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 Defendant- Appellant).
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 cross- examination. 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 on-
ramp, 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 cross-
examination 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-Ohio- 5505, ¶ 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 fact- finding 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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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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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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