IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

MARCO A. ESPINOZA,

Appellant.

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No. 35261-7-III

UNPUBLISHED OPINION

PENNELL, J. — Marco Espinoza appeals his convictions for three counts of 

first degree child molestation, arguing he received ineffective assistance of counsel. 

We affirm.

FACTS

In June 2014, an adult family member overheard sisters D.O. (7-years-old) and

S.O. (8-years-old) and their female cousin L.M. (8-years-old) discussing inappropriate 

sexual touching by the children’s uncle, Marco Espinoza.

1

 The discussion took place 

in Enumclaw, Washington, on the day of a family graduation. After the graduation 

ceremony, the children’s disclosures were shared with additional family members and 

the police. The Enumclaw authorities transferred the case to Yakima County, where 

the acts of molestation were alleged to have occurred.

 1 A younger female relative was also part of the discussion, but the State did not 

bring charges related to her statements.

FILED

MARCH 12, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35261-7-III

State v. Espinoza

2

The State charged Mr. Espinoza with three counts of first degree child molestation.

As part of the investigation, the three children were interviewed by a child forensic 

interview specialist.

Prior to trial, the State moved to admit the children’s statements to various adults, 

including their parents, the forensic interview specialist, and the police officers, pursuant 

to the child hearsay exception. Mr. Espinoza’s counsel did not submit a responsive

memorandum because he agreed that the State’s memorandum accurately set out the law 

on child hearsay.

A child hearsay hearing was held over the course of two days. The State called

the forensic specialist, one of the investigating officers, and four adult family members. 

The State also presented testimony from D.O., S.O., and L.M.

During the hearing, the child witnesses made some inconsistent statements as 

to where various events had taken place and who had been present. They also had 

inconsistent recollections about who they had made disclosures to and what had been 

discussed during the disclosures.

At the conclusion of the hearing, counsel for the State conceded that there were 

some inconsistencies in the children’s testimony. Nevertheless, the State noted the 

children did not have a motive to lie and nothing in the record showed they had 

any character or reputation for untruthfulness. The State also argued there was nothing 
No. 35261-7-III

State v. Espinoza

3

to show that the children had any precocious sexual knowledge. Mr. Espinoza’s counsel 

requested the court exclude the children’s various statements to family members and 

police officers that were made in a group setting, as such circumstances undermine 

reliability.

The trial court ultimately admitted the children’s out-of-court statements as 

sufficiently reliable, pursuant to the factors set forth in State v. Ryan, 103 Wn.2d 165, 

691 P.2d 197 (1984).

The three child witnesses testified at trial. Their testimony included some new 

information regarding inappropriate touching by Mr. Espinoza. Mr. Espinoza’s attorney 

impeached the child witnesses with their inconsistent statements.

During the defense’s case in chief, Mr. Espinoza’s attorney presented 

impeachment testimony from the children’s aunt. The aunt contradicted some of the 

child witnesses’ statements regarding dates and family events. The defense did not 

call any additional witnesses.

The jury found Mr. Espinoza guilty of all three counts of first degree child 

molestation. Mr. Espinoza was sentenced to 98 months’ incarceration for each count,

to be served concurrently.

Mr. Espinoza timely appeals.
No. 35261-7-III

State v. Espinoza

4

ANALYSIS

Mr. Espinoza contends his trial counsel was ineffective for failing to: (1) challenge 

the competency of the child witnesses, (2) present a meaningful defense, and (3) argue

against admission of child hearsay statements. We reject each of these claims as lacking 

factual support.

2

To demonstrate ineffective assistance of counsel, Mr. Espinoza must show both 

deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). If a defendant fails to satisfy either prong, this court need not 

inquire further. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). 

Defense counsel does not perform deficiently simply by declining to pursue arguments 

or theories that lack legal or factual support. See State v. Johnston, 143 Wn. App. 1, 18, 

177 P.3d 1127 (2007).

Going to the first issue, nothing in the record indicates the child witnesses failed to 

meet the low threshold for competence. All three children testified coherently and were 

able to differentiate the truth from a lie. Although the children made some inconsistent 

statements and expressed some lapses in memory, these common circumstances are 

 2 Because we reject each of Mr. Espinoza’s claims of error, we need not address 

his claim that his convictions should be reversed under a theory of cumulative error.
No. 35261-7-III

State v. Espinoza

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insufficient to overcome the strong presumption of competence. See State v. Carlson, 

61 Wn. App. 865, 874, 812 P.2d 536 (1991).

With respect to the allegation that trial counsel failed to present a defense, the 

substance of the evidence contemplated by Mr. Espinoza is not part of the trial court 

record. As such, we have no basis for reviewing whether the evidence would have been 

helpful to Mr. Espinoza’s case. If Mr. Espinoza wishes to expand the record in order to 

make a claim of ineffective assistance of counsel, the method for doing so is a personal 

restraint petition. McFarland, 127 Wn.2d at 335.

Finally, we disagree with Mr. Espinoza’s claim that trial counsel failed to 

challenge the State’s request to admit child hearsay statements. Although trial counsel 

did not submit briefing on the subject, counsel cross-examined the child witnesses and 

argued against admission of some of the child hearsay evidence. Mr. Espinoza fails to 

point out any additional arguments that would have been viable under the existing record. 

If facts outside the record indicate trial counsel had a stronger basis for challenging the 

child hearsay statements than what was presented in court, Mr. Espinoza may pursue 

relief through a personal restraint petition. Id. However, we have no basis to find 

deficient performance on the current record.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

Mr. Espinoza has filed a statement of additional grounds for review, raising 
No. 35261-7-III

State v. Espinoza

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arguments premised on facts and evidence outside the record on appeal. As previously 

noted, the proper avenue for such arguments is a personal restraint petition, not a direct

appeal. Id. We therefore decline review of these arguments.

MOTION TO STRIKE FILING FEE

Citing State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), Mr. Espinoza has 

filed a motion requesting that we strike his $200 criminal filing fee. Ramirez was decided 

after the close of briefing in this case. The decision held that the 2018 amendments3 to 

Washington’s legal financial obligation scheme apply prospectively to cases on direct 

review at the time of enactment. Of interest to Mr. Espinoza, the 2018 amendments 

prohibit imposition of a $200 criminal filing fee on defendants who are indigent at the 

time of sentencing as defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h).

The record before the court indicates Mr. Espinoza’s request for relief is controlled 

by Ramirez.

4

 Specifically, Mr. Espinoza had no income at the time of sentencing and 

was therefore indigent as defined by RCW 10.101.010(3)(c) (receiving income of one 

hundred twenty-five percent or less of the current federally established poverty level). 

Accordingly, we grant Mr. Espinoza his requested relief and direct the trial court to strike 

the $200 criminal filing fee from the judgment and sentence.

 3 LAWS OF 2018, ch. 269.

4 The State has not responded to Mr. Espinoza’s motion.
No. 35261-7-III 

State v. Espinoza 

CONCLUSION 

The judgment of conviction is affirmed. The matter is remanded to the trial court 

with instructions to strike the $200 criminal filing fee from Mr. Espinoza's judgment and 

sentence. Mr. Espinoza has filed a motion requesting that we deny costs on appeal in the 

event the State substantially prevails on review. Any award of costs will be determined 

by our clerk or commissioner in accordance with Title 14 RAP. 

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. 

Pennell, J. 

WE CONCUR: 

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