[Cite as State v. Herrington , 2018-Ohio-3049.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106225
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FRANK L. HERRINGTON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611188-A
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 2, 2018 ATTORNEYS FOR APPELLANT
Mark Stanton Cuyahoga County Public Defender By: Jeffrey Gamso Noelle A. Powell Assistant Public Defenders 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Melissa Riley Daniel Van Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶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, ¶ 105, citing Marion at 326. An
actual prejudice analysis requires courts to undertake a case-by-case consideration of the
relevance of the lost evidence and its purported effect on the defense. Id., citing Walls at ¶ 52.
{¶14} Herrington argued in his motion to dismiss that he suffered actual prejudice
because (1) phone records were unavailable that could prove any encounter was consensual, and
(2) witnesses were unavailable to corroborate the theory that he and the victim were frequent
drug users who would exchange drugs for sex. On appeal, however, Herrington contends that he
suffered actual prejudice because the passage of time denied him the ability to challenge the
victim’s credibility with other acts evidence that was, at the time of trial, beyond the time
allowed under the rules of evidence and therefore inadmissible.
{¶15} It is well settled that an appellant may not raise on appeal a new argument that was
not raised in the trial court. In re J.M.P., 4th Dist. Vinton No. 16CA702, 2017-Ohio-8126, ¶ 7,
citing Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,
2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30; see also Revilo Tyluka, LLC v. Simon Roofing & Sheet
Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 23-26 (8th Dist.) (a
party cannot change the theory of the case and present new arguments on appeal). Accordingly,
Herrington’s new argument regarding other acts evidence will not be addressed.1
1 Arguments regarding the victim’s prior criminal record were made in the context of the state’s motion in limine regarding whether that evidence is protected under Ohio’s rape shield law. No assignment of error has been raised challenging the trial court’s decision excluding the victim’s prior criminal record. {¶16} In this case, the trial court did not err in overruling Herrington’s motion to dismiss
for preindictment delay. The motion was premised on speculation that phone records and
witnesses may have been available to prove the encounter was consensual. This type of
speculation is insufficient for Herrington to satisfy his burden of demonstrating actual prejudice.
The requisite proof “must be specific, particularized, and non-speculative.” State v. Hubbard,
12th Dist. Butler No. CA92-03-058, 1992 Ohio App. LEXIS 5784, *4 (Nov. 16, 1992), citing
United States v. Moran, 759 F.2d 777 (9th Cir.1985); State v. Battiste, 8th Dist. Cuyahoga No.
102299, 2015-Ohio-3586, ¶ 48. Moreover, Herrington offered a complete defense of actual
innocence at trial, testifying that he did not rape the victim or remember engaging in sexual
conduct with anyone nine-months pregnant. His theory of the case and testimony negates the
argument that the encounter was consensual, thus obviating the need for the alleged unavailable
evidence.
{¶17} Because Herrington did not demonstrate actual prejudice, the trial court did not err
in denying his motion to dismiss for preindictment delay. The first assignment of error is
overruled.
II. Manifest Weight of the Evidence
{¶18} In his third assignment of error, Herrington contends that his convictions are
against the manifest weight of the evidence.
{¶19} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380,
388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of
the evidence only in the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶20} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶21} Herrington contends that his convictions are against the manifest weight of the
evidence because the victim’s testimony was not credible and the forensic evidence indicated that
up to four individual DNA profiles were discovered on the victim’s undergarments. Therefore,
he maintains that it was more plausible that the victim was engaging in prostitution, which
explains how the circumstances of the rape occurred. Herrington does not discount her
allegation of rape, but contends that a conclusion that he was the person who raped the victim is
against the manifest weight of the evidence. We disagree.
{¶22} The victim testified that she accepted a ride from an unknown male during the late
hours of November 15, 1996. When she got into the car, another male exited from the back of the vehicle and got into the front seat. She testified that she felt what she believed to be a gun in
her back. The men drove her to an unknown area, forced her to take her clothes off, and took
turns vaginally and orally raping her. She was able to escape by telling the men that she needed
to use the bathroom. As she ran from the car, the men drove away, throwing her clothes out of
the car. Detective Andrew Ziska testified that he retrieved some of the victim’s clothing from
the Judson Park area.
{¶23} The sole evidence against Herrington was forensic DNA evidence demonstrating
that he was a contributor in a DNA mixture profile found on a genital swabbing from the victim.
Feldenkris testified that additional data was present from that swabbing, but that it was
insufficient for comparison. The presence of this additional data is consistent with the victim’s
testimony that two unknown men took turns raping her that night.
{¶24} Significantly, the DNA profile that was consistent with Herrington’s was the major
DNA profile in the sperm fraction as opposed to the fraction of cells that contains every other
cell on the sample. Feldenkris testified that she would expect to find the major DNA profile in
the sperm fraction of that profile that was consistent with Herrington in one in every 30,000
unrelated individuals. (Tr. 164.)
{¶25} Additionally, Feldenkris testified that the victim’s clothes were tested. The DNA
profile obtained from the victim’s underwear and a sock showed the presence of an additional
male DNA, but was not suitable for comparison. She stated that because the additional data was
not suitable for comparison, she could not make any conclusions about whether Herrington was
the contributor to that DNA profile. (Tr. 163.)
