[Cite as State v. Mason,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020CA00023 MATHEW MASON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No.6629

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 23, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER TUNNELL MATHEW MASON #A231-446 Ashland County Prosecutor Grafton Correctional Institution BY: AMY R. INZINA 2500 S. Avon-Belden Rd. Assistant Prosecutor Grafton, OH 44044 110 Cottage Street Ashland, OH 44805 [Cite as State v. Mason,

.]

Gwin, J.

{¶1} Defendant-appellant Mathew E. Mason [“Mason”] appeals from the April 1,

2020 Judgment Entry of the Ashland County Court of Common Pleas that overruled

Mason’s Motion for Relief from Void Sentence and Mason’s Application for touch DNA

testing.

Facts and Procedural History

{¶2} Mason was indicted by the Ashland County Grand Jury in November of

1990 on one count of aggravated murder. The indictment alleged Mason murdered Gurcia

Johnson on or about December 30, 1985. Mason’s trial commenced on January 17, 1991.

The jury found Mason guilty of aggravated murder and the trial court imposed a life

sentence of incarceration. See, State v. Mason, 5th District Ashland No. 2006-COA18,

.

{¶3} Following the trial, Mason filed a motion for new trial. The trial court

overruled Mason’s motion. Mason then filed a notice of appeal with this Court. The

judgment of the trial court was affirmed in State v. Mason, 5th Dist. Ashland No. CA 975,

(Aug. 23, 1993).

{¶4} On September 20, 1993, Mason filed with this Court a notice of appeal to

the Supreme Court of Ohio, appealing the judgment entered on August 23, 1993. Mason

filed a motion to certify the record in this matter to the Supreme Court of Ohio for review

on September 21, 1993. We overruled Mason’s motion on October 18, 1993.

{¶5} Mason subsequently filed a motion for leave to appeal from the Court of

Appeals with the Ohio Supreme Court. The Supreme Court overruled this motion on

January 6, 1994, and Mason’s appeal was dismissed sua sponte for the reason that no Ashland County, Case No.

3

substantial constitutional question existed. State v. Mason,

,

(1991).

{¶6} After the Ohio Supreme Court dismissed Mason’s appeal, he filed a petition

for writ of certiorari in the United States Supreme Court. The United States Supreme

Court remanded the case to this Court for further consideration in light of Stansbury v.

California

,

,

(1994). Mason v. Ohio,

,

,

(1994). This Court affirmed its opinion and

the judgment of the trial court on July 11, 1994. State v. Mason, 5th Dist. No. Ashland No.

CA-975,

(July 11, 1994).

{¶7} Mason then filed a motion for leave to appeal this decision reaffirming the

judgment of the trial court to the Ohio Supreme Court. On December 7, 1994, the

Supreme Court of Ohio denied Mason’s leave to appeal and dismissed the appeal on the

basis that there was no substantial constitutional question presented. State v. Mason,

,

(Table)(1994).

{¶8} On September 23, 1994, Mason filed a motion for post-conviction relief with

the trial court. The trial court dismissed the motion on December 13, 1994. Mason filed a

notice of appeal on January 6, 1995. This Court affirmed the trial court’s decision

dismissing appellant’s motion for post-conviction relief. State v. Mason 5th Dist. Ashland

No. CA1104,

(Oct. 17, 1995).

{¶9} On April 17, 2000, Mason filed a Motion for Leave to File a Delayed Motion

for a New Trial. In a May 25, 2000 Judgment Entry, the trial court overruled Mason’s

motion. Mason filed a Motion to Reconsider. The trial court overruled the motion in a June

6, 2000 Judgment Entry. On June 20, 2000, Mason filed a Notice of Appeal. This Court Ashland County, Case No.

4

affirmed the decision of the trial court. State v. Mason, 5th Dist. Ashland No.

,

(Mar. 29, 2001).

