[Cite as State v. Haugh, 2016-Ohio-8008.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1115

        Appellee                                 Trial Court No. CR0201402037

v.

John Joseph Haugh                                DECISION AND JUDGMENT

        Appellant                                Decided: December 2, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                            *****

        JENSEN, P.J.

        {¶ 1} Following a jury trial, defendant-appellant, John Haugh, appeals the

March 31, 2015 judgment of the Lucas County Court of Common Pleas, convicting him

of aggravated murder. For the reasons that follow, we affirm the trial court judgment.
                                     I. Background

               A. Scott Warnka is Betrayed. Plans are Made to Retaliate.

       {¶ 2} On April 13, 2014, Thomas Przybysz was arrested for possession of heroin,

a fifth-degree felony. He was told by Toledo Police Sergeant, Kerrie Williams, that the

charge would be dismissed if he led police to a higher-level drug offender. Przybysz

agreed to assist. He led police to his long-time friend, Scott Warnka.

       {¶ 3} Warnka was a drug dealer who sold drugs to Przybysz and Przybysz’s co-

workers. Przybysz would place orders for his co-workers and leave the money for the

drugs in his car at work. Warnka would then come by around 10:00 p.m., collect the

money, and leave the drugs that had been ordered. Przybysz told police of this

arrangement.

       {¶ 4} On May 14, 2014, an undercover officer arranged through Przybysz to buy

$50 worth of cocaine from Warnka. The officer met Warnka in the parking lot.

Following that transaction, Przybysz informed police that Warnka was going to be

leaving town and wanted to get rid of about seven grams of cocaine. On May 21, 2014,

Przybysz helped the undercover officer arrange another transaction. Przybysz told

Warnka that the same customer had pooled his money with three other men and wanted

to buy a quarter ounce of cocaine. The purchase price was $300. The officer met

Warnka in the parking lot and exchanged the money for the cocaine. Police then

swarmed the vehicle and arrested Warnka. He was charged with drug possession and




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trafficking and was taken to the Lucas County jail. Warnka quickly realized that

Przybysz had set him up.

      {¶ 5} Warnka was released from jail the next day on a $10,000 bond posted by his

cousin, Roy Cerveny, his then-girlfriend (now-wife), Jessica Kinsey, and his drug

supplier, Charles Holt, who picked him up. Almost immediately after posting bond,

Warnka began texting Przybysz: “Guess who is out, you fucking snitch.” And “I’m

going to whoop your ass.” Cerveny told Warnka that there was someone at his house

who would take care of it and would “whoop [Przybysz’s] ass” for him.

      {¶ 6} After a few stops, Warnka, Jessica, Cerveny, and Cerveny’s wife, Laura,

went to the Cervenys’ house. There were three men already gathered there, including

Haugh. When Warnka saw Haugh, he knew immediately that it was Haugh who Cerveny

had in mind to “whoop [Przybysz’s] ass.” Warnka started drinking and snorting cocaine,

then sat down next to Haugh. They began talking about how Warnka had been set up,

was angry, and wanted Przybysz’s “ass whooped.” Haugh asked Warnka where

Przybysz lived. Warnka told him the street, about how far down the block he lived, what

kind of car he drove, and what time he got off work.

      {¶ 7} Around midnight, Cerveny took Warnka and Jessica home. The next

morning, Warnka woke up and saw on a news channel that someone had been stabbed in

Point Place in Toledo. Warnka recognized Przybysz’s house on the news. Around the

same time, he and Jessica turned on their phones and saw that there was a text message

and a voice mail from Cerveny. The voice mail indicated that Warnka would be happy




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and the text said “a hundred dollars with a bunch of money signs.” Warnka soon learned

that Przybysz had died.

                                  B. Przybysz’s Death.

       {¶ 8} Around 3:45 a.m. on May 23, 2014, Przybysz’s neighbor called 9-1-1 from

her home on 283rd Street. She reported that Przybysz had been stabbed and was at her

front door covered in blood. Police and emergency crews responded and found Przybysz

lying on the ground in front of the steps leading to his neighbor’s door, conscious, but

fading. He had been stabbed multiple times. As the life squad transported Przybysz to

the hospital, he lost consciousness. He was pronounced dead at St. Vincent Hospital at

4:26 a.m.

