[Cite as State v. Setzer, 2026-Ohio-3577.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2025-L-138
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
DALE A. SETZER,
Trial Court No. 2024 CR 001186
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: September 14, 2026
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Paul J. Lubonovic, Assistant Public Defender, 100 West Erie Street, Painesville, OH 44077 (For DefendantAppellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Dale A. Setzer (“Setzer”), appeals the judgment of the
Lake County Court of Common Pleas sentencing him to eight to ten years in prison after
a jury convicted him of four counts of felonious assault, two counts of vehicular assault,
and two counts of failure to stop after an accident.
{¶2} On appeal, Setzer argues that the State of Ohio (“State”) failed to present
sufficient evidence to sustain a conviction against him for one of the felonious assault
counts against victim N.S. Setzer further asserts that the trial court committed evidentiary error by admitting police opinion testimony and limiting the scope of victim J.K.’s crossexamination. Setzer finally contends that the cumulative effects of the evidentiary errors
denied him the right to a fair trial.
{¶3} Upon review, we conclude that Setzer’s conviction is supported by legally
sufficient evidence, as the evidence, viewed in the light most favorable to the State,
established that Setzer acted knowingly. We find no plain error in the trial court’s failure
to sua sponte limit police testimony or issue a curative instruction. We also find no plain
error in the trial court’s ruling on a motion in limine as the objection was not renewed and
no testimony was proffered. Finally, cumulative error doctrine is inapplicable where we
have found no error.
{¶4} Accordingly, the judgment of the Lake County Court of Common Pleas is
affirmed.
Substantive and Procedural Facts
{¶5} A Lake County grand jury indicted Setzer on eight counts: two counts of
felonious assault, felonies of the second degree, in violation of R.C. 2903.11(A)(1)
(“Counts 1 and 3”), two counts of felonious assault, felonies of the second degree, in
violation of R.C. 2903.11(A)(2) (“Counts 2 and 4”), two counts of vehicular assault,
felonies of the fourth degree, in violation of R.C. 2903.08(A)(2)(b) (“Counts 5 and 6”), and
two counts of failure to stop after an accident, felonies of the fifth degree, in violation of
R.C. 4549.02(A)(1) and 4549.02(B)(2)(b) (“Counts 7 and 8”). Setzer pleaded not guilty to
the charges and proceeded to a trial by jury. The following facts were presented to the
jury.
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{¶6} Amy Swanson (“Swanson”) was traveling to her second job, which required
her to get onto a freeway. She was in a left turn lane waiting to get on the on-ramp behind
a pickup truck and one other vehicle. Swanson testified that when they received a green
arrow to make the left turn towards the on-ramp, a motorcycle coming from the opposite
direction turned in front of a Nissan pickup truck.
{¶7} The motorcycle and truck traveled all the way up the on-ramp trying to get
in front of one another. The motorcycle was positioned to the left of the pickup truck. As
the drivers reached the merging point, Swanson observed the pickup truck pin the
motorcycle between an SUV that was already on the highway, causing a collision.
Swanson saw the motorcyclist ejected from the bike and the SUV began rolling over.
Swanson pulled over near the motorcyclist to check on the rider and reported the incident
to Willoughby Police.
{¶8} Ralph Chafin (“Chafin”) was performing a delivery service when he turned
onto the same freeway on-ramp. Chafin testified that he saw the Nissan pickup truck
swerving back and forth all the way up the on-ramp trying to hit a motorcycle that was
traveling next to it. Eventually, the truck successfully hit the motorcycle causing the rider’s
immediate ejection with his body proceeding to scoot down the freeway. Other crashes
occurred in addition to the SUV rollover.
{¶9} Chafin saw the driver of the pickup truck quickly accelerate into the far-left
lane of the highway and begin speeding away after causing the accidents. Chafin chased
the driver to take pictures of the truck and its license plate and called 911. The operator
directed him to the Willoughby Police Station to provide the photographs taken.
