State v. Kunzer

[Cite as State v. Kunzer, 2019-Ohio-2959.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 3-18-16

v.

MATTHEW KUNZER, OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court
Trial Court No. 18-CR-0044

Judgment Affirmed

Date of Decision: July 22, 2019

APPEARANCES:

Howard A. Elliott for Appellant

Micah R. Ault for Appellee
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ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Matthew Kunzer (“Kunzer”), appeals the August

17, 2018 judgment entry of sentence of the Crawford County Court of Common

Pleas. For the reasons that follow, we affirm the judgment of the trial court.

{¶2} On February 6, 2018, Kunzer was indicted by the Crawford County

Grand Jury on nineteen counts: Counts One, Two, Three, Eight, Ten, Eleven,

Thirteen, Fifteen, Seventeen, and Nineteen of intimidation in violation of R.C.

2921.03, third-degree felonies; Counts Four, Five, and Six of aggravated menacing

in violation of R.C. 2903.21(A), first-degree misdemeanors; Count Seven of

resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor; and

Counts Nine, Twelve, Fourteen, Sixteen, and Eighteen of retaliation in violation of

R.C. 2921.05(A), third-degree felonies. (Doc. No. 7). Kunzer appeared for

arraignment on February 20, 2018 and entered pleas of not guilty. (Doc. No. 6).

{¶3} After a jury trial on July 11, 2019, Kunzer was convicted of the nineteen

counts in the indictment. (July 11, 2018 Tr. at 1-5, 291-294); (Doc. Nos. 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31).

{¶4} On August 17, 2018, the trial court sentenced Kunzer to 36 months in

prison on Counts One, Two, Three, Eight, Ten, Eleven, Thirteen, Fifteen,

Seventeen, and Nineteen, respectively. (Doc. Nos. 34, 38). The prison terms

imposed by the trial court in Counts One and Two were ordered to be served

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consecutively and the prison terms in Counts Three, Seven, Eight, Ten, Eleven,

Thirteen, Fifteen, Seventeen, and Nineteen were ordered to be served concurrently

to the consecutive terms imposed in Counts One and Two, for an aggregate sentence

of 72 months in prison. (Id.); (Id.). For the purposes of sentencing, the trial court

merged Counts Four, Five, Six, Nine, Twelve, Fourteen, Sixteen, and Eighteen.1

(August 17, 2018 Tr. at 20); (Doc. No. 34). Kunzer filed a notice of appeal on

September 17, 2018 and raises five assignments of error. (Doc. No. 41). For ease

of discussion, we will discuss Kunzer’s second assignment of error, followed by his

first assignment of error, and thereafter, we will conclude with his fifth, third, and

fourth assignments of error together.

Assignment of Error No. II

The trial court erroneously admitted testimony in contravention
of the defendant-appellant’s right to attorney-client privilege
where the defendant-appellant asserted such right.

{¶5} In his second assignment of error, Kunzer argues that the trial court

abused its discretion by admitting evidence in contravention of the Ohio Rules of

Evidence that were protected by attorney-client privilege. In particular, he contends

that he had a reasonable expectation that his communications with his trial counsel’s

law clerk and secretary were privileged and could not be used against him at trial.

Kunzer argues that the trial court abused its discretion by admitting his statements

1
The trial court filed a nunc pro tunc entry on September 4, 2018 to correct a clerical error. (Doc. No. 38).

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made to a law clerk during a jail-house interview and the questions posed to his

prior trial counsel’s secretary about the consequences of failing to return from a

medical furlough.

Standard of Review

{¶6} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). See also State v. Doe,

101 Ohio St.3d 170, 2004-Ohio-705, ¶ 14 (applying this standard to the

admissibility of attorney-client privilege claims). An abuse of discretion implies

that the trial court acted unreasonably, arbitrarily, or unconscionably. State v.

Adams, 62 Ohio St.2d 151, 157 (1980).

Analysis

{¶7} Kunzer argues that his statement to trial counsel’s law clerk that he was

going to “bury these mother fuckers six feet under” and the question he posed to his

prior trial counsel’s secretary were protected by attorney-client privilege, and

therefore, inadmissible. (July 11, 2018 Tr. at 164, 168, 170, 176, 178, 181, 232).

