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

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNT Y 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 Jud g ment: 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 war rant for his parents’ cell phones, which were then seized by the police department. Appel lant moved the trial court to appoint a Special Master to review the contents of his fathe r’s phone, in particular, for2

Case No. 2021-P-0048 information protected under the attorney-client privilege and a s attorney work product. Appellant asserted that his father is paying for expert witness es 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 t he 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 retaine d counsel

and filed a motion to intervene in the criminal matter. The tr ial court denied the Cunninghams’ motion, from which appellant noticed this appeal. {¶5} We requested the parties brief the issue of the order’s appeala bility. 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 th e state’s decision to attack his standing as opposed to whether the order is final and appea lable. 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 certainl y a jurisdictional requirement; a party’s lack of standing vitiates the party’s ab ility to invoke the jurisdiction of a court—even a court of competent subject-matter jurisdictio n—over the party’s attempted action.” (Citations omitted.)); and State ex rel. Merrill v. Ohio Dept. of Nat.3

Case No. 2021-P-0048 Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 27, quot ing Kincaid

v. Erie Ins. Co ., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9 (“‘S tanding is a preliminary inquiry that must be made before a court may cons ider 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, quo ting 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 ‘ag grieved 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 i n the subject matter of the litigation and (2) he has been prejudiced by the judgment of th e 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 seek s to appeal must assert his own rights”). {¶7} In their motion, the Cunninghams requested leave to intervene i n order to assert their rights as it pertained to the seizure of their cel l phones—to “assert their property interests, contest violations to their right to privac y, assert attorney-client and marital privilege over confidential communications with their c ounsel and each other4

Case No. 2021-P-0048 regarding items that were seized, and participate in the Specia l Master review of their property.” {¶8} Appellant and his deceased wife have two minor children. Appel lant submits to this court that the Cunninghams were awarded legal c ustody 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 (“M arsy’s Law”). A “victim” under this law is defined as “a person against whom the crimina l offense or delinquent act is committed or who is directly and proximately harmed by t he 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 int ervene is “in direct violation of their rights under Marsy’s Law.” Additionally, ap pellant’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 tho se 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 v itiates 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.