       {¶ 9} Investigating officers followed a blood trail which helped them piece

together what had happened. They concluded that Przybysz was attacked on his porch

upon returning from work as he tried to open his front door. The storm door was propped

open by his book bag, which held his lunchbox, safety goggles, and gloves, and his keys

were on the ground in front of the door. After he was stabbed, Przybysz went to the

house just south of his, and knocked on the door. When no one answered, he knocked on

the door two houses north of his—skipping the house immediately next to his, probably

because he knew it was vacant. Przybysz dropped his cell phone, which was smeared

with blood, in his driveway.

       {¶ 10} The coroner determined that Przybysz had been stabbed at least 15 times in

the neck, ear, chest, shoulder, back, hand, arm, thumb, and thigh. Some of the wounds




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were deep while others were superficial. His jugular vein was pierced, causing

substantial hemorrhaging. His right lung was punctured and was filled with blood; both

lungs had collapsed. He was stabbed with enough force to fracture his sternum and

several ribs. His thumb was also severed and was hanging by only soft tissue.

            C. The Investigation Leads to Warnka, Cerveny, and Haugh.

       {¶ 11} Toledo Police Detective Gregory Mattimore received information from two

women who told him of Warnka’s recent arrest and his visit to the Cervenys’ house after

posting bond. Detective Mattimore learned the names of the people who were at the

Cerveny house in the hours leading up to Przybysz’s murder. He went to the home and

talked to Laura Cerveny who verified that Warnka, Cerveny, Haugh, and others had been

at her house that night.

       {¶ 12} Detective Mattimore also learned that on May 22, 2014, Przybysz called

Sergeant Williams and told her that Warnka had been leaving threatening messages on

his phone. Sergeant Williams instructed him to keep them because they could later

charge Warnka with intimidation. She learned from a lieutenant the next day that

Przybysz had been murdered.

       {¶ 13} With the information obtained from these sources, Detective Mattimore

was able to secure a number of warrants. He also interviewed Cerveny, Warnka, Haugh,

and others that had been at the Cerveny home that night, including Mark Fisher, Kevin

Reed, and C. J. Basilius.




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       {¶ 14} Fisher told Detective Mattimore that he arrived at the Cervenys’ house

between 1:30 and 2:00 a.m. on May 23, 2014. Warnka had left by this point, but Fisher

described that Cerveny and Haugh were “pretty fired up” about Przybysz’s betrayal of

Warnka. He recalled that Cerveny and Haugh said that “there needs to be something

done,” and that they needed to “kick his ass.” He saw Haugh change his clothes from

jeans and a “wife beater”-style tank top into a red sweat suit. He then left. About an

hour later, Haugh called Cerveny to come pick him up, and about an hour after that, the

two returned. Upon their return, they said that “it was done,” and that Przybysz had

gotten “his ass kicked.” They said “he got what he deserved.” Later that afternoon,

Fisher learned that Przybysz had been killed. He realized that Haugh and Cerveny were

involved.

       {¶ 15} Reed said he arrived at the Cerveny home before Warnka and Cerveny. He

heard Warnka ask Haugh to beat up Przybysz. He said Haugh nodded. Later he heard

Warnka tell Haugh where Przybysz lived, what shift he worked, and what car he drove.

He recalled that Haugh left around 2:00 or 2:30 a.m., then returned. Reed found out the

next day that Przybysz had been killed and it made him wonder if Haugh had something

to do with it.

       {¶ 16} C. J. Basilius reported that he was living at the Cervenys’ home and was

there that night. He said Warnka arrived around 8:00 p.m. on May 22, 2014, and was

upset about having been in jail. He said he wanted to go beat up Przybysz. Haugh told

Warnka, “I got it for you.” Basilius went to bed around 8:30 or 9:00 p.m., and was




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awoken around midnight or 1:00 a.m. Warnka and his girlfriend were gone by then.

Basilius went back to bed a little while later and woke up for work at 5:00 a.m. Haugh

was there. He heard Haugh say that Przybysz got what he deserved. He heard later that

morning that Przybysz had been killed. At that point he started thinking that Haugh had

something to do with it. The night before, however, the talk had been only that Haugh

wanted to go over and beat him up.