{¶10} On April 13, 2001, Mason filed a Memorandum in Support of Jurisdiction

with the Ohio Supreme Court. In a June 27, 2001 Judgment Entry, the Ohio Supreme

Court dismissed the appeal. In the interim, on May 2, 2001, Mason filed two motions with

the Ashland County Court of Common Pleas: a Motion for Fingerprint Comparison at

State Expense, and a Motion for Order to Preserve Evidence. In a June 2, 2001 Judgment

Entry, the trial court dismissed appellant’s motion, stating, “There is no pending open

case in the Court. Therefore, this Court lacks jurisdiction to consider the Motions of

Defendant currently pending. Therefore, the above two Motions are hereby DISMISSED,

accordingly”. Mason subsequently appealed the trial court’s decision. This Court affirmed

the trial court’s decision. State v. Mason, 5th Dist. Ashland No.

, 2001-Ohio-

1579.

{¶11} On March 23, 2005, Mason filed an Application for DNA testing pursuant

to R.C. 2953.73. The State filed a response to this motion on April 22, 2005. On April 13,

2005, Mason filed a “Motion to Order Fingerprint Comparison”. On April 22, 2005, the

State filed a response to this motion. By Judgment Entry filed September 9, 2005, the

trial court ordered the Ashland County Prosecuting Attorney to prepare a report pursuant

to R.C. 2953.75 concerning the existence of DNA samples to be tested. The Ashland

County Prosecuting Attorney filed this report with the trial court on March 27, 2006.

{¶12} In two separate Judgment Entries filed June 5, 2006 the trial court overruled

both Mason’s motion to order fingerprint comparison and Mason’s application for DNA

testing stating, “The State of Ohio has substantiated that neither BCI & I or [sic.] the Ashland County, Case No.

5

Ashland County Sheriff’s Department presently has possession of either the eyeglasses

or the fingerprints discovered on the glasses.” The Court further found that the only

biological evidence still in existence is known to have come from the victim.

{¶13} On June 12, 2006 Mason filed a Notice of Appeal. Pursuant to App. R. 3(D)

appellant attached only the trial court’s Judgment Entry overruling his Motion to Order

Fingerprint Comparison. Mason’s docketing statement likewise referred solely to the trial

court’s decision overruling his Motion to Order Fingerprint Comparison. After finding that

“only the trial court’s denial of appellant’s motion for a fingerprint comparison is presently

before this Court,” this Court affirmed the decision of the trial court, holding,

Although the glasses and the fingerprint evidence existed in 1985,

nothing in the record before the trial court or before this Court verifies that

those items are currently in existence. Without the existence of either the

glasses or the fingerprints lifted from those glasses there is no “parent

sample” against which a sample from the inmate can be compared.

Accordingly, the trial court’s decision overruling appellant’s motion for a

fingerprint comparison in no way violates appellant’s due process or equal

protection rights. In reality no discretion was involved in the trial court’s

decision because the court cannot order a comparison when the “parent

sample,” for want of a better term, no longer exists.

5th Dist. Ashland No. 2006-COA-18,

.

{¶14} On March 2, 2020, Mason filed an Application for DNA testing seeking

“‘Touch DNA’ testing and analysis on all physical evidence and exhibits from crime scene,

including clothing of victim and everything else.” Also, on March 2, 2020, Mason filed a Ashland County, Case No.

6

Motion for Relief from Void Sentence claiming that the life sentence imposed by the trial

court in 1991 was not authorized by law because R.C. 2929.03 and R.C. 2929.04 only

authorized a sentence of “twenty years to life” on a conviction for Aggravated Murder

without any specifications. The state responded on March 16, 2020. By Judgment Entry

filed April 1, 2020, the trial court overruled both of Mason’s motions.

Assignments of Error

{¶15} Mason, pro se, raises two Assignments of Error:

{¶16} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

APPELLANT’S MOTION FOR RELIEF FROM VOID JUDGMENT.

{¶17} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANT’S MOTION FOR “TOUCH DNA” TESTING ON AVAILABLE

PHYSICIAL EVIDENCE.”

I.