{¶8} “The attorney-client privilege is one of the oldest recognized privileges

for confidential communications.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan

Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, ¶ 16, quoting Swidler &

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Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081 (1998). Its ancient roots

can be traced to the reign of Queen Elizabeth I. Moskovitz v. Mt. Sinai Med. Ctr.,

69 Ohio St.3d 638, 660 (1994), superseded by state statute on other grounds, Cobb

v. Shipman, 11th Dist. Trumball No. 2011-T-0049, 2012-Ohio-1676, ¶ 34, citing 8

Wigmore, Evidence, Section 2290 (McNaughton Rev.1961) and Spitzer v. Stillings,

109 Ohio St. 297, 302 (1924). The attorney-client privilege “recognizes that sound

legal advice or advocacy serves public ends and that such advice or advocacy

depends upon the lawyer’s being fully informed by the client.” McFarland v. W.

Congregation of Jehovah’s Witnesses, Lorain, Ohio, Inc., 9th Dist. Lorain No.

15CA010740, 2016-Ohio-5462, ¶ 67, quoting Upjohn Co. v. United States, 449 U.S.

383, 389, 101 S.Ct. 677 (1981).

{¶9} “In Ohio, the attorney client privilege is governed by statute, R.C.

2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common

law.” State v. Hendron, 9th Dist. Summit Nos. 28067 and 28119, 2017-Ohio-352,

¶ 22 citing State ex rel. Leslie v. Ohio House Fin. Agency, 105 Ohio St.3d 261, 2005-

Ohio-1508, ¶ 18. See State v. McDermott, 72 Ohio St.3d 570, 574 (1995). See also

Evid.R. 501 (providing that: [t]he privilege of a witness, person, state or political

subdivision thereof shall be governed by statute enacted by the General Assembly

or by principles of common law as interpreted by the courts of this state in the light

of reason and experience.) R.C. 2317.02 reads in its pertinent part:

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{¶10} The following persons shall not testify in certain respects:

(A)(1) An attorney, concerning a communication made to the attorney
by a client in that relation or concerning the attorney’s advice to a
client, except that the attorney may testify by express consent of the
client or, if the client is deceased, by the express consent of the
surviving spouse or the executor or administrator of the estate of the
deceased client. However, if the client voluntarily reveals the
substance of attorney-client communications in a nonprivileged
context or is deemed by section 2151.421 of the Revised Code to have
waived any testimonial privilege under this division, the attorney may
be compelled to testify on the same subject.

Hendon at ¶ 22, quoting R.C. 2317.02(A)(1).

{¶11} “[T]he statutory privilege governs communications directly between

an attorney and a client.” McFarland at ¶ 66, quoting Jackson v. Greger, 110 Ohio

St.3d 488, 2006-Ohio-4968, ¶ 7. The statutory privilege only applies to the in-court

testimony of the attorney and does not include agents, employees, or representatives

of the attorney. McDermott at 573-574; See also R.C. 2317.02(A). But see

McFarland at ¶ 66, citing State ex rel. Dawson v. Bloom-Carroll Local Sch. Dist.,

131 Ohio St.3d 10, 2011-Ohio-6009, ¶ 27. But see R.C. 2317.021 (noting the

extension of the privilege to attorney’s “agents, employees, and other

representatives” has been recognized in cases of dissolved corporations within the

definition of the “client” in civil cases).

R.C. 2317.02(A) provides a testimonial privilege — i.e., it prevents
an attorney from testifying concerning communications made to the
attorney by a client or the attorney’s advice to a client. A testimonial
privilege applies not only to prohibit testimony at trial, but also to

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protect the sought-after communications during the discovery
process.

Hendon at ¶ 22, quoting Squire, Sanders & Dempsey, L.L.P. at ¶ 18, quoting Jackson

v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 7, fn. 1. Accordingly, “[a]n

attorney under R.C. 2317.02(A) cannot be compelled to testify concerning a

communication made to him by his client absent a waiver of the attorney-client

privilege.” Hendon at ¶ 22, quoting McDermott at 693. R.C. 2317.02(A) “provides

the exclusive means by which privileged communications directly between an

attorney and a client can be waived.” Id. at ¶ 23, citing Greger at paragraph one of

the syllabus.

{¶12} Although the statutory privilege applies only to the in-court testimony

of the attorney, “the common law attorney-client privilege reaches beyond the

proscription against testimonial speech and protects against any dissemination of

the information obtained from the confidential relationship. Hendon at ¶ 23, citing

State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537,

2009-Ohio-1767, ¶ 24, quoting Leslie at ¶ 18. See also, McFarland at ¶ 66 citing

Am. Motors Corp., v. Huffstutler, 61 Ohio St.3d 343, 348 (1991). See also State v.

