 Ohio 

St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141. Accordingly, we reject Miller’s suggestion 

that we apply Grady here. 

{¶ 27} We are not unsympathetic to Miller’s argument. It makes little sense for 

courts to employ different tests for determining whether two offenses are “the same 

offense” depending on whether the double jeopardy issue involves a successive 

prosecution or multiple punishments. Logic would suggest that if a court cannot impose 

separate punishments for two offenses, then the prosecutor should be “forbidden to strive 

for the same result in successive proceedings.” Brown v. Ohio, 432 U.S. 161, 166, 97 

S.Ct. 2221, 53 L.Ed.2d 187 (1977). We agree with the sentiment expressed in State v. 

Bentley, 4th Dist. Athens No. 01CA13, 2001 WL 1627645, * 7 (Dec. 6, 2001): 

At this juncture, however, we wish to note that regardless of our ultimate 
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conclusion in the case sub judice, the fact that appellant was prosecuted on 

the charges separately, at different times and in different courts, is indeed 

troubling. We join those courts who have expressed the view that in the 

interest of judicial efficiency and of fairness, a defendant should answer at 

one time and in one court for crimes committed at one time and in one place. 

Multiple prosecutions, like those in the case sub judice, should be strongly 

discouraged even though the multiple prosecution may not run afoul of our 

constitutional guarantees. Once again, defendants should be required to 

answer at one time and in one court for all crimes committed in a single 

incident. 

(Citations omitted.) Bentley at * 7. 

{¶ 28} And as for Miller’s specific offenses, the Ohio Supreme Court noted in 

Maumee v. Geiger, 45 Ohio St.2d 238, 344 N.E.2d 133 (1976): 

‘‘It is hornbook law that a thief cannot be charged with committing two 

offenses -- that is, stealing and receiving the goods he has stolen. And this 

is so for the commonsensical, if not obvious, reason that a man who takes 

property does not at the same time give himself the property he has taken. 

In short, taking and receiving, as a contemporaneous -- indeed a 

coincidental -- phenomenon, constitute one transaction in life and, 

therefore, not two transactions in law. * * *” 

(Citations omitted.) Geiger at 135, quoting Milanovich v. United States, 365 U.S. 551, 

558, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) (Frankfurther, J., dissenting). Had Miller and 

his companion been apprehended by the police at a McDonald’s restaurant in Darke 
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County, the offenses of receiving stolen property and grand theft (motor vehicle) would 

have merged for sentencing as allied offenses of similar import, and Miller would have 

received only one sentence for the two offenses. See, e.g., Skapik, 2015-Ohio-4404, 42 

N.E.3d 790, ¶ 9 (2d Dist.) (“[Defendant] simultaneously stole the firearms and received 

the stolen firearms when he took them from an off-duty deputy sheriff’s vehicle. If both 

convictions were based on that conduct, we would find merger required.”) 

{¶ 29} Because Miller had the misfortune of being found with the motor vehicle in 

Montgomery County, Miller has been separately convicted and sentenced for both 

receiving stolen property and grand theft of a motor vehicle. As Judge Stewart 

commented in her concurrence in Ladson, which involved, in part, a successive 

prosecution for grand theft (firearm) after a conviction in the same county for receiving 

stolen property (the same firearm): 

By charging the theft and receiving stolen property counts in separate 

cases, the state made a legal, but perhaps unfair, end-run around the allied 

offenses statute. This resulted in Ladson receiving an 18-month sentence 

for receiving stolen property (the gun) in CR-15-599880, and being 

sentenced to three years in prison on the theft in this case for stealing the 

same gun. 

State v. Ladson, 8th Dist. Cuyahoga No. 104642, 2017-Ohio-7715, ¶ 46 (Stewart, J., 

concurring), appeal not allowed, 152 Ohio St.3d 1423, 2018-Ohio-923, 93 N.E.3d 1004. 

{¶ 30} Perhaps recognizing the inequity of the dual convictions, the trial court 

conscientiously stated at sentencing its “intention to sentence [Miller] to community 

control with the same sanctions in Darke County to be supervised in Darke County.” In 
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addition, the trial court informed Miller that it was not going to impose three days in jail 

and 30 days of electronic home detention, as had been imposed in Darke County, 

because he had already completed those obligations in Darke County. The trial court 

also did not impose restitution, as restitution had already been ordered in the Darke 

County case. 

{¶ 31} The only assigned error is whether the trial court erred in not dismissing the 

receiving stolen property indictment. Miller has not challenged the trial court’s sentence 

under the Double Jeopardy Clause, the allied offense statute, or otherwise. 

{¶ 32} Miller’s assignment of error is overruled. 

III. Conclusion 

{¶ 33} The trial court’s judgment will be affirmed. 

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WELBAUM, P. J. and TUCKER, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Michael P. Allen 

Candi S. Rambo 

Hon. Mary Katherine Huffman