{¶18} In his First Assignment of Error, Mason contends that the life sentence

imposed by the trial court in 1991 was not authorized by law because R.C. 2929.03 and

R.C. 2929.04 only authorized a sentence of “twenty years to life” on a conviction for

Aggravated Murder without any specifications.

Standard of Appellate Review.

{¶19} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

, 2016–Ohio–1002,

, ¶ 22;

State v. Howell, 5th Dist. Stark No. 2015CA00004,

.

{¶20} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an

appellate court may only review individual felony sentences under R.C. 2929.11 and R.C. Ashland County, Case No.

7

2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of

consecutive felony sentences.

,

; State v.

Anthony, 11th Dist. Lake No. 2019-L-045,

.

{¶21} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly find

that either the record does not support the sentencing court’s findings under R.C.

2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise

contrary to law. See, also, State v. Bonnell,

, 2014–Ohio–3177,

, ¶ 28; State v. Gwynne, ¶16.

{¶22} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

,

(1985).

“Where the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St.

at 477

.

Issue for Appellate Review: Whether the record clearly and convincing does not

support Mason’s sentence or the sentence is otherwise contrary to law.

{¶23} Mason is correct in one respect. Both at the time of the crime in 1985 and

at the time of sentencing in 1991, R.C. 2929.03 provided, in relevant part,

(A) If the indictment or count in the indictment charging aggravated

murder does not contain one or more specifications of aggravating Ashland County, Case No.

8

circumstances listed in division (A) of section 2929.04 of the Revised Code,

then, following a verdict of guilty of the charge of aggravated murder, the

trial court shall impose sentence of life imprisonment with parole eligibility

after serving twenty years of imprisonment on the offender.

{¶24} Mason is also correct in that the trial court sentenced Mason as follows,

The Defendant will rise. Mathew E. Mason, a jury having found you

guilty of the crime of Aggravated Murder, in violation of Revised Code

Section 2903.01(A), as charged in the Indictment, it is the sentence of this

Court that you be committed to the Department of Rehabilitation and

Correction for placement in a proper penal institution for the term of your

natural life.

9T. Jan. 30 and 31, 1991 at 17981. The substance of former R.C. 2929.03(A) has been

codified in Ohio Adm.Code 5120-2-10(B), which provides, in relevant part, as follows:

A sentence of life imprisonment imposed pursuant to section

2929.03 of the Revised Code for the offense of aggravated murder shall be

presumed to be a sentence of life imprisonment with parole eligibility after

twenty years, subject to diminution under rules 5120-2-05, 5120-2-06 and

5120-2-07 of the Administrative Code, unless the journal entry of the court

specifies that parole eligibility is to be after twenty full years or thirty full

years.

1 For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the page number. Ashland County, Case No.

9

{¶25} Pursuant to the plain language of Ohio Adm.Code 5120-2-10(B), Mason’s

parole eligibility on the aggravated murder charge is presumed under the law. See State

v. Perry, 11th Dist. Trumbull No. 2016-T-0098,

(appellant’s 1994

life sentence for aggravated murder “carries a presumption of parole eligibility after twenty

years despite the [sentencing entry’s] silence regarding parole eligibility”); State v. Brown,

7th Dist. Mahoning No. 14 MA 37,

, ¶ 36 (appellant’s 1996 life sentence

for aggravated murder “must necessarily read as life with [parole] eligibility after twenty

years and cannot be read in any other manner under the applicable statutes [including

Ohio Adm.Code 5120-2-10(B)]”). Therefore, even though the trial court did not indicate at

sentencing that Mason would become eligible for parole on his aggravated murder

conviction after serving 20 years in prison, such eligibility is presumed since the

sentencing entry did not indicate otherwise. See also, State v. Stevens, 2nd Dist.

Montgomery No. 27872,

, ¶ 11-¶12; State v. Perdue, 7th Dist. Mahoning

No. 16 MA 0156,

, ¶16-¶17.

{¶26} A review of the Ohio Department of Rehabilitation and Correction website

reveals that Mason is serving a 20 year to life sentence.

[https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A231446 (accessed

Dec. 16, 2020)]. His next Parole Hearing/Review is in March 2022.

