A former airport security guard acquitted last month of felony second-degree kidnapping is now challenging a misdemeanor conviction of child enticement.
Motions for a new trial, or for acquittal of the misdemeanor conviction, were filed earlier this month on behalf of Robert Joe Harrison Jr. in 5th District Court in Hailey.
Blaine County Prosecuting Attorney Jim Thomas said Tuesday that Harrison's motions lack merit, and he believes they will be dismissed. He further said the outcome of the trial might have been different if Judge Robert Elgee had not "injected himself into the case as the 13th juror."
Thomas was referring to a rarely used courtroom procedure, wherein Elgee recommended to the jury that they acquit Harrison of the kidnapping charge.
"Mr. Harrison should feel lucky that he is only facing a misdemeanor," Thomas said. "Although I was extremely disappointed that the judge in effect took the felony away from the jury, the law allows him the discretion to act as he did."
Harrison's acquittal on the kidnapping charge and his conviction of misdemeanor child enticement followed a three-day trial that started Sept. 20. After deliberating for three hours, the jury rendered a verdict on Monday, Sept 25.
Harrison, 50, formerly of Ketchum, was accused of giving a ride to a 10-year-old Hemingway Elementary School student on April 10 while the boy was walking home from the Ketchum school. He was further accused of driving the boy to Harrison's home at the Cliffview Apartments on the west side of Ketchum, rather than to where the boy requested to go. Harrison allegedly invited the boy into his apartment to watch a movie, but let the boy go after he declined the invitation.
Before his arrest on April 11, Harrison was a security guard for the federal Transportation Security Administration at Friedman Memorial Airport in Hailey.
Harrison's motions for acquittal or a new trial were filed on Oct. 6 by his public defender, Kevin Cassidy, of the Roark Law Firm in Hailey. Cassidy said Tuesday that the motions are somewhat routine and filed in many criminal cases.
In the motion for a new trial, Cassidy alleges that Elgee "misdirected the jury in a matter of law."
"The judge did not instruct the jury on intent," Cassidy said, "The judge's read of the law is different from my own. They should have been instructed on intent."
The question of intent was used by Cassidy during Harrison's trial when he convinced Elgee to instruct the jury to find Harrison not guilty of the kidnapping charge.
Elgee ruled during the trial that the prosecution had failed to prove intent on the part of Harrison, and that he was unwilling to leave the jury to speculate as to what the intent might have been.
Thomas said Elgee's ruling hurt the state's case.
"Had the judge not injected himself into the case as the 13th juror, it may very likely have been a much more serious outcome," Thomas said. "It is frustrating for the state, and most importantly to the (boy) and his family, that the jury did not get to voice their verdict as to the more serious charge of kidnapping."
Harrison's motions are scheduled to be heard by Elgee at 1 p.m. on Nov. 8. Sentencing for Harrison on the misdemeanor conviction is scheduled for 2 p.m. on Nov. 15.
Thomas said he will ask Elgee to impose the maximum penalty of one year in the county jail.
Harrison is currently free on bail and living in the Walla Walla, Wash., area.
Express photo by Chris Pilaro
Robert Joe Harrison Jr. sits in a Hailey courtroom during his trial last month on a felony charge of second-degree kidnapping. A jury acquitted Harrison on the kidnapping charge, but found him guilty of misdemeanor child enticement. Photo by Chris Pilaro
