State v. Hernandez

2020 UT App 58
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellant,
v.
O MAR HERNANDEZ ,
Appellee.
Opinion
No. 20190347-CA
Filed April 9, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 181906502
Simarjit S. Gill and Nicole Kunzler Pearce, Attorneys
for Appellant
Alan J. Buividas, Attorney for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	Omar 	Hernandez 	was 	arrested 	and 	charged 	for
patronizing 	a 	prostitute 	who 	was 	actually 	an 	undercover
detective. 	Hernandez 	filed 	a 	motion 	to 	dismiss the 	charge,
asserting a defense of entrapment. Following a hearing on the
matter, the district court ruled that Hernandez was entrapped as
a matter of law and dismissed the case with prejudice. The State
appeals. We reverse and remand.
BACKGROUND
¶2 	On June 1, 2018, Hernandez pulled into the secluded
portion of a McDonald’s parking lot that was frequented by men

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seeking prostitutes. Hernandez remained in his car for possibly
less than a minute and was approached by an undercover
detective.1 The detective asked Hernandez if he was “looking for
a date”—lingo used to offer prostitution services. Hernandez
responded in the affirmative and asked her to get into his
vehicle. The detective did not do so but asked Hernandez if he
had any money. Hernandez indicated that he did. The detective
then inquired whether Hernandez wanted “to fuck” or if he just
“wanted a blowjob.” Hernandez responded that he “wanted to
go all out” and “make it worth [her] while”—which the detective
understood to mean that he wanted to have sexual intercourse in
exchange for money. The detective told Hernandez to show her
the money. Hernandez pulled out a five-dollar bill and several
ones, prompting the detective to retort, in character, “I’m not
going to fuck you for five dollars.” Hernandez indicated he had
more money, pulled out a fifty-dollar bill, and asked her, “Fifty
dollars?” 	The 	detective 	indicated 	that 	was 	acceptable 	and
inquired whether Hernandez had a condom. Hernandez said he
did. The detective then directed Hernandez to meet her at a
7-Eleven around the corner to consummate the transaction.
Hernandez pulled out of the parking spot and headed in that
direction, 	at 	which 	point 	he 	was 	apprehended 	by 	the 	law
enforcement take-down team.
¶3 	Hernandez was charged with one count of patronizing a
prostitute. See Utah Code Ann. § 76-10-1303 (LexisNexis 2018).
Thereafter, Hernandez filed a motion to dismiss, arguing that the
detective entrapped him. After briefing, an evidentiary hearing,
additional briefing, and oral argument, the district court granted
Hernandez’s motion and dismissed the case with prejudice. The
court 	found 	that 	the 	“attractive” 	detective 	approached
1. When the detective was asked if she could estimate how much
time elapsed before she approached Hernandez, she stated,
“Maybe several—less than a minute. A minute or two.”

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Hernandez’s car 	within 	possibly 	less 	than 	one 	minute 	and
initiated 	contact 	that 	“creat[ed] 	a 	substantial 	risk 	that 	[she
would] convince some people who [were] not there for that
purpose [of prostitution] to engage in . . . criminal behavior.”
The court concluded that “a reasonable jury [would] have to
entertain at least reasonable doubt about whether or not the
entrapment defense applies” and therefore ruled that Hernandez
was entrapped as a matter of law. The State appeals.
ISSUE AND STANDARD OF REVIEW
¶4 	The State contends that the district court erred by ruling
as a 	matter 	of 	law 	that 	Hernandez 	was 	entrapped 	by 	the
detective. 	When 	considering 	a 	district 	court’s 	entrapment
determination, we review factual findings for clear error and
legal conclusions for correctness. See State v. Torres, 2000 UT 100,
¶¶ 8–14, 16 P.3d 1242; State v. Curtis, 542 P.2d 744, 746–47 (Utah
1975).
ANALYSIS
¶5 	The 	State 	contends 	that 	the 	district 	court 	erred 	in
determining as a matter of law that the detective entrapped
Hernandez, arguing that the facts as found by the district court
do not, as a matter of law, amount to entrapment under the
statute and our case law. We agree.
¶6 	A defendant may assert entrapment as a defense to a
charge of criminal conduct by making a written motion, Utah
Code 	Ann. 	§ 76-2-303(4) 	(LexisNexis 	2017), 	and 	pointing 	to
some evidence of entrapment, cf. State v. Tebbs, 786 P.2d 775, 779
(Utah Ct. App. 1990) (“As a practical matter, a defendant may
have to assume the burden of producing some evidence of
the 	affirmative 	defense 	if 	there 	is 	no 	evidence 	in 	the
prosecution’s case that would provide some kind of evidentiary

