FILED
MAY 11, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37253-7-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DALE A. TENINTY, )
)
Appellant. )
PENNELL, C.J. — Dale Teninty appeals his convictions for two counts of child
molestation. We affirm.
FACTS
When A.E. was seven years old, she disclosed to her cousin and then her mother
that she had been molested by Dale Teninty, a man who had previously lived in her
family’s home. Prior to this disclosure, the mother and the cousin had warned A.E.
about bad touches and told her that they had been the victims of molestation when they
were young. A.E.’s mother contacted the police and A.E. participated in two forensic
interviews. Mr. Teninty was subsequently charged with one count of attempted first
degree child molestation and three counts of completed first degree child molestation.
The case went to trial.
No. 37253-7-III
State v. Teninty
During voir dire, juror 34 disclosed he had a friend who had been accused of child
molestation. Juror 34 explained he had testified as a character witness for the friend and
that the events occurred roughly a decade or so ago, when the friend was in his 30s and
the child was 14 or 15. When the court asked juror 34 if he could be impartial, the
following colloquy occurred:
JUROR NO. 34: I think—well, yeah. Basically, I think that you’re
going to have to prove to me that he did it before I’m going to. Other than
that, yeah.
THE COURT: Okay. So you said that with a fair amount of
conviction.
JUROR NO. 34: Well, yeah.
THE COURT: So did you think your friend was wrongfully
charged?
JUROR NO. 34: I do.
THE COURT: All right.
JUROR NO. 34: But I will tell you that he walked out of there, the
jury was 11 in favor of him and one in favor of guilty. So my opinion is the
fellow spent several months in jail for nothing, you know, what I mean.
THE COURT: Yes, I do. That’s helpful.
So do you think given that experience and particularly what you just
highlighted about you[r] friend having spent undue time in jail, that you
would be inclined to hold the State to a higher burden?
JUROR NO. 34: I’m not sure what you mean by that. I don’t think
that—well, I think if there’s proof and I believed that somebody did
something, well, then I’m going to say guilty. But if I don’t fully believe
that they did something, I would not say guilty. So I don’t think that—I
don’t think it would—I don’t think it would change my opinion, you know
what I mean.
THE COURT: So let me ask you a little different[ly].
Do you think you can be unbiased?
JUROR NO. 34: I do, actually.
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State v. Teninty
THE COURT: And impartial?
JUROR NO. 34: Yeah, I do.
2 Report of Proceedings (RP) (Oct. 15, 2019) at 257-59. The prosecutor then questioned
him further.
[THE PROSECUTOR]: Fair to say you think your friend was
treated unfairly?
JUROR NO. 34: Well, given—yeah, pretty much.
[THE PROSECUTOR]: Do you think that was—who would be
treated unfairly by, law enforcement or the courts or what specific part of
it?
JUROR NO. 34: I wouldn’t say that law enforcement or the courts.
Basically, it was the person accusing my friend. It’s just that laws are what
they are and he had to go where he had to go until matters were resolved, so
to speak.
....
[THE PROSECUTOR]: So do you think that anything from that
experience or those emotions could impact [how you view] our case here in
court?
JUROR NO. 34: You know, I guess I can’t really say because I
don’t know the circumstances. But I guess if I feel it’s along the same lines,
I could be persuaded by the situation.
....
JUROR NO. 34: I mean, like it was the same circumstances and
somebody was saying this and this and I knew that it wasn’t true—basically
I can tell you what the deal was in the end is the younger gal was trying to
date an older guy like in his late 20s, okay. So he said no way, you can’t do
that because he was with her mother, you know. He was the father figure
for three or four years at this point. And basically this was her way to get rid
of him so she could have what she wanted. And that’s the way the jury
viewed it at the end. So if it’s the same kind of thing, I could see where I
could be persuaded to see it.
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No. 37253-7-III
State v. Teninty
[THE PROSECUTOR]: Do you think some of that background
information and things that you saw in your own experience could impact
you?
JUROR NO. 34: It’s possible.
[THE PROSECUTOR]: Okay.
JUROR NO. 34: I guess it could because I don’t know what went on
here, so I have no idea.
[THE PROSECUTOR]: Okay. So would it be fair to say if things
did start maybe making you think of your experience or started bringing
some of that back, that that could affect your ability to be fair in our case?
JUROR NO. 34: It is possible, yeah, now that you mention it like
that. Yeah, I guess it is possible.
Id. at 259-62. The court subsequently granted the prosecutor’s motion to strike juror 34
for cause over Mr. Teninty’s objection.
