[Cite as State v. Liming, 2023-Ohio-2817.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLINTON COUNTY

STATE OF OHIO,

Appellee,

 - vs -

BRIAN R. LIMING,

Appellant.

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CASE NO. CA2022-01-001

O P I N I O N

8/14/2023

CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS

Case No. CRI 21-500-047

Andrew T. McCoy, Clinton County Prosecuting Attorney, and Danielle E. Sollars and David 

E.S. Milender, Assistant Prosecuting Attorneys, for appellee.

Joseph Hada, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Brian R. Liming, appeals his conviction in the Clinton County Court 

of Common Pleas after a jury found him guilty of one count of fourth-degree felony assault 

on a peace officer in violation of R.C. 2903.13(B) and (C)(6), with an accompanying threeyear firearm specification, and one count of third-degree felony tampering with evidence in 
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violation of R.C. 2921.12(A)(1). For the reasons outlined below, we affirm Liming's 

conviction.

Facts and Procedural History

{¶ 2} On February 10, 2021, the Clinton County Grand Jury returned an indictment 

charging Liming with the two above-named felony offenses and accompanying three-year 

firearm specification.1 The charges arose on December 20, 2020, after Liming shot and 

severely injured Officer Kevin Behr of the Ohio Department of Natural Resources ("ODNR"). 

This occurred shortly after Officer Behr had set up a decoy deer on the private property 

owned by Tim and Deb Trayer located in Clinton County, Ohio. Officer Behr set up this

decoy deer on the Trayers' property as part of a sting operation to catch unlicensed deer 

hunters illegally hunting on private properties near the intersection of Macedonia and 

Martinsville Roads located in Clinton County. There is no dispute that Officer Behr had the 

Trayers' consent to enter onto their property, as well as set up a decoy deer on their 

property, as part of this sting operation. 

{¶ 3} On November 8, 9, and 10, 2021, the matter proceeded to a three-day jury 

trial. During the trial, the jury heard testimony from eight witnesses offered by the state. 

This includes testimony from the victim in this case, Officer Behr. The following is a 

summary of the testimony and evidence elicited from those eight state witnesses.2 This 

summary also includes reference to the parties' joint stipulation of facts. This includes the 

parties' joint stipulation that, at the time of the shooting, Liming was under a federal firearm 

1. Liming was also charged with two other third-degree misdemeanor offenses, neither of which are relevant 

to this appeal. Those offenses were hunting deer without a permit in violation of R.C. 1533.11(A)(1) and 

hunting wild birds and/or wild quadrupeds without a license in violation of R.C. 1533.10(A)(1).

2. There were two witnesses who testified in Liming's defense. This included Liming himself taking the stand. 

However, given the five assignments of error presented for review, none require an in-depth discussion of the 

defenses raised by Liming outside of what is mentioned in those assignments of error. Therefore, in our feeble 

attempt at brevity, we will forgo summarizing the testimony and evidence Liming submitted as part of his

defense case-in-chief.
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disability that prohibited him from possessing a firearm due to a prior misdemeanor 

conviction.

Summary of Testimony and Evidence Offered by the State's Eight Witnesses

{¶ 4} On the afternoon of December 20, 2020, at approximately 3:30 p.m., Thomas 

Davis was driving his truck north on Martinsville Road with Liming and another man, Brian 

Achtermann, as his passengers. Thomas then turned left off Martinsville Road and began 

traveling west on Macedonia Road. Shortly after Thomas turned onto Macedonia Road, 

Achterman said, "Deer." What Achterman saw, however, was not a deer. Rather, as noted 

above, it was a decoy deer that had been set up by Officer Behr approximately 10 minutes

earlier. Officer Behr had set up this decoy deer as part of a sting operation to catch 

unlicensed deer hunters illegally hunting on private properties near the intersection of 

Macedonia and Martinsville Roads located in Clinton County.3 Such was the property 

where the shooting occurred in this case. 

{¶ 5} Upon seeing the supposed deer, Liming and Achterman told Davis to keep 

driving until there was a turnaround. Davis, doing as he was told, kept driving west on 

Macedonia Road for about a half-mile. Davis then turned his truck around and made his 

way back to where the decoy deer was located. Davis stopped his truck near the edge of 

the woods where Achterman had spotted the alleged deer. Once Davis stopped his truck, 

Liming exited, carrying his shotgun, specifically, his Remington 1100 LT-20 semi-automatic 

20-gauge shotgun loaded with Federal Ammunition 20-gauge sabot slugs. Liming also 

brought with him his Bering Optics Hogster VOx thermal optic scope, a device the record 

indicates has a purchase price of approximately $2,500. 

3. The record indicates this decoy deer is incredibly life-like as it is a taxidermized white-tailed, antlered deer 

in a bedded position. This includes the decoy deer having a remote controlled head and tail that can 

accurately simulate a real deer's movements. Those functions did not work on this decoy deer, however, due 

to having previously been shot in a different sting operation.
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{¶ 6} Davis, the driver of the truck, testified that he thought Liming taking his thermal 

optics scope with him to shoot a deer was unusual because he had "never seen anyone 

carry one for deer hunting." Davis also testified that he would not personally use a thermal 

optic scope for hunting because "you can't really tell what you're shooting at or, you know, 

what it is." Nevertheless, after Liming got out of Davis' truck, Liming made his way down to 

a patch of trees where the decoy deer was located. Unfortunately, Officer Behr was at that 

time crouched down behind the base of three trees situated approximately 81 feet from 

where the decoy deer had been positioned. This was unfortunate because, as Officer Behr 

testified, it was never his intention to be that close to the decoy deer when anybody saw it. 

