A judge threw out Scott Paxson's sexual assault felony charge yesterday, leaving the former Penn State football player with two charges to face in trial this summer.
Paxson, who still faces a felony charge of aggravated indecent assault and a softer misdemeanor charge of indecent assault, was subdued after the preliminary hearing review.
"I was hoping everything would be tossed out by now," Paxson said quietly at an impromptu press conference outside the courthouse. "Everything was consensual. That's why I'm in shock ... everything was consensual the whole night."
Paxson's charges stem from a December 2004 incident in which a Penn State student accused him of having sex and finger-penetrating her without consent in the living room of his Nittany Apartments residence. She wasn't present at the hearing review yesterday.
Defense attorney Joe Amendola requested the preliminary hearing review after a judge sent Paxson's case to trial March 9.
Centre County Judge Bradley Lunsford listened to arguments from both the commonwealth and defense before deciding to drop the sexual assault charge -- which carries a maximum sentence of 10 years -- based on the alleged victim's testimony given at the preliminary hearing.
Centre County Assistant District Attorney Lance Marshall held that Paxson's actions were worthy of the charges the commonwealth had levied. But he was questioned by Lunsford when Marshall suggested that a goodbye kiss could be considered indecent assault -- a notion the judge said was too much of a stretch.
However, Lunsford did acknowledge that aspects of the case warranted the charge and did not throw it out.
Amendola argued that the alleged victim did not say "no" to having sex with Paxson, and there was no way he could have known her wishes.
"This behavior ... is just as consistent with a woman in the heat of passion," he said.
Lunsford ruled that because the alleged victim didn't say "no" before having sex with Paxson, it would be impossible for a jury to determine what happened because the evidence is he-said, she-said. He added that she had opportunities to respond to the advances during and even before the incident, when Paxson text messaged her that he wanted to have sex with her.
The commonwealth didn't present enough evidence to prove that she was opposed to having sex with Paxson, he ruled, and tossed the charge out.
However, testimony reflects that after intercourse, Paxson attempted to finger-penetrate the woman again, which she verbally opposed.
According to the alleged victim's testimony, she said "no" two times after intercourse, when Paxson finger-penetrated her and picked her up to simulate the two having sex. She had to physically push him off her, according to testimony.
"On two occasions the victim says no, and there is still digital penetration," Lunsford said.
Based on that testimony, Lunsford upheld the aggravated indecent assault charge -- maximum 10 years -- and indecent assault charge -- maximum two years.
Paxson will be tried "as soon as possible" this summer on the remaining charges, Amendola said.
"Unfortunately for Scott, that's going to be after his draft," he added.
Amendola filed a bill to complain about what he said is the commonwealth's ambiguity about charges. It's not clear exactly what the assault charges are addressing and therefore impossible to formulate a defense, Amendola said.
He added that there is confusion over the availability of Penn State Judicial Affairs records, which were subpoenaed by Penn State University Police last year, Amendola said. Paxson was found responsible through Judicial Affairs for finger-penetration in April 2005. That decision was reversed by a different hearing board in June 2005. The alleged victim testified at that hearing.
Yesterday, Jeff Paxson stood behind his son, wearing an Orange Bowl pin on his lapel.
"I'm pretty discouraged, but I have hope that we'll win this," Jeff Paxson said. He referenced his family's financial burden as he and his son walked away from the courthouse.
"This did not come cheap to the Paxsons," he said.
