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Freed abuser to face sentencing

The winds of justice keep changing for James Harrington.

In August 2001, a jury found him guilty of attempted lewd or lascivious battery.

One week later, a judge threw out the verdict because she said prosecutors didn't present sufficient evidence. Harrington was freed.

On Friday, an appellate court said the judge was wrong and the jury was right.

Now Harrington, 23, of Inverness, is headed back to court, this time to face sentencing. The punishment could include prison time.

The incident in question occurred late the night of March 23, 2001. Harrington, known as "Fonz," according to court records, and a 14-year-old Inverness girl both attended a birthday party in the Heatherwood neighborhood. The girl's mother was there as a chaperone.

When the outdoor gathering ended about 11 p.m., the girl's mother thought her daughter was headed to a friend's house to spend the night. But according to an arrest report, the girl ended up with Harrington at another party.

There, they drank vodka. Sometime after midnight, two partygoers said, they saw Harrington and the girl in the back of a pickup truck. They appeared to be engaged in sexual activity, the witnesses told authorities.

The girl later was found comatose from excessive drinking and was taken to Citrus Memorial Hospital by her mother. Her blood alcohol level was 0.16.

Harrington was arrested and charged with lewd or lascivious battery on a child after he admitted in a taped interview with detectives to having sexual intercourse one time with the girl. The statement was admitted into evidence without objection from Harrington's lawyers.

However, during his trial five months later, Harrington's lawyers twice tried to strike his confession from the record.

Both times, Circuit Judge Barbara Gurrola denied the motions.

After the jury found Harrington guilty of the lesser offense, the defense made a third motion for Gurrola to grant a judgment of acquittal. It stuck. Gurrola threw out the jury's verdict, arguing that Harrington's statement should not have been allowed as evidence because the prosecutors had insufficient independent evidence to back their case.

She also found Harrington, who was 21 at the time, not guilty of violating his three-year probation on a previous conviction of altering public records.

The 5th District Court of Appeal opinion filed Friday emphatically disagreed. Because no one objected to Harrington's statement when it first was introduced, the information appropriately was included, the opinion stated.

"The trial court erred in retroactively excluding evidence to which no objection was made at trial, then granting an acquittal based on the remainder of the evidence," read the opinion, written by Judge Richard B. Orfinger.

In a concurring opinion, Judge Winifred J. Sharp said there was sufficient evidence of Harrington's guilt even without his confession _ the testimony of the two teenagers who witnessed the incident.

She frowned upon Gurrola's decision to disbelieve or disregard the witnesses' testimony because one admitted to being intoxicated at the party and the other's "demeanor at the trial offended the judge."

Considerations of witness credibility are "jury matters, not judicial matters," the special opinion read. During the proceedings, according to the opinion, Gurrola "appeared to be grinning as though she thought the trial was a joke."

The ruling means Harrington must return to Gurrola's courtroom April 4 for sentencing. He has been notified by certified mail of the hearing but will not be taken into custody beforehand, said Assistant State Attorney Richard Buxman.

"There's nothing requiring him to be in custody right now," said Buxman, who initially tried the case.

The attorneys who first represented Harrington no longer work as public defenders in Citrus County. Assistant Public Defender Susan A. Fagan said Monday from Daytona Beach that no decision had been made on whether Harrington will appeal the appellate court's decision.

Under Florida Statutes, Harrington faces a five-year maximum jail sentence. Buxman would not reveal how much time his office will seek, but he will be at the hearing to make the request.

"I'm going to be in this one to the end," he said Monday afternoon. "I'm thrilled. Legally, I think this was a correct decision."

_ Colleen Jenkins can be reached at 860-7303 or