State v. Hernandez

557 P.3d 639

2024 UT App 127

STATE of Utah, Appellee,

v.Omar HERNANDEZ, Appellant.

No. 20220416-CA

Court of Appeals of Utah.

Filed September 12, 2024

Third District Court, Salt Lake Department, The Honorable James T. Blanch No. 181906502

Lori J. Seppi, Attorney for Appellant

Simarjit S. Gill and Chelsey Kenney, Attorneys for Appellee

Judge Amy J. Oliver authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred.

Opinion

OLIVER, Judge:

¶1 Omar Hernandez’s interaction with an undercover detective led to his conviction for patronizing a prostitute. On appeal, Hernandez raises several arguments, including that there was insufficient evidence to convict him because the undercover detective’s testimony should have been disregarded as inherently improbable, that other portions of witness testimony were improperly admitted, and that the jury instructions omitted an element of the offense. We disagree and affirm his conviction.

BACKGROUND¹

¶2 Shortly after Hernandez pulled into a fast-food restaurant parking lot in an area known for prostitution, an undercover detective (Detective 1) approached the passenger side of his car and asked if he wanted "a date"—a term commonly used by prostitutes or their patrons to refer to sex for hire. Hernandez said yes and invited Detective 1 to get into his car. Detective 1 declined but asked Hernandez if he wanted to "fuck" or if he wanted a "blowjob." Hernandez said, "I want to make it worth your while," and pulled out a $5 bill and several $1 bills. When Detective 1 said, "I’m not fucking you for $5," Hernandez pulled out a $50 bill. Detective 1 then asked Hernandez whether he had a condom, and when he indicated that he did, she told him to meet her at the convenience store next door. Hernandez drove out of the parking lot, and Detective 1 alerted other undercover officers and "takedown units" stationed nearby that she "had a sex act for hire."

¶3 After receiving the "done-deal" signal, another undercover detective (Detective 2) observed Hernandez drive to the convenience store and go inside. A "few minutes later" Detective 2 saw Hernandez leave the store, get back into his car and circle around the block. As Hernandez attempted to drive back into the restaurant parking lot, he was arrested by Detective 2. Inside his car, officers found a $100 bill and several $50, $5, and $1 bills. Hernandez told Detective 2 that Detective 1 "had approached him" and asked if he wanted a date. He said he had told her "yeah," but he "didn’t know exactly what she meant." He denied having had any conversation about sex. And he told Detective 2 that he thought Detective 1 truly wanted to go on a date and was asking if he had money to make sure he "would be able to take care of her."

¶4 Hernandez was charged with one count of patronizing a prostitute, a class A misdemeanor. Before trial, Hernandez filed a "Motion to Dismiss for Entrapment," arguing the court should dismiss the charge with prejudice because Detective 1 "manufactured" the crime and actively induced Hernandez into committing it. The district court granted the motion, dismissing the charge with prejudice. The State appealed the dismissal and this court reversed, concluding Hernandez had not been entrapped as a matter of law. See State v. Hernandez, 2020 UT App 58, 11 15, 462 P.3d 1283.

¶5 The case was then remitted to the district court and proceeded to trial. At trial, Detective 1 testified about her interaction with Hernandez, which had occurred nearly four years prior. She indicated that she had participated in "well over a hundred sting operations or arrests" while undercover and that the restaurant parking lot was located in a "high-level" crime area known for prostitution. Detective 1 could not recall what she was wearing that day, but testified that when undercover, she typically "dressed down" to "look transient." She also could not remember whether Hernandez waved her over first or whether she made small talk with him, but she said her conversation with Hernandez had been "very brief’ before he agreed to sex. She testified that during this conversation, she had used common street terms like "date," "fuck," and "blowjob," which Hernandez would have been familiar with if he was seeking a prostitute. And she testified that when other potential "johns"² reject her, they "roll up their window or tell [her] to leave or drive away" and act "surprised," "shocked," and "disgusted." She testified that "a lot" of vehicles "circle that area multiple times" and pull into the parking lot, "wait[ing] for the prostitutes to approach" and "there’s really no reason for them to park so far away from the [restaurant] … unless they’re trying to make contact" with prostitutes.

