State v. Cunningham , 2023 Ohio 3300 ( 2023 )

[Cite as State v. Cunningham, 2023-Ohio-3300.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0049
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ERIK A. CUNNINGHAM,
Trial Court No. 2019 CR 00022
Defendant,
PAUL CUNNINGHAM, et al.,
Appellants.
MEMORANDUM
OPINION
Decided: September 18, 2023
Judgment: Appeal dismissed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Jeff R. Laybourne, Malarcik, Pierce, Munyer & Will, 121 S. Main Street, Suite 520, Akron,
OH 44308 (For Appellants).
MARY JANE TRAPP, J.
{¶1} Appellants, Paul and Nancy Cunningham (“the Cunninghams”), appeal the
order of the Portage County Court of Common Pleas denying their motion to intervene in
the criminal matter involving their son, defendant Erik A. Cunningham (“Erik”). For the
reasons that follow, we dismiss the Cunninghams’ appeal as unripe.
Substantive and Procedural History
{¶2} This case presents a rare, if not unique, set of circumstances. In January
2019, the Portage County Grand Jury indicted Erik on charges of murder and felonious
assault in connection with the death of his wife, Lacie. Appellee, the state of Ohio (“the
state”), obtained a search warrant for the Cunninghams’ personal cell phones, which the
police subsequently seized. The Ohio Bureau of Criminal Investigation (“BCI”) completed
an extraction report of the phones’ contents, which was placed under seal.
{¶3} Erik moved for the appointment of a special master, arguing the material on
the Cunninghams’ phones contained attorney-client communications and attorney work
product. The Cunninghams filed a request to join Erik’s motion for a special master. They
subsequently filed a motion to intervene in the criminal case. The state opposed the
Cunninghams’ request to join and their motion to intervene.
{¶4} The trial court held multiple hearings.1 In April 2021, the trial court filed an
order denying Erik’s motion for a special master, determining the search warrant was
proper; the state and defense counsel were entitled to all information gathered from the
cell phones for the time period prior to January 4, 2019 (i.e., the date defense counsel
first appeared in the matter); and a special master was not necessary. The court ordered
BCI to review, segregate, and release to the parties only the admissible information
extracted from the cell phones. Erik appealed, which we dismissed for lack of a final
appealable order. See State v. Cunningham, 11th Dist. Portage No. 2021-P-0047, 2021-
1. The Cunninghams and Erik separately appealed the trial court’s oral rulings during a January 2021
hearing, which we dismissed for lack of final appealable orders. See State v. Cunningham, 11th Dist.
Portage No. 2021-P-0017, 2021-Ohio-794, and State v. Cunningham, 11th Dist. Portage No. 2021-P-0018,
2021-Ohio-795.
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Ohio-4051, appeal not accepted, 169 Ohio St.3d 1474, 2023-Ohio-921, 205 N.E.3d 560,
reconsideration denied, 170 Ohio St.3d 1443, 2023-Ohio-1830, 210 N.E.3d 554.
{¶5} On April 8, 2021, the trial court filed an order denying the Cunninghams’
motion to intervene. The Cunninghams appealed,2 and we ordered the parties to brief
the issue of the order’s appealability. The Cunninghams contended the order was
immediately appealable under Marsy’s Law. We determined the Cunninghams had not
sought intervention on that basis and dismissed their appeal for lack of jurisdiction. See
State v. Cunningham, 11th Dist. Portage No. 2021-P-0049, 2021-Ohio-4053.
{¶6} In November 2021, the Cunninghams filed an application for
reconsideration pursuant to App.R. 26(A), contending they expressly asserted their status
and rights under Marsy’s Law in the trial court. The state opposed the application.
{¶7} In November 2022, we granted the Cunninghams’ application on other
grounds. We found we did not fully consider the applicability of Crim.R. 57(B) and
whether it permitted the application of Civ.R. 24 to nonparties in a criminal proceeding.
We concluded the denial of the Cunninghams’ motion to intervene was an immediately
appealable final order under R.C. 2505.02(B)(4) and the appeal was properly before us
solely on the issue of nonparty intervention.
{¶8} In January 2023, the trial court held a status conference. The state notified
the trial court it no longer sought to use the evidence from the Cunninghams’ phones.
The trial court filed judgment entries ordering the Cunninghams’ cell phones to be
returned to them and the sealed BCI extraction reports to be destroyed.
