ELYRIA — The trial of a Lorain man indicted on rape charges was scheduled to begin Monday, but instead, prosecutors elected to dismiss the case against him due to the unavailability of a witness.
Eddie Kimbrough, 58, of Caroline Avenue, was indicted on felony counts of rape, kidnapping and felonious assault in connection with the alleged sexual assault of a Lorain woman last year.
Prior to the scheduled start of the trial Monday morning, Kimbrough’s defense attorney filed a motion in limine to prevent the state from introducing DNA evidence during the trial.
Lorain County Prosecutor Dennis Will said Judge Christopher Rothgery granted the motion because prosecutors could not produce a witness to testify on the collection of the DNA sample allegedly taken from Kimbrough.
“The policeman who observed the DNA being collected with a swab from the defendant’s mouth was not available; I believe he was in Florida on vacation,” Will said. “We did not think there was a requirement to produce him. In fact, we had case law to argue against that, but the judge granted the motion, which would have prohibited us from using that information.”
Will said his office considered having the officer testify via Skype, but then decided against it.
“The judge was going to allow that, but if there was some kind of technical difficulty, then he was going to dismiss the case if we couldn’t produce that witness through Skype and would have attached jeopardy to the case,” Will said. “We could not have gone any further with the case because double jeopardy would apply.”
Instead, prosecutors decided to dismiss the case with the right to refile. Will said the new indictment could be returned as soon as this week.
Because of that, Kimbrough was not released from Lorain County Jail, but is being held on a new charge of forcible rape, which was filed Monday, according to jail records.
Kimbrough allegedly sexually assaulted the victim about 2 a.m. Aug. 3, Will has said. The victim knew Kimbrough as a casual friend.
Will said Kimbrough began beating on the window of the victim’s ground-floor apartment. The woman told Kimbrough to go away, and he eventually began “beating on her door.”
“She eventually let him in,” Will said at the time of the indictment. “He wants to be her boyfriend, and she told him, ‘No, we can just be friends.’ She asks him to leave, but he won’t leave.”
The victim spoke with Kimbrough for five minutes, trying to get him to leave the apartment, but he refused. When she went into her bedroom to get a cigarette, Kimbrough allegedly attacked and physically and sexually assaulted her, Will said.
“Eventually, she was able to get away and call the police,” he said. “When they arrived, (Kimbrough) was still in the apartment. He was taken into custody.”