State v. Cantarero

2018 UT App 204THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
WILFREDO CANTARERO,
Appellant.
Opinion
No. 20160711-CA
Filed October 25, 2018
Third District Court, West Jordan Department
The Honorable Heather Brereton
No. 151402227
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE A. TOOMEY and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Defendant Wilfredo Cantarero appeals from his
convictions of two counts of aggravated sexual abuse of a child.
He argues that he received constitutionally ineffective assistance
of counsel because his counsel failed to object to a jury
instruction, failed to question a witness thoroughly, and failed to
object to the jury reviewing certain evidence during deliberation.
We conclude that Cantarero has not demonstrated ineffective
assistance of counsel. Accordingly, we affirm.
State v. Cantarero
BACKGROUND 1
¶2 In preparation for a Fourth of July camping trip,
Cantarero and his wife (Wife) invited Wife’s two sisters and
their families to the house to clean a camping trailer. One of
Wife’s sisters, the mother of the victims (Mother), brought her
two children (Older Victim and Younger Victim) to Cantarero’s
house, and the second sister (Sister) brought her husband. After
cleaning the trailer, Wife, both sisters, and Sister’s husband
stayed outside talking.
¶3 Meanwhile, inside the house, Cantarero watched
television in the living room. Younger Victim entered the house
to get a glass of water. When she entered the living room,
Cantarero stood up, grabbed her hand with one hand, and
touched her genitals under her clothes and underwear with the
other hand. Younger Victim said, “[S]top” and ran back outside.
After they returned home later that evening, Younger Victim
told Older Victim what had happened. Both victims then
approached Mother and told her about the incident with
Cantarero in the living room. Older Victim also revealed that
Cantarero had touched her vagina several times over
approximately three or four years, beginning when she was five
years old.
¶4 Following these revelations, Mother told the victims that
they should not go camping because Cantarero would be going,
but the victims were excited about the trip so they resolved to
go. Mother and the victims drove in a vehicle separate from
Cantarero and Mother warned them not to get near Cantarero.
1. “On appeal, we review [and recite] the record facts in a light
most favorable to the jury’s verdict,” and we “present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation
simplified).
20160711-CA 2 2018 UT App 204State v. Cantarero
At the campsite, the three of them also stayed in their own tent.
The next morning, Sister confronted Cantarero about his
“touching private parts [of] little girls.” He then said, “Wow, I’m
so sorry. I will work on that[,]” and he told Mother that he was
“very sorry.” Cantarero apologized to Sister and asked her “to
forgive [him] if [he] had made any mistakes with the children.”
Following this exchange, Cantarero and Wife packed up and left.
Mother later informed the police who then began an
investigation. As part of that investigation, each victim
participated in recorded interviews at the Children’s Justice
Center (the CJC Interviews). A nurse also examined each of the
victims and found no physical indicators of sexual abuse. The
State charged Cantarero with two counts of aggravated sexual
abuse of a child, and the case proceeded to trial.
U Visa
¶5 During trial, in response to a question from defense
counsel, Mother testified that she learned about “U visas” as a
result of the charges against Cantarero. 2 Mother explained that
she signed some paperwork and provided it to an attorney, but
she did not know whether the paperwork had been filed. In
subsequent questioning, both the prosecutor and defense
counsel returned briefly to the U visa topic. Shortly after being
excused to deliberate, the jury sent out a question, asking,
“[W]hat is a U visa?” Following discussion among the
prosecutor, defense counsel, and Cantarero, the trial court
concluded that this information could not be provided during
deliberation and was irrelevant. The court sent a response to the
jury, stating, “[T]he Court cannot give you any further evidence
2. U Nonimmigrant Status, or a U visa, is available through
federal I-918 forms and provides temporary immigration
benefits to victims of qualifying criminal activity. See I-918,
Petition for U Nonimmigrant Status, U.S. Citizenship
& Immigration Services, https://perma.cc/6JY4-XGGL.
20160711-CA 3 2018 UT App 204State v. Cantarero
at this time. You must make your determination based on the
evidence you already have.”
The CJC Interviews
¶6 The jury viewed the interviews of each victim that had
been recorded at the Children’s Justice Center following the
report of the abuse. In closing statements, defense counsel urged
the jury to watch the recorded interviews again as they
deliberated because the statements made during those
interviews illustrated the holes in the State’s case. Counsel
asserted that, although the victims testified that Cantarero
touched their genitals multiple times, they could describe details
of only one event each. Additionally, counsel emphasized
Younger Victim’s statement in the interview, particularly her
explanation that Cantarero started touching her after he had
stopped touching Older Victim. Counsel theorized that Younger
Victim may have “heard that in a conversation or someone told
her to say that, but that’s a very adult evaluation.” During
deliberations, the jury had access to the recorded CJC Interviews
of both victims.