Rather, as Officer Behr testified:

My intentions were to pick my equipment up and run across the 

road because right across the road, there's a big weedy like area 

in the field. And my intentions were to just keep working my way 

out to that weedy area to look back across the road and be able 

to observe the roadway and the decoy, and then if I couldn't find 

suitable, a suitable area there, I was going to go on across that 

open field and try to get right along the base of—there's like a 

hill there or a rise, but my intentions were as soon as I got to my 

equipment, I was going to pick it up and run across the road.

{¶ 7} When Officer Behr got back to his equipment, however, he "heard noise," he 

"heard gravel popping," and "knew there was a vehicle and maybe somebody around [him]." 

Officer Behr then testified:

So as soon as I heard that, I got down on my hands and knees 

and picked up my radio, my portable radio, and I turned it on, 

and I told the officers there's somebody here, you know, let's be 

ready, there's somebody here.

Officer Behr then got down on the ground and tried to make himself into a ball, "as small as 

[he] could * * *." Officer Behr, who there is no dispute was at that time clad in camouflage, 

testified that he then "felt like a sledge hammer hitting [him] in the lower buttocks as hard 

as somebody could hit with a sledge hammer," followed by what "felt like molten hot steel 
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being poured through [his] body from [his] lower buttocks up to [his] diaphragm up here." 

Officer Behr testified that he "felt that first, and then [he] heard the shot." 

{¶ 8} There is no dispute that it was Liming who shot Officer Behr in the backside

that afternoon. There is also generally no dispute that Liming shot Officer Behr from 

approximately 51 feet. There is further no dispute that Liming's shot, according to a 

detective with the Clinton County Sheriff's Office, Detective Robert Gates, "wasn't even 

close" and "not even anywhere [near]" to where the decoy deer was located. Liming's shot 

was instead described as being "extremely dangerous" given that Liming was aiming in the 

general direction of Macedonia Road where Davis was sitting in his truck. Asked to describe 

what he believed had happened just prior to Liming shooting Officer Behr, Lieutenant 

Eastes of the Clinton County Sheriff's Office testified, without objection, the following:

What I think happened is he took, he knew that there was a deer 

in there, and he went into the woods with his gun and his thermal 

optic, and he was scanning for a heat signature, and when he 

found one, he aimed at the heat signature and fired, which was 

obviously a decoy won't put off a heat signature because it's not 

alive, and a human, which was in the woods would put off a heat 

signature.

{¶ 9} Lieutenant Eastes was also asked if he had any concerns about how Liming 

claimed to have merely been shooting at the base of a tree when he discharged his shotgun. 

To this, Lieutenant Eastes testified, "Great concerns. Because he did not know where that 

bullet was traveling. He didn't know what was beyond that, beyond whichever tree he claims 

he was firing at." Lieutenant Eastes further testified that Liming "firing indiscriminately into 

a wooded area" was "completely unsafe," and "reckless" when considering "that he just 

fired it, you know, without aiming or knowing what was behind his shot into an area that he 

was unfamiliar with." Lieutenant Eastes testified that this was due, at least in part, to there 

being "a large amount of honeysuckle and saplings and things in that area that were 

obstructing [his] view." Lieutenant Eastes additionally testified that in his 30-years' 
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experience as a hunter he did not know anybody that hunted with a thermal optic scope 

and that he would "[a]bsolutely not" go hunting with a thermal optic scope himself, or ever 

even take a shot without "visually acquiring" the target that he intended to shoot. Lieutenant 

Eastes testified that this was "because it's giving off a heat signature, you don't know what 

the source is," and because "[y]ou have to see the animal with your own eyes to know what 

it's what you're shooting at is actually a deer or a squirrel or a coyote."

{¶ 10} Davis testified that shortly after Liming had exited from his truck he heard a 

shotgun blast followed by a man screaming. Upon coming out of his shock, Davis saw 

flashing lights and heard a siren coming from an approaching officer in an ODNR vehicle. 

Davis testified it was at that time when he "kind of stuck [his] arm out the window and was 

pointing at the woods * * *." Davis testified that the approaching ODNR officer then "slowed 

down to look at [him]," but that he "just kept pointing at the woods." Davis testified the 

ODNR officer then "heard the screaming as well." Upon hearing this, the ODNR officer told 

Davis not to leave because he was a witness, so "he said stay put." Thereafter, when asked 

how he felt during this time, Davis testified:

Very uncomfortable, nervous, scared. But like I said, when 

ODNR came flying around the corner, I mean it felt like it was a 

second or two after everything happened. I felt relieved at that 

point because, you know, there was somebody there that could 

go in the woods and take, you know, he—the, you know, the 

emergency vehicle was there pretty much at that point.

{¶ 11} Officer Jason Keller and Officer Roberts of the Ohio Department of Natural 

Resources were the first two officers to arrive at the scene where Officer Behr had been 

shot. Officer Keller testified that upon his arrival Officer Behr was in "a lot of pain" and that 

he kept saying, "he shot me, he shot me, I've been shot, repeated that over and over." 

