BOONE — Two plaintiffs who filed a case against several Watauga agencies and individuals have filed an appeal after a district court judge entered a summary judgment in favor of the defendants stating probable cause was found in the 2014 arrest and prosecution of James McConnell, though he was ultimately acquitted.

Judge O. Max Cogburn Jr. entered his order for summary judgment in the U.S. District Court in the Western District of North Carolina on May 31. His order ultimately dismissed a case against the following defendants: the Watauga County Department of Social Services; Thomas Hughes, director of Watauga DSS; Jennifer Smith, social services investigator; Jessica Winebarger, social services caseworker; Chad Slagle, social services supervisor; Watauga Sheriff Len D. Hagaman; former Sheriff’s Office Capt. Dee Dee Rominger; and Western Surety Company.

The defendants — represented by Attorney Bradley O. Wood of Womble Bond Dickson law firm in Winston-Salem — filed a motion for summary judgment on Jan. 22. Multiple attempts by the Watauga Democrat to reach Wood for comment were not returned.

Plaintiffs in the case were James Edward McConnell, and wife, Kim McConnell. The McConnells’ oldest adopted child — then a minor, now an adult — was involuntarily committed to a treatment center in July 2014 when he reported to a facility staff member that “his father James McConnell had engaged in sexual activity with him in the past,” according to Cogburn’s order. These allegations were reported to the Watauga County Department of Social Services.

A few days later the minor was interviewed by a Rowan County social worker. The Watauga County Sheriff’s Office was notified of the allegations and Rominger began a criminal investigation, according to the order.

Rominger and Smith conducted a parallel investigation and interviewed James McConnell when he “vehemently denied (the child’s) allegations,” according to the order. Rominger conferred with the district attorney’s Office, and Rominger was instructed to attempt to retrieve evidence from the McConnell home.

Rominger also conducted a recorded forensic interview. After the district attorney listened to the interview, it determined to bring criminal charges against James McConnell, the order states.

“A reasonable officer may have probable cause to believe a suspect has committed a crime even if the officer’s belief is not more likely true than false,” the order states. “Probable cause determinations are ... preliminary and tentative.”

James McConnell was found not guilty by a jury in June 2016 and acquitted of four counts of taking indecent liberties with a child, two counts of first-degree sex offense involving a child and and one count of statutory rape/sex.

The McConnells filed an October 2017 complaint in district court against the aforementioned defendants claiming false imprisonment/arrest, abuse of process/malicious prosecution, negligent hiring/training/supervision/retention, intentional and/or reckless infliction of emotional distress, negligent infliction of emotional distress and loss of consortium. The complaint states that “the allegations were factually impossible based on the dates (the child) falsely reported that unlawful acts were committed.”

The McConnells’ attorney — William E. Moore of the Gray, Layton, Kersh, Solomon, Furr and Smith law firm in Gastonia — entered a notice for an appeal to Cogburn’s decision on June 14. He said the appeal is based on the plaintiffs’ belief that there was not probable case for an arrest in the original cause against James McConnell.

“We don’t believe you have probable cause to arrest and charge someone with a child sex offense based solely on an uncorroborated, inconsistent, improperly obtained story of a 15-year-old … not that you shouldn’t investigate it, but before you arrest and charge somebody, you should at least be able to corroborate the timeline and/or some of the facts so that it’s possible that it could’ve been done,” Moore said.

Moore alleges that there wasn’t evidence aside from the minor’s story to corroborate the allegations, therefore he did not agree with the order that there was probable cause for arrest.

“A simple investigation would’ve demonstrated the impossibility of his timeline,” Moore said. “There was nothing other than the belief in (the child’s) story that provided any reason to believe that a crime had been committed, much less that Jim McConnell had perpetrated a crime.”

The order states that while probable cause requires more than “‘bare suspicion,’ it requires less than that evidence necessary to convict.” The document also states that a reasonable officer may have probable cause to believe a suspect has committed a crime even if the officer’s belief is not more likely true than false as “probable cause determinations are preliminary and tentative.”

According to a document filed on behalf of the defendants on April 19, probable cause to arrest James McConnell was found to exist by the district attorney, several assistant district attorneys, Watauga County District Court Judge Hal Harrison, Watauga County Superior Court Judge Gregory Horne, Magistrate Carrie Church and two grand juries.

“Plaintiffs simply seek ‘to explore ... why Rominger believed (the minor’s) story,” the April 19 document stated. ”This concession by the plantiffs demonstrates the utter fallacy of their position. In taking issue with why Rominger believed (the minor’s) story, plaintiffs utterly ignore the indisputable reality that the district attorney and two judges — each of whom personally heard ‘(the minor’s) story’ directly from (the minor) himself ... all concluded that, at a minimum, probable cause existed to arrest and prosecute Plaintiff James E. McConnell.”

Even if probable cause did not exist, Cogburn stated in the order that the defendants are still entitled to qualified immunity. The court also agreed with the defendants that public official immunity and governmental immunity shielded the defendants from liability against the plaintiffs’ state law tort claims.

The plaintiffs also asserted a claim under Sections 1985 and 1986 alleging that the defendants conspired to violate their civil rights, the order states. In order for a violation to have occurred, the order states a plaintiff must “demonstrate with specific facts that the defendants were ‘motivated by a specific class-based, invidiously discriminatory animus’” to do so.

According to Moore, an unlawful act does not have to be class-based.

“Plaintiffs have failed to present any evidence to show that defendants did anything other than fulfill their duties either as law enforcement officers or social workers in responding to claims of sexual abuse of a minor,” according to the order.

Moore disagrees, stating that the defendants contrived a false criminal charge “based on a completely unreliable and fabricated story ... and a combined investigation that revealed no evidence to support the false story.”

The plaintiffs also made claims of malicious prosecution based on the absence of probable cause. In order for malicious prosecution to be found, four elements have to be established: the defendant initiated the earlier proceeding, malice on the part of the defendant in doing so, lack of probable cause for the initiation of the earlier proceeding and termination of the earlier proceeding in favor of the plaintiff.

Since the order states it believes there was probable cause in James McConnell’s arrest, there was not “competent evidence that Rominger acted out of any malice toward plaintiffs,” according to the order.

Similar arguments were made against the plaintiffs’ claims of false arrest/false imprisonment and abuse of process. The order states “probable cause is an absolute bar to a claim for false arrest or false imprisonment.”

“Plaintiffs have conceded that they have no evidence that defendants had any ulterior motive with respect to the charges brought against James McConnell, or that defendants’ investigations and prosecution of McConnell were a malicious misuse of the criminal proceedings or the proceedings in juvenile court,” according to the order.

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