State v. Herrington
2018 Ohio 3049
Ohio Ct. App.2018Background
- In 1996 a pregnant woman was abducted from a bus stop, forced into a car, and vaginally and orally raped by two men; she escaped and a rape kit was collected.
- The investigation stalled; the rape kit was tested in 2013 and produced a CODIS hit linking Frank Herrington to the major sperm fraction DNA on a genital swab; additional unidentified contributors were present on clothing swabs.
- Herrington was indicted in 2016 for two counts of rape, complicity to commit rape, and kidnapping; he was tried to the bench, convicted on all counts, and sentenced to seven years consecutive to an existing life-without-parole term.
- Herrington denied the offenses at trial, admitted past drug use and paying for sex, and argued possible consensual contact or prostitution explanations; the victim did not identify him from a photo array but denied consensual sex with array subjects.
- Defense challenged preindictment delay, moved to exclude evidence, argued ineffective assistance for not obtaining a DNA expert, and contested the weight of the evidence and consecutive sentencing.
- The trial court credited the DNA evidence tying Herrington to the sperm fraction (probability the profile would belong to an unrelated person: ~1 in 30,000) and found his denials outweighed; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Herrington) | Held |
|---|---|---|---|
| Preindictment delay — due process | Delay was justified given investigation; state need not dismiss absent actual prejudice | Dismiss for preindictment delay because lost records/witnesses and faded memories caused actual prejudice | Denied — defendant failed to show specific, non‑speculative actual prejudice |
| Manifest weight of the evidence | DNA evidence and victim testimony sufficiently prove Herrington committed rape | Conviction against manifest weight given victim credibility issues and multiple DNA contributors suggesting other sources | Affirmed — not an exceptional case; DNA major contributor and victim testimony sufficient |
| Ineffective assistance — failure to obtain independent DNA expert | Counsel properly cross‑examined state DNA expert and pursued strategic defense | Counsel ineffective for not consulting/calling independent DNA expert | Denied — trial strategy reasonable; no prejudice shown under Strickland |
| Consecutive sentencing | Court properly applied sentencing law | Consecutive sentence improper / irrational because Herrington already serving life without parole; counsel ineffective for flagging consecutive exposure | Moot as to consecutive review (sentence consecutive to life‑without‑parole is academic); counsel not ineffective |
Key Cases Cited
- State v. Jones, 148 Ohio St.3d 167 (preindictment delay requires showing actual prejudice)
- State v. Whiting, 84 Ohio St.3d 215 (burden‑shifting framework for preindictment delay)
- United States v. Marion, 404 U.S. 307 (mere passage of time insufficient; actual prejudice required)
- State v. Luck, 15 Ohio St.3d 150 (actual prejudice defined by relevance of missing evidence)
- State v. Thompkins, 78 Ohio St.3d 380 (manifest‑weight standard)
- Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
- State v. DeHass, 10 Ohio St.2d 230 (credibility and deference to factfinder)