Officer Keller testified that he then noticed "some blood in the butt region," as well as "fecal 

matter, intestines, the smell was not pleasant, and we could see an entrance hole." Seeing 
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the severity of Officer Behr's injuries, Officer Keller took the gauze he kept in his vest and 

placed that into the entrance wound to stop the bleeding and, as Officer Keller testified, "to 

make sure nothing else comes out that shouldn't come out." Officer Keller testified that 

Officer Behr was at that time "complaining about pain in his groin region, the swelling," and 

that Officer Behr kept saying, "don't let me die" and "tell my family I love them." Officer 

Keller then radioed for "air care, and the EMS to get there as quick as they could." 

Additional help soon arrived and, after some difficulty loading Officer Behr onto the standard 

backboard, Officer Behr was carried out onto a stretcher and then into an awaiting 

ambulance.

{¶ 12} Liming did not stick around after shooting Officer Behr. Liming also did not 

call 9-1-1 to get help for Officer Behr. This holds true despite Officer Behr yelling out, "you 

shot me, stop shooting, call 9-1-1, help me, please." Officer Behr testified that Liming 

instead yelled back "something in the nature of fuck you, you stupid motherfucker, or fuck 

you, you dumb motherfucker, something along that nature." Liming then fled the scene by 

making his way through the woods and over towards a nearby fence, where he was seen 

by Officer Keller standing just inside the tree line. Liming then threw down his shotgun at 

the bottom of a honeysuckle bush, tossed off his thermal optics scope, and ran out of the 

woods towards Davis' truck. Once there, Liming told Davis that "there was another person" 

in the woods and that "we needed to go." Davis responded and told Liming, "the ODNR 

officer told me to stay put, I was a witness." Davis then took his keys out of his truck and 

went to stand by his truck's tailgate. Davis testified he did this because:

I wasn't going anywhere, and I wanted to make sure that, I 

mean, everyone kind of knew that if my keys weren't in my truck 

and I was out of my truck. I mean, I wasn't trying to go 

anywhere, and I wasn't going to go anywhere.

{¶ 13} When his attempts to flee in Davis' truck proved futile, Liming then took off 
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running through a nearby field and back into the woods. Some minutes later, Liming 

encountered Sergeant Jeremy Grillot with the Ohio State Highway Patrol approximately 

three-fourths of a mile away from where Liming had shot Officer Behr. Upon contacting

Sergeant Grillot, which the record indicates occurred on Gibson Road nearby to State Route 

350, Liming told Sergeant Grillot that "he knew that somebody had been shot" and that he 

was just "out trying to chase [the] person down" who had done the shooting. More 

specifically, Liming told Sergeant Grillot that he "he had information to believe that 

somebody had been shot, he didn't witness it, although he believed it to be an accident and 

that person had a blue hoodie and he was trying to find them."

{¶ 14} Liming also told Sergeant Grillot, as well as several other ODNR officers who 

had since arrived to provide backup, that he did not have a gun when asked where the 

firearm he used to shoot Officer Behr was located. Sergeant Grillot testified that Liming 

then continued "with his story that somebody was out there that had shot, shot somebody, 

that, you know, we needed to be looking for them or something to that effect." Liming's 

story eventually changed after he was handcuffed and placed in the back of Sergeant 

Grillot's cruiser. As Sergeant Grillot testified, "[a]t that point, he said it was an accident, that 

it was him that shot [Officer Behr]. He indicated what direction his gun was, said it was me, 

I'm not trying to cause any trouble." 

{¶ 15} While this was happening, the investigation into the shooting of Officer Behr 

continued. This included another one of the officers on scene, Deputy Dewey Allen, locating 

the shotgun and thermal optics scope that Liming had thrown down into the woods after 

shooting Officer Behr. According to Deputy Allen, he was able to see Liming's shotgun and 

thermal optics scope given that they were "easily visible" from the road approximately 30 

feet away. Officer Keller testified that he had also deployed his K-9 partner, Scout, to search 

for evidence. This too resulted in Scout locating Liming's shotgun and thermal optic scope. 
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This was in addition to Scout locating a spent "yellow 20-gauge federal sided slug" 

consistent with the slug Officer Keller had removed from Liming's shotgun. 

{¶ 16} Similar to Lieutenant Eastes, Officer Keller further testified that he had never 

encountered someone who had hunted deer with a thermal optic scope like the one Liming 

had with him that day. Officer Keller was then asked whether, as a police officer, he would 

be concerned if he knew someone was using a thermal optic scope to hunt. To this, Officer 

Keller testified, "Yes, sir." Specifically, Officer Keller testified that a hunter using a thermal 

optic scope would cause him concern because

somebody could approach from behind us or from a long 

distance off, we not being able to see them, but they could 

basically be looking through brush or across the field and see 

that heat signature and not properly identity their target or what's 

beyond their target and take a shot.

Officer Keller testified that this is in addition to the fact that "a lot of the deer that we 

recovered from this general region are close to the residences out in flat farm fields," so 

"[w]ho knows where that bullet could have gone exactly."

{¶ 17} Shortly after the shooting took place, another officer with the Ohio Department 

of Natural Resources, Officer Matthew Hunt, received a call from Liming on his cellphone. 

(Officer Hunt had previously programmed Liming's phone number into his cellphone after 

Liming had called him several times with questions about hunting or with information about 

a dead deer on the side of the road.) Describing this phone call, Officer Hunt testified:

I answered, I said, [Liming], because I knew it was him. He 

sounded like he was a little out of breath, and the first thing he 

said was, I was hunting in Clinton County, and he said 

something to the effect that there was a shot or somebody shot, 

and everybody started running, so I ran, and now I got a trooper 

pointing a gun at me. And I told him right there, I said, you need 

to do exactly what that trooper is telling you to do.