Post, 32 Ohio St.3d 380, 385 (1995), overruled in part on other grounds,

McDermott at 574 (concluding that a defendant’s statements to a polygraph expert

retained by and assisting defense counsel were protected by common law attorney-

client privilege). Common law attorney-client privilege pertains to circumstances:

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(1) [w]here legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at his
instance permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection is waived.

Hendon at ¶ 22-23, quoting Nageotte v. Boston Mills Brandywine Ski Resort, 9th

Dist. Summit No. 26563, 2012-Ohio-6102, ¶ 8. See also McFarland at ¶ 67, quoting

Leslie at ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-356 (6th Cir.1998). The

common law attorney-client privilege protects against the disclosure of oral, written,

and recorded information, unless the privilege is waived. Greger at ¶ 25, quoting

Leslie at ¶ 26, quoting Am. Motors Corp. at 348. At common law, a client may

waive the attorney-client privilege either expressly or by conduct implying a waiver.

Id.

{¶13} Nevertheless, there are situations where a lawyer may disclose

privileged information without the client’s waiver. See Prof.Cond.R. 1.6(b) (waiver

of the statutory attorney-client privilege). See also Moskovitz at 661 (concluding

“the privilege does not attach in a situation where the advice is sought by the client

and conveyed by the attorney relates to some future or fraudulent transaction”

applying the crime-fraud exception to common law attorney-client privilege).

Squire, Sanders, & Dempsey, L.L.P. at ¶ 3 (recognizing common-law exceptions to

attorney-client privilege which include the crime-fraud exception “to prevent the

concealment of * * * client wrongdoing”).

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{¶14} Statutory waiver involves the client’s relinquishment of the

protections afforded by R.C. 2317.02(A) once they have attached; however, there

are exceptions to attorney-client privilege when the disclosure falls into the category

of situations in which the privilege does not attach to the communications in the first

instance and is therefore excluded from the operation of the statute as those outlined

in Prof.Cond.R. 1.6(b), and similarly, common-law-waiver based on recognized

exceptions to the common-law attorney-client privilege. See Squire, Sanders, &

Dempsey, L.L.P. at ¶ 3. See also Restatement of the Law 3d, Governing Lawyers,

Chapter 5, Topic 2, Title C, Introductory Note (distinguishing between waivers of

the privilege and exceptions to it) and § 82 (Client Crime or Fraud); Black’s Law

Dictionary (11th Ed.2019) (defining “exception,” “statutory exception,”

“exemption,” and “waiver”) available at Westlaw.

{¶15} The applicability of a privilege * * * is a question of law that this Court

reviews de novo. State v. Miller, 2018-Ohio-1172, ¶ 9 citing McFarland at ¶ 65.

“A de novo review requires an independent review of the trial court’s decision

without any deference to [its] determination.” Id. citing State v. Consilio, 9th Dist.

Summit No. 22761, 2006-Ohio-649, ¶ 4.

{¶16} In order to address the applicability of the statutory or common law

attorney-client privilege, we must review the record. We note that since Kunzer

made his statement at issue to a law clerk and a secretary, not his lawyer, the

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statutory privilege is not applicable here. See McDermott at 573-574. See also R.C.

2317.02(A). However, we now must determine whether the common law attorney-

client privilege applied in this instance, and whether the statement made and

question posed are, therefore, admissible.

{¶17} Kunzer’s prior trial counsel’s law clerk testified to the following

statements:

Q I’m going to ask you to, if you could, do you recall specifically
what Mr. Kunzer said?
A Specifically what was said, something to the effect of, I’m going
to bury these motherfuckers six feet under or put these
motherfuckers six feet under.
Q And did he refer to certain people when he said that?
A Yeah, he referred to the judge, being Judge Leuthold.
Q Okay.
A Ryan, which I took to be Ryan Hoovler.
Q Okay.
A And then in general the cops, the police officers that were
involved.
Q Police officers that had arrested him?
A Yes, sir.

(July 11, 2018 Tr. at 169-170).

{¶18} And, Kunzer’s prior trial counsel’s secretary testified as follows:

Q At some point was there a conversation that you had with Mr.
Kunzer about his mother transporting him to a medical
appointment?
A Yes.
Q Okay. And what was your discussion with Mr. Kunzer?
A Just I --- I honestly don’t remember it that well. I know it was
just talked about whether it was a felony if he didn’t return.
Q Okay. And were you telling him it was a felony if he didn’t
return?