{¶27} Mason’s argument that his sentence is void likewise must fail.

{¶28} The Ohio Supreme Court has recently rejected the last three decades of the

Court’s void-sentence analysis, and returned to the traditional understanding of the

distinction between void and voidable sentences. In State v. Henderson, Slip Opinion No.

(Oct., 2020), the Court held, Ashland County, Case No.

10

A judgment or sentence is void only if it is rendered by a court that

lacks subject-matter jurisdiction over the case or personal jurisdiction over

the defendant. If the court has jurisdiction over the case and the person,

any sentence based on an error in the court’s exercise of that jurisdiction is

voidable. Neither the state nor the defendant can challenge the voidable

sentence through a post-conviction motion.

Henderson, ¶43. The court observed,

There is no dispute that the trial court’s sentence was unlawful.

Former R.C. 2929.02(B), Am.Sub.S.B. No. 107, 157 Ohio Laws, Part IV,

7435, required that Henderson receive an indefinite sentence of 15 years

to life, and the court failed to impose that sentence. The state had a full and

fair opportunity to object to or challenge the trial court’s sentence. It did not.

In fact, it did not seek to correct the error for almost 12 years, and it then

waited 6 more years before filing the motion at issue in this appeal. Because

the sentencing error rendered the sentence voidable, the state’s attempt to

correct the error in a postconviction motion for resentencing was improper.

Henderson, ¶ 40. See also, State v. Tate, 5th Dist. Richland On. 2019CA119, 2020-Ohio-

4980.

{¶29} In the case at bar, Mason had a full and fair opportunity to challenge the

wording of trial court’s sentence. Mason has waited over thirty years before filing the

motion in the trial court. Because any error in the manner in which the trial court imposed

sentence in Mason’s case rendered the sentence voidable, Mason attempt to correct the Ashland County, Case No.

11

error in a post-conviction motion is improper. Accordingly, the trial court did not err in

dismissing Mason’s motion.

{¶30} Mason’s First Assignment of Error is overruled.

II.

{¶31} In his Second Assignment of Error, Mason maintains the trial court abused

its discretion and denied his right to due process of law when it denied his application for

touch DNA analysis.

Standard of Appellate Review – Application for Post-conviction DNA testing.

{¶32} In State v. Buhler, the Ohio Supreme Court held,

1. A careful, commonsense reading of R.C. 2953.74(C) in pari

materia with R.C. 2953.72 and 2953.73 and the remainder of R.C. 2953.74

illustrates the intent of the General Assembly to authorize the trial court to

exercise its discretion in how to proceed when ruling on an eligible inmate’s

application for DNA testing.

2. When an eligible inmate files an application for DNA testing

pursuant to R.C. 2953.73, a trial court should exercise its discretion based

upon the facts and circumstances presented in the case as to whether it will

first determine whether the eligible inmate has demonstrated that the DNA

testing would be outcome-determinative, or whether it should order the

prosecuting attorney to prepare and file a DNA evidence report pursuant to

R.C. 2953.75.

,

,

, paragraphs 1 and 2 of the

syllabus. Ashland County, Case No.

12

{¶33} R.C. 2953.72(A)(8) provides that when requesting DNA testing pursuant to

R.C. 2953.71 through 2953.81, an eligible offender must submit an acknowledgment form

stating that,

The court of common pleas has the sole discretion subject to an

appeal as described in this division to determine whether an offender is an

eligible offender and whether an eligible offender’s application for DNA

testing satisfies the acceptance criteria described in division (A)(4) of this

section and whether the application should be accepted or rejected, that if

the court of common pleas rejects an eligible offender’s application, the

offender may appeal the rejection, and that no determination otherwise

made by the court of common pleas in the exercise of its discretion

regarding the eligibility of an offender or regarding post-conviction DNA

testing under [sections 2953.71 through 2953.81 of the Revised Code] is

reviewable by or appealable to any court.