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{¶10} Leah Gurley (“Gurley”) testified that the SUV was upside down with a
mother and her two daughters stuck in the vehicle. Gurley pulled over to help them, and
with the help of others who had stopped, was able to get the passengers out of the
vehicle. Megan Williams (“Williams”), a nurse, stopped to help. Williams testified that she
helped get a young girl out of the backseat of the upside-down SUV as she was stuck in
a car seat and several airbags were in the way. Williams ran across traffic with the mother
and children into the median and assisted them until paramedics arrived. Williams noted
that the mother was bleeding from the chest, and one of the children had a head abrasion,
lacerated lip, and was crying hysterically.
{¶11} A.S. was identified as the SUV driver whose vehicle was flipped. Her
daughters, M.S. and N.S., were in the backseat and were three years old and six years
old, respectively. A.S. explained that she was traveling down the freeway when she felt
an impact to the rear right side of her vehicle, causing her to lose control. The vehicle
rolled over at least two times before landing on its roof, with airbags deploying in the
middle of the rolling. N.S. suffered a concussion. A.S. testified that her daughter continues
to experience anxiety traveling on freeways, is uncomfortable riding the school bus which
is not equipped with seatbelts, and has been attending therapy.
{¶12} J.K. was identified as the motorcyclist. J.K. admitted that he had been
driving irresponsibly. However, J.K. felt the pickup truck hit his bike twice. J.K. was able
to recover from the first strike, but the second one caused him to eject from the bike and
land in the middle of the freeway. The bike continued down the road on its own for
approximately 50 yards. J.K. was taken by ambulance and diagnosed in the emergency
room with multiple fractured bones in his foot and ankle.
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{¶13} Officer Dominic DiSanto (“Officer DiSanto”) went to Setzer’s residence and
observed Setzer’s damaged Nissan pickup truck parked outside. When Officer DiSanto
arrived, he activated his body camera and microphone to capture the encounter. When
Officer DiSanto inquired about a possible road rage incident, Setzer used numerous
profanities, denied witnessing or causing an accident, and claimed that if any accident
had occurred, it was J.K.’s fault. Setzer claimed that the damage to his truck occurred two
hours later at Penitentiary Glen and claimed he would “put [his] hand on the Bible and
take a lie detector test” to that statement. Setzer’s truck was temporarily seized by police
to conduct inspections.
{¶14} Officer DiSanto testified that he did not believe the story provided as Setzer
was coming up with numerous events one after another. Officer DiSanto made calls to
Kirtland Police and Lake Metro Parks to confirm that no accidents had been reported at
Penitentiary Glen. No accidents were reported. Patrolman Stacee Chenevey (“Patrolman
Chenevey”) obtained security camera footage from nearby businesses depicting the
incident. Patrolman Chenevey testified that Setzer’s truck can be seen accelerating
towards J.K.’s motorcycle moments before the SUV began flipping over.
{¶15} Setzer spoke to Sergeant Rastall on the phone after speaking to Officer
DiSanto. Setzer again claimed that he did not know of any accident having occurred and
that his vehicle was damaged at Penitentiary Glen. Setzer dropped off a voluntary written
statement the following day to Sergeant Rastall, and at that time, Sergeant Rastall
conducted an in-person interview.
{¶16} During the interview, Setzer originally claimed that if there had been contact
with the motorcycle, he would have pulled over, and Setzer again offered to “put [his]
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hand to the Bible.” However, immediately after Sergeant Rastall purported to have
photographs of Setzer’s truck showing the damage prior to Setzer going to Penitentiary
Glen, Setzer admitted that there was contact but claimed he did not realize it until later
that night. Setzer claimed that he lied because he “panicked” and did not know what to
do.
{¶17} Sergeant Rastall informed Setzer that J.K. had been honest that J.K. was
driving inappropriately. Setzer explained that he drove up the on-ramp approximately six
inches or less from J.K.’s rear tire waiting to see if J.K. would “brake check” him. Setzer
described his thoughts towards the motorcyclist:
If you doing [sic] anything I will f-cking hit you. I have no
problem with that. You’re the one who screwed up, not me.
You’re the one that cut me off.
Dude, it’s going to be your fault.
