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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65977-4-I
                    v.                      )
                                            )       UNPUBLISHED OPINION
MARCIAL RAMOS TENORIO,                      )
                                            )
                      Appellant.            )       FILED: June 11, 2012
________________________________)

       Dwyer, J.  --  A jury convicted Marcial Tenorio of one count of child 

molestation in the first degree based upon an incident involving his daughter, 

J.G.T.  On appeal, Tenorio contends that the trial court erroneously excluded 

evidence regarding a purported threat made by Gabriella Cuevas, his ex-wife 

and the child's mother, prior to the disclosure of abuse.  He similarly asserts that 

the trial court erroneously precluded his other daughter, M.R.T., from testifying 

that Cuevas had referred to Tenorio as a "child molester." Finally, Tenorio 

contends that there is insufficient evidence to support his conviction.  Because 

neither of the trial court's evidentiary rulings constitutes an abuse of its 

discretion, and because sufficient evidence supports the jury's verdict, we affirm.

                                            I

       On a weekend in September 2009, J.G.T. and E.A.T. visited their father, 

Marcial Tenorio, at his home.  At the time, J.G.T. was 8 years old.  Tenorio and  

No. 65977-4-I / 2

Gabriella Cuevas, who had been divorced for approximately four years, together 

have three children, J.G.T., E.A.T., and M.R.T.  Although Cuevas was the 

children's primary caretaker, they would frequently stay with their father during 

weekends.  

       When J.G.T. and E.A.T. returned from their father's home, Cuevas 

noticed that J.G.T. "looked a little different" and was "quieter" than usual.  J.G.T. 

"really didn't say much" and "just kind of looked down."  Based upon how J.G.T. 

was acting, Cuevas believed that something was wrong.  She asked her 

daughter if there was "anything bothering" her.  Although J.G.T. repeatedly 

answered "no," her eyes were "really big" and "just watery."  Cuevas called 

M.R.T., J.G.T.'s older sister, into the room during the conversation.  Cuevas also 

asked J.G.T. whether her father had touched her inappropriately.  Because 

J.G.T. would not explain what was wrong, Cuevas thought that J.G.T. might 

simply have "had a bad day" or "misbehaved."  She stopped questioning her 

daughter, and J.G.T. went to bed.  

       The next day, the children's aunt, Sylvia, Cuevas's sister, visited their 

home.  Based upon her conversation with the children, Sylvia believed that 
"[s]omething inappropriate was happening" when the children visited Tenorio.1  

Using a wooden spoon to demonstrate, Sylvia explained to the children that if a 

"man's organ" ever touched them, they would "feel uncomfortable" and "need to 

       1 Sylvia's full name is Sylvia Cuevas.  Because she shares a last name with her sister, 
Gabriella Cuevas, we refer to Sylvia herein by her first name alone.  We do so for clarity and 
intend no disrespect.

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No. 65977-4-I / 3

tell somebody. " Sylvia used the spoon to show J.G.T. what it would feel like.  

She also told the children that it was inappropriate for someone to touch them in 

the "bikini area."  J.G.T. disclosed to her aunt that she had "felt the spoon."  

Sylvia told Cuevas about the disclosure, which they reported to Ann Eilers, 

J.G.T.'s school counselor.  

       Eilers thereafter met with J.G.T.  She asked J.G.T. if "something 

inappropriate" had happened.  J.G.T. told Eilers that she often sleeps in the 

same bed with Tenorio and her brother, E.A.T., when they visit their father.  

J.G.T. said that she "did not want to sleep in the middle of the bed that night, so 

she moved to the outside."  Tenorio would not allow J.G.T. to switch positions 

with her brother, so she stayed in the middle of the bed.  J.G.T. told Eilers that 

during the night her father "touched her private parts between her legs and then 

he started moving against her, and it felt like a wooden spoon handle against 

her."  J.G.T. told Eilers that "her dad was moving a lot" when she felt the 

"wooden spoon handle" against her.  Eilers reported the incident to Child 

Protective Services.  

