[Cite as State v. Cunningham, 2021-Ohio-4052.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - v - 

ERIK A. CUNNINGHAM, 

 Defendant-Appellant. 

CASE NO. 2021-P-0048

Criminal Appeal from the 

Court of Common Pleas 

Trial Court No. 2019 CR 00022 

M E M O R A N DU M 

O P I N I O N 

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 
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Case No. 2021-P-0048

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.