I’ll hit you. I don’t care . . . [A]ctions have consequences.
These are the consequences that you’re going to face ‘cause
this is what’s going to happen.
I would have no problem if I did that to them . . . .
{¶18} Sergeant Rastall noted that Setzer had lied about multiple items in his
interview including the Penitentiary Glen story as well as Setzer’s claim that both his truck
and the motorcycle had been slowing down as opposed to accelerating. Sergeant Rastall
also noted that Setzer was not remorseful as Setzer insisted that he has no respect for
bikes.
{¶19} Matthew Healey (“Healey”) of the Introtech Crash Reconstruction and
Forensics Group attempted to create an accident reconstruction using reverse projection
methods. Healey could not plot the collision due to the camera footage limitations but
concluded that Setzer’s truck rapidly accelerated towards J.K.’s motorcycle while the
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motorcycle was accelerating at a much lower rate. Setzer’s truck weighed above 4,000
pounds while J.K.’s motorcycle weighed 560 pounds.
{¶20} Setzer testified that after J.K. made a right turn in front of him on the onramp, Setzer drove close to the motorcycle and attempted to pass J.K. on the right. Setzer
explained that he was close to going off the road in making this pass. Setzer denied
feeling any contact with J.K. or witnessing any of the chain reaction of events occurring
on the freeway. However, Setzer testified that when he got home and noticed the damage,
he knew it was from contact with the motorcycle and chose not to report it to authorities
as Setzer believed the police would not do anything about it.
{¶21} At the conclusion of the trial, the jury returned a guilty verdict on all counts.
At the sentencing hearing, the trial court concluded that Counts 1, 2, and 5 merged for
the purposes of sentencing, Counts 3, 4, and 6 merged for the purposes of sentencing,
and Counts 7 and 8 merged for the purposes of sentencing. The State elected to proceed
with sentence on Counts 2, 4, and 8. The trial court sentenced Setzer to a prison term of
four to six years on Count 2, a prison term of four years on Count 4, and a prison term of
twelve months on Count 8. The trial court ordered Counts 2 and 4 to run consecutively
for an aggregate term of eight to ten years in prison. The trial court also ordered
$33,248.85 restitution to J.K.
{¶22} Setzer timely appealed from the trial court’s sentencing entry.
The Appeal
{¶23} Setzer raises four assignments of error for review:
[1.] The State presented insufficient evidence to sustain
convictions on Counts 3 and 4.
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[2.] The trial court plainly erred when it allowed officers to offer
opinion testimony and did not provide a curative jury
instruction.
[3.] The trial court erred when it did not permit crossexamination or other inquiry into whether J.K. threw a firearm.
[4.] The cumulative effect of the errors in the first and second
assignment of errors deprived Mr. Setzer of a fair trial.
Sufficiency of Evidence
{¶24} In his first assignment of error, Setzer argues that the State failed to produce
sufficient evidence to sustain a conviction against him for the felonious assault charge
relating to victim N.S. Setzer contends that the State did not produce evidence tending to
prove that his conduct with respect to N.S. was “knowingly.” Setzer asserts that to come
to such a conclusion, the jury necessarily had to make stacking inferences. We disagree.
{¶25} An appellate court reviewing the sufficiency of the evidence examines the
evidence admitted at trial and determines whether, after viewing the evidence in a light
most favorable to the State, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 273 (1991), superseded by constitutional amendment on other grounds as stated by
State v. Smith,1997-Ohio-355, fn. 4, paragraph two of the syllabus. “‘On review for
sufficiency, courts are to assess not whether the state's evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.’” State
v. Ross, 2018-Ohio-452, ¶ 34 (11th Dist.), quoting State v. Thompkins, 1997-Ohio-52, ¶
36 (Cook, J., concurring). Whether the evidence is legally sufficient to sustain a verdict is
a question of law which we review de novo. Ross at ¶ 34, citing Thompkins at ¶ 23. “A
motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for
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determining whether a verdict is supported by sufficient evidence.” State v. Noble, 2021-Ohio-1062, ¶ 42 (11th Dist.), citing State v. Tenace, 2006-Ohio-2417, ¶ 37.
