State v. Castillo (2026 UT 26): Abandonment Waives Rule 702 Reliability Objections; Generic “Victim” References and Unpreserved Robbins Claims Do Not Support Reversal

A. Precedents Cited

1. Waiver by abandonment (preservation doctrine)

• State v. Johnson, 2017 UT 76, 416 P.3d 443: Supplies the court’s definition of waiver as relinquishment/abandonment. The court uses it to frame why concessions at argument can waive appellate review.
• United States v. Carrasco-Salazar, 494 F.3d 1270 (10th Cir. 2007): Cited for the proposition (supported by Supreme Court and circuit authority) that an objection is waived when it is abandoned—reinforcing that waiver can occur through litigation conduct, not just express stipulation.
• Butterfield v. Sevier Valley Hosp., 2010 UT App 357, 246 P.3d 120 (quoting State v. Hamilton, 2003 UT 22, 70 P.3d 111): Utah authority for declining review where counsel affirmatively represented “no objection.”
• State v. Gilling, 2025 UT App 125, 576 P.3d 1170 and State v. Tafuna, 2012 UT App 243, 286 P.3d 340: Examples of waiver where counsel later embraced, endorsed, or declined to challenge the contested matter.

How these precedents influenced the result: They allowed the court to treat Castillo’s oral narrowing—“okay with” general delayed disclosure testimony— as a true waiver, which “typically” ends appellate review. The consequence is practical: if counsel narrows objections to a single subset (quantification), the appellate court may treat all other Rule 702 attacks as abandoned.

2. Ineffective assistance (deficiency-focused resolution)

• Strickland v. Washington, 466 U.S. 668 (1984): The governing two-prong standard; the court relies heavily on the “strong presumption” of reasonableness.
• State v. Ray, 2020 UT 12, 469 P.3d 871: Used for Utah articulation of Strickland and for the “pick his battles” principle in deciding whether to object.
• State v. Hunt, 2025 UT 54, 582 P.3d 772: Cited for standards regarding first-raised-on-appeal IAC claims and cumulative error.
• State v. Hunter, 2021 UT 44, 496 P.3d 119: Supports the idea that using cross-examination and closing argument to expose weaknesses can be a reasonable alternative to objections.
• State v. Ott, 2010 UT 1, 247 P.3d 344 and State v. Haynes, 2025 UT App 75, 571 P.3d 1197: Recognize the common strategy of avoiding objections that would highlight harmful testimony.
• State v. Larrabee, 2013 UT 70, 321 P.3d 1136: Emphasizes the heavy burden on defendants asserting deficiency.
• State v. Ring, 2018 UT 19, 424 P.3d 845 and State v. Kelley, 2000 UT 41, 1 P.3d 546: Stand for the proposition that counsel is not ineffective for failing to raise futile objections/motions (applied to the unpreserved Robbins theory).

3. “Victim” terminology: when it matters

• State v. Vallejo, 2019 UT 38, 449 P.3d 39: Establishes that calling a complainant a “victim” can be grave, particularly where the defense is that the conduct never occurred.
• State v. Hunt, 2025 UT 54, 582 P.3d 772: Reinforces the presumption-of-innocence concern when “victim” presupposes a crime occurred.
• State v. Devey, 2006 UT App 219, 138 P.3d 90: Another “victim” terminology case; used by Castillo but distinguished by the court as involving reference to the complaining witness.
• State v. Juarez, 2021 UT App 53, 489 P.3d 231: Provides the key distinction embraced here—generic references to “victims” across a population are less concerning than labeling the complaining witness “the victim.”
• State v. Bakalov, 1999 UT 45, 979 P.2d 799 and State v. Houston, 2015 UT 40, 353 P.3d 55: Support wide latitude in closing argument and the high bar for concluding counsel must object.
• State v. Rodriguez, 946 A.2d 294 (Conn. App. Ct. 2008): Cited for the proposition that jurors understand advocacy roles and are not necessarily unduly influenced by “victim” usage in argument.

4. Plain error and trial court’s role without an objection

• State v. Marquina, 2020 UT 66, 478 P.3d 37 and State v. Johnson, 2017 UT 76, 416 P.3d 443: Used to define the “obviousness” requirement—law must be “clear” or “plainly settled.”
• State v. Bedell, 2014 UT 1, 322 P.3d 697: Central to rejecting Castillo’s theory that the court should have intervened sua sponte; trial judges need not constantly second-guess nonobjecting counsel.

5. Preserving and proving inherent improbability under Robbins

• State v. Robbins, 2009 UT 23, 210 P.3d 288: Sets the “inherently improbable” doctrine—rare cases where testimony is so dubious it must be disregarded.
• State v. Stricklan, 2020 UT 65, 477 P.3d 1251: Treated as controlling on preservation—Robbins is a distinct theory requiring specific preservation, not a generic sufficiency motion.
• State v. Doyle, 2018 UT App 239, 437 P.3d 1266: “Robbins may be a component” of insufficiency, but not every insufficiency claim is Robbins—supports the need for specificity.
• State v. Jok, 2021 UT 35, 493 P.3d 665: Provides the modern articulation and emphasizes rarity; also notes consistency on core features can defeat “inherent improbability.”
• In re Baby Girl T., 2012 UT 78, 298 P.3d 1251: “No magic words” principle, but still requires sufficient specificity to alert the trial court.
• State v. Corona, 2025 UT App 93, 574 P.3d 988: Used to underscore how exceptional Robbins relief is and why a reasonable attorney might avoid such motions except in extreme cases.
• State v. Prater, 2017 UT 13, 392 P.3d 398 and State v. Barnes, 2023 UT App 148, 542 P.3d 108: Confirm that inconsistencies often go to weight/credibility rather than inherent improbability.