Jury Instruction 17
¶7 The State proposed several jury instructions, including
one at issue in this appeal—Instruction 17. The challenged
instruction provided:
In evaluating the testimony of a child you should
consider all of the factors surrounding the child’s
testimony, including the age of the child and any
evidence regarding the child’s level of cognitive
development. Although, because of age and level
of cognitive development, a child may perform
differently as a witness from an adult that does not
mean that a child is any more or less credible a
witness than an adult. You should not discount or
20160711-CA 4 2018 UT App 204State v. Cantarero
distrust the testimony of a child solely because he
or she is a child.
A child witness shall be considered a competent
witness. That child’s testimony shall be evaluated
in the same manner and given the same weight as
another witness.[ 3]
¶8 Cantarero’s counsel approved this instruction, and the
court gave the instruction to the jury. The court also provided
the jury a written copy of this instruction.
¶9 The jury convicted Cantarero on both counts of
aggravated sexual abuse of a child. He appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Cantarero raises three issues on appeal, none of which
were preserved below. 4 “When a party fails to raise and argue an
issue in the trial court, it has failed to preserve the issue, and an
3. We note that the trial court, when reading this instruction to
the jury, slightly altered the last sentence to read, “That child’s
testimony shall be evaluated in the same manner and given the
same weight as any other witness.” (Emphasis added.)
4. Cantarero also asserts that the cumulative effect of the alleged
errors was prejudicial. “But if the claims are found on appeal to
not constitute error, . . . the doctrine will not be applied.” State v.
Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (quotation simplified).
Because Cantarero has not demonstrated—and we have not
concluded—that any error occurred, the cumulative error
doctrine does not apply. See State v. Wright, 2013 UT App 142,
¶ 44, 304 P.3d 887. Accordingly, we do not consider this
argument further.
20160711-CA 5 2018 UT App 204State v. Cantarero
appellate court will not typically reach that issue absent a valid
exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443. Cantarero asserts his three challenges on appeal
pursuant to the ineffective-assistance-of-counsel exception to
preservation. See id. ¶ 19.
¶11 “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(quotation simplified). “While such a claim necessarily requires
the court to look at the substantive issue the defendant argues
his counsel should have raised, and whether the substantive
issue had any merit, the substantive issue is only viewed
through the lens of counsel’s performance.” Johnson, 2017 UT 76,
¶ 22. To prevail on an ineffective assistance of counsel claim, a
defendant must show that counsel’s performance was both
objectively deficient and prejudiced the defense. See State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162; see also Strickland v.
Washington, 466 U.S. 668, 687 (1984).
ANALYSIS
I. Jury Instruction 17
¶12 Cantarero first asserts that defense counsel was ineffective
for failing to object to jury Instruction 17. He takes particular
exception to that portion of the instruction stating that “[a] child
witness shall be considered a competent witness.” Cantarero
does not contend that Instruction 17 incorrectly states the law.
Instead, he argues that, by failing to provide a definition of
“competent,” Instruction 17 “singled out the [child victims] for
the court’s endorsement as competent witnesses and lent weight
to their testimony.”
20160711-CA 6 2018 UT App 204State v. Cantarero
¶13 We review the jury instructions here through the lens of
ineffective assistance of counsel and we generally “review jury
instructions in their entirety and will affirm when the jury
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” State v. Ontiveros, 835 P.2d 201, 205 (Utah
Ct. App. 1992). To prevail on an ineffective assistance of counsel
claim, a defendant must establish that counsel’s performance
was objectively deficient and that the deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). “Because both prongs of the Strickland test must be
met to establish ineffective assistance of counsel, we need not
always address both prongs.” State v. Goode, 2012 UT App 285,
¶ 7 n.2, 288 P.3d 306. Here, we analyze only the prejudice prong
and conclude that Cantarero has failed to establish a reasonable
probability that—had an objection been made—the results of his
trial would have been different. See Strickland, 466 U.S. at 694.
¶14 Considered as a whole, the jury instructions directed the
jury to evaluate the testimony of a child witness in the same
manner as any other witness. Specifically, the court instructed
the jury on its proper role—determining the weight and
credibility of each witness’s testimony. See State v. Day, 815 P.2d
1345, 1351 (Utah Ct. App. 1991) (“It is the role of the jury to
weigh the evidence and assess the credibility of the witnesses.”).
