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ASU athletes won't face rape charges

by Anna Oakes

The 24th District Attorney's Office has declined criminal prosecution in the case involving two former Appalachian State University football players accused of raping a female ASU freshman in September 2011.

In a statement released Thursday, District Attorney Jerry Wilson listed the names of the two accused men in the memo line and said, "The District Attorney's Office has finished its review of the allegations involving the above-named individuals and has declined prosecution." Wilson was not available to speak by phone immediately.

Watauga Democrat does not disclose the names of alleged victims of sexual assault. Consistent with its policy in covering this story over the past few months, Watauga Democrat is also not disclosing the names of the accused football players because they have not been criminally charged.

The alleged victim said she was raped Sept. 14, 2011, by the two men at an off-campus house party. There, she said, two men she did not know raped her in a bedroom around 2 a.m. Others at the party later told her their names, and one man left his wallet behind, she said.

She reported the incident to the Watauga County Sheriff's Office on Sept. 16, 2011.

In an affidavit, sheriff's office Capt. Dee Dee Rominger stated she interviewed the alleged victim at Watauga Medical Center, where a sexual assault kit was performed. The sheriff's office executed a search warrant on Sept. 21, 2011, and collected saliva swabs for DNA from two men. Both were members of the ASU football team at the time.

Speaking to the Watauga Democrat in February, Wilson said the case was still under investigation. Assistant District Attorney Charlie Byrd said the district attorney's office was awaiting the results of DNA testing from the State Bureau of Investigation, which he said takes at least a year. When asked when the DNA results were expected, Wilson said it would be “a while.”

The DNA results, however, would not be pivotal in the office's decision to prosecute the case, Wilson said at the time. He said he was waiting for the alleged victim to decide if she wanted to go forward with prosecution after the outcome of University Conduct Board proceedings at ASU.

“That will be the deciding factor,” Wilson said then. "We tell them, 'You think about this for a while, and you tell us what you want to do.'"

In April, a University Conduct Board found one of the men responsible for sex offenses, sexual misconduct and harassment in the incident — all violations of the ASU Code of Student Conduct — and suspended him from campus for eight semesters. The board found the other accused man not responsible for all charges, which the alleged victim said she planned to appeal.

Both men were found responsible for all charges by a University Conduct Board in October 2011, but ASU Vice Chancellor for Student Development Cindy Wallace remanded those cases to a new hearing because of a procedural error.

Speaking Thursday, the alleged victim said she met with Assistant District Attorney Charlie Byrd in November and on the phone multiple times to express that she wanted to press charges against the two men "very badly."

"He said the jury wouldn't find them guilty so he doesn't want to try my case," she said.

The two men accused in the September 2011 incident were also among five men accused of sexually assaulting and raping another female ASU student in an April 2011 incident at an off-campus apartment. The group of accused men included two other ASU football players and an ASU student.

In late March, on appeal from cases held earlier in the year, a University Conduct Board found four of the five men responsible for student code violations of sex offenses, sexual misconduct and harassment and suspended each student from campus for eight semesters.

The fifth man accused in this incident — the same man found not responsible for student code violations in the separate September 2011 incident — was found not responsible for the sex offense violations but responsible for harassment. He was sanctioned with specific probation for the duration of time he is enrolled at ASU, which bars him from representing ASU in varsity athletics. This student remains listed on the 2012 ASU football team roster as of Thursday.

The alleged victim of the April 2011 incident reported the incident to the Watauga County Sheriff's Office on Sept. 18, 2011, but the district attorney declined to prosecute the case, citing a lack of evidence.