State v. Scherzer

694 A.2d 196 (1997)

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Nature of the Case

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Facts

Kevin and Kyle Scherzer, twin brothers, were indicted, along with three co-defendants, Peter Quigley, Richard Corcoran, Jr., and John Maher, on various sexual assault charges allegedly committed against a mentally defective victim, M.G. Christopher Archer, his brother Paul Archer, and Bryant Grober were also added. M.G., when seventeen years of age, attended classes for the 'educably mentally retarded' at West Orange High School. She participated in athletics programs, such as softball and basketball, at Glen Ridge High School. M.G. had known all of the Ds since grade school. M.G. went to a park to play basketball. On cross-examination, she said that she went up to Grober, placed her hand on his crotch, and said something to the effect of 'Nice package you have there. Would you like a blow job?' She walked to the Scherzers' house with Christopher Archer, who put his arm around her shoulders. She viewed this as 'romantic.' When they arrived, there were already 'a lot of people' on the stairs and in the basement. Others started setting up chairs near the couch, while she and Grober sat on the couch. M.G. said that when some of the boys asked her to, she took off her sweat pants and T-shirt. Thereafter, at the urging of the boys, sexual activity occurred beginning with M.G. inserting her fingers in her vagina, her masturbating and performing fellatio on five of the young men, permitting Kevin to insert a broomstick and Christopher to insert the handle of a baseball bat into her vagina. She said she permitted Corcoran to put a small stick in her vagina. Four of the boys also sucked on her breasts. Before she left, some of the boys told her 'not to tell anybody,' or they would tell her mother, and she would 'get in trouble.' Paul Archer testified that M.G. arrived carrying a basketball and went directly to Grober. Paul overheard M.G. say, 'Bryant, you're really hot. You're sexy. I like your bod[y]. You have a nice package.' Grober appeared startled. Paul said that in all the years he had known Grober, he had never before seen him engage in conversation with M.G. After M.G. made these comments to Grober, Paul saw her reach for Grober's crotch, and Grober lunged back. M.G. then asked if Grober wanted a 'blow job.' At first, Grober did not take her seriously, but after they talked, he asked if she meant it. At Scherzers' house, Paul observed Grober drop his pants, and M.G. kneel down and perform fellatio. According to Paul, the entire act took about thirty seconds. Grober then sat down and did not participate in any other sexual activity with M.G. According to Paul, M.G., who was 'totally in control' of the events, then said that 'that blow job just got me so horny, I want to have sex with someone.' When no one responded, she stood up, pulled down her pants, and then laid down on the couch. He said she then placed her fingers, followed by the other objects into her vagina voluntarily. Kevin and Christopher helped her move the broomstick in and out. On cross-examination, Paul admitted that he had testified, when the judge was taking his guilty plea, that his brother and Kevin had inserted the broomstick into M.G., but said that testimony was a mistake. He said that as people started to leave, M.G. walked to him, pulled up her shirt and bra, and said, 'Paul, don't you like my breasts?' She asked him to touch them, but he refused. He said no one else touched her breasts, nor did he observe M.G. masturbating any of the boys or anyone doing anything with a stick. When M.G. asked if the boys wanted to 'come back another day and do it again,' no one responded. Some of the boys said, 'You're not going to say anything about this?' and she said no. He said that the entire incident, from the time M.G. first walked up to Grober at the park until she left the basement, lasted about twenty minutes. Three boys who said they left the basement soon after the sexual activity began testified for the State. They agreed that M.G.'s activities with Grober, which is all they witnessed, appeared to be voluntary, as they did not see Grober use any force. A pelvic examination showed nothing abnormal. A teacher who taught M.G. said that M.G. functioned verbally on a second-grade level, had poor self-esteem, and was 'very easily led' by people whom she hoped would like her. The scope of other evidence revealed that M.G. would 'do anything that she's asked to do' and that she had never heard her say no to any request. M.G. talks as if she is five or six years old, cannot follow simple instructions, and does not understand money. When M.G. was five years old, a group of children, including Kyle and Kevin, persuaded her to eat dog feces. M.G. would regularly exchange sexual comments with a group of football players in the cafeteria and told people she wanted to be fucked. It was common knowledge that M.G. was different. M.G. scored 64 in I.Q., the mildly-mentally retarded range. M.G. had a high risk of victimization and was likely to do what anybody asks her to do. M.G. was 'mentally defective' because although she understood that she was engaging in conduct of a sexual nature, she did not understand that she had the right to refuse to participate in the sexual activity. Ds were convicted and appealed.