Officer Hunt testified that he was not sure if Liming had then dropped his phone or what, 

but he "couldn't directly hear what he was saying or what anyone else was saying, and that 
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went on for about four minutes or so until the phone disconnected."

{¶ 18} Officer Behr was ultimately flown via life flight helicopter to a nearby hospital 

for treatment. Officer Behr testified that once there he had "actually coded out," that his 

"heart quit beating in one of the surgeries and they had to revive [him]." Officer Behr testified 

that this included hospital staff doing "resuscitation, CPR, and AED shock." Describing his 

injuries, which also included PTSD, Officer Behr testified:

[M]y pelvis was shattered. My rectum and colon and most of my 

intestines were blown out and damaged. My spleen was 

damaged. * * * My liver was damaged. My kidneys were 

damaged from the slug itself, and then also from lack of blood 

from the times that I had low blood or no pulse. I was given or 

administered 22 units of blood total. My stomach was damaged.

My brain [was also damaged] from being shot because the slug 

didn't exit, it's like shooting a water bottle, and if you've—we've 

all seen what a water bottle gets shot, the cap always blows off. 

Well, the fluid shock and the energy from the slug entering my 

body just traveled up so it shook my brain pretty good. And 

then, the—all the time I did with low blood to the brain or no 

blood to the brain caused issues.

I've got nerve damage on my right side of my leg and my arm 

from where the slug went through and damaged the nerves. 

Luckily it missed the main spinal cord by millimeters, but it did 

do damage to the nerves that are on my right side. I'm trying to 

think what else. There's a lot.

{¶ 19} The injuries Officer Behr sustained required him to stay in the intensive care

unit for 28 days, with 12 of those days being hooked up to a ventilator. Officer Behr testified 

that this also required him to be on "continuous dialysis because [his] kidneys quit working 

and were damaged from the shot for 11 days, then partial dialysis after that." Officer Behr 

further testified that, at the time of trial, he had undergone a total of 14 surgeries, with more 

surgeries certain to come. This was in addition to Officer Behr testifying that:

It's been a struggle for me every day. Every day is an absolute 

struggle. It's the amount of pain, the frustration from not being 

able to do the things that I have to do, work and the things that 

I used to do, it's—to say that it's excruciating and challenging is 
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an understatement.

* * * 

The amount of just devastation that happened to me, I mean, 

I'm permanently mutilated, but what's happened to my family is 

just excruciating. That's—that's what I struggle with the most is 

what happened to my family, you know, as a result of this 

situation.

Defense Counsel's Closing Argument and the State's Rebuttal

{¶ 20} After both parties rested their respective cases, the parties then presented 

their closing arguments to the jury. This included defense counsel noting that the assistant 

prosecuting attorney "didn't even mention" what it means for a person to act recklessly 

within his initial closing argument. Liming's defense counsel then stated:

Why didn't [the assistant prosecutor] bring that up [in his closing 

argument]? Is [the prosecutor] going to bring that up [in his 

rebuttal closing argument]? Is he going to talk with you about 

the word reckless as it means in a legal context? Holy moly, I 

hope so, that is what this case boils down to, the likelihood that 

someone else is there. That is what the term recklessness is all 

about in this context. And we know, we know as we talk into 

this discussion, we know that there is no one around because 

[Officer Behr] set the deer up right there.

{¶ 21} Projecting it onto a screen, Liming's defense counsel then read a portion of 

the trial court's final jury instructions on recklessness to the jury. Specifically, Liming's 

defense counsel stated:

Recklessness. This is in your instruction. * * * A person acts 

recklessly when with heedless indifference to the 

consequences, the person disregards a substantial and 

unjustifiable risk that the person's conduct, I put that in a box, 

disregards a substantial and unjustifiable risk that the person's 

conduct, which I have in a box, is likely to cause a certain result, 

which I also have in a box.

{¶ 22} This is in addition to Liming's defense counsel later telling the jury during his 

closing argument that:

Recklessness means it's likely that there's someone else 
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around because there is a substantial risk that firing your 

weapon is likely to hit a human being, then it has to be likely that 

there's another human being around. But there is not.

{¶ 23} As Liming's defense counsel apparently had hoped he would, the prosecutor 

did bring up the definition of recklessness in his rebuttal closing argument. This included 

the prosecutor beginning his rebuttal, without any objection from Liming, as follows:

Before I dive into my closing statement, there's one thing that I 

want to point out in regards to your jury instructions, and I'm 

going to talk about it later. And I wanted to make sure that you 

knew that I had every intention of discussing recklessness 

despite Defense counsel's moral indignation with the fact that it 

hadn't been addressed yet.

I feel indignant because, and frankly, I was hoping he was going 

to leave it up. If you turn to your page [on] recklessness, you're 

going to see that Defense counsel spent an hour and a half 

talking about recklessness without ever pointing or directing 

your attention to the second prong, that being a person who acts 

recklessly with heedless indifference to the consequences when 

the person disregards a substantial and unjustifiable risk that 

the person's conduct is likely to cause a certain result, and he 

stopped.

He printed that. He put it on his monitor, and he kept referring 

to it, and pointing to it, and directing your attention to it and 

hoping you wouldn't notice the or. Or likely to be of a certain 

nature.