       J.G.T. was thereafter interviewed by Nicol Flacco, a child interview 

specialist with the Skagit County Sheriff's Office.  J.G.T. told Flacco about an 

incident in which her brother, E.A.T., asked why the bed was shaking and 

Tenorio responded that it was because he, E.A.T., was moving the bed.  J.G.T.

also told Flacco that Tenorio got mad when she was hot and wanted the 

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No. 65977-4-I / 4

blankets off of her and when E.A.T. wanted to sleep in between J.G.T. and her 

father.  J.G.T. said that her father "touched her private" and that, although she 

did not see what he touched her with, "it felt like a hard stick on her private."  

J.G.T. told Flacco that she did not know how it stopped, but that Tenorio then 

"turned around in the bed."  

       Tenorio was charged by information with one count of child molestation in 
the first degree based upon J.G.T.'s disclosure.2        

       At trial, J.G.T. testified that when she and her brother, E.A.T., visited their 

father, they would all sleep in the same bed, and she would sleep in the middle 

between her father and brother.  J.G.T. testified that she "wanted to switch it up 

once" so that her brother slept in the middle, but Tenorio "got mad and pulled 

down the belt."  J.G.T. was not allowed to switch places with her brother in the 

bed.  J.G.T. testified that her father would wear either pajamas or boxer shorts to 

bed.  She further testified that, one night in bed, she felt her father's "private 

area" against the side of her leg and that it "move[d] up and down."  J.G.T. did 

not know how the touching stopped because she fell asleep.  

       Following trial, the jury convicted Tenorio of one count of child 

molestation in the first degree based upon the incident involving J.G.T.  Tenorio 

       2 Tenorio was also charged with two counts of child molestation in the first degree based 
upon allegations that he had molested his 12-year-old son, E.A.T., and one count of child 
molestation in the second degree based upon allegations that he had molested his 16-year-old 
daughter, M.R.T.  Following the State's case in chief, the trial court dismissed the count of child 
molestation in the second degree involving M.R.T.  The jury thereafter found Tenorio not guilty 
of both counts of child molestation in the first degree involving E.A.T.  Because Tenorio was not 
convicted on these charges, we do not further discuss the charges herein.

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No. 65977-4-I / 5

was sentenced to 51 months incarceration.  

       Tenorio appeals.

                                           II

       Tenorio first contends that the trial court erred by excluding testimony 

regarding an alleged threat made by Cuevas against Tenorio in the days 

preceding J.G.T.'s disclosure of abuse.  However, because there was no 

evidence connecting Cuevas's purported threat with J.G.T.'s disclosure, 

testimony regarding the threat was irrelevant and, thus, was properly excluded.

       "[W]e will not disturb a trial court's rulings on a motion in limine or the 

admissibility of evidence absent an abuse of the court's discretion."  State v. 

Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).  "When a trial court's 

exercise of its discretion is manifestly unreasonable or based upon untenable 

grounds or reasons, an abuse of discretion exists."  Powell, 126 Wn.2d at 258.

       "A defendant in a criminal case has a constitutional right to present a 

defense 'consisting of relevant evidence that is not otherwise inadmissible.'"  

State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006) (quoting State 

v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).  However, "a criminal 

defendant has no constitutional right to have irrelevant evidence admitted in his 

or her defense."  State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).  

Evidence is relevant where it has "any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or 

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No. 65977-4-I / 6

less probable than it would be without the evidence."  ER 401.  Evidence is 

relevant and, thus, admissible only where it is both probative -- in other words, it 

has a "tendency to prove or disprove a fact" -- and material, meaning that the fact 

to be proved "is of consequence in the context of the other facts and the 

applicable substantive law."  State v. Sargent, 40 Wn. App. 340, 348 n.3, 698 

P.2d 598 (1985) (citing 5 K. Tegland, Washington Practice: Evidence § 82, at 

168 (2d ed. 1982)).  A trial court properly excludes evidence that is "remote, 

vague, speculative, or argumentative because otherwise 'all manner of 

argumentative and speculative evidence will be adduced,' greatly confusing the 

issue and delaying the trial."  State v. Kilgore, 107 Wn. App. 160, 185, 26 P.3d 

308 (2001) (quoting State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965)), 

aff'd on other grounds, 147 Wn.2d 288, 53 P.3d 974 (2002).  See also Mee Hui 

Kim, 134 Wn. App. at 42; State v. Donahue, 105 Wn. App. 67, 79, 18 P.3d 608 

(2001).

