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State v. Cantarero

Court of Appeals of Utah

October 25, 2018

State of Utah, Appellee,
v.
Wilfredo Cantarero, Appellant.

          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.

          OPINION

          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.

         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. 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 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 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 ...


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