Darst v. State

746 S.E.2d 865, 323 Ga. App. 614, 2013 Fulton County D. Rep. 2701, 2013 WL 3652026, 2013 Ga. App. LEXIS 684
CourtCourt of Appeals of Georgia
DecidedJuly 16, 2013
DocketA13A0645
StatusPublished
Cited by19 cases

This text of 746 S.E.2d 865 (Darst v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darst v. State, 746 S.E.2d 865, 323 Ga. App. 614, 2013 Fulton County D. Rep. 2701, 2013 WL 3652026, 2013 Ga. App. LEXIS 684 (Ga. Ct. App. 2013).

Opinion

ELLINGTON, Presiding Judge.

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

In October 2004, when S. C. was four years old, the child told Binzel that Darst had been playing the “private game” with her, that he had touched her “private part” with his hand, that he had forced her to put her mouth on his “private part” and told her to suck it, and that his “private part” was “sticking out.” According to S. C., Darst had warned her not to tell anyone or he would do “something bad.” [615]*615Although Binzel told Darst about S. C.’s outcry shortly after the child made the statements, she did not report the outcry to law enforcement officials. Instead, Binzel called a therapist who had been treating the older child, C. C., and told her about S. C.’s outcry. Although the therapist did not testify at trial,3 another witness testified that S. C. told the therapist that both Darst and her “Uncle Billy” had had sexual contact with her. The therapist reported the outcry to the Department, and the Department arranged for a psycho-sexual evaluation to be conducted on S. C.4 As a result of S. C.’s statements to the therapist and her psycho-sexual evaluation, Binzel was told that she should not allow Darst to be alone with S. C. Despite this instruction, Binzel continued to leave C. C. alone with Darst.

On Saturday, November 13, 2004, about a month after S. C.’s outcry to Binzel, seven-year-old C. C. told Binzel that Darst had touched her “private,” that he had forced her to put her hands and mouth on his “private,” and that he had showed her a magazine.5 According to C. C., she did not know about S. C.’s allegations against Darst when she (C. C.) made her outcry to Binzel, and Binzel testified that she had not told C. C. about S. C.’s earlier statements about Darst. Just as she had done after S. C.’s outcry, Binzel told Darst about the allegations and scheduled an appointment for C. C. with the child’s therapist for the following Monday, but she did not call the police or the Department. Instead, over the next two days, Binzel repeatedly questioned C. C. about the allegations. At trial, Binzel admitted that, in an attempt to “scare [C. C.] so she would tell the truth,” she told the child that the police might make her do a polygraph test to see if she was lying and that they might take her to a doctor and make her take her clothes off so they could look at her and check for fingerprints, telling her that fingerprints never go away. Further, during the investigation that followed C. C.’s outcry, Binzel admitted that, in addition to these statements, she told C. C. that she should not trust the police, that the police were going to be mean to her and take her away, that the police were going to do exams on her that would hurt, and that the police were going to “fingerprint [616]*616her vagina.” Despite the intense questioning by Binzel, however, C. C. did not recant her statements or tell Binzel that anyone else had molested her.

On Monday and Tuesday, November 15 and 16, 2004, Binzel took C. C. to the therapist. The next day, the therapist reported C. C.’s outcry to the Department’s case manager, who then contacted the special victims unit of the Gwinnett County Police Department. The case manager took the children to a Gwinnett County police station, where a police investigator attempted to question the children about their outcries. S. C., however, refused to talk to the investigator about anything but unrelated, “fun” topics. Similarly, C. C. refused to talk about her allegations other than to say that Darst had done something “bad” to her. As a result of the children’s reluctance to talk to the police investigator, and in an effort to help the children feel more comfortable talking with the police, the investigator asked a female detective to interview the children, but the children did not disclose anything to her, either.

In December, forensic interviews were conducted with both children at the Children’s Healthcare of Atlanta’s Child Protection Center.6 Because S. C. was unwilling to go into the interview room alone, the Department case manager stayed in the room throughout the interview. During that interview, S. C. reported that Darst had “tasted” her genital area with his mouth and had forced her to “lick” his penis. Similarly, during her forensic interview, C. C. reported that Darst had touched her “private” with his hand and mouth and had forced her to touch his “private” with her hand and mouth. The interviewer asked both children if anyone had ever touched them like that other than Darst, and both girls said no. The recordings of the interviews were admitted into evidence at trial without objection, and the State played the recordings for the jury.

As a result of the children’s allegations, the State charged Darst with committing two counts of aggravated child molestation7 against [617]*617C. C., with one count alleging that he placed his mouth on her vagina and the other count alleging that he put his penis in her mouth. The State also charged him with committing the same offenses against S. C.

At trial, Darst, Binzel, and four character witnesses testified for the defense. Darst denied the allegations, and his defense was focused on attacking the children’s credibility by showing the jury that their outcries to Binzel, their interview statements, and their trial testimony were inconsistent and unbelievable.

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Bluebook (online)
746 S.E.2d 865, 323 Ga. App. 614, 2013 Fulton County D. Rep. 2701, 2013 WL 3652026, 2013 Ga. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darst-v-state-gactapp-2013.