IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DALE A. TENINTY,

Appellant.

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No. 37253-7-III

UNPUBLISHED OPINION

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. 

FILED

MAY 11, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37253-7-III

State v. Teninty

2

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.
No. 37253-7-III

State v. Teninty

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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.
No. 37253-7-III

State v. Teninty

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[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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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. 
No. 37253-7-III

State v. Teninty

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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 forcause 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.
No. 37253-7-III

State v. Teninty

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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 
No. 37253-7-III

State v. Teninty

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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.
No. 37253-7-III

State v. Teninty

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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 
No. 37253-7-III

State v. Teninty

10

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).
No. 37253-7-III

State v. Teninty

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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. 
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: 

~~ ,.::r. Fearing, j Staab, J. 

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