2. Erik filed a separate notice of appeal, which we dismissed for lack of standing. See State v. Cunningham,
11th Dist. Portage No. 2021-P-0048, 2021-Ohio-4052, appeal not accepted, 169 Ohio St.3d 1474, 2023-
Ohio-921, 205 N.E.3d 560, reconsideration denied, 170 Ohio St.3d 1443, 2023-Ohio-1830, 210 N.E.3d
554.
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{¶9} The state filed a motion to reconsider, arguing the trial court did not have
authority to order the destruction of the records because they were part of the appellate
record in this case. The trial court held a hearing in February 2023. It subsequently filed
an order granting the state’s motion, stating “the Extracted Cell Phone Records under
Seal shall remain under Seal until the above captioned case is finalized.”
{¶10} In March 2023, the state filed a motion to dismiss this appeal, contending
the issue on appeal had been rendered moot. The Cunninghams opposed the state’s
motion, arguing that while they now possessed their cell phones, the extracted data still
exists and remains under seal, which the state could seek to access. According to the
Cunninghams, “[a]s long as the data exists within the ongoing reach of the State, the
issues presented in this appeal are ripe.” The Cunninghams also contended the state’s
position in its motion to reconsider was “vastly different” than its position at the January
2023 status hearing, where it objected to the destruction of the cell phone data on the
basis “[t]here is still an investigation pending.”
{¶11} We held the state’s motion to dismiss in abeyance due to the limited record
and argumentation before us on the issue. Upon the state’s request, the record was
supplemented with the original papers filed in the trial court after November 2022. This
case has been fully briefed, and oral argument was held in June 2023.
Analysis
{¶12} The Cunninghams raise a single assignment of error on appeal:
{¶13} “The trial court committed prejudicial error when it denied Paul and Nancy
Cunninghams’ Motion to Intervene in their son’s Criminal Case following the State’s
seizure of their personal cell phones. The Cunninghams claimed an interest in property
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that is the subject of the case and are so situated that the case’s disposition would impair
or impede the Cunninghams’ ability to protect their interests, which are not represented
by the existing parties, making intervention appropriate under Civ.R. 24(A)(2).”
{¶14} Had the state not reversed course and insisted the data from the
Cunninghams’ phones be published, the facts of this case may have supported the
Cunninghams’ intervention. See, e.g., State v. Hoop, 12th Dist. Brown No. CA2000-11-
034, 2001 WL 877296, *4 (Aug. 6, 2001). However, the state did change course. The
data remains under seal and is thus protected from publication. No one, outside of those
who have already viewed the data pursuant to the search warrant, is permitted to know
what is on the Cunninghams’ phones. Those few who have reviewed the data cannot
disclose the information to anyone—not even to the prosecutor—without an additional
court order. This change in circumstances creates an issue of ripeness.
{¶15} “In order to be justiciable, a controversy must be ripe for review.” Keller v.
Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. “Ripeness ‘is
peculiarly a question of timing.’” State ex rel. Elyria Foundry Co. v. Indus. Comm., 82
Ohio St.3d 88, 89, 694 N.E.2d 459 (1998), quoting Regional Rail Reorganization Act
Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). “‘The basic principle of
ripeness may be derived from the conclusion that “judicial machinery should be
conserved for problems which are real or present and imminent, not squandered on
problems which are abstract or hypothetical or remote.” * * * [T]he prerequisite of ripeness
is a limitation on jurisdiction that is nevertheless basically optimistic as regards the
prospects of a day in court: the time for judicial relief is simply not yet arrived * * *.’” Id.,quoting Comment, Mootness and Ripeness: The Postman Always Rings Twice, 65
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Colum.L.Rev. 867, 876 (1965), quoting Davis, Ripeness of Governmental Action for
Judicial Rev., 68 Harv.L.Rev. 1122 (1955). “A claim is not ripe if it rests on contingent
events that may never occur at all.” State ex rel. Jones v. Husted, 149 Ohio St.3d 110,
2016-Ohio-5752, 73 N.E.3d 463, ¶ 21.
{¶16} The Cunninghams concede they have possession of their phones but
contend “[a]s long as the data exists within the ongoing reach of the State, the issues
presented in this appeal are ripe.” This assertion is not accurate. Pursuant to the trial
court’s judgment entry of February 10, 2023, the data remains under seal until the
underlying case is concluded. Therefore, the data is out of the state’s reach (and
anyone’s reach for that matter) unless and until the state files a motion seeking permission
to access it. This is a contingent event that may never occur at all. Consequently, the
Cunninghams’ appeal is unripe.