       In Kilgore, the defendant, Kilgore, was charged with multiple counts of 

child rape and child molestation based upon incidents involving four different 

children.  107 Wn. App. at 165.  The State moved to exclude evidence that 

Kilgore's mother-in-law, Lynn B., had been arrested for shoplifting and convicted 

of driving under the influence (DUI).  Kilgore, 107 Wn. App. at 172-73.  Kilgore 

asserted that this evidence was relevant because Lynn B. was the "instigator of 

all of the allegations" and because, following Lynn B.'s  arrest for DUI, Kilgore 

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No. 65977-4-I / 7

had informed her that he did not want his children -- her grandchildren -- riding in 

the car while she was driving.  Kilgore, 107 Wn. App. at 172-73.  The State 

argued that Kilgore had failed to make the necessary connection between the 

incidents and Lynn B.'s purported "coaching of the children."  Kilgore, 107 Wn. 

App. at 173.  The trial court agreed.  Kilgore, 107 Wn. App. at 173.  

       We affirmed the trial court's exclusion of the evidence of Lynn B.'s 

shoplifting arrest and DUI conviction.  Kilgore, 107 Wn. App. at 186.  We noted 

that the problem with Kilgore's argument was that it "provide[d] no link" between 

the evidence sought to be introduced and "four children's allegations that Kilgore

molested and raped them."  Kilgore, 107 Wn. App. at 186.  We concluded that it 

was "too speculative to say a grandmother would prompt children to accuse her 

son-in-law of child molestation and rape merely because she wants to drive her 

grandchildren around."  Kilgore, 107 Wn. App. at 186.  Kilgore had failed "to 

provide a link or 'train of facts' that suggest that the animosity engendered by his 

refusal to allow Lynn B. to drive with his children caused the four children to 

accuse him of molesting and raping them."  Kilgore, 107 Wn. App. at 186-87.  

Thus, we held, the trial court properly exercised its discretion in limiting the 

scope of Kilgore's cross-examination of Lynn B.  Kilgore, 107 Wn. App. at 187.  

       Here, Tenorio sought to introduce testimony regarding an alleged threat 

made by Cuevas against him in the days preceding J.G.T.'s disclosure of abuse.  

Tenorio alleged that, just days before J.G.T.'s disclosure, he had called the 

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No. 65977-4-I / 8

police upon learning that his son's hand had been "slapped" by Cuevas and had 

"start[ed] to bleed."  Cuevas allegedly told Tenorio, "I'm gonna make you pay for 

this."  Tenorio asserted in the trial court that such evidence was relevant as part 

of the "chain of events" that led to J.G.T.'s disclosure.  

       The State moved to exclude testimony regarding the alleged threat, 

contending that the defense would use it "to paint [Cuevas] in a bad light and try 

to argue that she put the kids up to making these allegations."  The State 

asserted that there was no connection between the purported threat and the 

disclosures of abuse and, furthermore, that there was no evidence that the 

children had been coerced into making the disclosures.  Tenorio acknowledged 

that there was no evidence that Cuevas, or anyone else, had prompted J.G.T. to 

make the allegation.  

       The trial court ruled that the defense could

       certainly inquire of the kids on cross-examination whether or not 
       they were prompted or told what to say or instructed to do 
       something or not do something by a mother, an aunt, or another 
       relative.

              And if it becomes, I guess for lack of a better word, 
       suspicious that that occurred, then maybe this little scenario about 
       Friday night and the alleged threat would become relevant.  
       Without that, they're [sic] probably isn't a nexuses [sic].  So we'll 
       reserve on that and see what happens when the kids are 
       questioned.

The trial court stated that the testimony would not be admitted "[u]nless the kids 

connect the dots" and informed counsel that the necessary connection could be 

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No. 65977-4-I / 9

provided by "[j]ust some evidence, some indecision, [that] some adult prompted 

these kids to say something as far as the story."  Thus, the court ruled that 

testimony regarding the alleged threat was irrelevant -- and, thus, 

inadmissible -- absent some evidence that J.G.T. had been coerced into making 
the allegation against Tenorio.3  