At the conclusion of trial, the jury convicted Mr. Teninty of two counts of first
degree child molestation. The counts were specific to two different locations. One
pertained to an incident on a green chair on the porch of A.E.’s residence. The other
pertained to an incident inside the home in what was referred to as “‘Papa’s’ chair.”
Clerk’s Papers (CP) at 225.
At sentencing, the court counted each offense separately against the other over
Mr. Teninty’s objection that the counts constituted the same criminal conduct. The court
determined Mr. Teninty had an offender score of 3 and a total indeterminate sentencing
range of 67 to 89 months to life. He was sentenced to a minimum of 82 months
concurrent confinement for each offense.
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No. 37253-7-III
State v. Teninty
Mr. Teninty timely appeals his judgment and sentence.
ANALYSIS
Excusal of juror for cause
Mr. Teninty contends the trial court committed structural error by dismissing juror
34 for actual bias. According to Mr. Teninty, the prosecutor’s justifications for striking
juror 34 were discriminatory. Mr. Teninty does not allege juror 34 was a person of color
or that the prosecutor had actual animus toward juror 34. Instead, Mr. Teninty makes a
disparate impact argument. He points out that people of color are disproportionately
targeted by the criminal justice system. Given this circumstance, striking a juror for cause
because the juror has a friend who faced charges similar to the defendant’s has a
discriminatory impact and therefore deprives the defendant of his right to a fair and
impartial jury.
Mr. Teninty’s arguments miss the mark because he confuses the analysis
applicable to for-cause challenges and peremptory challenges.1
1
We also question the factual premise of Mr. Teninty’s argument. While people
of color are woefully over-represented in the criminal justice system, it is not clear that
people of color make up a disproportionate number of individuals charged with child
molestation.
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No. 37253-7-III
State v. Teninty
A for-cause challenge is one based on a juror’s individual qualifications for
service. RCW 4.44.150; CrR 6.4(c). A juror’s actual bias can serve as a reason for a for-
cause challenge. RCW 4.44.170(2). But in order to grant a for-cause challenge based on
actual bias, the court must be satisfied that the juror cannot disregard preexisting opinions
and try the case impartially. RCW 4.44.190.
Peremptory challenges may be applied to prospective jurors who have not been
excluded for cause. CrR 6.4(e)(2). “A peremptory challenge is an objection to a juror
for which there is no reason given, but upon which the court shall exclude the juror.”
CrR 6.4(e)(1). “However, the Equal Protection Clause limits the exercise of peremptory
challenges by prohibiting their use to exclude otherwise qualified and unbiased jurors
based upon their race.” State v. Vreen, 99 Wn. App. 662, 666, 994 P.2d 905 (2000).
The current process for determining whether a peremptory strike violates equal
protection is set forth in GR 37.2 Under the terms of the rule, a party or the court may
2
GR 37 was adopted in 2018 and was effective at the time of Mr. Teninty’s 2019
trial.
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No. 37253-7-III
State v. Teninty
object to the use of a peremptory challenge on the basis of improper bias. When a GR 37
objection is made, the party exercising the peremptory challenge must articulate reasons
for the challenge. GR 37(d). The court must then make a determination as to whether “an
objective observer could view race or ethnicity as a factor in the use of the peremptory
challenge . . . .” GR 37(e). “If the court determines that an objective observer could view
race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory
challenge shall be denied.” Id. One of the considerations a court should make in assessing
the discriminatory nature of a peremptory strike is whether the reason for a strike “might
be disproportionately associated with a race or ethnicity.” GR 37(g)(iv). Presumptively
invalid reasons for peremptory strikes include a juror’s “prior contact with law
enforcement officers,” “expressing a distrust of law enforcement,” and “having a close
relationship with people who have been stopped, arrested, or convicted of a crime.”
GR 37(h)(i)-(iii).
The prosecution challenged juror 34 for cause; it was not a peremptory challenge.
As such, the only issue before the court was whether juror 34 was laboring under actual
bias. A biased juror may be excluded regardless of race. Mr. Teninty cites no authority for
the claim that a juror laboring under actual bias cannot be removed from a particular case
because certain types of bias are more likely to be shared by people of color than by
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No. 37253-7-III
State v. Teninty
whites.3
Mr. Teninty also claims that, regardless of his disparate impact argument, the trial
court erred when it granted the State’s motion to strike juror 34 for cause. To prevail on
this argument, Mr. Teninty must show the trial court committed a “manifest abuse of
discretion.” State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). This is a difficult
standard. When it comes to assessing a trial court’s decision on a challenge for cause,
we must keep in mind that the trial court has the advantage of observing a juror’s
demeanor and is therefore “in the best position to determine a juror’s ability to be fair and
impartial.” Id. at 839. Even where reasonable minds can differ, we will uphold a trial
court’s decision so long as it falls within the broad range of a reasonable decision. See id.
