State v. Tenorio

594                  October 29, 2025                No. 952

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

               STATE OF OREGON,
                Plaintiff-Respondent,
                          v.
           EMMANUEL GARCIA TENORIO,
               Defendant-Appellant.
             Polk County Circuit Court
                 11P3353; A181761

  Monte S. Campbell, Judge.
  Submitted September 11, 2025.
  Emmanuel Garcia Tenorio filed the briefs pro se.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Joyce, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
  JOYCE, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)             595

        JOYCE, P. J.
        Defendant appeals from a judgment of conviction
for two counts each of first-degree sexual abuse and first-degree unlawful sexual penetration. On appeal, he raises 10
assignments of error. We affirm.
         Former jeopardy: In his first claim of error, defendant
contends that the trial court erred in denying his motion to
dismiss the charges against him on former jeopardy grounds.
Defendant’s original conviction was based on a nonunanimous jury verdict, and defendant obtained post-conviction
relief on that ground. He then moved to dismiss, arguing
that any further prosecution was barred by double jeopardy.
Defendant’s argument is foreclosed by State v. Clyde, 

, 

 (2023), rev den, 

 (2024)
(finding that the defendant’s retrial, following reversal of his
original convictions that were based on nonunanimous jury
verdicts, was not barred by former jeopardy).
          Discovery violation: In his second and third assignments of error, defendant argues that the trial court erred in
denying his motion to dismiss based on his contention that
the state “violated the discovery rule by withholding exculpatory evidence.” In the motion, defendant argued that the state
was previously in possession of a recorded jail call between
himself and the victim’s mother in which the victim’s mother
reported that the victim had been laughing about the allegations, but that the state had since “lost” the recording. The
prosecutor told the court that the state had provided all the
jail calls that it possessed and was not aware of the call that
defendant was referencing. When the court asked defense
counsel how they knew that the recording of the call existed,
defense counsel responded that defendant had told him. The
court instructed defense counsel to “show [it] some evidence
that that call existed,” and that until then, defendant’s motion
was denied. Defense counsel responded, “Understood.” The
parties revisited the matter partway through trial, at which
point the trial court noted that defendant had still not produced evidence of the recording’s existence and that, even if
it did exist, “dismissal would be an inappropriate remedy.”
596                                           State v. Tenorio

         On appeal, defendant contends that the court’s
denial violated disclosure requirements under both his due
process rights and ORS 135.815. Due process requires the
prosecution to disclose information that is favorable to an
accused and is in the prosecutor’s actual or constructive possession. Similarly, ORS 135.815 requires disclosure of certain information to a defendant that is “within the possession or control of the district attorney[.]” As the trial court
correctly concluded, there was no evidence that the jail call
recording existed, let alone that it was in the district attorney’s possession. That finding disposes of defendant’s argument that the state failed to disclose materials that it had in
its possession in violation of both his due process rights and
ORS 135.815. See also State v. Gilmore, 

,

 (2024), rev den, 

 (2025) (rejecting
the defendant’s due process argument where the defendant
failed to show “that the records he sought were in the prosecutor’s actual or constructive possession”).
         Admission of Detective Calef’s testimony: In his fourth
and fifth assignments of error, defendant contends that the
trial court erred in denying his motion in limine to exclude
Detective Calef’s testimony. Calef recorded an interview he
conducted with defendant. Because the state had been unable
to produce the recording of the interview at trial, defendant
argued that Calef should not be allowed to testify about what
defendant said in the interview. The trial court allowed Calef
to testify “as to what [Calef] testified at his last trial,” but
restricted Calef from “go[ing] beyond that on anything else.”
Later in the trial, the state found the recorded interview
and produced it, but the court declined to admit the recorded
interview because it had been discovered too late.
        On appeal, defendant argues that the court erred
in allowing Calef to testify about the interview because the
recorded interview was the “best evidence for [d]efendant’s
defense.” But “[t]he best evidence rule prohibits testimony
about the contents of a recording; it does not prohibit testimony about events that are monitored, as they occur,
through a device that also records.” State v. Pierce, 

, 

 (2015) (the best evidence rule
did not preclude a security guard from testifying on what
Nonprecedential Memo Op: 

 (2025)                         597

he observed on a “live feed” of video, even though the video
itself was not available). The trial court did not err in permitting Calef to testify about the interview without admitting the recording of the interview into evidence.
        Defendant also argues that the court should have
excluded Calef’s testimony as a discovery sanction for the
recording’s belated production. Defendant did not seek to
exclude Calef’s testimony for that reason below, and we
therefore do not address it for the first time on appeal.
          Prosecutor’s closing argument: In his sixth assignment
of error, defendant argues that the trial court erred in failing
to sua sponte declare a mistrial in light of statements that the
prosecutor made during closing and rebuttal arguments. At
four separate points in those arguments, the prosecutor referenced “physical evidence” of abuse on the victim, namely, an
anal wart, the victim’s description of defendant ejaculating on
her, and evidence that defendant’s hand “slipped near the genital area.” Defendant did not object to any of those references
at trial, but on appeal he argues that the prosecutor’s references to physical evidence were made without “foundational
facts” and therefore constitute plain error.
         But the prosecutor’s statements were not improper,
let alone “obviously improper.” See State v. Pierpoint, 

