State v. Kunzer
2019 Ohio 2959
Ohio Ct. App.2019Background
- Matthew Kunzer was indicted on 19 counts (intimidation, retaliation, aggravated menacing, resisting arrest) and convicted by a jury; trial court sentenced him to an aggregate 72 months’ imprisonment.
- At trial, testimony from the defendant’s prior counsel’s law clerk and secretary relayed: (1) Kunzer told the law clerk in a jail interview he would “bury… six feet under” certain officials and officers and (2) Kunzer asked the secretary whether failing to return from a medical furlough would be a felony.
- The trial court admitted that testimony over defense objections, and the court later merged several counts for sentencing.
- Kunzer appealed, raising five assignments of error challenging (inter alia) admission of the attorney‑client staff testimony on privilege grounds, charging/intimidation‑retaliation pleading/merger issues, and sufficiency of evidence for intimidation/retaliation convictions.
- The court addressed whether the common‑law attorney‑client privilege protected the staff communications and whether the crime‑fraud exception applied; it also reviewed allied‑offense/merger and sufficiency arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of statements to counsel’s staff under attorney‑client privilege | State: statements were admissible because the crime‑fraud exception applies | Kunzer: communications with counsel’s law clerk/secretary were privileged and inadmissible | Held: Common‑law privilege would cover staff communications, but the crime‑fraud exception applied; admission was not an abuse of discretion |
| Charging intimidation and retaliation together / allied‑offense concern | State: permissible to charge both; merger/conviction issues addressed at sentencing | Kunzer: retaliation requires prior conviction or prior court action; charges should not proceed together | Held: Charging both in same indictment was permissible; merger and sentencing resolve allied‑offense concerns |
| Sufficiency of evidence for intimidation/retaliation (general) | State: testimony (including staff testimony) and other witness evidence suffice to show unlawful threats and intent | Kunzer: evidence insufficient — threats were mere wishes; some evidence was inadmissible privileged material | Held: Evidence—including threats made to officers and staff testimony admitted under crime‑fraud exception—was sufficient to support convictions; merged counts render some sufficiency challenges harmless |
| Whether certain statements were mere “desires/wishes” not amounting to unlawful threats | State: statements coupled with plan and opportunity showed unlawful threats | Kunzer: some statements were only expressions of desire, insufficient for conviction | Held: Court found statements showed intent/threat (including plan to use furlough to escape/kill) and were not merely wishes; sufficient for intimidation convictions |
Key Cases Cited
- Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (discusses scope of attorney‑client privilege and testimonial protections)
- State v. Conway, 109 Ohio St.3d 412 (2006) (standard of review for evidentiary rulings)
- State v. Whitfield, 124 Ohio St.3d 319 (2010) (conviction under R.C. 2941.25 requires guilt and sentence; merger occurs at sentencing)
- McDermott v. [noting party], 72 Ohio St.3d 570 (1995) (statutory privilege applies to attorney’s in‑court testimony; agents/employees not covered by statute)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994) (crime‑fraud exception to privilege where communications further a future fraudulent or criminal plan)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (importance of full communications between client and counsel for effective legal advice)