Taken together, we have little trouble concluding that the foregoing evidence establishes that a reasonable juror could conclude that a person was “likely to be present” during the burglary.


So where will Mr. Miller be “Likely to be present” until 2044?


State v. Miller

2022 – Ohio – 771

Tenth District Appellate Court

Franklin County, Ohio

March 15, 2022

On Tuesday May 1, 2018, between 7:30 a.m. and 8:30 a.m., a burglary occurred at a home on Lindstrom Drive in Franklin County. The homeowners, P.S. and A.S., both work— P.S. generally left the house around 6:15 a.m. and A.S. generally left around 7:30. At 8:30 a.m. that morning, a neighbor alerted P.S. that the home’s garage door was open. P.S. went home to investigate and found that the home had been ransacked and several items were missing.

At some point on Monday May 7, 2018, a burglary occurred at a home on Warm Springs Drive in Franklin County. The homeowner T.M. was at work during the day—she had left early that morning and returned at approximately 3:30 p.m. to discover that her home had been ransacked and many items had been taken, including a new television. T.M. testified that she is employed but her work schedule is not consistent and that she may be home on any given day of the week.

On the evening of Tuesday May 8, 2018, the Columbus Police Department was working in the area of Clarendon and Sullivant Avenue. A uniformed officer initiated a traffic stop of a vehicle after hearing a report that an undercover officer witnessed the vehicle engage in a suspected narcotics transaction and then failed to stop at a stop sign. Two additional uniformed officers arrived at the scene, and witnessed the driver turn and reach behind the driver’s seat. Upon being approached by one of the officers the driver, later identified as Mr. Glenn Miller, admitted that he did not have a driver’s license. Mr. Miller exited the car and that officer patted him down and felt a gun holster, which he confirmed to be empty. While Mr. Miller was being patted down, another officer looked behind the driver’s seat where Mr. Miller had reached and saw a pistol, which the officer seized and then confirmed was loaded. Upon a closer inspection of the driver’s side door, another officer found several baggies containing a white powder that they suspected to be cocaine. Mr. Miller’s car was impounded and searched. An inventory of the trunk revealed numerous items, several of which were subsequently identified as items that were stolen during the May 1 and May 7, 2018 burglaries.  Mr. Miller did not challenge the May 8, 2018 stop or search of his automobile that ultimately led to the discovery of the stolen items.

Mr. Miller completed a drug transaction near the intersection of Claredon Avenue and Sullivant Avenue on the Hilltop area of Columbus, Ohio.  This led to one of many arrests of Mr. Miller.

On Saturday June 16, 2018, a citizen approached two officers in a marked cruiser and complained that the driver of a specific vehicle had thrown a bottle through the windshield of his truck. The officers identified that vehicle stopped at a red light and attempted to initiate a traffic stop, but the vehicle veered around stopped cars and began fleeing from the officers. This led to a high-speed chase—the officers then lost sight of the suspect vehicle and radioed in a description of the car. Two other officers heard that description and identified the vehicle exiting the freeway at the Town Street exit of Route 315. Upon noticing the police cruiser, the suspect vehicle again fled at a high speed, hitting a parked car in the process. The driver abruptly exited the vehicle following the accident, jumped over a fence, and fled on foot. He was not apprehended at that time, but officers discovered a loaded gun on the opposite side of the fence where he had fled. A search of the abandoned vehicle located a traffic ticket in the car issued to “Glenn Miller,” and the officers identified Mr. Miller as the suspect they had been chasing from a photo database, and they also identified Mr. Miller as that same suspect in court. This was outstanding police work by the Columbus Police officers!

Mr. Miller was charged with ten separate crimes, tried, convicted, and sentenced to fourteen years in prison.  The sentence did include one gun specification.  Mr. Miller appealed several of the convictions.  This article will focus on his appeal of the “Likely to be present” element of his two burglaries.


In his appeal, Mr. Miller conceded that he committed the burglaries, but rather focused his efforts as challenging the “Likely to be present” element.

The Burglary statute in § O.R.C. 2911.12(A)(2) states in pertinent part “[N]o person, by force, stealth, or deception, shall …[t]respass in an occupied structure … that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense.” Mr. Miller contends that the testimony of the victims of the May 1 and May 7, 2018 burglaries establishes that they were not present at the time of the offenses and cannot establish that they were likely to be present at the time of the offenses.

Because each alleged burglary necessarily turns on its own unique facts, there is some difficulty enunciating a useful rule as to when a person is “likely” to be present in an occupied structure for purposes of the statute. See generally Ohio Criminal Law Vol. III Section 104.3, Presence or likely presence of another person (2009 main volume at 418 and October 2020 pocket part at 62). In State v. Kilby, 50 Ohio St.2d 21 (1977), the Supreme Court of Ohio held that “[W]here the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evidence” to show likelihood of presence. Id. at paragraph one of the syllabus.

The long-standing rule used by this court regarding whether a person is “likely to be present” is set forth in State v. Green, 18 Ohio App.3d 69 (10th Dist.1984): “[T]he term ‘likely’ connotes something more than a mere possibility, it also connotes something less than a probability or reasonable certainty. A person is likely to be present when a consideration of all the circumstances would seem to justify a logical expectation that a person could be present.” Id. at 72.

The issue is not whether the burglar subjectively believed that persons were likely to be there, but whether it was objectively likely.”. State v. Brown, 1st Dist. No. C- 980907, 2000 Ohio App LEXIS 1820 (Apr. 28,2000)


Taken together, we have little trouble concluding that the foregoing evidence establishes that a reasonable juror could conclude that a person was “likely to be present” during the burglary.

Consequently, Mr. Miller is likely to be present at Mansfield Correctional through 2044.


Information for this article was obtained from State v. Miller, 2022 – Ohio – 771.

This case was issued by the Tenth District Appellate Court which is only binding in Franklin County, Ohio.

Lessons Learned:

  1. Law enforcement officers must be aware of what the Ohio Revised Code states as contrasted to case law (State v. Kilby, 50 Ohio St.2d 21 (1977)) when charging a suspect with Burglary. If a home occupant is on vacation or has vacated the structure in some significant way, then the ‘Likely to be present’ element of § O.R.C. 2911.12(A)(2) may not be met.  In the two cases analyzed in Mr. Miller’s case both victims were likely to be present, given their respective work schedules.
  2. This court and all courts will evaluate the “Likely to be present” element based on an objective analysis. Would a reasonable person have believed that the home occupant to be present when the felon crossed the threshold to burglarize the home?  The Tenth District Appellate Court stated that each case will turn on its’ own unique facts.  The unique facts here are that Mr. Miller burglarized homes where the home occupant’s were likely to be present.

Does your agency train on Burglary?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.