{ΒΆ29} The case law is clear that unauthorized use of a motor vehicle is not the lesser included offense of receiving stolen property. {ΒΆ30} In State v. Peek, 110 Ohio App.3d 165, 168, 673 N.E.2d 938, 940 (1996), the First District compared and analyzed the two crimes, finding: Unauthorized use does indeed carry a lesser penalty than receiving a stolen motor vehicle.
Moreover, prior case law establishes that receiving stolen property is not a lesser included offense of either unauthorized use of a motor vehicle or theft. State v. Thomas, 8th Dist. Cuyahoga No. 87343, 2006-Ohio-4499, ΒΆ6; State v. Newton, 11th Dist. Lake No. 96-L-058 (June 27, 1997); State v. Peek, 110 Ohio App.3d 165, 167, 673 N.E.2d 938 (1st Dist. 1996); State v. Rogers, 6th Dist. Lucas No. L-88-169 (Apr. 21, 1989); State v. Yarbrough, 104 Ohio St.3d 1, 17, 2004-Ohio-6087, 817 N.E.2d 845, ΒΆ99, citing Maumee v. Geiger, 45 Ohio St.2d 238, 244, 74 O.O.2d 380, 344 N.E.2d 133 (1976) (stating that "receiving stolen property is technically not a lesser included offense of theft"); State v. Botta, 27 Ohio St.2d 196, 204, 271 N.E.2d 776 (1971). Because the Ohio Supreme Court stated in Yarbrough and Geiger that "receiving stolen property is technically not a lesser included offense of theft," we must follow this rule unless and until the Ohio Supreme Court overrules it.
We agree; the case law is clear that unauthorized use of a motor vehicle is not the lesser included offense of receiving stolen property. See State v. Peek (1996), 110 Ohio App.3d 165, 168. {ΒΆ 7} Accordingly, Thomas's sole assignment of error is sustained.
The thesis presented by Reindl's counsel in this appeal, one other than his trial counsel, is correct. It is posed in these words, citing as authorities State v. Peek (1996), 110 Ohio App.3d 165, 673 N.E.2d 938, and State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294: The elements of Theft as charged in this case were to "knowingly obtain a 10" icecream (sic) cake, valued at $16.
Because the jury acquitted Hartman of felonious assault, the only charge that she could have been found guilty of on the evidence presented, double jeopardy bars her from being reprosecuted. State v. Peek (1996), 110 Ohio App.3d 165, 673 N.E.2d 938. Accordingly, the judgment of the trial court is reversed, and Hartman is discharged from further prosecution under the indictment.
However, this analysis proceeded no further; thus, the cases have failed to consider whether it is an offense of an "inferior degree" as defined in Deem and its companion case, State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286. See, e.g., State v. Wong (1994), 95 Ohio App.3d 39, 641 N.E.2d 1137; State v. Peek (1996), 110 Ohio App.3d 165, 673 N.E.2d 938. "[A]n offense is an `inferior degree' of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements which will generally be presented in the defendant's case."