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A After he asked I did say it was, yes, a felony if he did not return.
Q And what is it that he asked that you responded it’s a felony if
you don’t return?
A I don’t remember exactly if he asked is it a felony or is it a crime,
something along those lines.
Q Okay. But he was asking about not returning from going to the
appointment?
A From the furlough, he’s asking about not returning from the
furlough.
Q Did he say anything further about that?
A No, I don’t believe. That’s why I said it’s been a long time, I
don’t remember. I don’t believe there was anything else. I just
told him he needed to go back and that’s pretty much it, from
what I remember.

(Id. at 164-165). Assuming without deciding that the statement made by Kunzer to

the law clerk and the question Kunzer posed to the secretary and her responses are

privileged, we conclude that the common law attorney-client privilege is applicable

in this instance.

{¶19} Notably, Kunzer did not waive attorney-client privilege, and he

objected to the admission of the statement and question. (Id. at 161-163, 167-169).

However, we conclude that his statement to the law clerk and the question posed by

Kunzer to the secretary and her responses are admissible under the crime-fraud

exception. Specifically, if a communication is undertaken for the purpose of

committing or continuing a crime or fraud, it is excepted from the attorney-client

privilege. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383-384, (1998), citing

United States v. Collis, 128 F.3d 313, 321 (6th Cir.1997); State v. Bissantz, 3 Ohio

App.3d 108, 110 (12th Dist.1982), rev’d on other grounds, State v. Bissant, 30 Ohio

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St.3d 120 (1987), quoting State v. Mullins, 26 Ohio App.2d 13, 18 (4th Dist.1971)

(“‘A privileged communication may be a shield of defense as to crimes already

committed, but it cannot be used as a sword or weapon of offense to enable persons

to carry out contemplated crimes against society.’”). The invocation of the crime-

fraud exception requires a demonstration that there is a factual basis for a showing

of probable cause to believe that a crime or fraud has been committed and that the

communications were in furtherance of the crime or fraud. Nix at 384, citing United

States v. Jacobs, 117 F.3d 82, 87 (2d Cir.1997), abrogated on other grounds,

Loughrin v. United States, 573 U.S. 351, 134 S.Ct. 2384 (2014). “The mere fact

that communications may be related to a crime is insufficient to overcome the

attorney-client privilege.” Nix at 384, citing Jacobs at 88, quoting United States v.

White, 887 F.2d 267, 271 (D.C. Cir.1989).

{¶20} Here, the record reveals that Kunzer articulated a plan to overpower

his mother, commandeer her vehicle during his medical furlough, and “bury these

motherfuckers six feet under” (referencing a Crawford County Municipal Court

Judge, a Crawford County Assistant Prosecutor, and three law enforcement officers

with the Bucyrus Police Department) during his jail-house interview with the law

clerk regarding his municipal court charges. (July 11, 2018 Tr. at 125, 164, 168-

171, 176, 178, 181, 183, 232). Additionally, Kunzer also posed questions to the law

clerk’s co-worker (his prior trial counsel’s secretary) near the time of that interview

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regarding the potential consequences he would face should he did not return to the

jail from his medical furlough. (Id. at 125, 164). The question reveals further

evidence of Kunzer’s plan to commit a crime.

{¶21} Judge Leuthold testified and confirmed that, he authorized a medical

furlough for Kunzer permitting Kunzer’s mother to transport him to and from the

jail to Veteran’s Affairs Hospital in Columbus for treatment. (Id. at 203-204).

Kunzer, at the time he made the statement, had expressed an unlawful threat of harm

towards others, he had inquired about the consequences of failing to return from

medical furlough, and he had the opportunity to execute his plan (because his

furlough had not yet been revoked). (See id. at 205-206). Thus, the record reflects

that the State introduced sufficient, credible evidence to overcome the common law

attorney-client privilege based on the crime-fraud exception under the facts

presented. Accordingly, Kunzer’s waiver of attorney-client privilege was not

necessary, and the trial court did not abuse its discretion in admitting the statement

of the law clerk and the questions posed to the secretary (by Kunzer) as well as her

responses thereto.

{¶22} Accordingly, Kunzer’s second assignment of error is overruled.

Assignment of Error No. I

In that the criminal proceedings against the defendant-appellant
had not been completed by way of conviction or otherwise, the
defendant-appellant could not either be charged or convicted of

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retaliation under R.C. 2921.05(A) for his alleged conduct and to
permit same to go to trial was in error.

{¶23} In his first assignment of error, Kunzer argues that he could not be

charged with intimidation and retaliation in the same indictment because a predicate

conviction for the intimidation had to occur prior to a charge and trial for retaliation.