You want to know why he spent an hour and a half without 

addressing or is likely to be of a certain nature because, as I'm 

going to explain to you, it's that second prong that makes his 

client guilty every day of the week, and twice on Sundays. But 

we'll come back to that.

{¶ 24} Following these comments, the prosecutor then began his otherwise preplanned remarks in rebuttal. This included the prosecutor, once again, providing the jury 

with the full definition of what it means for a person to act recklessly.

The Trial Court's Final Jury Instructions and the Jury's Guilty Verdicts

{¶ 25} Once the parties' closing arguments concluded, the trial court provided its final 

instructions to the jury. This included the trial court instructing the jury on flight as 
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consciousness of guilt as follows:

Testimony has been admitted indicating that the defendant left 

the scene of the alleged crime and attempted to conceal a 

crime. You are instructed that such conduct if true alone does 

not raise a presumption of guilt, but it may tend to indicate the 

defendant's awareness of guilt. If you find that the facts do not 

support that the defendant left the scene or if you find that some 

other motive prompted the defendant's conduct, or if you are 

unable to decide what the defendant's motivation was, then you 

should not consider this evidence for any purpose.

However, if you find that the facts support that the defendant 

engaged in such conduct and if you decide that the defendant 

was motivated by an awareness of guilt, you may, but are not 

required to, consider that evidence in deciding whether the 

defendant is guilty of the crimes charged. You alone will 

determine what weight, if any, to give to this evidence.

This also included the trial court instructing the jury that the evidence for which it could 

consider in determining Liming's guilt did not include "anything spoken by the attorneys 

except the stipulation of facts admitted into evidence."

{¶ 26} After the trial court finished with its final jury instructions, the jury was excused 

from the courtroom to begin its deliberations. Approximately three hours and 15 minutes 

later, the jury returned to the courtroom with guilty verdicts finding Liming guilty of both 

fourth-degree felony assault on a peace officer, with the accompanying three-year firearm 

specification, and third-degree felony tampering with evidence. The trial court then ordered 

a presentence investigative report be completed and scheduled the matter for sentencing.

Liming's Post-Verdict Motions, Sentencing, and Appeal

{¶ 27} On November 24, 2021, Liming filed a joint motion for a new trial and motion 

for acquittal. Liming filed this joint motion pursuant to Crim.R. 33(A)(5) and 29(A). The 

state filed a memorandum in opposition to Liming's joint motion on December 10, 2021. 

Shortly before sentencing took place, on December 15, 2021, the trial court issued its 

decision summarily denying Liming's joint motion for a new trial and motion for acquittal. 
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The trial court then proceeded to sentencing where it sentenced Liming to serve a 

mandatory, aggregate sentence of four years and six months in prison, less eight days of 

jail-time credit. In so doing, the trial court noted within its judgment entry of sentence:

The victim of the assault offense, a peace officer, suffered 

serious physical harm. Defendant admittedly was under a 

disability prohibiting defendant from possessing a firearm yet 

chose to disregard this disability, commit a criminal trespass, 

recklessly discharge the firearm causing serious physical harm 

to the victim who was in the act of enforcing the wildlife laws of 

the state of Ohio. Defendant then fled the scene of the crime, 

offered no assistance to the victim, and misled a law 

enforcement officer on the scene regarding the criminal act he 

had just committed.

The trial court also ordered Liming to pay court costs and notified Liming that he would be 

subject to an optional postrelease control term of up to two years upon his release from 

prison.

{¶ 28} On January 14, 2021, Liming filed a timely notice of appeal from the trial 

court's judgment entry of sentence. Following several delays, which included this court 

granting Liming's motion to reopen his appeal pursuant to App.R. 26(B)(5) upon finding 

Liming's original appellate counsel ineffective for failing to file an appellate brief, oral 

argument was held before this court on July 10, 2023. Liming's appeal now properly before 

this court for decision, Liming has raised five assignments of error for this court's review. 

For ease of discussion, we will address Liming's five assignments of error out of order and 

Liming's first and third assignments of error together. We will do this by first addressing 

Liming's second assignment of error.

Assignment of Error No. 2:

{¶ 29} THE TRIAL COURT ERRED BY INSTRUCTING THE JURY AS TO THE 

"FLIGHT" INSTRUCTION AND BY FAILING TO INSTRUCT THE JURY AS TO THE 

DEFENDANT'S PROPOSED LIMITING INSTRUCTION AND AS TO THE LESSER 
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INCLUDED OFFENSE OF NEGLIGENT [ASSAULT].

{¶ 30} In his second assignment of error, Liming argues the trial court made three 

errors in its instructions to the jury. After setting forth the appropriate standard of review, 

we will separately address each of those three alleged errors.

Jury Instructions Standard of Review

{¶ 31} "Jury instructions are matters which are left to the sound discretion of the trial 

court." State v. Carreiro, 12th Dist. Butler No. CA2011-12-236, 2013-Ohio-1103, ¶ 13. An 

abuse of discretion connotes more than an error of law or judgment; it implies that the trial 

court's decision was unreasonable, arbitrary, or unconscionable. State v. Boles, 12th Dist. 

Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14. However, although left to the trial 

court's sound discretion, the trial court must nevertheless "fully and completely give jury 

instructions which are relevant and necessary for the jury to weigh the evidence and 

discharge its duty as the fact-finder." State v. Davis, 12th Dist. Madison No. CA2015-05-

015, 2016-Ohio-1166, ¶ 27. But, even then, "this court may not reverse a conviction based 

upon faulty jury instructions unless it is clear that the jury instructions constituted prejudicial 

error." State v. Grimm, 12th Dist. Clermont No. CA2018-10-071, 2019-Ohio-2961, ¶ 26. 

"Therefore, when reviewing a trial court's jury instructions, this court must affirm a conviction 

if the trial court's jury instructions, when taken in their entirety, 'fairly and correctly state the 

law applicable to the evidence presented at trial.'" State v. Mott, 12th Dist. Warren No.

CA2022-10-067, 2023-Ohio-2268, ¶ 18, quoting Davis at ¶ 28.

Liming's First Argument and Analysis

{¶ 32} Liming initially argues the trial court erred by instructing the jury on flight as 

evidence of his consciousness of guilt. This is because, according to Liming, the "crime" 

for which he fled from the scene was neither of the two offenses for which he was being 

tried, assault and tampering with evidence. Liming instead argues that he fled from the 
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scene because he was under a federal firearm disability that prohibited him from possessing 

a firearm due to a prior misdemeanor conviction. However, although Liming did testify that 

he had fled the scene of the shooting due to his being under a federal firearm disability as 

opposed to either the assault on a peace officer or tampering with evidence charges, it was 

a question for the jury to determine whether Liming's flight should be considered as 

evidence of his consciousness of guilt for either of those two offenses. See State v. Lawson, 

12th Dist. Butler No. CA99-12-226, 2001 Ohio App. LEXIS 1916, *24-25 (Apr. 30, 2001). 

The instruction provided to the jury specifically stated as much by noting that it was for the 

jury to determine whether Liming had fled from the scene and, if so, whether his flight from 

the scene was motivated by his consciousness of guilt "of the crimes charged." This was 

not an error. See, e.g., State v. Sexton, 12th Dist. Warren No. CA2018-08-100, 2020-Ohio153, ¶ 13 (trial court did not err by instructing the jury on flight as evidence of appellant's 

consciousness of guilt even though 9-1-1 was called for something other than the crime 

charged because "it was a question for the jury to determine whether [appellant's] flight from 

the scene should be considered as evidence of his consciousness of guilt [of the crime 

charged]"). Therefore, Liming's first argument lacks merit. 

Liming's Second Argument and Analysis

{¶ 33} Liming next argues the trial court erred by failing to provide the jury with his 

proposed limiting instruction, "which was a correct statement of the law and was required 

to be given under Evid.R. 105." Specifically, Liming argues it was error for the trial court 

not to instruct the jury that his "federal weapon disability [was] not relevant as to whether 

[he] acted recklessly in firing his weapon and striking Ofc. Behr in this case," and that the 

jury was "not to consider the fact of [his] federal disability as any evidence relative as to the 

mental state of recklessness." "Under Evid.R. 105, a party is entitled to a limiting instruction 

whenever evidence might be misapplied by the jury in reaching its verdict." State v. 
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Hammons, 12th Dist. Warren No. CA2004-01-008, 2005-Ohio-1409, ¶ 30. However, even 

if we were to find the trial court erred by failing to provide the jury with these instructions, 

for the reasons outlined below in our review of Liming's first and third assignments of error, 

any error the trial court may have made was harmless given the extensive, overwhelming 

evidence to support the jury's verdicts finding Liming guilty of both the assault on a peace 

officer and tampering with evidence charges that he faced. "[A]n error is harmless where 

there is no reasonable possibility that it contributed to an accused's conviction, such as 

where there is overwhelming evidence of the accused's guilt or some other indicia that the 

error did not contribute to the conviction." State v. Cox, 12th Dist. Butler No. CA2003-05-

113, 2004-Ohio-4977, ¶ 32. Such is the case here. Therefore, Liming's second argument 

also lacks merit.

Liming's Third Argument and Analysis

{¶ 34} Liming lastly argues the trial court erred by not instructing the jury on negligent 

assault in violation of R.C. 2903.14(A) as a lesser included offense of assault in violation of 

R.C. 2903.13(B), one of the two charges for which he was ultimately tried and convicted. 

But, this presupposes that negligent assault in violation R.C. 2903.14(A) is a lesser included 

offense of assault in violation of R.C. 2903.13(B). See State v. Villafranco, 12th Dist. Clinton 

No. CA2021-09-029, 2022-Ohio-2826, ¶ 12 ("[i]n considering whether to instruct a jury on 

lesser offenses, a trial court must first determine whether an offense is a lesser included 

offense of the crime charged"). It is not. This is because, "negligent assault contains an 

element which assault does not, namely that the offense must be committed by means of a 

deadly weapon or dangerous ordnance." State v. Evans, 153 Ohio App.3d 226, 2003-Ohio3475 (7th Dist.), ¶ 40. Thus, "because one can recklessly cause serious harm without, for 

example, the use of a gun," negligent assault in violation of R.C. 2903.14(A) is not a lesser 

included offense of assault in violation of R.C. 2903.13(B). Id., citing State v. Deem, 40 
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Ohio St.3d 205 (1988), subsequently clarified in State v. Evans, 122 Ohio St.3d 381, 2009-

Ohio-2974; see also State v. Baker, 1st Dist. Hamilton Nos. C-120470 and C-120471, 2013-

Ohio-2507, ¶ 11-13 (similarly holding that negligent assault in violation of R.C. 2903.14[A] 

is not a lesser included offense of assault in violation of R.C. 2903.13[A]). Therefore, 

Liming's third argument likewise lacks merit. Accordingly, finding no merit to any of the 

three arguments raised by Liming herein, Liming's second assignment of error is overruled.