The trial court here had a tenable basis for granting the State’s motion to strike
juror 34 for cause. During his colloquy with the court and prosecutor, juror 34 admitted
that if the circumstances of Mr. Teninty’s case caused him to start thinking about his
friend’s case, his ability to be fair would be impaired. Juror 34’s concerns were about the
3
The primary authority cited by Mr. Teninty is the plurality opinion of State v.
Pierce, 195 Wn.2d 230, 455 P.3d 647 (2020). Pierce had to do with the State interjecting
bias into the jury pool by eliciting a conversation about the death penalty. It had nothing
to do with for-cause challenges.
8
No. 37253-7-III
State v. Teninty
veracity of the complaining witness in the friend’s case. This circumstance was similar
to the defense raised by Mr. Teninty in his case. While it would have been impossible
for the court to delve into juror 34’s mind and assess whether the specifics of his prior
experience would be triggered by the evidence to be elicited in Mr. Teninty’s trial, the
trial court did have an adequate basis for concluding juror 34 met the criteria of actual
bias. See RCW 4.44.190. The trial court therefore properly exercised its discretion in
granting the motion to strike. CrR 6.4(c).
Admission of child hearsay statements
Prior to trial, the State sought to admit out-of-court statements made by A.E. to her
mother, her cousin, and the forensic investigator under RCW 9A.44.120. The trial court
held an evidentiary hearing and ruled the hearsay statements admissible. The court issued
written findings in support of its decision, consistent with the criteria set by the Supreme
Court in State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). The court found
that all the applicable factors weighed in favor of admitting A.E.’s statements.
On appeal, Mr. Teninty argues the hearsay statements should not have been
admitted because they were not reliable. Mr. Teninty does not assign error to any of the
trial court’s factual findings. Instead, Mr. Teninty broadly claims A.E.’s memories of
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No. 37253-7-III
State v. Teninty
abuse were irreparably tainted by her mother and cousin, both of whom warned A.E.
about their own histories of abuse.
Mr. Teninty’s child hearsay claim fails. While a mother’s warning to her child
about the dangers of sexual assault might provide fodder for cross-examination, it
defies common sense to think that the mere provision of warnings will render a child
incompetent to testify about her own experiences of victimization. In any event, there are
no facts in the record suggesting the specific information relayed by A.E.’s mother and
cousin were impermissibly suggestive. There is no indication that A.E.’s mother or cousin
pressured A.E. to come forward against Mr. Teninty. Nor was there any indication that
A.E.’s mother or cousin provided A.E. with details about their own experiences with
abuse, let alone details similar to the ones alleged by A.E. Finally, Mr. Teninty has not
challenged any of the trial court’s findings, including the finding that A.E. had an
independent recollection of the events in question.4 Given the record at hand, we have no
basis for disturbing the trial court’s child hearsay ruling. See State v. Homan, 181 Wn.2d
102, 106, 330 P.3d 182 (2014).
4
The court found, “A.E. retained an independent recollection of the timeframe and
events in question.” CP at 226. Although this finding was mislabeled as a conclusion of
law, it is properly “treated as a finding of fact.” Hegwine v. Longview Fibre Co., 162
Wn.2d 340, 353, 172 P.3d 688 (2007).
10
No. 37253-7-III
State v. Teninty
Same criminal conduct
Mr. Teninty contends the trial court erred by counting his two convictions
separately because they involved the same intent, victim, and location. The State counters
that the court correctly separated the offenses as they occurred at different times and in
different parts of the victim’s home. We agree with the State.
Two or more crimes can be treated as the “same criminal conduct” for sentencing
purposes if they “require the same criminal intent, are committed at the same time and
place, and involve the same victim.” RCW 9.94A.589(1)(a). The burden of proving same
criminal conduct falls on the defense and we review a trial court’s same criminal conduct
decision for abuse of discretion. State v. Graciano, 176 Wn.2d 531, 537-39, 295 P.3d 219
(2013). We will only find an abuse of discretion when the record supports “only one
conclusion on whether the crimes constitute the ‘same criminal conduct.’” Id. at 538.
As noted by the State, Mr. Teninty’s same criminal conduct argument fails because
he cannot show the crimes against A.E. occurred at the same time and place. According to
A.E., the abuse happened on different occasions in different locations of her home. The
trial court properly denied Mr. Teninty’s request to treat the two convictions as the same
criminal conduct.
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No. 37253-7-111
State v. Teninty
CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q,
Pennell, C.J.
WE CONCUR:
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Fearing, Staab, J.
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