, 

 (2023) (framing analysis
as whether “the prosecutor’s statements were obviously
improper or impermissible, i.e., whether it was obvious or
not reasonably disputed that the prosecutor’s statements
allowed the jury to consider facts that had not been received
into evidence, or otherwise encouraged the jury to decide the
case on an improper basis”). To be sure, a counsel’s closing
argument cannot rely on facts that are not in the record.
State v. Rosenbohm, 

, 

 (2010).
The prosecutor’s statements here, however, were based on
the following facts in the record: a doctor who examined the
victim at Liberty House testified to the presence of a genital
wart and that warts of that nature can be related to sexual abuse;1 the victim testified to the ejaculate on her; and
    1
      Defendant points to testimony that he himself did not have warts, but
that testimony does not render the prosecutor’s statements about the physical
evidence on the victim plainly impermissible. Rather, the fact that defendant
598                                                        State v. Tenorio

defendant himself acknowledged to Calef that his hand had
been near the victim’s genital area. Since the prosecutor’s
statements were based on facts in the record or, in the plain
error context, were not obviously based on evidence outside
of the record, they were not obviously improper.
          Motion for judgment of acquittal: In his seventh
assignment of error, defendant argues that the trial court
erred when it denied his motion for judgment of acquittal on
the first-degree sexual abuse and first-degree unlawful sexual penetration charges. These charges required the state to
prove that defendant subjected the victim to “sexual contact”
and the victim was under the age of 14, ORS 163.427, and that
defendant “penetrate[d] the vagina[ ] [or] anus” of the victim
who was under the age of 12, ORS 163.411, respectively. We
have reviewed the record and conclude that the trial court
correctly denied the motion for judgment of acquittal. In particular, the victim testified that defendant touched her with
his fingers under her clothes and inserted his fingers into
both her anus and her vagina. Although defendant contends
that the victim’s testimony was not credible, that was ultimately a determination for the jury to make.
          Admission of Liberty House video: In his eighth
assignment of error, defendant argues that the trial court
erred in overruling his objection to a video recording of the
victim’s interview at Liberty House. At the beginning of
the victim’s testimony at trial, the state played a part of
the Liberty House interview and asked the victim whether
it was “an accurate representation of the Liberty House”
interview from 2011. The victim said yes and that she had
reviewed the entire recording. Defendant objected to the
evidence, arguing that “there needs to be foundation from
Liberty House.” On appeal, defendant’s objection has shifted
somewhat; he asserts that the victim’s memory was not sufficiently reliable to establish the authenticity of the video
because of her young age at the time of the abuse. However,
as defendant acknowledges, the standard for authenticity
is not “rigid or demanding.” State v. Barden, 

, 

, rev den, 

 (2021) (internal
asserted that he did not have warts and thus it was unlikely that he caused the
victim’s wart goes to the weight of the evidence, which is ultimately a matter for
the jury.
Nonprecedential Memo Op: 

 (2025)            599

quotation marks omitted). Indeed, “[t]he standard is not
whether the proponent has conclusively proven authenticity,” but whether the proponent has presented some evidence
from which to conclude that the item is what the proponent
claims. 

 The evidence described above was sufficient to
show that the Liberty House interview recording was what
the state claimed it was.
         Pretrial release: In his ninth assignment of error,
defendant asserts that the trial court erred in denying
him pretrial release. That claim of error is moot given that
defendant has been convicted and sentenced to 375 months
in prison. Brumnett v. PSRB, 

, 

(1993) (a case is moot where it will have no practical effect
on the rights of the parties).
         Sentence: In his tenth assignment of error, defendant challenges his 375-month sentence as being unconstitutionally disproportionate under Article I, section 16, of the
Oregon Constitution. Defendant argues that his lack of a
prior criminal history renders his sentence disproportionate. See State v. Rodriguez/Buck, 

, 

(2009) (setting forth three factors to consider in determining
whether a sentence is disproportionate, including the defendant’s criminal history). Defendant was convicted of sexual
abuse and unlawful sexual penetration of his wife’s sevenyear-old daughter, with whom he lived. Given the severity
and circumstances of his crimes, defendant’s lack of criminal history has “little weight in balancing the proportionality of his sentences and is insufficient to render those sentences unconstitutional.” See State v. McCombs, 

, 

, rev den, 

 (2024) (the
defendant’s lack of criminal history was entitled to “little
weight” where the defendant was convicted of rape, sodomy,
and unlawful sexual penetration of a four-year-old victim
“to whom he was a father figure and whom he was supposed
to protect”).
        Affirmed.