Court of Appeals of Ohio, Fifth District, Licking
Criminal Appeal from the Court of Common Pleas, Case No. 2018
Plaintiff-Appellee WILLIAM C. HAYES PROSECUTING ATTORNEY
JENNY GONZALEZ-WELLS ASSISTANT PROSECUTOR
Defendant-Appellant JAMES A. ANZELMO ANZELMO LAW
JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
Defendant-Appellant Tyler M. Ocasio appeals his conviction
and sentence entered in the Licking County Common Pleas Court
following a jury trial.
Plaintiff-Appellee is the State of Ohio.
OF THE CASE AND FACTS
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
The following testimony was presented at trial:
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
Appellant now appeals, assigning the following errors for