State v. Cunningham , 2021 Ohio 4052 ( 2021 )

[Cite as State v. Cunningham, 2021-Ohio-4052.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0048
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
ERIK A. CUNNINGHAM,
Trial Court No. 2019 CR 00022
Defendant-Appellant.
M E M O R A N DU M
OPINION
Decided: November 15, 2021
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).
Donald J. Malarcik and John P. Stiles, 121 S. Main Street, Suite 520, Akron, OH 44308
(For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Erik A. Cunningham, appeals the trial court’s April 8, 2021 order
denying a motion to intervene filed by his parents, nonparties Paul and Nancy
Cunningham (“the Cunninghams”). The appeal is dismissed.
{¶2} Appellant, accused of killing his wife, was indicted on charges of murder
and felonious assault. The state of Ohio obtained a search warrant for his parents’ cell
phones, which were then seized by the police department. Appellant moved the trial court
to appoint a Special Master to review the contents of his father’s phone, in particular, for
information protected under the attorney-client privilege and as attorney work product.
Appellant asserted that his father is paying for expert witnesses and that his phone
contains numerous text messages and emails with defense counsel that discuss experts,
potential experts, and other witnesses on appellant’s behalf.
{¶3} The trial court denied appellant’s motion for a Special Master. The court
concluded that the search warrant was proper and that the state and defense counsel are
entitled to all information gathered from the cell phones for the time period prior to defense
counsel first filing a notice of appearance in the matter. We dismissed appellant’s appeal
from that order for lack of a final, appealable order. See State v. Cunningham, 11th Dist.
Portage No. 2021-P-0047.
{¶4} Following seizure of their cell phones, the Cunninghams retained counsel
and filed a motion to intervene in the criminal matter. The trial court denied the
Cunninghams’ motion, from which appellant noticed this appeal.
{¶5} We requested the parties brief the issue of the order’s appealability. In its
response, the state asserts the appeal should be dismissed due to appellant’s lack of
standing to challenge the order. Appellant takes issue with the state’s decision to attack
his standing as opposed to whether the order is final and appealable. Because standing
is required to invoke the jurisdiction of a court, however, we must initially address
appellant’s standing, or lack thereof. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d
75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 22 (“Standing is certainly a jurisdictional
requirement; a party’s lack of standing vitiates the party’s ability to invoke the jurisdiction
of a court—even a court of competent subject-matter jurisdiction—over the party’s
attempted action.” (Citations omitted.)); and State ex rel. Merrill v. Ohio Dept. of Nat.
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Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 27, quoting Kincaid
v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9 (“‘Standing is
a preliminary inquiry that must be made before a court may consider the merits of a legal
claim.’” (Citations omitted.)).
{¶6} “‘“Standing” is defined at its most basic as “[a] party’s right to make a legal
claim or seek judicial enforcement of a duty or right.”’” Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black’s
Law Dictionary 1442 (8th Ed.2004); State v. Rice, 135 N.E.3d 309, 2019-Ohio-1415, ¶ 45
(11th Dist.). “To have appellate standing, a party must be ‘aggrieved by the final order
appealed from.’” Merrill at ¶ 28, quoting Ohio Contract Carriers Assn., Inc. v. Pub. Util.
Comm., 140 Ohio St. 160, 42 N.E.2d 758 (1942), syllabus. “A party is aggrieved, and
thus has standing to appeal, if (1) he has a present interest in the subject matter of the
litigation and (2) he has been prejudiced by the judgment of the trial court.” Thomas v.
Wright State Univ. School of Medicine, 2013-Ohio-3338, 3 N.E.3d 211, ¶ 12 (10th Dist.),
citing Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203(1992), citing Ohio Contract Carriers at 161. The party must “show that his rights have
been invaded[.]” (Emphasis sic.) Ohio Contract Carriers at 161; In re R.J.E., 11th Dist.
Portage No. 2016-P-0025, 2017-Ohio-886, ¶ 20 (“a party who seeks to appeal must
assert his own rights”).
{¶7} In their motion, the Cunninghams requested leave to intervene in order to
assert their rights as it pertained to the seizure of their cell phones—to “assert their
property interests, contest violations to their right to privacy, assert attorney-client and
marital privilege over confidential communications with their counsel and each other
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regarding items that were seized, and participate in the Special Master review of their
property.”
{¶8} Appellant and his deceased wife have two minor children. Appellant
submits to this court that the Cunninghams were awarded legal custody of the children
as a result of these crimes and that his parents are, therefore, crime victims with rights as
provided in Article 1, Section 10a of the Ohio Constitution (“Marsy’s Law”). A “victim”
under this law is defined as “a person against whom the criminal offense or delinquent
act is committed or who is directly and proximately harmed by the commission of the
offense or act. The term ‘victim’ does not include the accused[.]” Section 10a(D).
Appellant contends the denial of the Cunninghams’ motion to intervene is “in direct
violation of their rights under Marsy’s Law.” Additionally, appellant’s arguments relating
to the appealability of the order are based on the application of Marsy’s Law.
{¶9} Because appellant is not asserting his own rights, but only those of his
parents as alleged victims, he does not have standing to appeal the trial court’s denial of
their motion to intervene. And, because his lack of standing vitiates his ability to invoke
this court’s jurisdiction over the matter, we must dismiss his appeal. See Kuchta, 2014-
Ohio-4275 at ¶ 22 and Ohio Contract Carriers, 140 Ohio St. at 163.
{¶10} Appeal dismissed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
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