Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney
Muskingum County, Ohio By: TAYLOR P. BENNINGTON Assistant
Prosecuting Attorney Muskingum County, Ohio
Defendant-Appellant MASON SOMERS #A741-605 Noble Correctional
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon.
Craig R. Baldwin, J.
Mason Somers appeals the decision of the Muskingum County
Court of Common Pleas denying his motion for post-conviction
relief based upon the doctrine of res judicata, failure to
address issues on direct appeal and lack of meritorious
OF FACTS AND THE CASE
Ernest Dilley was sitting in his home when there was a knock
at his front door. Mr. Dilley opened the door believing it to
be his daughter returning home from work, but instead it was
a man holding a gun, with a bandana covering part of his
face. Mr. Dilley noticed the man was around six feet tall and
had tattoos on his arms and on the hand holding the gun. The
man charged into the house and pushed Mr. Dilley through the
threshold area of the home, into the living room, until Mr.
Dilley was on his couch. The man pointed the gun at Mr.
Dilley and demanded all of Mr. Dilley's money. Mr. Dilley
told the intruder his money was at the bank. The intruder
then picked up a lid from a glass candy jar and struck Mr.
Dilley in the face. The intruder grabbed Mr. Dilley's
cell phone off the coffee table and ran out of the house. Mr.
Dilley followed the intruder to the front porch area. Once
outside, Mr. Dilley noticed the glass candy dish lid had been
dropped in his yard. On top of the broken glass lid was a
Mr. Dilley ran to the neighbor's house and asked him to
call the police. When the police arrived, they searched the
area and found Dilley's cell phone in the middle of his
yard and returned it to him. The police also found the
flashlight and a pistol bullet cartridge that had not been
fired and both were submitted for DNA testing. The DNA
discovered on the flashlight came back as a one in one
trillion match to Appellant Mason Somers. The test of the
bullet was inconclusive.
Appellant was indicted on one count of Aggravated Burglary, a
felony of the first degree, in violation of R.C.
2911.111(A)(2), one count of Aggravated Robbery, a felony of
the first degree, in violation of R.C. 2911.01(A)(1), one
count of Kidnapping with a gun specification, a felony of the
first degree, in violation of R.C. 2905.01(A)(1), and one
count of Felonious Assault, a felony of the second degree, in
violation of R.C. 2903.11(A)(2).
At trial, the jury heard testimony from Ernest Dilley, Deputy
Andrew Murphy, Detective Amy Thompson, BCI forensic scientist
Michael Monfredi, and Detective Brad Shawger.
Mr. Dilley testified as to the events that took place on
August 23, 2017, as set forth above. He further testified
that the perpetrator's height and tattoos on his hands
and arms were consistent with that of Appellant's height
and tattoos on his hands and arms. Mr. Dilley also testified
that the flashlight found in the yard had not been there
previously because if it had been, he would have picked it
The state presented two audio recordings of Appellant from a
phone call and a visit. In the recordings, Appellant comments
on the facts of the case and concludes that he should get a
"sweet deal" as a result of the lack of any
egregious actions during the offense. Appellee argued the
statements were made prior to the state responding to
Appellant's discovery requests, suggesting that Appellant
had knowledge of the facts that only the perpetrator would
know. Appellee's trial counsel cross-examined the officer
who introduced the tapes, suggesting during those questions
and in his closing argument that there were alternative
sources for the information the Appellant described, such as
the complaint, trial counsel, or other individuals.
Appellant's trial counsel chose not to have his client
testify and avoided subjecting him to cross examination,
which, according to Appellant's brief, would disclose a
prior drug offense and, based upon the record, may have been
of little material assistance.
The jury found Appellant guilty of all counts and firearm
specifications and the trial court sentenced Appellant to