{¶17} For the foregoing reasons, this appeal is dismissed.
EUGENE A. LUCCI, J., concurs,
JOHN J. EKLUND, P.J., dissents with a Dissenting Opinion.
____________________
JOHN J. EKLUND, P.J., dissents with a Dissenting Opinion.
{¶18} The State has seized the Cunninghams’ (appellants’) property, both
tangible and intangible, in connection with a criminal case against their son. The property
is personal and potentially privileged. They moved to intervene in that case to be better
able to protect their property interests and assist in their son’s defense. The trial court
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instead ordered the property sealed in the case brought against their son and denied their
motion.
{¶19} The most recent excuse the State has offered for not acceding to the
Cunninghams’ request that all of the property be returned or destroyed is that it is now
part of the record on this appeal challenging the denial of the Cunninghams’ motion to
intervene.
{¶20} Underlying the majority’s opinion is what I think is the errant proposition that
the Constitutional guaranties against unreasonable searches and seizures, a citizen’s
right to be free of them, and the ripeness of claims in relation to either turns on the State’s
use of the property, not upon the seizure itself. I respectfully dissent because I believe
that a citizen has a right to dispute the taking of their property and its improper use. On
the current record, and by virtue of the majority opinion, the Cunninghams are denied a
forum in which to do so.
{¶21} The majority says that if the State had not reversed course and continued
to insist that the data from the Cunninghams’ phones be published, the facts of this case
may have supported intervention. The majority then concludes that because the State
determined – after the Cunninghams filed the instant appeal – that it would not use the
cell phone extraction data at trial, that the Cunninghams have no right to intervene
because their claim has become unripe. I use the phrase “become unripe” with care, for
that is the crux of the issue – whether a case which was ripe when it was brought can
“become unripe.”
{¶22} Without exception, all of the case law the majority cites to support its
position that this claim has become unripe refers to a case brought before it has become
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ripe. (e.g. “‘“[T]he prerequisite of ripeness is a limitation on jurisdiction that is nevertheless
basically optimistic as regards the prospects of a day in court: the time for judicial relief is
simply not yet arrived * * *.”’ State ex. Rel Elyria F2oundry Co. v. Indus. Comm., 82 Ohio
St.3d 88, 89, 694 N.E.2d 459, (1998), quoting the Postman Always Rings Twice, 65
Colum.L.Rev. 867, 876 (1995), quoting Davis, Ripeness of Governmental Action for
Judicial Rev., 68 Harv.L.Rev. 1122 (1955).”).
{¶23} The majority does not contend that this case was not ripe at the time of its
filing. Instead, the majority dodges the issue by claiming that this case presents a “rare,
if not unique set of circumstances” and that because the Cunninghams’ data remains
under seal “unless and until the state files a motion seeking permission to access it.” This
is plainly wrong. A motion changes nothing; only an adverse ruling of one does. In any
event, the majority believes that the State seeking permission to access the
Cunninghams’ data is a contingent event that may not ever happen.
{¶24} At the January 18, 2023 status conference, the State notified the trial court
that it no longer sought to use the evidence from the Cunninghams’ phones. However,
the State opposed the destruction of the records, arguing, tellingly, that “[there] is still an
investigation pending[.]” Of whom and for what, it did not say. The trial court issued a
judgment entry returning the cell phones to the Cunninghams and ordering the sealed
BCI extraction reports to be destroyed.
{¶25} Then, on January 24, 2023, the State filed a Motion to Reconsider the trial
court’s decision. The State argued that destruction of the extraction reports was
inappropriate because the records were part of the appellate record in this case and that
the trial court did not have the authority to order their destruction.
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{¶26} The trial court granted the State’s Motion to Reconsider, although it did not
say why in its entry. The entry stated, “that the Extracted Cell Phone Records under Seal
shall remain under Seal until the above captioned case is finalized.”
{¶27} It is important to note that the State seized (and apparently searched), the
Cunninghams’ phones pursuant to a warrant. The Cunninghams claim the material on
those phones includes privileged or work product information. Without regard to the
merits of that claim, it is undeniable that an individual has a privacy interest in the contents
of their cell phone. See State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d
949, ¶ 24. (Determining that a warrantless search of data within a cell phone violated the
Fourth Amendment when the search was unnecessary for the safety of law-enforcement
and there were no exigent circumstances.)
{¶28} Similarly, the United States Supreme Court has held:
Modern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many
Americans “the privacies of life,” [Boyd v. United States, 116 U.S.
