When does failing to object support a reasonable trial strategy in Utah? State v. Cano Explained

Background and facts

Miguel Angel Cano was convicted of rape and domestic violence aggravated assault after a jury rejected his defense that the victim fabricated the rape allegation. At trial, the sexual assault nurse examiner (Nurse) read a detailed victim statement from the sexual assault examination report (the Report), testified about trauma’s effects on memory, and the Report accompanied the jury during deliberations. Cano did not testify. His defense centered on the theory that the victim never mentioned rape to the 911 dispatcher, paramedics, or officers at the scene—and that the allegation emerged only hours later during the sexual assault examination.

Key legal issues

On appeal, Cano raised three ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984), arguing that trial counsel performed deficiently by: (1) failing to object on hearsay grounds to Nurse’s recitation of the victim’s statements; (2) failing to object to the Report accompanying the jury under Utah Rule of Criminal Procedure 17(k); and (3) failing to object under Utah Rule of Evidence 702 to Nurse’s testimony about trauma and memory. The court limited its analysis to the deficient performance prong of Strickland on all three claims.

Court’s analysis and holding

The Utah Court of Appeals affirmed on all three grounds. First, even assuming Nurse’s recitation of the victim’s statements constituted inadmissible hearsay, a readily discernible strategic reason existed for not objecting: counsel’s entire theory of the case depended on placing before the jury evidence that the victim’s rape allegation had evolved over time. Allowing Nurse to read the Report gave counsel the very inconsistencies he needed to argue fabrication. The court cited State v. Escobar-Florez, 2019 UT App 135, for the proposition that stipulating to or permitting inadmissible evidence can be a reasonable trial strategy when it enables counsel to highlight inconsistencies in a victim’s account.

Second, objecting to the Report accompanying the jury would have been futile under rule 17(k), which expressly permits all received exhibits to accompany the jury unless the court finds them cumbersome or dangerous. A futile objection fails both prongs of Strickland. Moreover, the Report’s presence in the jury room supported counsel’s strategy.

Third, Nurse’s training—including an eighty-hour sexual assault certification, twenty-seven years of nursing experience, and forty to fifty sexual assault examinations—was sufficient to qualify her under rule 702. Objecting would only have prompted the prosecution to highlight her credentials, making her testimony more powerful. The court relied on State v. Whitchurch, 2024 UT App 108, which reached the same conclusion regarding a police officer’s trauma-and-memory testimony.

Practice implications

For Utah appellate practitioners, State v. Cano reinforces that the deficient performance prong of Strickland is an extremely high bar when a plausible strategic rationale exists for counsel’s omission. Courts will not second-guess a tactical decision simply because it failed. Practitioners challenging failure-to-object claims must affirmatively rebut every conceivable reasonable strategy—not merely demonstrate that the objection might have succeeded. Conversely, practitioners defending convictions should mine the trial record for any evidence of a coherent defense theory that counsel’s omissions could have served.