{¶26} “A conviction, however, may not be premised upon the ‘stacking of
inferences.’ When an inference, which forms the basis of a conviction, is drawn solely
from another inference and that inference is not supported by any additional facts or
inferences drawn from other established facts, the conviction is improper.” State v. Payne,
2014-Ohio-4304, ¶ 23 (11th Dist.), citing State v. Maynard, 2012-Ohio-2946, ¶ 27 (10th
Dist.). “The rule against inference-stacking essentially forbids the drawing of an inference
from evidence, which is too uncertain or speculative or which raises merely a possibility
or conjecture. While reasonable inferences may be drawn from the facts and conditions
established, they cannot be drawn from facts or conditions merely assumed.” State v.
Armstrong, 2016-Ohio-7841, ¶ 23 (11th Dist.).
{¶27} Setzer argues that as the evidence did not show that he was subjectively
aware of the Subaru’s presence, the jury had to infer that fact from circumstantial
evidence. According to Setzer, “to reach knowledge for the purposes of felonious assault
against N.S. [the jury] would have to make further inferences . . . that Mr. Setzer
subjectively was aware that there was a high probability a passenger like N.S. was in the
back seat.” In other words, Setzer’s argument is that there was insufficient evidence to
prove that he acted “knowingly” with specific intent to injure N.S.
{¶28} Setzer makes this argument relying on an Eighth District decision holding
that “‘recklessness implies an element of chance—the actor proceeding despite knowing
that the conduct contains a risk that a certain result is likely,’” whereas “‘[k]nowing conduct
means that the actor acts with a degree of certainty in one’s intention that a result will
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occur.’” State v. Bissell, 2024-Ohio-5317 at ¶ 27 (8th Dist.), rev'd and remanded, 2026-Ohio-1965, quoting State v. Robinson, 2007-Ohio-3646, ¶ 10 (8th Dist.).
{¶29} This argument rests on a misunderstanding of the law. As aptly noted by
the Supreme Court of Ohio on discretionary appeal in Bissell, “[t]he Eighth District’s
reasoning is wrong.” Bissell, 2026-Ohio-1965, at ¶ 18. The mens rea of “knowingly” is
applied to the defendant’s conduct, not the defendant’s awareness of any specific victim
or intended target. See State v. Jacinto, 2020-Ohio-3722, ¶ 100 (8th Dist.) (“To have
acted ‘knowingly,’ a person need not have specifically intended to cause a particular
result”). “A person acts knowingly, regardless of purpose, when the person is aware that
the person's conduct will probably cause a certain result or will probably be of a certain
nature.” (Emphasis added.) R.C. 2901.22(B). Therefore, “[w]hen a defendant voluntarily
acts in a manner that is likely to cause serious physical injury, the factfinder can infer that
the defendant was aware that his actions would cause whatever injury results from his
actions, or, in other words, that he acted knowingly.” State v. Muncy, 2012-Ohio-4563, ¶
27 (4th Dist.), quoting State v. Reed, 2008-Ohio-312, ¶ 10 (8th Dist.).
{¶30} Here, the evidence showed that Setzer intentionally caused his truck to
collide with J.K.’s motorcycle on a freeway on-ramp. A driver of a motor vehicle knows
that intentionally causing an automobile or motorcycle accident is likely to cause serious
physical injury. Setzer therefore acted knowingly and is criminally responsible for
“whatever injury results from his actions . . .” regardless of whether he knew N.S. was in
the backseat of a nearby vehicle. Id. A defendant cannot escape liability by claiming
subjective ignorance of probable consequences when those consequences are
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objectively apparent from the nature of the voluntary act itself. See State v. Powell, 2009-Ohio-2822, ¶ 51 (11th Dist.).
{¶31} Therefore, “although [Setzer] may not have intended to hit [N.S.], the
doctrine of transferred intent is applicable. Under the doctrine of transferred intent, even
if the victim was not the intended target, a defendant is as criminally culpable for the harm
caused to the actual victim as he would be if the victim had been the intended target.”
