Can defense counsel's failure to object to child witness jury instructions constitute ineffective assistance? State v. Cantarero Explained

In State v. Cantarero, the Utah Court of Appeals addressed whether defense counsel provided constitutionally ineffective assistance in a child sexual abuse case involving multiple tactical decisions that defendant later challenged on appeal.

Background and Facts

Defendant Wilfredo Cantarero was convicted of two counts of aggravated sexual abuse of a child after touching the genitals of two young victims during a family gathering. The case proceeded to trial where several evidentiary and procedural issues arose. During trial, the mother of the victims testified about learning of U visas as a potential immigration benefit related to the criminal case. The court provided Jury Instruction 17, which specifically addressed how jurors should evaluate child witness testimony and stated that “a child witness shall be considered a competent witness.” The jury also had access to recorded interviews of the victims from the Children’s Justice Center during deliberations.

Key Legal Issues

Defendant raised three ineffective assistance of counsel claims on appeal: (1) counsel’s failure to object to Jury Instruction 17 regarding child witness competency; (2) counsel’s failure to thoroughly question the mother about U visa benefits; and (3) counsel’s failure to object to jury access to testimonial evidence during deliberations. None of these issues were preserved below, requiring defendant to proceed under the ineffective assistance exception.

Court’s Analysis and Holding

The court applied the Strickland standard, requiring defendant to show both deficient performance and prejudice. Regarding the jury instruction, the court found no reasonable probability of a different outcome, as the instruction properly directed jurors to evaluate child testimony using the same standards as adult witnesses. On the U visa issue, the court determined that counsel’s limited questioning constituted reasonable tactical strategy to suggest fabrication without risking further exploration that might undermine the defense theory. Finally, regarding the recorded interviews, the court noted that while such testimonial evidence generally should not go to the jury room, defense counsel strategically encouraged jury review of the recordings to highlight inconsistencies, making this a legitimate tactical choice.

Practice Implications

This case demonstrates the strong presumption courts give to counsel’s tactical decisions in ineffective assistance claims. Practitioners should note that failing to object to jury instructions or limiting witness examination will rarely constitute ineffective assistance when such decisions can be characterized as reasonable trial strategy. The decision also reinforces that testimonial evidence like recorded victim interviews generally should not be provided to juries during deliberation, though counsel may waive this protection for strategic reasons.