{¶26} The presence of Herrington’s DNA profile creates a reasonable inference, if not
more, that Herrington engaged in sexual conduct with the victim. This would be contradictory to his complete defense that he never had sexual contact with the victim. Accordingly, the trial
court had to weigh his testimony against the testimony and evidence that the DNA profile
obtained was consistent with Herrington’s DNA profile. We find no manifest injustice in the
trial court finding him guilty.
{¶27} Based on the DNA evidence linking Herrington to the rape and the presence of
additional data that would support the victim’s account that another male also sexually assaulted
her, this is not the exceptional case in which the evidence weighs heavily against the conviction.
{¶28} Accordingly, Herrington’s third assignment of error is overruled.
III. Effective Assistance of Counsel — DNA Expert
{¶29} In his second assignment of error, Herrington contends that he was denied effective
assistance of counsel because counsel did not obtain or consult with an independent expert to
evaluate the DNA evidence obtained.
{¶30} To establish ineffective assistance of counsel, a defendant must demonstrate (1)
that counsel’s performance fell below an objective standard of reasonable representation and (2)
that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687-688,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant
demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. The failure to prove either prong of the
Strickland two-part test makes it unnecessary for a court to consider the other prong. State v.
Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶31} Generally, the decision whether to call a witness “falls within the rubric of trial
strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001); see also State v. Williams, 74 Ohio App.3d 686, 694, 600
N.E.2d 298 (8th Dist.1991). Furthermore, the failure to call an expert and instead rely on
cross-examination does not constitute ineffective assistance of counsel. State v. Nicholas, 66
Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). “In many criminal cases, trial counsel’s decision
to not seek expert testimony is unquestionably tactical because such expert might uncover
evidence that further inculpates the defendant.” State v. Krzywkowski, 8th Dist. Cuyahoga Nos.
83599, 83842, and 84056, 2004-Ohio-599, ¶ 22, quoting State v. Glover, 12th Dist. Clermont
No. CA2001-12-1-2, 2002-Ohio-6392, ¶ 95. The failure to call an expert and instead rely on
cross-examination does not necessarily constitute ineffective assistance of counsel because it is a
legitimate trial strategy for defense counsel not to present expert testimony and rely on
cross-examination of a state’s expert to rebut evidence of a crime. Id.
{¶32} Our review of the record reveals that defense counsel thoroughly cross-examined
Feldenkris about the DNA testing, the control failure that occurred during the testing, and the
comparable relatively low probability that the DNA profile actually belonged to Herrington — 1
in 30,000 as opposed to one in a quintillion. Based on defense counsel’s performance, the trial
court was able to view these results and determine the amount of weight to be given to the
testimony and results.
{¶33} Accordingly, Herrington has failed to demonstrate that his defense counsel’s
performance was deficient. His second assignment of error is overruled.
IV. Consecutive Sentences
{¶34} In his fourth and fifth assignments of error, Herrington challenges the imposition of
consecutive sentences. He first contends that the record does not clearly and convincingly
support the trial court’s consecutive sentence findings. Specifically, he contends that it was irrational for the trial court to find that consecutive sentences are necessary to protect the public
because he was already serving a life-without-parole sentence.
{¶35} This court had held that sentences imposed consecutively to life-without-parole
sentences are moot because the issue is “academic” — this court can issue no decision that will
have any practical effect on the controversy. State v. Chavez, 8th Dist. Cuyahoga No. 99436,
2013-Ohio-4700, ¶ 47.
{¶36} Herrington recognizes this court’s precedent in Chavez, but maintains that review
of the sentence is proper pursuant to State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, which held that it was proper for an appellate court to review whether life sentences
were properly made consecutive. However, this court rejected the same argument in State v.
Campbell, 8th Dist. Cuyahoga No. 103982, 2016-Ohio-7613. In Campbell, this court noted that
the sentences in Porterfield — consecutive 20-year-to-life sentences — “did not necessarily
foreclose the possibility, even if remote, of Porterfield serving those sentences and being paroled
during his life.” Id. at ¶ 11. A sentence of life without the possibility of parole, however,
forecloses the possibility of parole because the “life sentence will be completed upon [the
defendant’s] death. When that occurs, the sentences that were ordered to be served consecutive
to the life sentence will terminate.” Id.
{¶37} Accordingly, because Herrington is serving a life-without-parole sentence, any
challenge in this case to the consecutive nature of his sentence is moot. Herrington’s fourth
assignment of error is overruled.
{¶38} Herrington also claims that his counsel was ineffective because counsel raised the
prospect of the trial court imposing consecutive sentences. The record reflects the following
colloquy: [DEFENSE COUNSEL]: Judge, that seven year concurrent sentence within 611188, is that also concurrent with his –
THE COURT: No, that’s consecutive.
[DEFENSE COUNSEL]: Consecutive. Certainly we’d object to that. To the 346 –
THE COURT: To his old case.
[DEFENSE COUNSEL]: Yes, the aggravated murder.
THE COURT: All right. Thank you. But it is to be served consecutive to the time imposed on the offenses he’s already serving time for.
{¶39} Herrington contends that the trial court ordered his time consecutive only after his
defense counsel raised the issue. He maintains that if his counsel would have remained silent,
the court would have imposed concurrent sentences. Notwithstanding that a challenge to the
consecutive nature of his sentence is moot, this assertion is mere speculation. Moreover, the
record demonstrates that defense counsel objected to the trial court’s imposition of consecutive
sentences on multiple occasions. Accordingly, defense counsel was not ineffective and
Herrington’s fifth assignment of error is overruled.
{¶40} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR