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State v. Herrington

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
FRANK L. HERRINGTON DEFENDANT-APPELLANT

          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 Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Melissa Riley Daniel Van Assistant County Prosecutors

          BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.

          KATHLEEN ANN KEOUGH, JUDGE

         {¶1} Defendant-appellant, Frank Herrington, appeals his convictions for rape and kidnapping. For the reasons that follow, we affirm.

         {¶2} 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 presented.

         {¶3} 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.

         {¶4} 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 was closed.

         {¶5} 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 underwear.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 conviction.

         {¶9} Herrington now appeals, raising five assignments of error, which will be addressed out of order.

         I. Preindictment Delay

         {¶10} 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.

         {¶11} "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.

         {¶12} 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.

         {¶13} "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, ΒΆ 105, ...


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