                          D. The Suspects Are Interviewed.

      {¶ 17} Detective Mattimore interviewed Warnka, Cerveny, and Haugh. Initially,

all three denied any involvement in Przybysz’s murder. But after being arrested and

charged with murder, Warnka and Cerveny became more forthcoming with the detective.

      {¶ 18} Warnka admitted that he had been angry with Przybysz and began sending

menacing text messages to him immediately after Cerveny, Jessica, and Holt posted his

bond. He told the detective that Cerveny had connected him with Haugh, who he said

would “take care of it” and “whoop [Przybysz’s] ass.” He described that he drank some

alcohol, snorted some cocaine, and sat down next to Haugh to talk to him about it. He

admitted that before he and Jessica left, around midnight, he provided Haugh with the

information he would need to find Przybysz. His understanding was only that Haugh

“was going to whoop [Przybysz’s] ass.”

      {¶ 19} Warnka explained that he and Jessica had turned off their phones when

they got home. He said that the next morning when they turned on their phones, there

were a couple of text messages and a voice message left for Warnka on Jessica’s phone.




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One text message was from Cerveny. It said “a hundred dollars with a bunch of money

signs.” Warnka interpreted the text to mean that Cerveny wanted to buy some cocaine.

The voice mail was also from Cerveny, telling Warnka that he would be happy. At first

he did not understand the voice mail message. But after watching the news and learning

of Przybysz’s stabbing, he realized what the voice mail message meant.

       {¶ 20} Warnka later spoke with Cerveny. Cerveny told him that he picked up

Haugh at around 4:00 a.m. from a church on 108th or 116th Street and Haugh had a cut

on his finger. Cerveny said that he knew that Haugh had “went and killed [Przybysz].”

Warnka said he was surprised. He said “it was never suppose [sic] to happen like that.

* * * [Przybysz] was just suppose [sic] to get his ass whooped.”

       {¶ 21} Warnka was ultimately offered a plea agreement. In exchange for his

agreement to testify truthfully against Haugh, he was permitted to enter a plea of guilty to

first-degree involuntary manslaughter, which carries a potential sentence of 3-11 years

instead of the 15 years-to-life sentence for murder.

       {¶ 22} Cerveny also spoke to Detective Mattimore. He told him that Warnka had

been complaining that night about having been set up by Przybysz, and he said he wanted

someone to beat him up. Cerveny told him to talk to Haugh. Warnka said he was willing

to pay someone $100. Haugh agreed to do it, but said he did not know what Przybysz

looked like. Warnka showed Haugh a picture of Przybysz and told him where he lived,

what kind of car he drove, and what time he got off work. Haugh said he would take care

of it. Cerveny took Warnka and Jessica home around midnight.




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       {¶ 23} Cerveny said that around 3:00 a.m., Haugh said he had to take care of

something and left. He was wearing jeans and a t-shirt. He was carrying a book bag that

he always carried with him that contained clothing and other things he needed to stay the

night at people’s places. He left on his bicycle. Around 4:00 a.m., Haugh called Cerveny

and said he needed a ride. He said he hurt himself and sounded out of breath. Initially

Cerveny could not find him. He called Haugh approximately three times. He eventually

picked him up in Laura’s minivan at a church on 116th Street. He did not have his bike

with him—he said he left it by the church.

       {¶ 24} Cerveny noticed that Haugh’s hand was wrapped up. He asked what

happened and Haugh said he cut it when he went for Przybysz. Haugh said he did not

know how bad he hurt Przybysz and he wanted Cerveny to drive by his house. They did

and they saw the rescue squads. Cerveny asked why there would be rescue squads and

Haugh said he stabbed at Przybysz but missed the first time and was not sure “how good

he got him because he cut himself.” Cerveny concluded at that point that Haugh had hurt

Przybysz a lot worse than he had agreed to, but he did not know that Przybysz was dead

or dying. Haugh told Cerveny to call Warnka and tell him the job was done and he

would be happy. Cerveny left that voice mail message. He also texted Warnka.

