[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
2.
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
3.
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.
5.
{¶ 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.
8.
{¶ 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.
9.
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.
10.
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.
11.
{¶ 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
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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,
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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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