[Cite as State v. Ocasio,

.]

OCCOURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2019 CA 00013 TYLER M. OCASIO

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2018 CR 0040

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 20, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY ANZELMO LAW JENNY GONZALEZ-WELLS 446 Howland Drive ASSISTANT PROSECUTOR Gahanna, Ohio 43230 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 2019 CA 00013 2

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 Licking County, Case No. 2019 CA 00013 3

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 Licking County, Case No. 2019 CA 00013 4

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 Licking County, Case No. 2019 CA 00013 5

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). Licking County, Case No. 2019 CA 00013 6

{¶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 OF ERROR

{¶11} “I. THE TRIAL COURT PLAINLY ERRED BY ADMITTING INTO

EVIDENCE INADMISSIBLE OUT OF COURT STATEMENTS, IN VIOLATION OF

OCASIO'S RIGHTS TO A CONFRONTATION, TO A FAIR TRIAL AND TO DUE

PROCESS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND SECTIONS 1, 10 AND 16, ARTICLE I

OF THE OHIO CONSTITUTION.

{¶12} “II. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE

IRRELEVANT AND PREJUDICIAL EVIDENCE, IN VIOLATION OF OCASIO'S RIGHT

TO DUE PROCESS GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1, 10 AND

16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶13} “III. THE JURY'S GUILTY VERDICTS, FINDING OCASIO GUILTY OF

MURDER AND AGGRAVATED MURDER, ARE BASED ON INSUFFICIENT Licking County, Case No. 2019 CA 00013 7

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶14} “IV. THE JURY'S GUILTY VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶15} “V. THE TRIAL COURT ERRED BY FAILING TO MERGE ALL OF

OCASIO'S OFFENSES INTO A SINGLE CONVICTION, IN VIOLATION OF THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.”

I., II.

{¶16} In Appellant’s first and second assignments of error, Appellant argues that

the trial court erred in allowing in certain evidence. We disagree.

{¶17} Appellant argues that that Detective Vanoy’s testimony that Dustin Lehoe

told him he and Ocasio went to Barcus’ bedroom and took money was inadmissible

hearsay.

{¶18} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). “The hearsay rule ... is premised on the theory that out-of-court

statements are subject to particular hazards. The declarant might be lying; he might have

misperceived the events which he relates; he might have faulty memory; his words might

be misunderstood or taken out of context by the listener. And the ways in which these Licking County, Case No. 2019 CA 00013 8

dangers are minimized for in-court statements—the oath, the witness' awareness of the

gravity of the proceedings, the jury's ability to observe the witness' demeanor, and, most

importantly, the right of the opponent to cross-examine—are generally absent for things

said out of court.” Williamson v. United States,

,

,

(1994).

{¶19} Hearsay is generally not admissible unless it falls within one of the

recognized exceptions. Evid.R. 802; State v. Steffen,

,

(1987).

{¶20} In the instant case, the State argues that the statement was admissible

under the co-conspirator exception as set forth in Evid.R. 801(D)(2)(e):

D) Statements That Are Not Hearsay. A statement is not hearsay

if:

(1) ***

(2) Admission by Party-Opponent. The statement is offered against

a party and is (a) the party's own statement, in either an individual or a

representative capacity, or (b) a statement of which the party has

manifested an adoption or belief in its truth, or (c) a statement by a person

authorized by the party to make a statement concerning the subject, or (d)

a statement by the party's agent or servant concerning a matter within the

scope of the agency or employment, made during the existence of the

relationship, or (e) a statement by a co-conspirator of a party during the

course and in furtherance of the conspiracy upon independent proof of the

conspiracy. Licking County, Case No. 2019 CA 00013 9

{¶21} Upon review, we find while Lehoe and Ocasio were co-conspirators,

Lehoe’s statement to the police was not made during the course and in furtherance of the

conspiracy. A confession to police by one co-conspirator implicating a second co-

conspirator is not made “during the course and in furtherance of the conspiracy” within

the scope of Evid.R. 801(D)(2)(e), as such a statement is made at a point in time when

the confessor is no longer attempting to conceal the crime and has abandoned the

conspiracy. State v. Carter,

,

,

(1995).