       {¶ 25} Cerveny and Haugh arrived back at the Cervenys’ house and Haugh asked

for a first aid kit. He asked for something to put his gloves in because they were torn and

there was blood on them. Haugh put the gloves in a cereal box and put the box in the trash.




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He put the knife in his backpack. Cerveny said Haugh was wearing a “wife-beater”-style

tank top and shorts when he picked him up at 4:00 a.m.—he had changed clothes.

      {¶ 26} Like Warnka, Cerveny agreed to testify against Haugh. In exchange, he

was permitted to enter a plea of guilty to third-degree involuntary manslaughter and

obstructing justice. Each carries a sentence of one to three years’ imprisonment.

      {¶ 27} Haugh never admitted any involvement in Przybysz’s murder. Detective

Mattimore asked him if he left the Cerveny home that night. He said he may have gone

to a carryout to buy Long Island iced teas. Detective Mattimore checked the carryouts in

the vicinity, however, and none were open until 3:00 a.m. Detective Mattimore asked

Haugh what he was wearing. He said he wore a t-shirt and jeans that night and woke up

the next morning wearing the same clothes. He denied having any conversations with

Warnka that night, and he denied that anyone at the Cervenys’ house had been upset. He

described Warnka as happy.

                         E. Other Evidence Points to Haugh.

      {¶ 28} Police made a number of discoveries implicating Haugh in Przybysz’s

murder. For one, a patrol officer found an abandoned bicycle on May 23, 2014, in the

stairwell of a church located at 116th and 297th Streets. Because it was out of place and

because of the nearby homicide, investigators kept the bike. They ultimately found a spot

of blood on it. DNA testing was performed and the blood was found to be consistent

with Haugh’s DNA. During questioning by Detective Mattimore, Haugh identified the

bike as his and admitted that he rode that bike to the Cervenys’ house on May 22, 2016.




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Przybysz’s DNA was not found on the bike, however, and no other DNA evidence was

found to link Haugh to Przybysz’s murder.

       {¶ 29} Investigators also recovered video surveillance from a homeowner, a gas

station, and a school within the vicinity of the murder for the general time frame

established by the investigation. Video from the gas station showed a minivan that

looked like Cerveny’s pass by around the time he said he picked up Haugh, and it was

traveling in a direction that coincided with Cerveny’s description of events. Video from

the school—which is located at 4747 290th Street, between Cerveny and Przybysz’s

houses—showed someone ride by on a bicycle. The bicyclist was wearing sweats and

appeared to carry a backpack. And video surveillance from the homeowner, who lived

four or five houses away from Przybysz, showed a person riding a bike westbound on

108th Street, turn southbound onto 283rd Street, and cross the street. He was carrying a

backpack. Approximately a minute-and-a-half later, a vehicle can be seen pulling up to a

house and into a driveway. About two minutes later, the person on the bike can be seen

riding northbound on 283rd Street, then eastbound on 108th Street. A porch light goes on

a little less than three minutes after the bicyclist leaves, and emergency vehicles arrive

about six minutes later.

       {¶ 30} The police also obtained cell phone records for Haugh and Cerveny’s

phones. Those records evidenced a number of calls between 3:48 a.m. and 3:55 a.m. on

May 23, 2014, as well as a call to Jessica at 4:08 a.m.




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       {¶ 31} A couple of knives were found in the area in the weeks following

Przybysz’s murder, but they were never processed because they had been outside and

exposed to the elements for so long. None was established to be the murder weapon.

       {¶ 32} Police also recovered correspondence that Haugh mailed from the county

jail to Laura and Roy Cerveny. The letter to Laura stated that Cerveny should not change

anything that he told police initially. It said that the police had nothing and could not

prove anything, and that they all needed to stay strong or they would “be screwed.” It

suggested that reasonable doubt could be established if the police pursued other drug

dealers Przybysz had set up.

       {¶ 33} In his letter to Cerveny, Haugh told him not to be scared. He said that the

police had no evidence, no murder weapon, no DNA, and no eyewitnesses. He said that

without a warrant, the police could not get phone records. He questioned the number of

drug dealers Przybysz had “snitched” on. Haugh advised that as long as Cerveny did not

take any deals, no one would be convicted. And he warned that if Cerveny allowed

police to scare him into saying what they want him to say, he would be “sending [his]

cousin to prison for 15 years or more, and sending John to the gas chamber, and sending

yourself to prison for a long time.” He insisted to Cerveny that he committed no crime

and the state could not win at trial unless Cerveny took a deal.