Assignment of Error No. 4:

{¶ 35} THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR A NEW 

TRIAL BASED UPON ERRORS OF LAW THAT OCCURRED IN CLOSING ARGUMENT.

{¶ 36} In his fourth assignment of error, Liming argues the trial court erred by denying 

his motion for a new trial brought pursuant to Crim.R. 33(A)(5), which allows for a new trial 

as a result of an "[e]rror of law occurring at the trial[.]" To support this claim, Liming argues 

the trial court should have granted his motion for a new trial on the assault on a peace 

officer charge because the state provided the jury with "a flawed and legally incorrect theory 

of recklessness" during its rebuttal closing argument. However, upon review of the 

challenged statements made by the state, as well as what Liming's defense counsel argued 

during his own closing argument, we find it clear that the state was doing nothing more than 

providing the jury with a more complete explanation of what it means for a person to act 

recklessly. The state did this in response to Liming shorting the jury regarding what that 

statutorily defined term means during his own closing argument. The state's response was 

not error. Therefore, regardless of whether we review this issue under the typical abuse of 

discretion standard, or whether this issue instead deserves to be reviewed for plain error, 
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Liming's argument lacks merit.4 See State v. Stone, 12th Dist. Warren No. CA2007-11-132, 

2008-Ohio-5671, ¶ 26 ("a motion for a new trial pursuant to Crim.R. 33 will not be disturbed 

on appeal absent an abuse of discretion"). In so holding, we note that the trial court 

expressly instructed the jury as part of its final jury instructions that the evidence it could 

consider in determining Liming's guilt did not include "anything spoken by the attorneys 

except the stipulation of facts admitted into evidence." "A jury is presumed to follow 

instructions given by the trial court." State v. Carpenter, 12th Dist. Butler No. CA2005-11-

494, 2007-Ohio-5790, ¶ 20. Accordingly, finding no merit to Liming's argument raised 

herein, Liming's fourth assignment of error is overruled.

Assignment of Error No. 1:

{¶ 37} THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT THE 

CONVICTION FOR TAMPERING WITH EVIDENCE IN VIOLATION OF RC 2921.12.

Assignment of Error No. 3:

{¶ 38} THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT THE 

RECKLESS ASSAULT CONVICTION IN VIOLATION OF RC 2903.13(B).

{¶ 39} In his first and third assignments of error, Liming argues the jury's verdicts 

finding him guilty of assault on a peace officer and tampering with evidence were not 

supported by sufficient evidence. We will separately address each of Liming's arguments 

after providing the necessary sufficient evidence standard of review.

Sufficient Evidence Standard of Review

{¶ 40} "A claim challenging the sufficiency of the evidence invokes a due process

concern and raises the question whether the evidence is legally sufficient to support the 

4. The state notes that Liming did not object during the state's rebuttal closing argument, thus waiving all but 

plain error. However, as noted above, regardless of whether we review this issue under the typical abuse of 

discretion standard of review, or whether this issue instead deserves to be reviewed for plain error, Liming's 

argument lacks merit.
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jury verdict as a matter of law." State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 

165, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "A challenge to the 

sufficiency of the evidence is reviewed de novo." State v. Bertram, Slip Opinion No. 2023-

Ohio-1456, ¶ 8. Applying that de novo standard, "[t]he relevant inquiry is 'whether, after 

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime proven beyond a reasonable doubt.'" 

State v. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-244, ¶ 39, quoting 

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "This test requires 

a determination as to whether the state has met its burden of production at trial." State v. 

Thompson, 12th Dist. Butler No. CA2022-09-080, 2023-Ohio-559, ¶ 34. "If the state fails 

to present sufficient evidence on every element of an offense, then convicting a defendant 

for that offense violates the defendant's right to due process of law." State v. Messenger, 

Slip Opinion No. 2022-Ohio-4562, ¶ 13. "[A] reversal based on insufficient evidence leads 

to an acquittal that bars a retrial." State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 

27.

Assault on a Peace Officer in Violation of R.C. 2903.13(B) and (C)(6)

{¶ 41} Liming was found guilty of assault on a peace officer in violation of R.C. 

2903.13(B) and (C)(6). Pursuant to those statutes, it is unlawful for a person to "recklessly 

cause serious physical harm" to a peace officer. Liming argues the jury's verdict finding 

him guilty of assault on a peace officer was not supported by sufficient evidence because 

the state failed to prove he acted recklessly in shooting Officer Behr. Liming argues the 

evidence instead shows that he was, at worst, acting negligently when he fired his shotgun 

into the woods that day. However, despite Liming's claims, we find there was overwhelming 

evidence to support the jury's verdict finding him guilty of assaulting Officer Behr in violation 

of R.C. 2903.13(B) and (C)(6). This includes the jury's finding Liming had acted recklessly. 
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This is because, when viewing the evidence in a light most favorable to the prosecution, the 

record indicates Liming discharged his shotgun indiscriminately into the woods without first 

visually identifying the source of the heat signature he picked up on his thermal optics 

scope. 

