Darst v. State

Defense counsel was reversibly deficient for failing to conduct any investigation into the victims' school, therapy and DFCS records, failing to secure expert testimony and failing to adequately cross-examine the State's witnesses in this aggravated child molestation case.

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A Gwinnett County jury found Roger Darst guilty beyond a reasonable doubt of four counts of aggravated child molestation, OCGA § 16-6-4 c. He appeals from the denial of his motion for new trial, contending that his trial counsel provided ineffective assistance by failing to obtain certain records concerning the victims, present expert witness testimony, and object to certain testimony. He also contends that the trial court erred in failing to dismiss four jurors for cause. For the following reasons, we conclude that, although the evidence was sufficient to support Darst’s convictions, he received ineffective assistance of counsel and, as a result, the trial court erred in denying his motion for new trial. Therefore, we reverse his convictions and remand this case to the trial court for a new trial.

1. Viewed in favor of the jury’s verdict,1 the trial transcript shows the following relevant facts. In February 2002, Darst and his girlfriend, Sasha Binzel, became the foster parents of two girls, twenty-month-old S. C. and four-year-old C. C. Although the children had been removed from their biological parents’ home due to neglect, the children’s mother who was separated from their father continued to work with the Georgia Department of Family and Children Services “Department” to regain custody of the girls. In addition, the children’s paternal grandparents, who lived in Pennsylvania, began participating in juvenile court custody proceedings in Georgia and working on the requirements to obtain permanent custody of the girls. Pursuant to those proceedings, the juvenile court allowed the grandparents to have visitation with the girls for a few weeks in the summers of 2003 and 2004, during which time the children’s biological father, who lived nearby, was allowed to have supervised visitation with the girls. In September 2004, the juvenile court granted the grandparents’ petition for permanent custody of the children, and the girls were told that they were going to be moving to Pennsylvania in the next few months.2

Darst v. State

Defense counsel was reversibly deficient for failing to conduct any investigation into the victims' school, therapy and DFCS records, failing to secure expert testimony and failing to adequately cross-examine the State's witnesses in this aggravated child molestation case.

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