Specifically, Kunzer argues that the “record is devoid of any evidence that the

underlying criminal charges were resolved before the indictment for retaliation was

lodged.” (Appellant’s Brief at 9).

Standard of Review

{¶24} We construe Kunzer’s argument as an allied offense argument and will

address it accordingly. R.C. 2941.25, Ohio’s multiple-count statute, states as

follows:

(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of
all of them.

{¶25} Whether offenses are allied offenses of similar import is a question of

law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12,

2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-

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Ohio-1461, ¶ 36, citing State v. Loomis, 11th Dist. Ashtabula No. 2002-A-0102,

2005-Ohio-1103, ¶ 8. When applying de novo analysis, we must independently

determine whether the facts satisfy the applicable legal standard without deference

to the conclusions of the trial court. State v. Johnson, 3d Dist. Allen No. 1-13-45,

2014-Ohio-4750, ¶ 12, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997),

superseded by state regulation on other grounds, State v. Schmehl, 3d Dist.

Auglaize No. 2-05-33, 2006-Ohio-1143, ¶ 22.

Analysis

Separate convictions are permitted under R.C. 2941.25 for allied
offenses if we answer affirmatively to just one of the following three
questions: (1) Were the offenses dissimilar in import or significance?
(2) Were they committed separate? And (3) Were they committed
with a separate animus or motivation?

State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 76, citing State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.

{¶26} The Supreme Court of Ohio held that “for purposes of R.C.

2941.25(A), a conviction is a determination of guilt and the ensuing sentence.”

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 13, superseded by state

statute on other grounds, United States v. Mackey, S.D.Ohio No. 3:04cr00096, 2014

WL 6606434, *2 (Nov. 20, 2014), fn. 4. Indeed, recognizing “R.C. 2941.25(A)’s

mandate that a defendant may be ‘convicted’ of only one allied offense is a

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protection against multiple sentences rather than multiple convictions.” Id. at ¶ 18.

Because “a defendant may be found guilty of allied offenses but not sentenced on

them,” “[t]he defendant is not ‘convicted’ for purposes of R.C. 2941.25(A) until the

sentence is imposed.” Id. at ¶ 17, 24. And, therefore, merger of allied offenses

occurs at sentencing. Id. at ¶ 18.

{¶27} Here Kunzer, was indicted on intimidation in violation of R.C.

2921.03 and retaliation in violation of R.C. 2921.05. Intimidation under R.C.

2921.03 provides, in its relevant part, as follows:

(A) No person, knowingly and by force, by unlawful threat of harm
to any person * * * shall attempt to influence, intimidate, or hinder a
public servant , [sic] party official, or witness in the discharge of the
person’s duty.

(Emphasis added.) R.C. 2921.03(A).

{¶28} Retaliation under R.C. 2921.05 provides, in its pertinent part:

(A) No person, purposely and by force or by unlawful threat of harm
to any person * * *, shall retaliate against a public servant, a party
official, or an attorney or witness who was involved in a civil or
criminal action or proceeding because the public servant, party
official, attorney, or witness discharged the duties of the public
servant, party official, attorney, or witness.

(Emphasis added.) R.C. 2921.05(A).

{¶29} Notwithstanding whether Kunzer’s intimidation findings of guilt

under R.C. 2921.03 and retaliation findings of guilt under R.C. 2921.05 merged for

the purposes of sentencing, it was permissible for the State to charge both offenses

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in the same charging instrument. See R.C. 2941.25(A). See also State v. Solomon,

3d Dist. Marion No. 9-03-58, 2004-Ohio-2795, ¶ 15. Indeed, under R.C.

2941.25(A), the State is expressly authorized to bring charges, even if they are allied

offenses, but Kunzer may not be convicted on both. Id. That is, the State is

permitted to charge allied offenses of similar import in the same indictment in

separate counts, if, they were based on the same act or transaction. Id. at ¶ 16 citing

R.C. 2941.25(B) and Crim.R. 8(A). The State is not required to elect between

different counts or offenses in the indictment and a defendant may be found guilty

of any number of the charged offenses. See Whitfield, at ¶ 18, superseded by state

statute on other grounds, Mackey at *2, fn. 4. R.C. 2941.04. Accordingly, we

conclude that the trial court did not err in permitting Kunzer to be charged with

intimidation and retaliation under the same indictment and tried simultaneously.

{¶30} Accordingly, Kunzer’s first assignment of error is overruled

Assignment of Error No. V

The trial court and jury errored [sic] in convicting the defendant-
appellant of a count of intimidation in violation of R.C. 2921.03
where there was no showing of a prior court action involving the
victim or that the victim even knew the defendant-appellant.