       The trial court did not abuse its discretion by so ruling.  Absent evidence 

that J.G.T. had been coerced or prompted to disclose the abuse, the alleged 

threat by Cuevas does not tend to make more or less probable "any fact that is 

of consequence to the determination of [this] action."  ER 401.  Indeed, absent 

such evidence, there is no connection at all between the alleged threat and 

J.G.T.'s disclosure.  Rather, the assertion that Cuevas had the motivation 

to -- and then did -- prompt J.G.T. to make an allegation against her father is 

wholly speculative.  As in Kilgore, 107 Wn. App. at 187, the exclusion of this 

speculative evidence was proper.  See also State v. Fisher, 165 Wn.2d 727, 752-

53, 202 P.3d 937 (2009) (holding that, in a prosecution for child molestation, the 

trial court properly excluded evidence of the defendant's ex-wife's alleged bias, 

as such evidence was too speculative and remote in time to be relevant).  The 

       3 We note that the trial court's ruling was not a final one, as the court indicated that it 
would consider admitting testimony regarding the alleged threat if the evidence presented at trial 
demonstrated that the children had been prompted to make allegations against their father.  
Tenorio did not question the children at trial regarding whether they had been so prompted.  
Accordingly, we need not review this claim of error, as Tenorio's challenge to the trial court's 
tentative ruling has not been preserved for appellate review.  State v. Carlson, 61 Wn. App. 865, 
875, 812 P.2d 536 (1991) ("[W]hen ruling on a motion in limine is tentative, any error in admitting 
or excluding evidence is waived unless the trial court is given an opportunity to reconsider its 
ruling.").  However, we do so to point out that, even had the ruling been a final one, such 
testimony would properly be excluded.

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No. 65977-4-I / 10

trial court did not err by excluding such testimony.

                                           III

       Tenorio next contends that the trial court erred by excluding testimony by 

M.R.T. that she had heard Cuevas tell J.G.T. that Tenorio was a "child molester."  

However, because there was no evidence that J.G.T. had heard any such 

statement by her mother, the trial court did not abuse its discretion by excluding 

the proffered testimony.  

       Prior to the testimony of M.R.T., J.G.T.'s older sister, the State moved in 

limine regarding the scope of her testimony.  According to defense counsel, 

M.R.T. had indicated during interviews that, on the evening before J.G.T. 

disclosed the abuse, Cuevas told J.G.T. "that her dad is a child molester."  The 

State contended that the defense sought to introduce M.R.T.'s testimony about 

Cuevas's purported statement in order to show its effect on J.G.T. -- in other 

words, to show that Cuevas's alleged statement influenced J.G.T.'s disclosure of 
abuse.4 However, the State asserted, there was no evidence "that even though 

[J.G.T.] was in the room, that she even heard the statements or that they had 

any effect on her."  The defense asserted that such testimony constituted 

"background," as Cuevas's alleged statement was made "in the context of" the 

conversation between Cuevas and J.G.T.  

       4 Presumably, Tenorio sought to introduce M.R.T.'s testimony on this issue because he 
expected that J.G.T. would not testify that Cuevas had made such a statement.  Indeed, when 
the trial court asked defense counsel whether J.G.T. would testify that she had heard Cuevas 
make the alleged statement, defense counsel did not assert that she would do so.  During her 
testimony at trial, J.G.T. did not testify that she had heard her mother make any such statement.

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No. 65977-4-I / 11

       The trial court granted the State's motion, noting that "because [Cuevas] 

made the statements doesn't mean that [J.G.T.] heard the statements."  The 

court ruled that "[t]here has got to be connective tissue there, and the connective 

tissue is [J.G.T.] heard the statements."  Thus, the trial court ruled, because 

M.R.T.'s testimony was being offered to demonstrate that Cuevas's purported 

statement influenced J.G.T., such testimony was inadmissible absent evidence 

that J.G.T. actually heard the alleged statement.  The court permitted defense 

counsel to question J.G.T. with regard to whether she heard Cuevas's purported

statement but precluded counsel from eliciting testimony from M.R.T. regarding 

that statement.  

       As explained above, evidence is relevant -- and, thus, admissible -- only 

where it is both probative and material.  Evidence that J.G.T.'s mother stated 

that Tenorio was a "child molester" could very well be probative of whether 

J.G.T. was influenced in making the allegation of abuse.  However, given the 

facts here, whether Cuevas made such a statement is not material -- in other 

words, it is not "of consequence in the context of the other facts and the 

applicable substantive law" in this case.  Sargent, 40 Wn. App. at 348 n.3.  