(Emphasis added; language severed as unconstitutional omitted, see Noling III,

,

,

); State v. Noling,

,

,

. As the Supreme Court has observed,

The text of R.C. 2953.72(A)(8) specifically notes that three of the trial

court’s discretionary decisions regarding DNA testing are appealable: (1)

whether Noling is an eligible offender, (2) whether Noling’s application

satisfied the acceptance criteria, and (3) whether Noling’s application

should have been accepted or rejected. As a result, appellate courts do not

have jurisdiction to hear Noling’s claims that appeal discretionary decisions Ashland County, Case No.

13

made by the trial court that do not relate to one of these three specifically

listed exceptions. R.C. 2953.72 (A)(8) does not recognize any limits as to

an applicant’s right to appeal a court’s failure to fulfill a mandatory duty; in

fact, the division is entirely silent on that issue.

***

Examining the limits explained in R.C. 2953.72(A)(8) and (A)(9) in

conjunction, it is clear that an appellate court has jurisdiction over a claim

raised by an offender who requests DNA testing if the claim challenges any

of the three discretionary decisions specifically listed as appealable in R.C.

2953.72(A)(8) or if the claim is that the trial court failed to fulfill a mandatory

duty. Appellate courts do not have jurisdiction over claims that the trial court

made incorrect discretionary decisions—other than the three specifically

listed appealable issues—or claims asserting that the trial court performed

a mandatory duty but that the manner in which that duty was performed was

improper.

State v. Noling,

,

,

; ¶37.

{¶34} An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827,

; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No .2006–CA–41, 2006–Ohio–5823, ¶54. Ashland County, Case No.

14

Issue for Appellate Review: Whether the trial court abused its discretion in

denying Mason’s application for post-conviction DNA testing.

{¶35} 1. R.C. 2953.71.

{¶36} The procedure for reviewing and accepting DNA-test applications is set

forth in R.C. 2953.71 through 2953.82. After an eligible inmate submits a DNA-test

application, R.C. 2953.73(D) states that the trial court “shall make the determination as

to whether the application should be accepted or rejected. * * * The court shall make the

determination in accordance with the criteria and procedures set forth in [R.C.] 2953.74

to 2953.81.” R.C. 2953.73(D) also requires the trial court to consider the application and

all corresponding and pertinent files, records, affidavits, documentary evidence, and all

materials regarding the proceedings against defendant, “unless the application and the

files and records show [that defendant] is not entitled to DNA testing, in which case the

application may be denied.”

Following its determination, the trial court shall enter a

judgment and order that accepts or rejects the application. R.C. 2953.73(D) mandates

that the trial court shall state the reasons for the acceptance or rejection, based on the

criteria and procedures of R.C. 2953.71 to 2953.81, within the judgment and order.

{¶37} In the case at bar, Mason has not submitted any evidence that touch DNA

would exist in a quantity or quality sufficient to obtain a parent sample capable of

comparison some 36 years after the crime and after handling by numerous personnel.

{¶38} Mason’s case would fall under Section (B)(1) because the clothing and

other items did not have a DNA test taken at the trial stage.

{¶39} 2. R.C. 2953.74.

{¶40} R.C. 2953.74(B) states: Ashland County, Case No.

15

(B) If an eligible inmate submits an application for DNA testing under

section 2953.73 of the Revised Code, the court may accept the application

only if one of the following applies:

(1) The inmate did not have a DNA test taken at the trial stage in the

case in which the inmate was convicted of the offense for which the inmate

is an eligible inmate and is requesting the DNA testing regarding the same

biological evidence that the inmate seeks to have tested, the inmate shows

that DNA exclusion when analyzed in the context of and upon consideration

of all available admissible evidence related to the subject inmate’s case as

described in division (D) of this section would have been outcome

determinative at that trial stage in that case, and, at the time of the trial

stage in that case, DNA testing was not generally accepted, the results of

DNA testing were not generally admissible in evidence, or DNA testing was

not yet available.