Assignment of Error No. III

The defendant-appellant was erroneously convicted of both
intimidation under R.C. 2921.03 and retaliation under R.C.
2921.05(A) where the evidence supporting such convictions was
the testimony from the staff of the attorney of the defendant-

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appellant and there was a reasonable expectation that such
privileged communications would not be disseminated.

Assignment of Error No. IV

The trial court and jury errored [sic] in relying upon the
defendant-appellant’s statements of desires and wishes, although
concerning potential physical harm to others as a basis to convict
the defendant-appellant of both intimidation under R.C. 2921.03
and retaliation under R.C. 2921.05(A).

{¶31} In his fifth, third, and fourth assignments of error, Kunzer argues that

his intimidation convictions under Counts One, Two, Three, Eight, Ten, Eleven,

Thirteen, Fifteen, and Nineteen of the indictment and his retaliation convictions

under Counts Nine, Twelve, Fourteen, and Sixteen of the indictment are based on

insufficient evidence. In particular, in his fifth assignment of error, Kunzer argues

that the State was required to show (in Count Ten of the indictment) that a prior-

court action involving the victim existed or that the victim knew Kunzer as a

condition precedent to a violation of R.C. 2921.03. In his third assignment of error,

Kunzer argues, that the evidence supporting his convictions for intimidation as to

Counts Eight, Ten, Eleven, Thirteen, and Fifteen of the indictment under R.C.

2921.03 and his retaliation charges under Counts Nine, Twelve, Fourteen, and

Sixteen of the indictment under R.C. 2921.05 are based on inadmissible evidence.

And, in his fourth assignment of error, Kunzer argues that the evidence supporting

his convictions as to Counts One, Two, Three, and Nineteen of the indictment for

intimidation under R.C. 2921.03 are based on statements of “desires” or “wishes”

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concerning “potential” physical harm which is insufficient to support his

convictions for those counts.

Standard of Review

{¶32} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 259 (1981), paragraph two of the syllabus, following Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979), superseded by state constitutional amendment

on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.” Id. at 259-260. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

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(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

Analysis

{¶33} As an initial matter, the record reveals that Kunzer failed to renew his

Crim.R. 29 motion at the conclusion of his case-in-chief at the conclusion of all the

evidence. (See July 11, 2018 Tr. at 235-240). In order to preserve the issue of

sufficiency on appeal, this court has held that “[w]hen a defendant moves for

acquittal at the close of the state’s evidence and that motion is denied, the defendant

waives any error which might have occurred in overruling the motion by proceeding

to introduce evidence in his or her defense. In order to preserve a sufficiency of the

evidence challenge on appeal once a defendant elects to present evidence on his

behalf, the defendant must renew his Crim.R. 29 motion at the close of all the

evidence.” State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 37,

quoting State v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6.

Based on this precedent, Kunzer’s failure to renew his Crim.R. 29 motion at the

conclusion of his case-in-chief or at the conclusion of all evidence waived all but

plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-

04-18, 2005-Ohio-2251, ¶ 4, citing Edwards at ¶ 6.

{¶34} “However, ‘[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

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academic.’” Id. at ¶ 38, citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-

Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.

17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a

conviction based on legally insufficient evidence constitutes a denial of due process,

and constitutes a manifest injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-

387. Accordingly, we will proceed to determine whether the State presented

sufficient evidence to support Kunzer’s convictions. See id. See also State v. Velez,

3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d

Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999).

{¶35} Kunzer was convicted of intimidation under R.C. 2921.03 and

retaliation under R.C. 2921.05. As we stated above, intimidation under R.C.

2921.03 provides, in its relevant part, as follows:

(A) No person, knowingly and by force, by unlawful threat of harm
to any person * * * shall attempt to influence, intimidate, or hinder a
public servant , [sic] party official, or witness in the discharge of the
person’s duty.

(Emphasis added.) R.C. 2921.03(A). Retaliation under R.C. 2921.05 provides, in

its pertinent part:

(B) No person, purposely and by force or by unlawful threat of harm
to any person * * * shall retaliate against a public servant, * * * who
was involved in a civil or criminal action or proceeding because the
public servant, party official, attorney, or witness discharged the
duties of the public servant, party official, attorney, or witness.

(Emphasis added.) R.C. 2921.05(A).