       {¶ 34} Finally, inmates from the Lucas County jail stepped forward with

information. Brian Hackett-Foster was in jail in June of 2014, in connection with charges

of first-degree aggravated vehicular homicide and second-degree aggravated vehicular




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assault. He and Haugh both resided on the sixth floor of the jail and slept on cots next to

each other. Haugh talked to Hackett-Foster about his case. He said that the day of the

incident, he was upset because someone stole some scrap from him and he was “sort of

pissed off.” He described that he went to a buddy’s house to drink and party and a guy

named Roy had been bonded out of jail. Haugh said he was upset because another guy

had set him up in a drug deal. They wanted Haugh to go over and beat the guy up.

Haugh told Hackett-Foster that around 3:30 or 4:00, Haugh went over and waited in the

bushes for the guy to get off work. He got into a fight with the guy and Haugh said the

guy had gotten the better of him, so he ended up stabbing him. Hackett-Foster revealed

this information in the hope of using it to his advantage during plea negotiations in his

own case. He ultimately entered a plea to third-degree aggravated vehicular homicide

and third-degree aggravated vehicular assault in exchange for his cooperation in

testifying against Haugh.

       {¶ 35} Inmate Antwuan Lawson also provided information about Haugh. In June

of 2014, he was incarcerated on charges of domestic violence. He and Haugh were

involved in an altercation at that time. He met up with Haugh again in November of

2014, when Lawson was incarcerated on a charge of robbery. He told of an incident

where Haugh was cooking inside his jail cell and was caught by a corrections officer.

Haugh said if he saw the corrections officer again he would kill him. At first Lawson did

not take the threat seriously, but Haugh later showed him a razor blade. Lawson did not

report him at that time, but a couple of months later, Haugh was angry because his lawyer




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told him that Hackett-Foster was going to testify against him. He said if he got the

chance, he was going to kill Hackett-Foster. Lawson saw what he believed to be a

makeshift knife created from a homemade razor blade and a toothbrush, so he reported it,

and Haugh and his cell were searched. He said he saw Haugh slash his mattress with the

knife. The weapon was recovered. Lawson received nothing from the state in exchange

for this information.

                             F. The Jury Convicts Haugh.

       {¶ 36} After a five-day jury trial, Haugh was convicted of aggravated murder.

The trial court sentenced Haugh to life in prison without the possibility of parole. The

conviction and sentence were memorialized in a judgment entry journalized on March 31,

2015. Haugh timely appealed and assigns the following errors for our review:

              1) The State failed to produce legally sufficient evidence that

       Appellant committed Aggravated Murder.

              2) Appellant’s conviction for Aggravated Murder fell against the

       manifest weight of the evidence.

              3) The Trial Court erred in allowing the State to introduce evidence

       it untimely disclosed mere days before trial.

                                  II. Law and Analysis

       {¶ 37} In his first assignment of error, Haugh challenges the sufficiency of the

evidence. In his second assignment of error, he argues that the jury’s verdict was against

the manifest weight of the evidence. And in his third assignment of error, he claims that




14.
the trial court erred in allowing the state to present evidence that was not timely

disclosed.

       {¶ 38} We address Haugh’s first and second assignments of error together before

turning to his third assignment of error.

                 A. Sufficiency and Manifest Weight of the Evidence.

       {¶ 39} Haugh was convicted of aggravated murder under R.C. 2903.01(A), which

provides that “[n]o person shall purposely, and with prior calculation and design, cause

the death of another * * *.” Haugh contends that the state failed to prove the required

mens rea of “prior calculation and design.” He insists that the state presented evidence

showing only that the plan was to assault Przybysz—not to kill him. As such, he argues,

the evidence was insufficient to support a guilty verdict as to the crime of aggravated

murder.