(2) The inmate had a DNA test taken at the trial stage in the case in

which the inmate was convicted of the offense for which the inmate is an

eligible inmate and is requesting the DNA testing regarding the same

biological evidence that the inmate seeks to have tested, the test was not a

prior definitive DNA test that is subject to division (A) of this section, and the

inmate shows that DNA exclusion when analyzed in the context of and upon

consideration of all available admissible evidence related to the subject

inmate’s case as described in division (D) of this section would have been

outcome determinative at the trial stage in that case. Ashland County, Case No.

16

{¶41} 3. Mason did not satisfy all six of the conditions necessary for the trial court

to accept his post-conviction DNA application.

{¶42} “A court may accept an R.C. 2953.73 application for DNA testing only if it

determines that six conditions apply, two of which are central to this appeal.” State v.

Bonnell,

,

(2018), ¶19. First, the court must find that

“the identity of the person who committed the offense was at issue.” R.C. 2953.74 (C)(3).

And second,

A trial court may accept a DNA application only if it determines that

“if DNA testing is conducted and an exclusion result is obtained, the

exclusion result would be outcome determinative.” R.C. 2953.74(C)(4). In

its current form, the Revised Code defines “outcome determinative” to mean

that, had the testing been presented at trial and admitted into evidence,

when considered alongside the other evidence in the case, “there is a strong

probability that no reasonable factfinder would have found the offender

guilty of [the] offense or, if the offender was sentenced to death relative to

that offense, would have found the offender guilty of the aggravating

circumstance or circumstances the offender was found guilty of committing

and that is or are the basis of that sentence of death.” R.C. 2953.71(L).

Bonnell, ¶19.

a. Testing of the clothing and other items of evidence would not be outcome

determinative.

{¶43} Mason contends that the trial court erred in its determination that he was

not entitled to DNA testing (assuming any materials exist for testing) because he argues Ashland County, Case No.

17

the results would be outcome determinative. Mason did not submit any evidence in

support of his motion.

{¶44} If Mason’s DNA was recovered from the victim’s clothing or other evidence,

assuming any still exists, that would be evidence to support his guilt.

{¶45} If Mason’s DNA was not recovered from any of the items, that would not be

outcome determinative. Mason was convicted after a jury trial without any DNA evidence.

At trial a hair recovered from the victim’s jacket was determined not to belong to Mason.

The jury nonetheless found Mason guilty beyond a reasonable doubt.

{¶46} If a third party’s DNA was recovered, that would not be outcome

determinative. Testimony at trial revealed that the victim was playing pool with two white

males. See, State v. Mason, 5th Dist. Ashland No. CA-975,

(Aug. 23,

1993), at *2. The victim and two white males left the bar to go and purchase some

marijuana.

The three of them and another female smoked the marijuana.

The victim

and two white males and another female Latreava Persue left the bar together and all got

into an orange pickup truck.

{¶47} Thus, even if someone else’s DNA were found on the evidence, that

evidence would not reasonably exclude Mason as a perpetrator of the crime at issue.

Such evidence would establish only that someone else had touched the victim’s clothing

and had contact with the victim. It would not negate the overwhelming evidence of

Mason’s own involvement in the crime. In the words of R.C. 2953.71(L), the requested

testing would not create “a strong probability that no reasonable factfinder would have

found [Mason] guilty of th[e] offense [.]” Ashland County, Case No.

18

{¶48} In the case sub judice, in order for the trial court to find that touch DNA

evidence on the clothing would be outcome determinative, it would have to disregard all

the evidence provided at trial. See, State v. Mason, 5th Dist. Ashland No. CA-975,

(Aug. 23, 1993). A review of the record establishes that this evidence was

substantial and therefore, the trial court did not abuse its discretion when the court

determined that DNA testing would not be outcome determinative.

{¶49} Based upon the foregoing, Mason has failed to demonstrate any of the

evidence that he sought to test could be outcome determinative [R.C. 2953.74 (B)(1);

(C)(4)]. Accordingly, we find no error in the trial court’s denial of his application for post-

conviction DNA testing.

{¶50} Mason’s Second Assignment of Error is overruled.

{¶51} The judgment of the Ashland County Court of Common Pleas is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, Earle E., J., concur