FIFTH DIVISION

PHIPPS, P. J.,

DILLARD and PETERSON, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 25, 2016

In the Court of Appeals of Georgia

A16A0944. MCGLOTHLIN v. THE STATE.

PHIPPS, Presiding Judge.

A jury found Toby Anthony McGlothlin guilty of enticing a child for indecent

purposes and child molestation. He appeals, arguing that the State failed to disclose

exculpatory information regarding an informant and that he received ineffective

assistance of counsel at trial. For reasons that follow, we affirm.

Construed favorably to the jury’s verdict,

1

the evidence shows that in 2004,

McGlothlin began living with Maria Bergener, her husband, and their six-year-old

son, J. B., who had been adopted out of foster care. As part of his responsibilities

1 See Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004) (“On appeal from

a criminal conviction, we view the evidence in a light most favorable to the verdict,

and the defendant no longer enjoys the presumption of innocence.”) (citation

omitted).
around the house, McGlothlin helpedBergener with J.B., babysitting and getting him

ready for bed. On these occasions, McGlothlin was alone with the child.

In August 2004, Bergener attended a counseling session with J. B. to address

issues he had with his birth mother. J. B. inquired during the session whether he

“could tell a secret.” He then stated: “Toby asked me to pee in his mouth.” Following

the session, J. B. told Bergener that, while giving him a bath, McGlothlin had washed

his penis, asking him if he liked it when McGlothlin put soap or lotion on his penis

in different ways. Bergener and her husband sat down with J. B. shortly after the

outcry, seeking additional details. At that point, J. B. disclosed that McGlothlin had

also wanted to urinate in J. B.’s mouth.

Bergener reported the outcry to the authorities and took J. B. for a forensic

interview. J. B. told the interviewer that McGlothlin had washed J. B.’s penis,

touching it with his hand, and had asked if J. B. wanted to “pee in [McGlothlin’s]

mouth,” but J. B. said “no.” J. B. also stated that McGlothlin had shown J. B. his

penis and “[s]ometimes it was pointy.”

The police contacted McGlothlin, who submitted to a recorded interview with

the lead detective. McGlothlin denied touching J. B. inappropriately, but indicated

that his arm might have inadvertently bumped J. B.’s penis while he was washing

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J. B.’s leg, “or something like that.” Following the interview, McGlothlin called the

detective, asking “[w]hat if I need some help?” and “[w]hat if I did do what [J. B.]

said I did but not exactly the way [J. B.]said I did?” McGlothlin was arrested, and the

detective subsequently received information from two jail inmates that McGlothlin

had made inculpatory statements to them. According to the inmates, both of whom

testified at trial, McGlothlin admitted that he had performed oralsex on J. B. and that

the boy had urinated in his mouth.

McGlothlin was charged with enticing a child for indecent purposes,

aggravated child molestation by placing his mouth on J. B.’s penis, and child

molestation by rubbing J. B.’s penis. The jury found McGlothlin guilty of enticing a

child and child molestation, but not guilty of aggravated child molestation.

McGlothlin filed a motion for new trial, which the trial court denied. This appeal

followed.

1. McGlothlin argues that he is entitled to a new trial because the State failed

to disclose an agreement that police made with Kevin Kinney, one of the jailhouse

informants who testified against him. Kinney asserted at trial that the State had not

promised him anything or made any deals in exchange for his testimony. At the new

trial hearing, however, McGlothlin offered evidence that, after testifying, Kinney

3
received a sentence reduction pursuant to a consent decree that referenced a pre-trial

promise by police officers to help Kinney secure the reduction.

Pursuant to Brady v. Maryland

2

and Giglio v. United States,

3

the State must

disclose material evidence that isfavorable to the defendant, including impeachment

evidence that could be used to show bias or interest on the part of witnesses called by

the State.4

“[T]he State is under a duty to reveal any agreement, even an informal one,

with a witness concerning criminal charges pending against that witness, and a failure

to disclose such an agreement constitutes a violation of the due process

requirements.”5 To show a violation, a defendant must demonstrate

that the State possessed evidence of the deal; that the defendant did not

possess the evidence nor could he obtain it himself with any reasonable

diligence; that the State suppressed evidence of the deal; and that, had

the evidence of the deal been disclosed to the defendant, there existed

a reasonable probability that the result at trial would have been

different.

6

2

 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

3

 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972).

4 Ford v. State, 273 Ga. App. 290, 291 (614 SE2d 907) (2005).

5

 Id. (citations omitted).

6

 Id. (citations omitted).

4
Pretermitting whether a duty to disclose existed here, McGlothlin cannot

establish a reasonable probability that the trial result would have been different had

the deal with Kinney been revealed. Such evidence might have provided fodder for

cross-examining and impeaching Kinney’s testimony. But much of that testimony

described McGlothlin’s alleged admission that he had engaged in oral sex with J. B.,

evidence that related to the aggravated child molestation charge. And the jury

acquitted McGlothlin of aggravated child molestation. Even without evidence of the

deal, therefore, jurors rejected a significant portion of Kinney’s testimony.

7

Kinney also testified about the child molestation allegation for which

McGlothlin was convicted, asserting at trial that McGlothlin had admitted touching

J. B.’s “private parts.” The State, however, presented significant other evidence

regarding this allegation. J. B. told his mother that McGlothlin had touched his penis,

and the jury watched the forensic interview in which J. B. made a similar report.

