The attorney for three soldiers accused of beating up a Bellefonte resident is claiming there is not enough evidence to prove the soldiers continued to hit the alleged victim after he fell on the ground.

Jermaine Garrett, 25, of Walterboro, S.C., allegedly approached Michael Benjamin, 30, on the 200 block of East College Avenue on June 24 and verbally assaulted and punched him to the ground, according to police documents. At a preliminary hearing June 28, witnesses testified that Michael Benjamin fell to the ground and was defenseless when Garrett, Christopher Holcomb, 22, of Kingston, Wis., and Brenton Scrudders, 22, of Milesburg, began kicking him in the stomach and groin area.

But Philip Masorti, attorney for the men, who are Iraq war veterans, said Benjamin did not complain of pain or report any bruises to his abdomen. He also said Benjamin said at the preliminary hearing that he did not remember what happened after the initial punch that was allegedly thrown by Garrett. Centre County Assistant District Attorney Steve Sloane said the fact that no injuries resulted from the alleged attack does not prove it did not happen.

"Just because they aren't good at beating up doesn't mean they didn't do it," Sloane said. "You don't have to cause bodily injury. If he was down on the ground and they were shooting at him with a machine gun but missed, would he say that is not aggravated assault?"

The aggravated assault charge stems from the allegations that the soldiers continued to kick Benjamin after he fell to the ground and was no longer a threat. If Masorti can prove his clients did not continue to beat Benjamin, then the aggravated assault charges will be dropped.

Sloane said the fact that the district judge sent the case to court with the aggravated assault charge included is proof that there is sufficient evidence that the assault continued.

"I am not going on what the victim said, what the friend or soldiers said," Sloane said. "I am going on what two completely objective people, who don't know anybody, said," Sloane said, referring to the witnesses. Masorti said a hearing has not yet been scheduled for a judge to rule on the motion. Sloane and Masorti also said that nothing resulted from a State College police investigation looking into the possibility that Masorti badgered witnesses at the preliminary hearing.

Benjamin's wife and the wife of a witness had alleged they heard Masorti yelling and cursing at witnesses before they testified.

"It was a joke," Masorti said. "I used profanity, and I apologized to my mom and my wife, but I am over that apologizing."