{¶ 42} This also includes the fact that Liming's conduct was described as "completely 

unsafe" given Liming's failure to visually acquire his target not knowing what was behind 

his shot, as well as "extremely dangerous" given the fact that Liming was aiming in the 

general direction of Macedonia Road where Davis was sitting in his truck. Liming did this 

all while trespassing on private property that he was otherwise unfamiliar with. "A person 

acts recklessly when, with heedless indifference to the consequences, the person 

disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a 

certain result or is likely to be of a certain nature." R.C. 2901.22(C). Such is certainly the 

case here. Therefore, because we find there was overwhelming evidence to support the 

jury's verdict finding Liming guilty of assault on a peace officer in violation of R.C. 

2903.13(B) and (C)(6), Liming's first argument lacks merit.

Tampering with Evidence in Violation of R.C. 2921.12(A)(1)

{¶ 43} Liming was also found guilty of tampering with evidence in violation of R.C. 

2921.12(A)(1). Pursuant to that statute, no person, knowing that an official proceeding or 

investigation is in progress, or is about to be or likely to be instituted, shall "[a]lter, destroy, 

conceal, or remove any record, document, or thing, with purpose to impair its value or 

availability as evidence in such proceeding or investigation[.]" Liming argues the jury's 

verdict finding him guilty of tampering with evidence was not supported by sufficient 

evidence because the state failed to prove he did anything more than "discard" the firearm 

he used to shoot Officer Behr by dropping it in an area where it could be "easily located and 

visible from the roadway." However, contrary to Liming's claim, the overwhelming evidence 
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indicates Liming did much more than merely "discard" his shotgun, "without any attempt to 

conceal or hide the gun," after shooting Officer Behr. 

{¶ 44} The record instead indicates that, after shooting Officer Behr and then cursing 

at him after hearing Officer Behr ask for help, Liming fled through the woods and over 

towards a nearby fence. Once there, Liming then threw down his shotgun into the woods

at the bottom of a honeysuckle bush, tossed off his thermal optics scope, and ran out of the 

woods towards Davis' truck. The fact that Liming's attempts to conceal his shotgun were 

done haphazardly, and ultimately unsuccessfully, does not mean the state failed to prove 

he had tampered with that piece of evidence. The same is true as it relates to the thermal 

optics scope that Liming also tossed off before fleeing the scene. Therefore, because we 

also find there was overwhelming evidence to support the jury's verdict finding Liming guilty 

of tampering with evidence in violation of R.C. 2921.12(A)(1), Liming's second argument is 

likewise without merit. Accordingly, finding no merit to either of Liming's two arguments 

raised herein, Liming's first and third assignments of error are overruled.

Assignment of Error No. 5:

{¶ 45} ORIGINAL APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO 

PROPERLY FILE BRIEF.

{¶ 46} In his fifth assignment of error, Liming argues he was provided ineffective 

assistance of counsel when his original appellate counsel failed to file an appellate brief, 

thus prompting this court to dismiss his appeal. State v. Liming, 12th Dist. Clinton No. 

CA2022-01-001 (July 11, 2022) (Judgment Entry of Dismissal). However, given this court's 

decision to grant Liming's application to reopen his appeal, this court has already addressed 
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the issue of Liming's original appellate counsel's alleged ineffective assistance.5 State v. 

Liming, 12th Dist. Clinton CA2022-01-001 (Dec. 8, 2022) (Judgment Entry Granting 

Application for Reopening). We were, in fact, compelled to find Liming's application to 

reopen his appeal had merit under these circumstances. Id. (finding "[c]ounsel's conduct 

in this case compels us to find that the application for reopening has merit"). Therefore, 

while we agree with Liming's argument, the granting of Liming's application to reopen his 

appeal, along with the timely filing of an appellate brief by new appellate counsel, any 

prejudice resulting from Liming's original appellate counsel's failure has now been 

remedied. See State v. Cast, 12th Dist. Butler No. CA2021-09-107, 2022-Ohio-3967, ¶ 34 

(finding similar assignment of error moot where the granting of appellant's application for 

reopening his appeal and the timely filing of an appellate brief by new appellate counsel 

rendered the assignment of error moot). Accordingly, because Liming is no longer subject 

to any resulting prejudice from his original appellate counsel's failure to file an appellate 

brief, Liming's fifth assignment of error is dismissed as moot.

Conclusion

{¶ 47} For the reasons outlined above, and finding no merit to any of the five 

assignments of error raised by Liming herein, Liming's appeal challenging his conviction in 

this case is denied.

{¶ 48} Judgment affirmed.

PIPER and BYRNE, JJ., concur.

5. This court granted Liming's motion to reopen his appeal pursuant to App.R. 26(B)(5), which provides that 

"[a]n application for reopening shall be granted if there is a genuine issue as to whether the applicant was 

deprived of the effective assistance of counsel on appeal." Ohio appellate courts, including this court, have 

previously determined that appellate counsel's failure to file an appellate brief resulting in the dismissal of an 

appeal raises a genuine issue under App.R. 26(B)(5) as to whether an accused has been deprived of the 

effective assistance of appellate counsel. See State v. Howard, 12th Dist. Warren No. CA83-07-048 (Dec. 

20, 2000) (Judgment Entry of Dismissal); State v. Gaddis, 8th Dist. Cuyahoga No. 77835, 2000 Ohio App. 

Lexis 6260 (Dec. 14, 2000); and State v. Hammon, 6th Dist. Erie No. E-97-129, 1999 Ohio App. Lexis 261 

(Feb. 3, 1999).