The court directed the jury to consider “all of the factors
surrounding the child’s testimony, including the age of the child
and any evidence regarding the child’s level of cognitive
development,” when evaluating the child’s testimony. The court
further instructed the jury that a “child’s testimony shall be
evaluated in the same manner and given the same weight as
[any other] witness.” In other words, the court expressed no
view on whether the child victims were telling the truth and
instructed the jury to evaluate their testimony the same as it
would any other witness.
¶15 Another jury instruction, Instruction 11, listed several
factors for the jury to consider when weighing the credibility of a
20160711-CA 7 2018 UT App 204State v. Cantarero
witness, including the witness’s demeanor, bias, memory, and
consistency. In his closing statement, defense counsel called
particular attention to the jury’s role, stating, “You heard the
testimony as I did. You have to judge credibility and give the
weight to different testimonies that you heard.” The State, in
closing, also drew the jury’s attention to its proper role,
recommending that it review Instruction 11, which explained the
factors to consider when determining witness credibility.
¶16 In light of the above, we are unpersuaded that a defense
objection to Instruction 17 reasonably could have made a
difference. The exclusion of the instruction that a “child witness
shall be considered a competent witness” or addition of a
“competence” definition—possible results of a defense
objection—would not have altered, reasonably, the jury’s
weighing the victims’ testimony. In other words, Cantarero has
not established a reasonable probability of a different outcome
had an objection been made. See State v. Ott, 2010 UT 1, ¶ 40, 247
P.3d 344.
II. U Visa
¶17 Next, Cantarero asserts that defense counsel was
ineffective in failing to ask follow-up questions regarding a
witness’s interest in obtaining a U visa. He argues that trial
counsel should have presented further explanation of the U visa
benefit, without which “the jury was left confused.” Reviewing
such a claim of ineffective assistance, we employ “a strong
presumption that counsel was competent and effective, giving
[defense] counsel wide latitude in making tactical decisions, and
we will not question such decisions unless there is no reasonable
basis supporting them.” State v. Goode, 2012 UT App 285, ¶ 6, 288
P.3d 306 (quotation simplified).
¶18 Defense counsel elicited the U visa testimony from
Mother on cross-examination to show a possible motive for her
20160711-CA 8 2018 UT App 204State v. Cantarero
and the victims to fabricate the accusations against Cantarero.
The testimony emerged in the following exchange:
COUNSEL: Did you ever talk to the police since
[making a witness statement] about
any kind of benefit to you, as far as
this case is involved?
MOTHER: No.
COUNSEL: There has been no discussion of any
benefit of any status or anything on
this case?
MOTHER: With the police, no.
COUNSEL: With anybody else?
MOTHER: With the therapist.
COUNSEL: And what was that discussion?
MOTHER: The therapist told me that because of
my therapy that I could get a . . . U
visa.
COUNSEL: And did you know what that was
before she told you about that?
MOTHER: No.
Responding to defense counsel’s questions, Mother testified that
she did not know about the U visa before the therapist informed
her. On redirect examination, the prosecutor asked whether
Mother had since applied for a U Visa. Mother responded that
she asked her attorney about a U visa but had not received one.
When it became clear that Mother had not been awarded a U
visa, defense counsel terminated this line of questioning.
20160711-CA 9 2018 UT App 204State v. Cantarero
¶19 Soon after it began deliberating, the jury sent the court a
question, asking, “What is a U visa?” Following discussion of the
question and possible responses with counsel and Cantarero, the
trial court responded to the jury with a note, stating, “[T]he court
cannot give you any further evidence at this time. You must
make your determination based on the evidence you have
heard.”
¶20 We are not persuaded that counsel performed deficiently
by failing to ask follow-up questions about the details or
availability of a U visa for Mother. While an excursion into the
landscape of immigration law may have prevented the U visa
jury question, Cantarero was not prevented from exploring his
theory that Mother encouraged the victims to fabricate their
allegations of abuse to gain a benefit. Defense counsel left the
jury with the idea that Mother was interested in a benefit
associated with the accusations made in this case. Counsel
successfully introduced this fabrication defense to the jury and
eliciting greater detail from Mother may not have been possible
or prudent under the circumstances. Counsel legitimately could
have believed that further explanation of this potential
immigration benefit would have undermined his effort to
impeach Mother. This is a reasonable tactical decision of counsel.
See id. The State argues, and we agree, that delving deeper into
the U visa status application “risked undermining the defense-
favorable inference the jury may draw” from the exchange with
Mother. Indeed, further exploration also may have necessitated a
presentation of the U visa’s purpose, eligibility requirements,
issuance, and its other contours by someone qualified to address
these questions. Additionally, Cantarero offered other theories
supporting the fabrication defense, so a better explanation of the
U visa would have added little to his defense strategy.
