[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                       :   Appellate Case No. 27725
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-827
                                                   :
 GARY S. MILLER                                    :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                               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

                                             .............
                                                                                        -2-


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
                                                                                         -4-


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
                                                                                        -5-


       {¶ 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
                                                                                        -6-


        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.
                                                                                       -7-


      {¶ 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 fourth-

degree 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
                                                                                           -8-


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.
                                                                                       -9-

      {¶ 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
                                                                                       -10-

       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
                                                                                      -11-


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
                                                                                         -12-


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.

                                     .............



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


Copies mailed to:

Mathias H. Heck
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Hon. Mary Katherine Huffman