6. Evidence of behavioral/emotional changes as circumstantial proof

• State v. Anderson, 2020 UT App 135, 475 P.3d 967 and State v. Dever, 2022 UT App 35, 508 P.3d 158: Cited to show that changes in behavior/emotional health can be circumstantial evidence the act occurred—supporting counsel’s judgment that an exclusion attempt might fail.

7. Expert testimony review standard

• State v. Lopez, 2018 UT 5, 417 P.3d 116: Cited for the abuse-of-discretion standard when Rule 702 issues are preserved.

B. Legal Reasoning

1. Rule 702: narrowing an objection can waive the broader challenge

Castillo filed a written motion invoking Rule 702(b) (reliability, sufficient facts/data, reliable application), but at oral argument he affirmatively embraced much of the anticipated testimony—“proper and okay” general explanations for delayed disclosure—while focusing his objection on quantification (numerical frequency or descriptors like “common”/“rare”). The Supreme Court treated this as abandonment of the broader Rule 702 theories, i.e., waiver, and declined to reach the waived merits.

The court’s approach highlights a core preservation reality: a written motion does not necessarily preserve every theory if counsel later narrows or concedes them in argument in a way that communicates “no objection” to the balance.

2. Expert’s “rare” comment: deficiency is not shown merely because an objection was available

The expert’s statement that false allegations are “rare” violated the trial court’s pretrial limitation. But the Supreme Court held that Castillo still failed to show deficient performance because counsel could reasonably choose not to object in front of the jury to avoid spotlighting the remark, instead seeking a break/sidebar, impeaching on cross (the interviewer does not test truthfulness; false allegations are possible), and emphasizing the concession in closing.

The reasoning is consistent with Utah’s Strickland jurisprudence: appellate courts evaluate the “real-time context of trial,” tolerate strategic “battle-picking,” and require the defendant to overcome a strong presumption of reasonableness.

3. “Victim” terminology: the key is whether it labels the complaining witness

The court acknowledged prior concern that “victim” usage can presuppose a crime and erode the presumption of innocence when the defendant denies the conduct occurred. But it distinguished this case because the challenged statements did not label Niece as “the victim.” Instead, they used “victim” generically (e.g., “relationship with the victim,” “special victims unit,” “child victims,” “pressure put on the victim”), and were framed as general dynamics rather than an endorsement that this complainant was necessarily a victim.

That distinction did the work for both IAC and plain error: if the references did not clearly pose the presumption-of-innocence problem identified in State v. Vallejo, then counsel’s non-objection was not objectively unreasonable, and any trial court duty to intervene sua sponte was not “obvious.”

4. Self-harm testimony: strategic impeachment over exclusion

Castillo reframed a strategic trial choice (use self-harm testimony to impeach via inconsistency with preliminary hearing) into a constitutional deficiency claim. The court rejected that recharacterization, emphasizing that counsel’s overarching strategy was to attack credibility, and that counsel reasonably could doubt the success of an exclusion attempt given cases recognizing behavioral/emotional changes as circumstantial evidence in “did it happen” trials.

5. Robbins inherent improbability: distinct theory, distinct preservation requirement

The court treated State v. Stricklan as dispositive: a Robbins claim is not preserved by a generic directed-verdict motion asserting insufficient/“not credible” evidence. The defendant must specifically present the inherent-improbability theory—supported by the Robbins standard and applied to the testimony—so the trial court understands it must first decide whether to disregard the challenged testimony before performing sufficiency review.

Because Castillo did not do that, the court considered only whether counsel was ineffective for not raising Robbins and concluded counsel was not deficient for failing to bring a likely futile motion in a doctrine the court reiterates is reserved for “rare cases.”

C. Impact

1. Preservation practice in Rule 702 litigation

Castillo reinforces that litigants must be careful when narrowing evidentiary objections: telling a trial court you are “okay with” broad categories of expert testimony can waive later appellate attacks on those categories, even if a written motion initially alleged global Rule 702 defects. Practitioners who intend to maintain broader Rule 702 arguments must avoid concessions that communicate abandonment, and should clearly state which Rule 702(b) elements remain disputed and why.

2. “Victim” terminology disputes likely to become more context-specific

The decision supports a more granular approach: appellate courts will ask whether “victim” was used to label the complaining witness (heightened concern) or was used generically or institutionally (e.g., “special victims unit”), which will typically weaken both prejudice arguments and any claim of obvious plain error.

3. Robbins challenges: clearer roadmap and higher bar at the trial level

The opinion functions as a procedural guide: to preserve Robbins, defendants must explicitly argue inherent improbability and request that testimony be disregarded. It also signals that appellate courts will be skeptical of ineffective-assistance theories premised on failing to raise Robbins, given how rarely it succeeds and the risk that such motions distract from credibility arguments better left to the jury.

4. Ineffective assistance framing: “available objection” is not enough

The court’s handling of the expert’s “rare” comment exemplifies a broader trend: even where a statement violates a prior limitation, counsel may reasonably address it through containment (sidebar), impeachment, and argument rather than objection/mistrial motions. Defendants must do more than show “error happened”; they must show no reasonable lawyer would have proceeded strategically as counsel did.