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foundation for an affirmative defense claim.” (cleaned up)).
The court then hears the evidence on the issue and determines
“as 	a 	matter 	of 	fact 	and 	law 	whether 	the 	defendant 	was
entrapped to commit the offense.” Utah Code Ann. § 76-2-303(4).
After determining the facts, the court must consider whether
those 	facts 	establish 	entrapment 	as 	a 	matter 	of 	law. 	Id.
Entrapment 	is 	established 	as 	a 	matter 	of 	law 	when 	an
entrapment defense—asserting the offense was impermissibly
induced—is 	sure 	to 	leave 	all 	reasonable 	minds 	reasonably
doubting 	whether 	the 	commission 	of 	the 	offense 	was 	the
product of a defendant’s inclination. See State v. Torres, 2000 UT
100, ¶ 8, 16 P.3d 1242 (“To prove the defense of entrapment, the
evidence must be sufficient to raise a reasonable doubt . . . .”
(cleaned up)); State v. Kaufman, 734 P.2d 465, 468 (Utah 1987)
(observing that an objective standard prompts entrapment as
a 	matter 	of 	law 	when 	“offenses 	committed 	were 	not 	the
product of defendant’s initiative or desire, but were induced
by the conduct of the undercover officer”); State v. Curtis, 542
P.2d 744, 746 (Utah 1975) (“[T]he only requirement on the
defense of entrapment is that it be sufficient to raise a reasonable
doubt that the defendant freely and voluntarily committed the
crime.”); State v. Haltom, 2005 UT App 348, ¶ 7, 121 P.3d 42
(“Only when reasonable minds could not differ can we find
entrapment as a matter of law.”). If a court finds that entrapment
occurred as a matter of law, then it must dismiss the case with
prejudice. See Utah Code Ann. § 76-2-303(5). In contrast, if a
court determines that an entrapment defense will leave fewer
than all reasonable minds with a reasonable doubt, then the
court must deny the motion, but the defendant is able to present
the defense to the jury at trial. See id.; see also Haltom, 2005 UT
App 348, ¶ 7.
¶7 	“Entrapment occurs when a peace officer . . . induces
the commission of an offense in order to obtain evidence of
the 	commission 	for 	prosecution 	by 	methods 	creating 	a
substantial risk that the offense would be committed by one not

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otherwise ready to commit it.” Utah Code Ann. § 76-2-303(1).
However, “[c]onduct merely affording a person an opportunity
to commit an offense does not constitute entrapment.” Id. Utah
courts 	have 	embraced 	an 	objective 	standard 	focusing 	on
whether 	the 	methods 	used 	by 	law 	enforcement 	create 	a
substantial risk of inducement. E.g., Torres, 2000 UT 100, ¶ 8.2
Thus, 	an 	entrapment 	determination 	rests 	on 	whether 	law
enforcement officials or their agents use methods which create
a substantial risk that a person would be induced or persuaded
to commit an offense when that person was not otherwise ready
to commit it. State v. Taylor, 599 P.2d 496, 503 (Utah 1979);
see 	Curtis, 	542 	P.2d 	at 	746–47 	(stating 	that 	entrapment
doctrine 	prevents 	law 	enforcement 	from 	catching 	“innocent
persons [who] may be induced into transgression”). See generally
State v. Cripps, 692 P.2d 747, 750 (Utah 1984) (explaining the
objective 	standard 	for 	an 	entrapment 	determination 	focuses
on the government’s conduct, not the predisposition of the
defendant to commit a crime).
2. Utah’s embrace of the objective standard has been complicated
by a reluctance to depart from the subjective standard. See State
v. Taylor, 599 P.2d 496, 504 (Utah 1979) (Hall, J., concurring)
(positing as valid both the objective and subjective standards).
Consequently, our courts have on occasion mingled the objective
standard with vestiges of the subjective standard as we have
sought to extract and apply valid principles from prior cases
analyzed through the subjective lens. Our supreme court’s most
recent clarification that Utah courts use “an objective standard
for entrapment cases,” focusing “solely on police conduct, rather
than on the defendant’s predisposition to commit a crime,” State
v. Torres, 2000 UT 100, ¶ 8, 16 P.3d 1242, was also somewhat
diminished by the proximate instruction that “to prove the
defense of entrapment, the evidence must be sufficient to raise a
reasonable 	doubt 	that 	the 	defendant 	freely 	and 	voluntarily
committed the offense,” id. (cleaned up).