{¶22} We therefore find that such statement was inadmissible hearsay. Any error

in allowing said testimony pursuant to the co-conspirator rule is, however, harmless on

this record. Error in admitting hearsay does not justify reversal where it is harmless. See

State v. Sage (1987),

, 31 OBR 375,

.

{¶23} At trial the state introduced evidence of two of the other co-defendants who

testified that the men went to Barcus’ house to rob him. Testimony was also presented

that Ocasio had a “silver” gun with him during the break-in. Additional testimony was

presented from four other witnesses describing things that occurred after the robbery

corroborating Ocasio’s participation in the robbery and the shooting.

{¶24} Based upon the record before us, we conclude that any error in allowing

such evidence was harmless beyond a reasonable doubt as the state offered ample

evidence of Appellant's guilt.

{¶25} Appellant also argues the trial court erred in allowing co-defendant Warren

to testify that he and Ocasio, ten days prior, had discussions on Facebook about

committing the robbery. The trial court also allowed into evidence a print out of the social

media conversation. Licking County, Case No. 2019 CA 00013 10

{¶26} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage,

,

(1987).

As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. The

term “abuse of discretion” connotes more than an error of law or judgment; it implies that

the court's attitude is unreasonable, arbitrary, or unconscionable. Wilmington Steel

Products, Inc. v. Cleveland Elec. Illum. Co.,

,

(1991). Absent an abuse of discretion resulting in material prejudice to the defendant, a

reviewing court should be reluctant to interfere with a trial court's decision in this regard.

Sage,

.

{¶27} All relevant evidence is admissible unless otherwise excluded by law.

Evid.R. 402. Under Evid.R. 401, relevant evidence is “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Although relevant,

evidence must be excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” (Emphasis

added.) Evid.R. 403(A).

{¶28} Here, we find that the admitted evidence is relevant to Appellee's case in

chief. The Facebook messages are evidence that these two men were discussing

committing a robbery, which they do in fact commit ten days later. These discussion were

part of the conspiracy to commit the robbery.

{¶29} We therefore find the trial court did not err in allowing in said testimony and

evidence.

{¶30} Appellant’s first and second assignments of error are overruled. Licking County, Case No. 2019 CA 00013 11

III.

{¶31} In his third and fourth assignments of error, Appellant argues that his

convictions are against the manifest weight and sufficiency of the evidence. We disagree.

{¶32} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins,

,

(1997). Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.”

{¶33} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass,

,

(1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger,

,

(1997).

{¶34} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v.

paragraph

two of the syllabus. The standard of review for a challenge to the sufficiency of the

evidence is set forth in State v. Jenks,

,

(1991) at

paragraph two of the syllabus, in which the Ohio Supreme Court held as follows: “An

appellate court's function when reviewing the sufficiency of the evidence to support a Licking County, Case No. 2019 CA 00013 12

criminal conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. The 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.”

{¶35} Appellant argues that the jury’s finding of guilty on the counts of aggravated

murder and murder were based on insufficient evidence.

{¶36} Appellant was convicted of one count of aggravated murder pursuant to

R.C. §2903.01(B) which provides:

(B) No person shall purposely cause the death of another or the

unlawful termination of another's pregnancy while committing or attempting

to commit, or while fleeing immediately after committing or attempting to

commit, kidnapping, rape, aggravated arson, arson, aggravated robbery,

robbery, aggravated burglary, burglary, trespass in a habitation when a

person is present or likely to be present, terrorism, or escape.

{¶37} Appellant was further convicted of murder pursuant to R.C. §2903.02(B)

which states:

(B) No person shall cause the death of another as a proximate result

of the offender's committing or attempting to commit an offense of violence

that is a felony of the first or second degree and that is not a violation of

section 2903.03 or 2903.04 of the Revised Code.

