[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
