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State v. Ocasio

Court of Appeals of Ohio, Fifth District, Licking

December 20, 2019

STATE OF OHIO Plaintiff-Appellee
v.
TYLER M. OCASIO Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 2018 CR 0040

         JUDGMENT: Affirmed

          For Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY JENNY GONZALEZ-WELLS ASSISTANT PROSECUTOR

          For Defendant-Appellant JAMES A. ANZELMO ANZELMO LAW

          JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          WISE, J.

         {¶1} Defendant-Appellant Tyler M. Ocasio appeals his conviction and sentence entered in the Licking County Common Pleas Court following a jury trial.

         {¶2} Plaintiff-Appellee is the State of Ohio.

         STATEMENT OF THE CASE AND FACTS

         {¶3} Defendant-Appellant Tyler Ocasio was indicted on one count of felony aggravated murder, in violation of R.C. §2903.01 (B); one count of felony murder, in violation of R.C. §2903.02(B); one count of aggravated robbery, in violation of R.C. §2911.01; and one count aggravated burglary, in violation of R.C. §2911.11. Each charge contained firearm specifications under R.C. §2941.145. The indictment alleged that Appellant and three co-defendants, Jaden Osborn, Dustin Lehoe, and Dylan Warren, killed David Barcus during a robbery. Id

         {¶4} The following testimony was presented at trial:

         {¶5} Kathy Mosholder testified that prior to the night in question, David Barcus had been living with her and her husband and sleeping in the basement of their home for about one month. (Tr. Vol. I, p. 133). She stated that her two grandchildren, ages eight and five, also lived with them. Id. She testified that Barcus had just been released from prison. Id. She stated that she had known and been friends with Barcus for approximately 30 years. (Tr. Vol. I, p. 134). She stated that she had reason to believe that Barcus was selling marijuana during the time he was living with them. (Tr. Vol. I, p. 134). Mosholder testified that on January 19, 2018, she heard muffled noises inside her house. (Tr. Vol. I, p. 136). She then went through the house to the kitchen and opened up the back door and was met with a man standing on the other side of the door pointing a gun in her face who told her "Bitch, get the fuck down on the floor. Bitch, get down on the fucking floor." (Tr. Vol. I, p. 137). She replied by telling him "No. Get out of my house" and started screaming. Id. She stated that he tried to push through the door and come into the kitchen but that she was finally able to shut the door and keep him out. Id. She then sat on the floor with her back against the stove and feet braced against the door to keep it shut and continued to yell for them to get out of her house. (Tr. Vol. I, p. 138). She was able to provide a description of the man and the gun. (Tr. Vol. I, p. 138). She testified that her husband then opened up the sliding door and fired a warning shot into the ground. (Tr. Vol. I, p. 139). She then heard commotion downstairs, with people running up the steps and somebody yelled "We've been made. We've been made. We got to go. We got to go." Id. She then got up and went and looked out her window where she saw four people running across the street. (Tr. Vol. I, p. 140). Afterward, she found Barcus on his knees beside his bed with a gunshot wound. (Tr. Vol. I, p. 141). Barcus was taken to the hospital, where he was pronounced dead. (Tr. Vol. I, p. 180).

         {¶1} Richard Mosholder also testified about the events of the night of January 19, 2018, and how he shot into the ground to scare the intruders away and that they then returned fire as they were fleeing. (Tr. Vol. I, p.163-164).

         {¶2} Jaden Osborn testified that he, Ocasio, Dylan Warren, and Dustin Lehoe drove to Barcus' house on January 19, 2018. (Tr. Vol. II, p. 346). He testified that he did not know why they were going to the house, but that he went along with the group because they were his friends. (Tr. Vol. II, pp. 342-43, 345-46). When the men arrived at Barcus' house, they get out of the car. (Tr. Vol. II, p. 347). Osborn stated that Ocasio was carrying a silver gun. (Tr. Vol. II, p. 347). One of the men kicked open the door to the home, and Ocasio and Lehoe ran downstairs to Barcus' bedroom. (Tr. Vol. II, p. 348). He stated that they left after being discovered by Mosholder. (Tr. Vol. II, pp. 349-50). Osborn admitted that he was testifying in exchange for a plea bargain with the prosecution. (Tr. Vol. II, pp. 337-38). Osborn also admitted that he previously told police different versions of the incident at Barcus' house. (Tr. Vol. II, p. 371).

         {¶3} Dylan Warren also testified that he went to Barcus' home on January 19, 2018. He testified that Osborn, Ocasio and Lehoe joined him. (Tr. Vol. III, p. 577). He testified that, on the date of the incident, he discussed with his friends committing a robbery. (Tr. Vol. III, p. 577). He testified that once inside Barcus' home, Ocasio and Lehoe ran downstairs to Barcus' bedroom. (Tr. Vol. III, p. 581). He also testified, over defense counsel's objection, that he discussed committing a robbery with Ocasio ten (10) days prior to the incident. (Tr. Vol. III, pp. 588-591). The discussion took place over social media. (Tr. Vol. III, pp. 588-591). The trial court also admitted into evidence, over defense counsel's objection, the print out of the social media discussion. (Tr. Vol. III, pp. 589-90, 685). Warren also admitted that he was testifying in exchange for a plea bargain with the prosecution. (Tr. Vol. III, pp. 571-72).

         {¶4} Hallie Martin testified that she knew Ocasio and that on January 19, 2018, Ocasio discussed doing a robbery. (Tr. Vol. II, p. 390). Martin testified that later that day, she asked Ocasio if he got anything from the robbery or if everything happened too quickly. (Tr. Vol. II, p. 399). On another occasion, Ocasio told Martin that Lehoe beat up Barcus during the incident, but that Barcus was not shot. (Tr. Vol. II, p. 407). Martin stated that she was in a relationship with Warren. (Tr. Vol. II, p. 415). She also admitted to telling investigators different information about her knowledge of the incident with Barcus. (Tr. Vol. II, pp. 423-24).

         {¶5} Brittany Lehoe testified that she is Dustin Lehoe's sister, and that she knew Ocasio and Warren. (Tr. Vol. II, pp. 545-46). Brittany Lehoe testified that Dustin Lehoe told her that Ocasio shot someone during a robbery. (Tr. Vol. II, p. 549). She also testified that when she asked Ocasio if he shot someone, Ocasio nodded his head, but he did not "really say yeah." (Tr. Vol. II, p. 550). Furthermore, Brittany Lehoe testified that she saw Ocasio with a silver gun after the incident with Barcus. (Tr. Vol. II, p. 553). She testified that the gun was left in her home, and that she sold the gun at her brother's request. (Tr. Vol. II, pp. 553-554, 557).

         {¶6} Detective Steven Vanoy testified that Dustin Lehoe told him that on the night of the incident, he and Ocasio went to Barcus' bedroom and took money from Barcus. (Tr. Vol. III, p. 649). Vanoy also testified that Barcus was shot in the abdomen. (Tr. Vol. III, p. 650).

         {¶7} Before deliberations, the jury was instructed that in order to find Ocasio guilty of aggravated murder and/or murder, they must find that Barcus was killed in the furtherance of the commission of aggravated robbery and/or aggravated burglary. (Tr. Vol. IV, pp. 740-41, 753). The jury was also instructed that in order to find Ocasio guilty of aggravated robbery and/or aggravated burglary, they must find that he was involved in the commission of a theft offense against Barcus. (Tr. Vol. IV, pp. 755-56).

         {¶8} Following deliberations, the jury found Ocasio guilty of all charges and specifications. (Tr. Vol. IV, p. 783-85). Afterward, Ocasio argued that all offenses merge for purposes of sentencing. (Tr. Vol. IV, p. 796).

         {¶9} At sentencing, the trial court merged the murder offense into the aggravated murder offense, and it merged the aggravated robbery offense into the aggravated burglary offense. (Tr. Vol. IV, p. 810). The court also merged the firearm specifications. (Tr. Vol. IV, p. 810). The trial court then sentenced Ocasio to three (3) years imprisonment for the firearm specifications, ten (10) years imprisonment for the aggravated burglary offenses, and twenty-five (25) years to life for the aggravated murder offense. (Tr. Vol. IV, p. 810) (Feb. 8, 2018 Entry). The trial court also ordered that the sentences be served consecutively. (Tr. Vol. IV, p. 810) (Feb. 8, 2018 Entry).

         {¶10} Appellant now appeals, assigning the following errors for review:

         ASSIGNMENTS ...


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