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State v. Banks

The trial court erred in granting the defendant's motion for new trial based on ineffective assistance of counsel following his convictions for aggravated child molestation and child molestation.

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Following a jury trial, the Superior Court of Glynn County entered judgments of conviction against Levi Banks, Jr. on one count of aggravated child molestation OCGA § 16-6-4 c and one count of child molestation OCGA § 16-6-4 a 1. Banks obtained new counsel and filed a motion for new trial arguing, inter alia, that he received ineffective assistance of trial counsel. The trial court granted Banks’ motion, and the State appeals. See OCGA § 5-7-1 a 8. Because we conclude that the trial court erred in concluding Banks received ineffective assistance of trial counsel, we reverse and remand.

Viewed in a light most favorable to the verdict, the evidence revealed that Banks lived with his grandparents Wayne Amy and Olan Daffron and had resided with them since he was approximately six years old. On Friday, July 27, 2012, Victoria Boatright Banks’ aunt and Olan Daffron’s daughter visited the Daffrons’ residence with her daughter, Kelli, and Kelli’s four-year-old daughter and three-week-old son. Kelli and her children planned to stay with the Daffrons for the weekend. After dropping off Kelli and her children, Victoria left with plans to return and pick them up the following Sunday afternoon.

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