       {¶ 40} Haugh also claims that there was a lack of physical evidence linking him to

the crime. He says the video surveillance does not positively identify him as the

bicyclist, and there is no evidence as to how long his blood was on the bike. He

maintains that many of the state’s witnesses had been charged with crimes and were

seeking a reduction in both the seriousness of and sentences for those offenses in

exchange for their testimony. And he contends that the jury should not have been

permitted to consider Lawson’s testimony about the homemade knife because it was

unrelated to Przybysz’s murder. He argues, therefore, that the jury’s verdict was against

the manifest weight of the evidence.




15.
       {¶ 41} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a

challenge to the sufficiency of evidence, “[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.”

(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668

(1997). In making that determination, the appellate court will not weigh the evidence or

assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378

N.E.2d 1049 (1978).

       {¶ 42} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Thompkins at 387. We do

not view the evidence in a light most favorable to the state. “Instead, we sit as a

‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’”

State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing

Thompkins at 388. Reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).




16.
       {¶ 43} Ohio courts recognize that to establish “prior calculation and design,” the

state must show that the accused killed the victim purposefully after devising a plan or

scheme to kill. State v. Davis, 8 Ohio App.3d 205, 206-207, 456 N.E.2d 1256 (8th

Dist.1982). “There must be some kind of studied analysis with its object being the means

by which to kill.” Id. “Momentary deliberation is insufficient.” (Internal citations and

quotations omitted.) State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 19-

20. Whether there exists prior calculation and design is a factual determination

determined on a case-by-case basis. State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d

1163 (2001).

       {¶ 44} Here, the state presented evidence that Haugh agreed to “whoop Przybysz’s

ass.” More than four hours after agreeing to do so, he rode off on his bike with his

backpack, which held a change of clothes and a knife. He lay in wait in the bushes for

Przybysz to return from work. Although Haugh claims there was no evidence that he

intended anything more than to assault Przybysz, the evidence indicates otherwise. For

one, he took the knife out of his backpack despite his purported plan only to beat up

Przybysz. And even more telling is the viciousness of the attack itself and the severity of

Przybysz’s injuries—15 stab wounds to his neck, chest, back, arm, ear, leg, finger,

shoulder, some of which were forceful enough to fracture bones. These factors

demonstrate prior calculation and design—not momentary deliberation. See, e.g., State v.

Carter, 7th Dist. Jefferson No. 05 JE 7, 2007-Ohio-3502, ¶ 128 (“By waiting outside [the




17.
victim’s] home, [the defendant] demonstrated that he had a scheme designed to

implement a calculated decision to kill.”).

       {¶ 45} Haugh suggests that his encounter with Przybysz could have started off as a

fight that ultimately escalated. Again, however, we note that Haugh had taken the knife

out of his backpack, and Przybysz suffered 15 stab wounds, some on his back, some on

his front, and some defensive in nature. Haugh, on the other hand, walked away with

only a cut on his finger. Accordingly we find that the state presented evidence going to

each element of the offense of aggravated murder, and we find no error in the jury’s

verdict.

       {¶ 46} As to the lack of physical evidence linking Haugh to the crime, “[p]hysical

evidence is not required to sustain a conviction.” (Internal citations omitted.) State v.

Malone, 8th Dist. Cuyahoga No. 101305, 2015-Ohio-2150, ¶ 31. The Eighth District

Court of Appeals explained in State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 43-

44 (8th Dist.):

              Proof of guilt may be made by circumstantial evidence, real

       evidence, and direct evidence, or any combination of the three, and all three

       have equal probative value.

              Circumstantial evidence is the proof of facts by direct evidence from

       which the trier of fact may infer or derive by reasoning other facts in

       accordance with the common experience of mankind. Although it requires

       the drawing of inferences, circumstantial evidence and direct evidence




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       inherently possess the same probative value. The United States Supreme

       Court has long noted that circumstantial evidence is not only sufficient, but

       may also be more certain, satisfying, and persuasive than direct evidence.

       The Ohio Supreme Court has also instructed that circumstantial evidence is

       sufficient to sustain a conviction if that evidence would convince the

       average mind of the defendant’s guilt beyond a reasonable doubt.

       (Citations and quotations omitted.)

