Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-611188-A
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender By: Jeffrey Gamso Noelle A. Powell Assistant Public
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Melissa Riley Daniel Van Assistant
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
KATHLEEN ANN KEOUGH, JUDGE
Defendant-appellant, Frank Herrington, appeals his
convictions for rape and kidnapping. For the reasons that
follow, we affirm.
On November 9, 2016, Herrington was named in a four-count
indictment charging him with two counts of rape, and one
count each of complicity to commit rape and kidnapping. The
case was tried to the bench and the following evidence was
In the late evening of November 15, 1996, the victim, who was
nine-months pregnant, left her sister's house after a
cookout and walked to a nearby bus stop. A small blue car
pulled up next to her and the driver offered her a ride home,
which she accepted. When she got into the car, another male
exited from the back of the vehicle and got into the front
seat with her. The men drove her to a location and took turns
vaginally and orally raping her. The victim testified that
she believed the male passenger had a gun and she feared for
her and her unborn child's safety. She escaped from the
men only after pretending that she needed to use the
bathroom. Naked, she ran to a nearby retirement home and the
security guard called the police. She was taken to the
hospital where she received medical treatment for her
pregnancy and a rape kit examination was performed. The
victim admitted that both alcohol and cocaine were in her
system on this date. Days later she gave birth to her child.
The case was referred to the Cleveland Sex Crimes Division.
Despite the presence of the rape kit, when the victim failed
to provide police with any additional information, the case
Approximately 17 years later, in April 2013, the victim's
rape kit was finally tested. A CODIS hit revealed that one of
the genital swabs taken from the victim contained DNA
consistent with Herrington. Emily Feldenkris, forensic
scientist with the Ohio Bureau of Criminal Investigation,
testified that the genital swab revealed multiple
contributors, with Herrington being an identifiable
contributor. Feldenkris testified that she would expect to
find the major DNA profile in the sperm fraction of the
profile that was consistent with Herrington in one in every
30, 000 unrelated individuals. Additionally, she testified
that DNA from additional contributors, with as many as up to
four, were discovered from swabs taken from the victim's
Following the CODIS hit, the victim was shown a photo array.
She was unable to identify her attackers, but she selected a
male as looking "familiar" to her. The victim did
not identify Herrington in the array, but she testified that
she did not have consensual sex in November 1996 with any of
the males in the photo array.
Herrington testified on his own behalf, denying that he raped
the victim. He stated that he has never raped anyone and did
not remember having sex with a nine-month pregnant woman.
Herrington admitted that in 1996 he was a drug user and
engaged in sexual relations with different women. He further
testified that he hired prostitutes and would pay them for
sexual activity with drugs.
The trial court found Herrington guilty of all counts and
sentenced him to a total of seven years in prison, to be
served consecutively to the life-without-parole sentence he
was already serving on an unrelated aggravated murder
Herrington now appeals, raising five assignments of error,
which will be addressed out of order.
Prior to trial, Herrington moved to dismiss the case for
preindictment delay contending that he suffered actual
prejudice because alleged evidence and witnesses were no
longer available. Following oral arguments, the trial court
denied the motion, finding that Herrington did not satisfy
his burden of establishing actual prejudice because the
alleged unavailable evidence and witnesses were only based on
speculation. In his first assignment of error, Herrington
contends that the trial court erred in denying his motion to
dismiss for preindictment delay.
"In reviewing a trial court's decision on a motion
to dismiss for preindictment delay, we apply a de novo
standard of review to the legal issues but afford great
deference to findings of fact made by the trial judge."
State v. Tate, 2016-Ohio-5622, 70 N.E.3d 1056,
¶ 18 (8th Dist), citing State v. Smith, 8th
Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23.
Preindictment delay violates due process only when it is
unjustifiable and causes actual prejudice. State v.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d
688, ¶ 12. The Ohio Supreme Court has established a
burden-shifting framework for analyzing preindictment delay
due process claims. State v. Whiting, 84 Ohio St.3d
215, 217, 702 N.E.2d 1199 (1998). Under this framework, a
defendant is first required to present evidence of actual
prejudice; if actual prejudice is established, the burden
shifts to the state to produce evidence of a justifiable
reason for the delay. Id.
"Actual prejudice exists when missing evidence or
unavailable testimony, identified by the defendant and
relevant to the defense, would minimize or eliminate the
impact of the state's evidence and bolster the
defense." Jones at ¶ 28, citing State
v. Luck,15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097
(1984). "[T]he determination of 'actual
prejudice' involves 'a delicate judgment based on the
circumstances of each case.'" State v.
Walls,96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d
829, ¶ 52, citing United States v. Marion, 404
U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The mere
"possibility that memories will fade, witnesses will
become inaccessible, or evidence will be lost is not
sufficient to establish actual prejudice," because those
are manifestations of the prejudice inherent in any delay.
State v. Adams,144 Ohio St.3d 429, 2015-Ohio-3954,
45 N.E.3d 127, ¶ 105, ...