{¶38} Appellant contends that there was no eyewitness testimony as to the

shooting, and no evidence was presented to prove that Appellant acted purposely. Licking County, Case No. 2019 CA 00013 13

{¶39} Pursuant to R.C. §2901.22(A), “[a] person acts purposely when it is his

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is his specific intention to engage in conduct of that nature.”

{¶40} At trial, in addition to the testimony of two of the co-defendants, the jury was

also presented with the testimony of Brittany Lehoe and Hallie Martin as set forth above

which supports the State’s case that Ocasio shot Barcus. Eyewitness testimony is not a

required element of the offense.

{¶41} Appellant further argues that the fact that the victim was not shot in a vital

organ supports an argument that the shooting was not done purposely. While evidence

that a victim is shot in the head or the heart can be evidence of a purpose to cause death,

the reverse is not necessarily the case. Here, evidence was presented that stippling was

present on the victim’s body showing that the victim was shot from a distance of less than

six inches, and most likely at a close range of two to three inches. (Tr. Vol. II, pp. 303-

304).

{¶42} Here, the jury was free to accept or reject any and all of the evidence offered

by the parties and assess the witness's credibility. Indeed, the jury need not believe all of

a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin

App. No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. No. 02AP–1238, 2003–Ohio–2889, citing

State v. Caldwell (1992),

,

(4th Dist. 1992).

{¶43} We find that 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 Licking County, Case No. 2019 CA 00013 14

proven beyond a reasonable doubt”. Further, we cannot find that this is a case in which

“the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered,”

so we must hold

that the conviction is not against the manifest weight of the evidence or the sufficiency of

the evidence.

{¶44} Appellant’s third and fourth assignments of error are overruled.

V.

{¶45} In his fifth assignment of error, Appellant argues the trial court erred in failing

to merge all of his offenses into a single conviction. We disagree.

{¶46} Here, the trial court merged the murder offense into the aggravated murder

offense, and it merged the aggravated robbery offense into the aggravated burglary

offense. The trial court also merged the firearm specifications. 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. The trial court also ordered that the sentences be

served consecutively.

{¶47} Appellant argues that all of the charges should have merged into one for

purposes of sentencing because the charges were allied offenses of similar import.

{¶48} R.C. §2941.25, Ohio's allied offense statute, provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one. Licking County, Case No. 2019 CA 00013 15

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus to

each, the indictment or information may contain counts for all such offenses,

and the defendant may be convicted of all of them.

{¶49} In State v. Ruff,

,

,

, the

Supreme Court of Ohio explained that “the same conduct can be separately punished if

that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C. 2941.25(B).

Offenses are dissimilar in import “when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable.” Ruff at paragraph two of the syllabus.

{¶50} Upon review, we find that the trial court did not err in finding that two

remaining charges of Aggravated Murder and Aggravated Robbery were not allied

offenses and should not merge.

{¶51} Here, there are multiple victims to the Aggravated Robbery and Aggravated

Burglary charges. In addition to David Barcus, the Mosholders were also victims. Kathy

Mosholder testified about finding intruders in their house, having a gun pointed in her

face, being ordered to lay on the ground, and having to struggle to keep one of the men

from forcing his way into her kitchen. (Tr. Vol. I, p. 137-138). Richard Mosholder likewise

testified to the same events and how he had to shoot into the ground to try to scare away

the intruders. (Tr. Vol. I, p. 163-164). We find that the harm which resulted from this

conduct is separate and distinguishable from the conduct and the harm resulting from the

aggravated murder of David Barcus. Licking County, Case No. 2019 CA 00013 16

{¶52} Based on the foregoing, we find the trial court did not err by not merging

Appellant's convictions for Aggravated Murder and Aggravated Robbery based on the

facts in this case.

{¶53} Appellant’s fifth assignment of error is overruled.

{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

___________________________________ HON. JOHN W. WISE

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. PATRICIA A. DELANEY

JWW/d 1209