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{¶36} First, Kunzer argues that his intimidation conviction under Count Ten

is based upon insufficient evidence because the State did not present any evidence

demonstrating a prior-court action involving the victim or that the victim knew

Kunzer as a condition precedent to a violation of R.C. 2921.03. Kunzer’s arguments

are meritless. The crime of intimidation does not require any connection between

the victim and the defendant nor does it require a showing of prior-court action. See

R.C. 2921.03(A). Compare RC. 2921.03 with R.C. 2921.04 and R.C. 2921.05.

{¶37} Next Kunzer argues that his intimidation convictions under Counts

One, Two, Three, Eight, Ten, Eleven, Thirteen, Fifteen, and Nineteen and retaliation

charges under Counts Nine, Twelve, Fourteen, and Sixteen are based on insufficient

evidence because the state presented insufficient evidence that he made an unlawful

threat of harm. In particular, and relating to Count Ten, Kunzer contends that the

State presented insufficient evidence of an unlawful threat of harm because the

evidence was inadmissible. We disagree for the reasons set forth in our analysis of

Kunzer’s second assignment of error. Specifically, our conclusion that the State

presented admissible evidence (from Kunzer’s prior trial counsel’s law clerk) of an

unlawful threat of harm of is sufficient evidence for the trier of fact to find Kunzer

guilty beyond a reasonable doubt on his intimidation convictions under Counts

Eight, Ten, Eleven, Thirteen, and Fifteen. Accordingly, Kunzer’s convictions under

Counts Eight, Ten, Eleven, Thirteen, and Fifteen are based on sufficient evidence.

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{¶38} Turning to Kunzer sufficiency-of-the-evidence argument supporting

his retaliation convictions under Counts Nine, Twelve, Fourteen and Sixteen of the

indictment, we need not address those arguments because those findings of guilt

were merged for the purposes of sentencing. See State v. Turner, 2d Dist. Clark No.

2017-CA-78, 2019-Ohio-144, ¶ 22, citing State v. Croom, 7th Dist. Mahoning No.

12 MA 54, 2013-Ohio-5682, ¶ 59-61 and State v. Zimmer, 8th Dist. Cuyahoga No.

104946, 2017-Ohio-4440, ¶ 9, quoting State v. Ramos, 8th Dist. Cuyahoga No.

103596, 2016-Ohio-7685, ¶ 14. “When counts in an indictment are allied offenses,

and there is sufficient evidence to support the offense on which the state elects to

have the defendant sentenced, the appellate court need not consider the sufficiency

of the evidence on the count that is subject to merger because any error would be

harmless” beyond a reasonable doubt. Ramos at ¶ 14, citing State v. Powell, 49

Ohio St.3d 255, 263 (1990), superseded by state constitutional amendment on other

grounds, State v. Smith, 80 Ohio St.3d 89 (1997).1 See State v. Henderson, 7th Dist.

Mahoning No. 15 MA 0137, 2018-Ohio-5123, ¶ 9 (“Courts have held, in merged

offense cases, where there is sufficient evidence supporting the conviction of the

state’s elected offense for sentencing, it is harmless error if there was insufficient

1
The Eighth District Court of Appeals expressed concern about blindly applying this principle and
hypothesized that there could be a circumstance under which a challenge to an offense that is merged for
purposes of sentencing would not be harmless beyond a reasonable doubt. See State v. Ramos, 8th Dist.
Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 17. However, the Eighth District ultimately determined that it
need not reach that issue in Ramos after reasoning that, “[f]or purposes of this appeal, our conclusion that the
state offered legally sufficient evidence to prove the aggravated murder conviction renders our hypothetical
moot.” Id. at ¶ 18.

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evidence to support the offenses that merged with the elected offense.”), citing State

v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23, citing Powell at

263 (concluding that “[e]ven if evidence of kidnapping by restraint was insufficient

to support conviction, the fact that the kidnapping by removal was based on

sufficient evidence and merged with the kidnapping by restraint count means any

error with the conviction was harmless beyond a reasonable doubt.”), and citing

Croom at ¶ 60-61 (“The Supreme Court has concluded that, even if there is

insufficient evidence to support one count, where that count has been merged with

another count, the error in rendering a verdict on that count is harmless beyond a

reasonable doubt.”), citing Powell at 263, and citing State v. Washington, 10th Dist.

Franklin No. 09AP-424, 2009-Ohio-6665, ¶ 18. See also Henderson at ¶ 9 (applying

this rationale to manifest-weight, jury-instruction, and indictment-related

arguments), citing State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-

8861, ¶ 15, Ramos at ¶ 14, and State v. Franks, 8th Dist. Cuyahoga No. 103682,

2016-Ohio-5241, ¶ 18.