¶6 Detective 1 also testified about the dangers of undercover work, the necessity of having backup officers and marked units nearby, and safety precautions to prevent her from being exposed as undercover. She then testified that in her written report, she had included only those facts she considered "legally significant," meaning they showed the "elements of the crime, which would be [Hernandez] agreeing to a specific sex act and what the amount was." Detective 1 indicated she had written as many as eight similar reports that same day.

¶7 Detective 2 testified that he had participated in hundreds of undercover operations in this area. He related that on the day in question, Detective 2 watched Detective 1 approach Hernandez’s car and he received the "done-deal" signal from her. Detective 2 testified that he watched Hernandez enter the convenience store and circle around the block, and he saw the takedown units pull Hernandez over just as he entered the parking lot for the second time. He testified that it was "typical behavior" for johns to circle around the block to "look for takedown units, [and] other police officers that might be in the area" or to circle around the parking lot to contact a potential prostitute. Detective 2 also testified that the amount of cash Hernandez had with him was "unusual" and "consistent with someone seeking to pay for a prostitute." And he testified about how working undercover is "more dangerous" than working a normal patrol and how Detective 1 could be "shot, stabbed, assaulted, robbed, kidnapped"—"[r]eally anything you could imagine" could happen to her if she were exposed while undercover.

¶8 After the State rested, Hernandez’s counsel (Counsel) moved for a directed verdict based on a theory of entrapment, which the court denied. Hernandez rested his case without presenting any evidence. The court then discussed the jury instructions with the parties. The State stipulated to the instructions, but Counsel objected to the instruction on entrapment, which objection the court resolved. During closing arguments, Counsel focused heavily on the defense’s theory that Hernandez had been entrapped, stating he found it "disgusting" and "disheartening" that the undercover detectives were "out actively looking for business to engage people." The jury found Hernandez guilty.

¶9 Counsel then made an oral motion to arrest judgment, arguing briefly that "a reasonable jury could have come to [the] conclusion" that Hernandez did not commit the offense, and thus urging the court to override the verdict in Hernandez’s favor. The court denied the motion because it concluded there was enough evidence that a reasonable jury could find that there was an agreement to have sex and, though it was a close call, there was enough evidence that a reasonable jury could have reasonable doubt as to whether entrapment occurred. Hernandez was then sentenced to a suspended jail term of 364 days, placed on probation for eighteen months, and ordered to pay a $2,500 fine.

ISSUES AND STANDARDS OF REVIEW

[1–5] ¶10 On appeal, Hernandez presents several issues for review. First, he argues the State’s evidence was insufficient to support a conviction because Detective l’s testimony should have been disregarded as inherently improbable.³ Next, he argues that Detective l’s and Detective 2’s testimony about his agreement to exchange sex for money, the typical behavior of johns, and the dangers of undercover work was improperly admitted. Finally, he argues an instruction given to the jury omitted an element of the statutory offense. Because each of these issues is unpreserved, Hernandez urges us to review them for ineffective assistance of counsel and plain error. "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." State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned up). And "plain error is a question of law reviewed for correctness." Id. (cleaned up).

ANALYSIS

[6, 7] ¶11 Hernandez asks us to review his unpreserved claims for both ineffective assistance of counsel and plain error. In order to show ineffective assistance, Hernandez must "demonstrate both that Counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment, and that Counsel’s deficient performance prejudiced him." State v. Powell, 2020 UT App 63, ¶ 19, 463 P.3d 705 (cleaned up). "Both elements must be present, and if either is lacking, the claim fails and the court need not address the other." Id. (cleaned up). And to prevail on his claims of plain error, Hernandez "must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Popp, 2019 UT App 173, ¶ 35, 453 P.3d 657 (cleaned up). Hernandez must "satisfy all three requirements to succeed." Id. ¶ 36. With this in mind, we address each of Hernandez’s claims.

I. Inherent Improbability of Detective l’s Testimony

[8] ¶12 First, Hernandez argues Detective l’s testimony should have been disregarded as inherently improbable, and...