616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)]. The fact that technology
now allows an individual to carry such information in his hand does
not make the information any less worthy of the protection for which
the Founders fought. Our answer to the question of what police must
do before searching a cell phone seized incident to an arrest is
accordingly simple—get a warrant.
Riley v. California, 573 U.S. 373, 403, 189 L.Ed.2d 430, 134 S.Ct. 2473.
{¶29} While the State did obtain a warrant in this instance, that does not alter the
fundamental privacy interests at stake.
{¶30} The Cunninghams maintain that so long as the cell phone extraction data
remains under seal, the State could change its position and seek to access the extraction
data at a later date and that they still seek to intervene to protect their privacy interests.
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Should the State change its position, the Cunninghams would again have to bring an
appeal and relitigate this same issue. While the majority does not state that this case is
moot, the effect of the decision is the same given the resolution of this case.
{¶31} A case is moot “when an event occurs that renders it impossible for the
court to grant the requested relief” because “under such circumstances, there is no longer
a ‘live’ issue that demands resolution.” Ohio Renal Assn. v. Kidney Dialysis Patient
Protection Amendment Committee, 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d
1139, ¶ 12, citing State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-
1844, 928 N.E.2d 728, ¶ 10. “It is not the duty of the court to answer moot questions, and
when pending proceedings * * *, an event occurs, without the fault of either party, which
renders it impossible for the court to grant any relief, it will dismiss the petition * * *.” Miner
v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus.
{¶32} Had the State agreed to the destruction of the extraction data, this case
would certainly have become moot, as it would have become impossible for this court to
grant any relief. There is nothing moot about the Cunninghams’ interest in intervening in
the criminal case against Defendant. The State seized their personal property on May 4,
2020. Their privacy interests were invaded and nothing (not even the State’s expressed
present intention to not use the sealed data) has happened since to ameliorate, much
less eliminate, the invasion. See Ohio Renal Assn. at ¶ 12. Despite the State’s assertion
that it does not intend to use the reports under seal, it is telling that the State opposed
their destruction because there was some investigation still pending. Further, the trial
court’s judgment entry upon reconsideration did not specify that the reports would be
destroyed upon the return of the record at the completion of this appeal. Instead, the
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order only stated that the records “shall remain under Seal until the above captioned case
is finalized.”
{¶33} Nor has the Cunninghams’ effort to intervene become unripe for review. the
majority cuts short its quote from State ex. Rel Elyria Foundry Co. v. Indus. Comm and
the remainder of that quote helpfully frames this point: “‘[T]he prerequisite of ripeness is
a limitation on jurisdiction that is nevertheless basically optimistic as regards the
prospects of a day in court: the time for judicial relief is simply not yet arrived even though
the alleged action of the defendant foretells legal injury to the plaintiff.” (Bold
added). State ex. Rel Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694
N.E.2d 459, (1998), quoting the Postman Always Rings Twice, 65 Colum.L.Rev. 867, 876
(1995), quoting Davis, Ripeness of Governmental Action for Judicial Rev., 68 Harv.L.Rev.
1122 (1955).
{¶34} Here, the State has already taken action which the Cunninghams claim has
caused them legal injury. The Cunninghams’ motion to intervene was ripe when they
filed it with the trial court, and it was ripe upon their appeal to this Court. No further action
on the part of the State was necessary for the claim to become ripe.
{¶35} The contingent nature of whether the State will or will not seek to use the
extraction reports does not mean this case has become unripe. Indeed, I do not believe
that a case, once ripe, can become unripe. In Ohio Renal Assn. v. Kidney Dialysis Patient
Protection Amendment Committee, 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d
1139, the Ohio Supreme Court addressed the ripeness and mootness of the case and
observed a claim is not yet ripe when “the claims would become necessary only if a future
event occurred.” Id. at ¶ 12.
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{¶36} Here, the Cunninghams’ interest in intervening in the criminal case became
necessary when the State seized their personal property. Nothing else needs to happen
for that interest to merit protecting. The Cunninghams’ appeal no longer depended on a
future event occurring in order to become ripe. As long as the extraction reports remain
under seal, the Cunninghams have a continuing privacy interest in the data and their
claimed right to intervene in the case remains ripe for review, notwithstanding the State’s
current “intention” not to use the data.
{¶37} I would find the Cunninghams’ claims to be ripe for review and address the
merits of their appeal. Therefore, I respectfully dissent.
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