State v. Lambert, 2019-Ohio-1226, ¶ 20 (7th Dist.), citing State v. Calhoun, 2015-Ohio5505, ¶ 16 (12th Dist.), citing In re T.K., 2006-Ohio-3056, ¶ 16. As Setzer’s conduct was
“knowingly,” Setzer is culpable for the results. The State was not required to prove Setzer
was aware of N.S.’s presence in the backseat of a nearby vehicle.
{¶32} We further disagree with Setzer’s characterization, as stated at oral
argument, that the difference between “knowing” and “reckless” conduct is a “fine and
subtle distinction” that is “difficult to parse.” The distinction between “knowing” and
“reckless” conduct has been clearly articulated and represents a bright-line difference that
cannot be appropriately described as “fine and subtle.” See State v. Schmelzer, 2024-Ohio-5987, ¶ 17 (3d Dist.), appeal not accepted, 2025-Ohio-1483, quoting State v.
Stevens, 2020-Ohio-6981, ¶ 26 (6th Dist.), quoting State v. Edwards, 83 Ohio App.3d
357, 361 (10th Dist. 1992) (“If the result is probable, the person acts ‘knowingly’; if it is
not probable but only possible, the person acts ‘recklessly’ if he chooses to ignore the
risk”).
{¶33} It is objectively obvious, and therefore probable, that intentionally causing a
4,000-pound truck to collide with a motorcycle at freeway speeds will cause serious
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physical harm. That likelihood extends far beyond a mere possibility. We find no such
difficulty in parsing such a concept.
{¶34} Accordingly, Setzer’s first assignment of error is without merit.
Opinion Testimony
{¶35} In his second assignment of error, Setzer contends that the trial court
committed plain error by not sua sponte limiting portions of Officer DiSanto and Sergeant
Rastall’s testimony or otherwise offering a curative instruction. Specifically, Setzer argues
that the officers were improperly permitted to testify to their opinions regarding Setzer’s
veracity, which invaded the province of the jury’s fact-finding process. We disagree.
{¶36} As Setzer failed to object to the testimony he challenges on appeal, Setzer
has forfeited all but plain error. “Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Crim.R. 52(B).
However, “[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶37} The Supreme Court of Ohio set forth limitations on what constitutes plain
error. “First, there must be an error, i.e., a deviation from a legal rule. Second, the error
must be plain, i.e., the error must be an ‘obvious’ defect in the proceedings. Third, the
error must have affected ‘substantial rights.’ This means that the trial court's error must
have affected the outcome of the trial or prejudiced the defendant.” State v. Dundics,
2016-Ohio-1368, ¶ 19 (11th Dist.), citing State v. Barnes, 2002-Ohio-68, ¶ 20.
{¶38} “A police officer's opinion that an accused is being untruthful is
inadmissible.” State v. Davis, 2008-Ohio-2, ¶ 122, citing State v. Potter, 2003-Ohio-1338,
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¶ 39 (8th Dist.). “A jury tends to trust a police officer’s perceptions, similar to that of an
expert witness.” State v. Brown, 2016-Ohio-1358, ¶ 33 (11th Dist.), citing State v. Root,
2004-Ohio-2439, ¶ 31 (11th Dist.). “As a result, such testimony infringes upon the factfinding function of the jury and affects the fundamental fairness of the trial.” Id.
{¶39} Here, Setzer challenges Officer DiSanto’s testimony that he did not believe
Setzer’s story. Setzer further challenges Sergeant Rastall’s testimony that Setzer lied to
him during his interview. We do not find either of these excerpts of testimony to be an
“opinion” attempting to invade the province of the jury. Rather, these statements provided
a rational predication for the police to continue their investigation subsequently to Setzer’s
initial interview. Setzer admitted to lying to police during a recorded interview with
Sergeant Rastall, and Setzer testified at trial that he was untruthful. Accordingly, the
officers were testifying “as to [their] observations of appellant's behavior during the
interview and appellant's reaction . . . .” State v. Brown, 2017-Ohio-9259, ¶ 51 (11th Dist.).