       {¶ 47} Here, the state presented evidence that Haugh agreed to “whoop Przybysz’s

ass” for setting up Warnka. Warnka provided him with the information necessary to find

Przybysz. Haugh left the Cervenys’ house on his bike carrying a backpack, and

Przybysz’s neighbor’s video surveillance showed a man on a bicycle with a backpack

ride by and cross the street to what appeared to be Przybysz’s home. Within minutes

after Przybysz’s vehicle turned into the driveway, the bicyclist is seen pedaling away, and

it is around this time that Haugh called Cerveny to ask for a ride. When Cerveny picked

up Haugh, his finger was bleeding and he told Cerveny he cut himself when he stabbed at

Przybysz. Cerveny saw Haugh dispose of bloody gloves and put his knife in his

backpack. Haugh’s blood was found on his bicycle. And Haugh also admitted to a

cellmate that he stabbed Przybysz, and his letters from jail reflect his attempts to keep his

co-defendants quiet. Any one of these facts alone may not have sufficed, but considered

in their totality, the evidence certainly supports the jury’s verdict.




19.
       {¶ 48} As to the testimony from co-defendants and inmates who had a motive to

fabricate their testimony, the jury was presented with their plea agreements. It was well-

informed of the benefits received by the witnesses in exchange for their testimony. As

such, the jury was free to assess the witnesses’ credibility in light of this information.

State v. Rankin, 10th Dist. Franklin No. 10AP-1118, 2011-Ohio-5131, ¶ 30. While we

must act as a thirteenth juror when considering whether a verdict is against the manifest

weight of the evidence, the jury is in the best position to make credibility determinations.

Id. at ¶ 29. We decline to conclude that a conviction is against the manifest weight of the

evidence merely because the jury believed the state’s version of the facts over the

defendant’s. Id. at ¶ 29.

       {¶ 49} We find Haugh’s first two assignments of error not well-taken.

               B. Admission of Evidence that was not Timely-Disclosed.

       {¶ 50} In his third assignment of error, Haugh argues that the trial court abused its

discretion in allowing the state to present photographs that were not produced until the

Friday before trial. He insists that trial counsel had no time to “adjust to, investigate, or

otherwise question the accuracy” of the photos. He asserts that “a tactic like this by the

State serves only to send a defendant’s counsel reeling.”

       {¶ 51} The state denies that any discovery violation occurred, and points out that

far from “reeling,” trial counsel had time to file a motion to exclude the photographs. It

also maintains that no discovery violation occurred, and even if a violation had occurred,




20.
the defendant bears the burden of demonstrating unfairness resulting from the late

disclosure.

       {¶ 52} The photos at issue included exhibit No. 35 (a photo of the victim’s face at

his autopsy, along with the autopsy number displayed), and exhibits Nos. 27-31 (photos

of the church where Haugh’s bicycle was found). The state claims that there was no

surprise to Haugh and his counsel because a CD with the photos had been provided to

trial counsel. It also observes that it could have requested a jury view in lieu of

presenting the photographs at trial.

       {¶ 53} The trial court allowed the parties to briefly argue the motion to exclude

evidence. Trial counsel conceded that she had seen the autopsy photos before and that

she had been to the church where the bike was found. The trial court found that there

was no prejudice to Haugh.

       {¶ 54} The admission or exclusion of evidence is a matter solely within the

discretion of a trial court. Miller v. Defiance Regional Med. Ctr., 6th Dist. Lucas No.

L-06-1111, 2007-Ohio-7101, ¶ 17. A reviewing court may reverse a court’s decision

only where the trial court has abused its discretion. Id. To find an abuse of discretion,

we must determine that the trial court’s decision was unreasonable, arbitrary, or

unconscionable and was not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).




21.
       {¶ 55} Here, we agree with the trial court that Haugh failed to show that he was

prejudiced by the failure to provide the handful of photos to trial counsel until the Friday

before trial. We find no abuse of discretion in the trial court’s decision.

       {¶ 56} Accordingly, we find Haugh’s third assignment of error not well-taken.

                                      III. Conclusion

       {¶ 57} We find Haugh’s three assignments of error not well-taken, and affirm the

March 31, 2015 judgment of the Lucas County Court of Common Pleas. Haugh is

ordered to pay the costs of this appeal under App.R. 24.


                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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