¶21 We conclude that Cantarero has not shown that counsel
performed deficiently by not asking additional questions of
Mother about the U visa or seeking to explain it further.
20160711-CA 10 2018 UT App 204State v. Cantarero
III. The CJC Interviews
¶22 Cantarero next asserts that defense counsel was
ineffective when he failed to object to the jury having access to
the victims’ recorded CJC Interviews during its deliberations.
¶23 We have previously noted that “a child’s interview taken
by police for the purpose of prosecuting crime, which is then
introduced at trial and subjected to live cross-examination,
constitutes . . . testimony[, or is testimonial in nature,] . . . and
thus should not be given to the jury during its deliberations.”
State v. Cruz, 2016 UT App 234, ¶ 38, 387 P.3d 618 (quotation
simplified); see also State v. Carter, 888 P.2d 629, 643 (Utah 1995)
(noting that rule 17 of the Utah Rules of Criminal Procedure
“indicates that exhibits which are testimonial in nature should
not be given to the jury during its deliberations”), superseded by
statute on other grounds as stated in State v. Ott, 2010 UT 1, 247
P.3d 344. The Utah Supreme Court has explained:
If the hearing lasts for any length of time and the
jury takes the depositions or transcript to be read
and discussed while the oral evidence contra has in
a measure faded from the memory of the jurors, it
is obvious that the side sustained by written
evidence is given an undue advantage. The law
does not permit depositions or witnesses to go to
the jury room.
State v. Davis, 689 P.2d 5, 15 (Utah 1984) (quotation simplified).
¶24 Although the law generally constrains the jury’s access to
testimonial evidence, a defendant may set aside this protection
in pursuit of a legitimate and advantageous trial strategy. See
State v. Kooyman, 2005 UT App 222, ¶ 43, 112 P.3d 1252(explaining that when “counsel’s decision amounted to
reasonable trial strategy or tactics, regardless of the outcome,
counsel’s decision will not qualify as ineffective assistance”).
20160711-CA 11 2018 UT App 204State v. Cantarero
“[W]henever there is a legitimate exercise of professional
judgment in the choice of trial strategy, the fact that it did not
produce the expected result does not constitute ineffectiveness of
counsel.” Ott, 2010 UT 1, ¶ 34 (quotation simplified).
¶25 Here, each of the victims testified at trial. In addition to
their testimony, the State played the recorded CJC Interviews of
each victim for the jury and submitted the recordings as exhibits.
Had an objection been made and sustained regarding the jury’s
access to the CJC Interviews during deliberations, all of the “oral
evidence”—the victims’ testimony, the CJC Interviews played in
court, as well as Cantarero’s own testimony—would likely have
“faded [equally] from the memory of the jurors” as they began
their deliberations. See Davis, 689 P.2d at 15 (quotation
simplified). Instead, the jurors retained the CJC Interviews and
could refresh their memories on this testimony during their
discussions.
¶26 Rather than object, defense counsel insisted that the jury
review the CJC Interviews during its deliberations because, in
counsel’s view, the recorded interviews illustrated “hole[s] in
this case.” Defense counsel explained that this tactic supported
an important defense theory—the lack of detail regarding any
other incidents could be explained by the victims fabricating the
abuse allegations. Counsel also impressed upon the jury what
counsel described as a “very adult evaluation” of Younger
Victim’s statement drawn from the CJC Interview, suggesting
that Younger Victim may have been told that Cantarero began
abusing Younger Victim when he stopped abusing Older Victim.
Consequently, Cantarero chose to take strategic advantage of the
jury’s access to the CJC Interviews, and he cannot now be heard
to complain about that strategic choice. See Ott, 2010 UT 1, ¶ 34.
Moreover, because counsel’s approach appears to be reasonable
under the circumstances, Cantarero has failed to rebut “the
strong presumption that . . . the challenged action ‘might be
considered sound trial strategy.’” State v. Litherland, 2000 UT 76,
20160711-CA 12 2018 UT App 204State v. Cantarero
¶ 19, 12 P.3d 92 (quoting Strickland v. Washington, 466 U.S. 668,
689 (1984)).
CONCLUSION
¶27 Cantarero has not established that he was deprived of
constitutionally effective assistance of counsel. He has not
established prejudice stemming from defense counsel’s failure to
object to a jury instruction. Cantarero has further failed to show
counsel’s decision to terminate questioning a witness about a U
visa and counsel’s choice to allow the jury to have access to the
victims’ CJC Interviews during its deliberations constituted
deficient performance. Accordingly, we affirm.
20160711-CA 13 2018 UT App 204