2023 Ohio 2817
Ohio Ct. App.2023Background
- December 20, 2020: ODNR Officer Kevin Behr set a decoy deer on private property as part of a sting to catch illegal deer hunters. Liming arrived, carried a Remington 20‑gauge shotgun and a thermal optic scope, and fired a shot that struck Officer Behr in the back.
- The slug hit from roughly 51 feet; Behr sustained catastrophic internal injuries requiring multiple surgeries and prolonged ICU care.
- Liming was under a federal firearms disability (prior misdemeanor) at the time. After the shooting he fled, cursed at the wounded officer, discarded his shotgun and thermal scope in the woods, and later gave inconsistent statements to officers.
- A jury convicted Liming of fourth‑degree felony assault on a peace officer (R.C. 2903.13(B) with (C)(6)), with a three‑year firearm specification, and third‑degree felony tampering with evidence (R.C. 2921.12(A)(1)).
- Posttrial motions (including a Crim.R. 33 new‑trial claim based on closing arguments and challenges to jury instructions) were denied; Liming was sentenced to an aggregate mandatory term of 4½ years. He appealed; this court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Liming) | Held |
|---|---|---|---|
| Whether the trial court erred by instructing the jury on "flight" and by refusing Liming's proposed limiting instruction under Evid.R. 105 | Flight evidence may be considered for consciousness of guilt; the flight instruction given was proper. | Flight was motivated by Liming's federal firearms disability, not guilt of the charged offenses; the court should have given a limiting instruction excluding disability evidence for recklessness. | No error: flight instruction allowed jury to decide motivation; any failure to give Liming's limiting instruction was harmless given overwhelming evidence. |
| Whether the trial court should have instructed on negligent assault as a lesser included offense of the assault charge | N/A (State opposed giving negligent‑assault instruction) | Negligent assault (R.C. 2903.14) is a lesser included offense and should have been given. | Not a lesser included offense: negligent assault requires use of deadly weapon/dangerous ordnance not encompassed by reckless assault; no instruction required. |
| Whether the State’s rebuttal closing (explaining the full statutory definition of recklessness) warranted a new trial | Rebuttal simply corrected and completed the definition of recklessness after defense emphasis on part of its definition; it did not constitute reversible error. | Prosecutor's statements presented a legally incorrect theory of recklessness and prejudiced the jury; new trial warranted. | No abuse of discretion: prosecutor’s comments filled out the statutory definition and responded to defense; jury instructions limited attorney arguments; no prejudice shown. |
| Whether convictions for reckless assault and tampering with evidence were supported by sufficient evidence | Evidence showed Liming fired indiscriminately using thermal optics without visually identifying the target, aimed generally toward the road where others were present, inflicted serious physical harm on a peace officer, fled, and discarded the gun—supporting recklessness and tampering. | At most negligent conduct; the gun and scope were discarded in plain view (no purposeful concealment), so tampering not proven. | Held: sufficiency satisfied for both convictions—evidence supported reckless causation of serious harm and purposeful concealment/removal sufficient for tampering. |
Key Cases Cited
- State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (discusses elements analysis for lesser‑included offenses)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (defines sufficiency standard for criminal convictions)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (sets distinction between sufficiency and manifest‑weight review)
- State v. Clinton, 153 Ohio St.3d 422 (Ohio 2017) (discusses standard for granting judgment of acquittal)
- State v. Evans, 122 Ohio St.3d 381 (Ohio 2009) (clarifies lesser‑included offense analysis)
- State v. Gideon, 165 Ohio St.3d 156 (Ohio 2020) (addresses consequences of insufficient evidence and retrial bar)