We agree with the Supreme Court of Ohio’s holding in Davis and find that where a
defendant admitted to lying, an officer’s testimony that the defendant is untruthful does
not amount to an “opinion.” Davis at ¶ 126.
{¶40} Further, where an appellant challenges police opinion testimony regarding
the defendant’s veracity, “[i]f overwhelming evidence exists to support the defendant's
conviction, however, then the error shall be deemed harmless.” State v. Withrow, 2012-Ohio-4887, ¶ 48 (11th Dist.), citing Crim R. 52(A). “[T]he test is whether ‘there is
substantial evidence to support the guilty verdict even after the tainted evidence is cast
aside.’” State v. Hutson, 2008-Ohio-2315, ¶ 20 (11th Dist.), quoting State v. Cowans, 10
Ohio St.2d 96, 104 (1967). As the jury watched Setzer’s recorded interview where he
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admitted to being untruthful, and, as the jury heard Setzer’s own testimony that he had
lied to police, any error in this testimony was manifestly harmless. Setzer’s lack of veracity
was not contested at trial, and the evidence notwithstanding the officer’s comments exists
to support Setzer’s conviction. Id.
{¶41} To the extent that the trial court did not provide curative instructions, it is
well settled that “[i]t is incumbent upon the objecting party to request a curative instruction
from the court.” State v. Mann, 2003-Ohio-5705, ¶ 25 (11th Dist.), citing State v. Davie,
1997-Ohio-341, ¶ 67. “[F]ailure to request a curative instruction results in waiver because
a request would have negated any claimed prejudice.” Trenton v. White Consol.
Industries, 1993 WL 548453, *1 (11th Dist. Dec. 17, 1993). “A request for a curative
instruction, or an objection to the failure to give such a requested instruction must be
presented to provide the trial court with the opportunity to rule or act upon the request.
An appellate court need not consider an error which was not called to the trial court's
attention at the time that court had an opportunity to avoid or correct such error.” State v.
Wallace, 1985 WL 3991, *1 (9th Dist. Nov. 27, 1985), citing State v. Williams, 51 Ohio
St.2d 112 (1977).
{¶42} Accordingly, we do not find the lack of a sua sponte curative instruction to
be error, plain or otherwise. See State v. Schaim, 65 Ohio St.3d 51, 61, fn. 9 (1992) (“The
defendant also claims that it was plain error for the trial court to fail to give a limiting
instruction . . . even though it was not requested by the attorney. We decline to adopt this
position . . . .”).
{¶43} Therefore, Setzer’s second assignment of error is without merit.
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Cross-Examination of J.K.
{¶44} In his third assignment of error, Setzer argues the trial court abused its
discretion by disallowing defense counsel’s cross-examination regarding J.K.’s
possession of a firearm. We disagree and find that Setzer has waived all but plain error
by failing to lodge a timely objection during J.K.’s testimony or making an offer of proof
for the record.
{¶45} Approximately one week before trial, the State learned that J.K. possessed
a firearm at the time of the accident. J.K. incorrectly believed he was not permitted to
have a firearm, so he threw the weapon after the crash. The State filed a motion in limine
seeking to exclude any introduction of the firearm as there was no evidence that the
firearm was used during the incident. Setzer’s position at trial was that he did not know at
the time that an accident even took place, made no allegation that J.K. brandished the
firearm, and was not claiming self-defense. Accordingly, the trial court deemed the firearm
irrelevant and granted the State’s motion in limine.
{¶46} “‘[A] motion in limine, if granted, is a tentative, interlocutory, precautionary
ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. In
virtually all circumstances finality does not attach when the motion is granted.’” State v.
Slepsky, 2026-Ohio-709, ¶ 16 (11th Dist.), appeal not allowed, 2026-Ohio-2109, quoting
State v. Grubb, 28 Ohio St.3d 199, 201 (1986). The Supreme Court of Ohio has explained
that
[t]he effect of the granting of a motion in limine in favor of the
state in a criminal proceeding is to temporarily prohibit the
defendant from making reference to evidence which is the
subject of the motion. At trial, it is incumbent upon a
defendant, who has been temporarily restricted from
introducing evidence by virtue of a motion in limine, to seek
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the introduction of the evidence by proffer or otherwise in
order to enable the court to make a final determination as to
its admissibility and to preserve any objection on the record
for purposes of appeal.
