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State v. Somers

Court of Appeals of Ohio, Fifth District, Muskingum

August 5, 2019

STATE OF OHIO Plaintiff - Appellee
v.
MASON SOMERS Defendant-Appellant

          Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0424

         JUDGMENT: Affirmed.

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney Muskingum County, Ohio By: TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio

          For Defendant-Appellant MASON SOMERS #A741-605 Noble Correctional Institution

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} 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 claims.

         STATEMENT OF FACTS AND THE CASE

         {¶2} 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 flashlight.

         {¶3} 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.

         {¶4} 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).

         {¶5} At trial, the jury heard testimony from Ernest Dilley, Deputy Andrew Murphy, Detective Amy Thompson, BCI forensic scientist Michael Monfredi, and Detective Brad Shawger.

         {¶6} 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 up.

         {¶7} 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.

         {¶8} The jury found Appellant guilty of all counts and firearm specifications and the trial court sentenced Appellant to ...


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