Absent evidence that J.G.T. heard her mother refer to Tenorio as a "child 

molester," the assertion that such a statement was made is immaterial to 

whether J.G.T. was thereby influenced in disclosing the abuse.  Accordingly, the 

trial court did not err by excluding M.R.T.'s testimony regarding Cuevas's alleged 

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No. 65977-4-I / 12

statement.

                                           IV

       Finally, Tenorio contends that insufficient evidence was presented to 
support the jury's verdict convicting him of child molestation in the first degree.5  

We disagree.

       "Evidence is sufficient to support a conviction if, viewed in the light most 

favorable to the prosecution, it permits any rational trier of fact to find the 

essential elements of the crime beyond a reasonable doubt."  State v. Thomas, 

150 Wn.2d 821, 874, 83 P.3d 970 (2004).  "A claim of insufficiency admits the 

truth of the State's evidence and all inferences that reasonably can be drawn 

therefrom."  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  We 

defer to the trier of fact "on issues of conflicting testimony, credibility of 

witnesses, and the persuasiveness of the evidence."  Thomas, 150 Wn.2d at 

874-75.

       "A person is guilty of child molestation in the first degree when the person 

has . . . sexual contact with another who is less than twelve years old and not 

married to the perpetrator and the perpetrator is at least thirty-six months older 

than the victim."  RCW 9A.44.083(1).  "'Sexual contact' means any touching of 

the sexual or other intimate parts of a person done for the purpose of gratifying 

       5 Tenorio asserts on appeal that he moved in the trial court to dismiss all of the charges 
against him.  The record does not support this assertion.  Rather, Tenorio moved to dismiss the 
counts based upon incidents involving E.A.T. and M.R.T. -- not the one count based upon the 
incident involving J.G.T., which resulted in the conviction from which Tenorio appeals.  Thus, we 
do not review here a decision by the trial court; rather, we review whether substantial evidence 
supports the jury's verdict convicting Tenorio of child molestation in the first degree.

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No. 65977-4-I / 13

sexual desire of either party or a third party."  RCW 9A.44.010(2). Touching of a 

child's intimate parts itself supports the inference that the touching was for the 

purpose of sexual gratification where the defendant is an unrelated adult with no 

caretaking function.  State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991).  

"However, in those cases in which the evidence shows touching through 

clothing, or touching of intimate parts of the body other than the primary 

erogenous areas, the courts have required some additional evidence of sexual 

gratification."  Powell, 62 Wn. App. at 917 (footnote omitted).  

       The evidence presented supports the jury's verdict.  J.G.T. testified at trial 

that Tenorio touched her with his "private area," which he "move[d] up and down" 

against the side of her leg.  J.G.T.'s school counselor, Eilers, testified that J.G.T. 

had conveyed to her the same version of the incident.  According to Eilers' 

testimony, J.G.T. told her that Tenorio had "touched her private parts between 

her legs and then he started moving against her, and it felt like a wooden spoon 

handle against her."  J.G.T. also told Eilers that, during this incident, Tenorio 

"was moving a lot."  This testimony supports the jury's conclusion that the 

touching was performed for the purpose of sexual gratification.

        Nevertheless, Tenorio contends that insufficient evidence supports the 

jury's verdict because, he asserts, J.G.T. initially denied to Cuevas that Tenorio 

had touched her inappropriately and disclosed the abuse only after Cuevas 

engaged in "highly suggestive questioning."  Moreover, he contends that the 

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No. 65977-4-I / 14

contact between Tenorio and J.G.T. "was a fleeting contact and nothing else 

was said or done."  The record belies these assertions.  Moreover, such 

assertions concern determinations of credibility and the persuasiveness of the 

evidence, which are within the jury's province and will not be disturbed on 

appeal.  Thomas, 150 Wn.2d at 874-75.

       Sufficient evidence supports the jury's verdict convicting Tenorio of child 
molestation in the first degree.6

       Affirmed.

We concur:

       6 Tenorio has submitted a statement of additional grounds in which he, in effect, asserts 
that insufficient evidence supports his conviction and that Cuevas coerced the children into 
making the allegations against him.  Because we have addressed these contentions herein, we 
will not do so further in response to Tenorio's statement of additional grounds.

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