Grubb at 203. Therefore, a defendant must challenge a trial court’s granting of the State’s
motion in limine at the proper time during a trial or proffer any such evidence to preserve
the matter for appellate review.
{¶47} At no point during J.K.’s testimony did defense counsel renew his objection
to the trial court’s preliminary ruling nor did defense counsel seek to provide a foundation
for why the firearm would be admissible. Instead, counsel waited until the next day of trial,
after J.K. had already been excused, to renew his objection.
{¶48} “Generally speaking, there is considerable consistency among Ohio
appellate courts that there must be an element of timeliness which reasonably relates to
the earliest opportunity for making an objection.” Coe v. Young, 145 Ohio App.3d 499,
513 (11th Dist. 2001), (Christley, J., concurring). An “objection must be raised at a time
when such error could have been avoided or corrected by the trial court.” State ex rel.
Holwadel v. Hamilton Cty. Bd. Of Elections, 2015-Ohio-5306, ¶ 50, citing State v. Childs,
14 Ohio St.2d 56 (1968), paragraph three of the syllabus; accord Kelley v. Horton, 2025-Ohio-5252, ¶ 23 (1st Dist.) (“It was not until [the witness] was excused and the court
reconvened the following day that Kelley asserted [her objection] . . . Kelley's attempt to
revisit . . . her objection was ultimately untimely.”) Given the untimely objection, our review
is limited to plain error. Crim.R. 52(B).
{¶49} Assuming arguendo defense counsel’s objection had been timely renewed,
defense counsel appears to have conceded at trial that the firearm was irrelevant to the
case. The following exchange occurred:
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COUNSEL: The Defense is objecting to the fact that I was not
permitted to cross-examine [J.K.] as it relates to his
possession of a firearm. It’s my understanding . . . that I would
have been able to ask [J.K.] about the firearm. Whether he
possessed the firearm, [J.K.], it's my understanding, would
have answered that he did possess a firearm, that he did
discard the firearm subsequent to the accident. That it was
[J.K.] belief that he was unable or it was unlawful for him to
possess or carry a firearm. And it's unknown – [J.K.] would
have testified that the firearm was located in a holster on his
body and that it's unknown whether the firearm was loaded or
unloaded and the firearm has never been retrieved.
I think that the State should take some effort to locate this
firearm.
THE COURT: Well, that’s completely irrelevant to this trial.
COUNSEL: I understand that, but it’s still an issue.
{¶50} Accordingly, we agree with the trial court that the firearm was irrelevant to
this case where there was no allegation that J.K. used the firearm or that Setzer even
knew of the firearm’s presence. J.K.’s mere possession of a firearm, therefore, had no
bearing on Setzer’s conduct at issue. We find no error, plain or otherwise.
{¶51} Setzer’s third assignment of error is without merit.
Cumulative Error
{¶52} In his fourth assignment of error, Setzer argues that the cumulative effects
of harmless errors denied him the right to a fair trial. We disagree. Where there is no error,
there can be no cumulative error. State v. Thornsley, 2025-Ohio-5128, ¶ 90 (5th Dist.).
Accordingly, as we have found no error, Setzer’s fourth assignment of error is without
merit.
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Case No. 2025-L-138
Conclusion
{¶53} For the reasons set forth above, the judgment of the Lake County Court of
Common Pleas is affirmed.
MATT LYNCH, P.J.,
JOHN J. EKLUND, J.,
concur.
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Case No. 2025-L-138
JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s assignments of error
are without merit. It is the judgment of this court that the judgment of the Lake County
Court of Common Pleas is affirmed.
Costs to be taxed against appellant.
JUDGE ROBERT J. PATTON
PRESIDING JUDGE MATT LYNCH,
concurs
JUDGE JOHN J. EKLUND,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case No. 2025-L-138