7 See Granger v. State, 320 Ga. App. 580, 582-583 (1) (740 SE2d 313) (2013)

(in ineffective assistance context, no reasonable probability that trial result was

impacted by trial counsel’s failure to object to testimony that bolstered child victim’s

testimony where verdict of acquittal on several charges demonstrated that jury had

not found victim credible); Jarrett v. State, 299 Ga. App. 525, 531 (7) (b) (683 SE2d

116) (2009) (in ineffective assistance context, counsel’s failure to object to allegedly

improper character evidence implicating defendant in drug trade did not impact

verdict where jury acquitted defendant of all drug-related offenses).

5
Furthermore, McGlothlin intimated to the lead detective that he might have done

“what[J. B.]said.” Given this evidence, McGlothlin cannot demonstrate a reasonable

probability that the verdict would have been different had the State disclosed the

alleged deal with Kinney, a witness whom jurors apparently had already found

lacking in credibility.

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2. McGlothlin contends that he received ineffective assistance of counsel at

trial. Specifically, he argues that trial counsel was ineffective because she failed to

object to the admission of his recorded police interview, which “contained an

agreement to take a polygraph test and a false assertion that [he] was a convicted

felon.” To prevail on this claim, McGlothlin must show “(1) that counsel’s

performance was deficient and (2) that the deficient performance prejudiced the

defense by creating a reasonable probability that butfor counsel’s errors, the outcome

8 See Moclaire v. State, 215 Ga. App. 360, 361 (1) (451 SE2d 68) (1994)

(because non-disclosed evidence did not “undermine confidence in the outcome of

the trial,” the trial court was justified in denying defendant’s motion for new trial). 

6
of the trial would have been different.”9 Failure to satisfy either prong of thistwo-part

test is fatal to a defendant’s ineffective assistance claim.

10

(a) During the police interview, the lead detective accused McGlothlin of being

a felon. McGlothlin responded, “It’s not like this. I don’t have felonies,” to which the

detective replied, “You’re telling me forgery is not a felony?” McGlothlin stated:

“But I was innocent. And it says so. It was dismissed.” He then explained the

circumstances underlying the alleged forgery incident, asserting again that “it” was

“dropped.” McGlothlin contends that trial counsel should have objected to this

portion of the interview because it improperly placed his character in issue.

Even if an objection would have been appropriate, McGlothlin cannot

demonstrate a reasonable probability that exclusion of this discussion would have

altered the trial result. Although the detective accused McGlothlin of being a “felon”

and committing forgery, McGlothlin immediately refuted the statement, explaining

9 Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009) (citation and

punctuation omitted).

10 Reed v. State, 291 Ga. 10, 16 (4) (b) (727 SE2d 112) (2012); Jarrett, supra

at 530-531 (7).

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that the forgery charge had been dismissed.

11 Moreover, the jury acquitted

McGlothlin of aggravated child molestation – the most serious charge against him –

undermining his argument that the detective’s “felon” reference prejudiced the jury

against him.

12 Given these circumstances, as well as the evidence of guilt presented

by the State, this ineffective assistance allegation fails.

13

(b) McGlothlin also arguesthat trial counselshould have objected to admission

of his police interview because he agreed in the interview to take a polygraph test.

According to McGlothlin, reference to this agreement was inadmissible and would

have been excluded had counsel objected.

11 See id. at 500 (2) (defendant not prejudiced by prosecutor’s questions about

prior criminal charge where jury “heard no evidence refuting or contradicting

[defendant’s]testimony that hewas acquitted of this charge”). We recognize that after

McGlothlin refuted the felony accusation, the detective stated that he found

McGlothlin to be “deceitful.” McGlothlin, however, raises no claim of error

concerning this statement. And viewed in context, the detective’s comment related

to his belief that McGlothlin was lying about his interaction with J. B., not about the

forgery incident.

12 See Reed v. State, 291 Ga. 10, 17 (4) (b) (727 SE2d 112) (2012) (acquittal

on one of several charges “indicates that the jury likely was not prejudiced against

[the defendant] because of” prosecution’s allegedly improper closing argument).

13

 See id.; Dyer, supra.

8
Well before the trial court admitted the recorded interview, however, J. B.’s

mother testified without objection that McGlothlin had consented to a polygraph

examination. The detective who interviewed McGlothlin also testified about the

agreement and McGlothlin’s ultimate decision not to follow through with the

examination. McGlothlin’s enumerated error does not complain about trial counsel’s

performance with respect to testimony from J. B.’s mother or the detective. It focuses

solely on admission of the police interview, as must we.14

The polygraph reference in the interview was cumulative of other evidence

admitted at trial. Under these circumstances, and in light of the significant evidence

supporting the jury’s verdict, McGlothlin cannot demonstrate any likelihood that

counsel’s failure to object to the interview on this ground impacted the trial result.

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(c) Finally, to the extent that McGlothlin has shown or we have assumed that

trial counsel’s assistance was deficient, “we also find that the cumulative effect of any

14 See Riggs v. State, 319 Ga. App. 189, 198 (5) (733 SE2d 832) (2012) (“A

party cannot expand his enumerations of error through argument or citation in his

brief.”) (punctuation omitted).

15 Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (defendant

not prejudiced by counsel’sfailure to object to evidence that was cumulative of other

evidence admitted at trial); Anderson v. State, 311 Ga. App. 732, 740 (2) (d) (716

SE2d 813) (2011) (same).

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such deficiencies did not create a reasonable likelihood that the outcome of the trial

would have been different but for any deficient performance.”16

Judgment affirmed. Dillard and Peterson, JJ., concur.

16 Williams, supra at 855 (3) (j) (citations omitted; emphasis in original).

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