{¶39} Moreover, in this case, error, if any, with respect to the sufficiency of

the evidence as to Kunzer’s retaliation charges under Counts Nine, Twelve,

Fourteen, and Sixteen is harmless beyond a reasonable doubt because those counts

were merged with Counts Eight, Eleven, Thirteen, and Fifteen,

respectively. Compare Ramos at ¶ 13 (“Error, if any, with respect to the sufficiency

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of the evidence on the felonious assault, domestic violence, and kidnapping counts

is harmless because those counts were merged into the life sentence imposed for

aggravated murder under Count 2.”). More specifically, Kunzer was not convicted

of those offenses because the trial court merged those offenses for purposes of

sentencing. See Turner at ¶ 22 (“A conviction does not exist where there has been

a guilty verdict * * * but no sentence.”), quoting Croom at ¶ 59, citing State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 12. See also Ramos at ¶ 16 (noting

that “a second line of thought has developed” suggesting that “if a sentence for an

allied offense was merged into another sentence, the defendant was not actually

‘convicted’ of the allied offense”), citing State v. Obsaint, 1st Dist. Hamilton No.

C-060629, 2007-Ohio-2661, ¶ 24. Indeed, the Supreme Court of Ohio has explicitly

stated that a “conviction” requires both a finding of guilt and a sentence. Ramos at

¶ 16, citing State v. Henderson, 58 Ohio St.2d 171, 178 (1979). For these reasons,

we need not address Kunzer’s arguments challenging the sufficiency of the evidence

in regards to the retaliation charges under Counts Nine, Twelve, Fourteen, and

Sixteen. See Ramos at ¶ 13, 18.

{¶40} Finally, Kunzer argues that his intimidation convictions under Counts

One, Two, Three, and Nineteen are also based on insufficient evidence because the

State presented insufficient evidence that Kunzer made an “unlawful threat of

harm.” We disagree.

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{¶41} The State presented evidence that Kunzer made repeated threats

against the three law enforcement officers prior to and during the course of his arrest

and during his transport to the Crawford County Jail after his arrest. (July 11, 2018

Tr. at 105, 133, 135, 143). In our review, we conclude that Kunzer’s threats made

directly to the officers are sufficient evidence to prove the element of an unlawful

threat of harm. Thus, Kunzer’s intimidation convictions under Counts One, Two,

and Three, those convictions are based on sufficient evidence.

{¶42} Next, regarding Count Nineteen, Kunzer argues that his conviction for

intimidation is merely a statement of a “desire” or a “wish” concerning “potential

physical harm” which is insufficient to support his conviction. We disagree. As to

Count Nineteen, Kunzer (upon his return from a medical furlough) made a threat

against one of the transport officers to a Crawford County Jail correctional officer

(during booking intake). Specifically, Kunzer stated that “had he been unshackled

he would have grabbed one of the deputy’s guns and killed [the transport officer]

due to him being the reason why his girlfriend was dead.” (Id. at 222). The transport

officer is both a special deputy for the Crawford County Sheriff’s Office and a

probation officer. The Crawford County Jail correctional officer testified that

Kunzer blamed the transport officer for the overdose death of his girlfriend because

the officer failed to arrest her for a probation violation which may have prevented

the overdose. (Id. at. 190, 191, 222). At the time Kunzer made his threat to kill the

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transport officer, he still had the privilege of a medical furlough. (Id. at 193, 205-

206). And in addition to that threat, the jury had also heard testimony regarding

Kunzer’s plan to escape while on medical furlough and to kill others. (Id. at 164,

168-171, 176, 178, 181, 232). We conclude that this statement made by Kunzer was

not a “desire” or a “wish” as characterized, but rather, an unlawful threat of harm

that was a statement indicating what he intended to do — made to a person who was

likely to communicate this unlawful threat of harm to others. See State v. Khaliq,

5th Dist. Licking No. 15-CA-64, 2016-Ohio-7859, (concluding statements made

through a member of the Licking County Sheriff’s Department could be reasonably

presumed to be related to other law enforcement officers, even those outside the

actual department). Because these statements are sufficient to prove the unlawful-

threat-of-harm element of Kunzer’s intimidation convictions under Counts One,

Two, Three and Nineteen are also based on sufficient evidence.

{¶43} Accordingly, Kunzer’s fifth, third, and fourth assignments of error are

overruled.

{¶44} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs.

PRESTON, J., concurs, and concurs in Judgment Only
as to Assn. of Error No I.

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