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¶8 	In evaluating whether government action impermissibly
induces criminal activity, as opposed to permissibly affording
the mere opportunity to participate in criminal activity, we
consider actions leading up to the offense, interactions between a
defendant 	and 	the 	government 	agent, 	the 	nature 	of 	the
inducements, and the responses to the inducements. State v.
J.D.W., 910 P.2d 1242, 1243–44 (Utah Ct. App. 1995). Notably, our
courts have previously identified extreme pleas of desperate
illness; 	appeals 	to 	sympathy, 	pity, 	or 	close 	personal
relationships; offers of inordinate monetary gain; and excessive
or persistent pressure as methods that create a substantial risk of
inducing criminal conduct. See State v. Sprague, 680 P.2d 404, 406
(Utah 1984); accord J.D.W., 910 P.2d at 1244.
¶9 	For example, in State v. J.D.W., an undercover officer
randomly approached the defendant and his friend who were at
the mall to buy a compact disc. 910 P.2d at 1243. After the officer
indicated his ability to sell the youths marijuana, he invited them
outside and there showed the defendant the product. Id. The
defendant evaluated the marijuana by separating the buds from
the 	shake—an 	action 	demonstrating 	familiarity 	with
marijuana—inquired about the price, purchased the marijuana,
and 	took 	possession 	of 	it, 	whereupon 	he 	was 	arrested 	for
possession. Id. We observed that the officer’s actions did not rely
upon a close personal relationship to induce the defendant’s
purchase, 	the 	offer did 	not 	provide 	an 	inordinate 	financial
incentive, and the officer did not badger or harass the defendant
into making the purchase. Id. at 1244. Accordingly, we held that
the 	officer 	merely 	provided 	the 	opportunity 	for 	the 	drug
purchase and possession. Id.
¶10 	In this case, the district court identified the objective
standard, but did not apply it correctly. The court focused its
analysis on at least two (maybe three) factors: first, the limited
time between Hernandez’s arrival and the approach of the
detective; second, that “a significant number of people” could be

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induced to patronize a prostitute even though “they weren’t
there for it,” if the “opportunity present[ed] itself”; and third,
although unclear as to the extent the court actually gave weight
to it, the attractiveness of the detective. Based primarily on these
factors, the court concluded that Hernandez was entrapped as a
matter of law.
¶11 	We evaluate whether any of the methods used by the
government create a substantial risk of inducing a person to
commit an offense when that person was not otherwise inclined
to 	commit 	it 	by 	looking 	through 	the 	lens 	of 	the 	objective
standard—focusing on the government’s conduct. Using that
standard, the following facts are pertinent to a consideration of
entrapment. After Hernandez parked his car in an area known
for prostitution, the detective—an “attractive” woman dressed in
“very 	dingy,” 	unprovocative 	attire—approached 	him 	after
possibly less than a minute and asked him if he was “looking for
a date.” Only after Hernandez responded in the affirmative did
the detective proceed to solicit payment for sex in explicit terms
and engage him in negotiation about the type of sex act and the
payment 	amount. 	The 	detective 	offered 	Hernandez 	an
opportunity to desist when she denied his initial low-ball offer.
The detective then accepted Hernandez’s second offer of fifty
dollars. 	After 	confirming 	Hernandez 	had 	a 	condom, 	the
detective 	directed 	him 	to 	another 	area 	to 	purportedly
consummate the transaction. Based on those facts, we cannot
conclude as a matter of law that the government employed
prohibited methods of inducement.
¶12 	As in J.D.W., the government agent in this case initiated
contact and started the discussion about engaging in illegal
activity. Like in J.D.W., where the defendant was shopping,
Hernandez could have been in the area for a legally permissible
purpose 	such 	as 	sending 	a 	text, 	searching 	for 	the 	nearest
Starbucks, or thinking about his McDonald’s order. But as in
J.D.W., 	when 	Hernandez 	was 	approached 	and 	offered 	the

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opportunity to engage in criminal conduct, he expressed interest
without impermissible prompting. Hernandez responded to the
detective’s invitation in a manner demonstrating knowledge of
typical prostitution protocol by confirming he was “looking for a
date” and inviting the detective into his car without further
discussion. 	As 	the 	conversation 	continued, 	like 	in 	J.D.W.,
Hernandez 	participated 	without 	being 	badgered, 	pressured,
coerced by pleas of sympathy or a personal relationship, or
tempted 	with 	an 	inordinate 	monetary 	incentive. 	Ultimately,
Hernandez made a realistic offer of payment to the detective to
engage in a sex act when provided with the mere opportunity to
do so. See J.D.W., 910 P.2d at 1244.
¶13 	While engaged in its entrapment analysis, the district
court stated that the time period that lapsed before the detective
approached Hernandez was “a critical factor.” But that time
period is of little effect given the facts of this case. While the
detective’s choice to approach a vehicle after only a short lapse
of time following its arrival may enable the government to
permissibly afford more people an opportunity to commit an
offense, we cannot conclude based on the facts here that the
timing of the solicitation could affect the risk of inducing a
person—not 	otherwise 	ready—to 	commit 	the 	crime.
Additionally, the court’s supposition that a “significant number
of people” could be talked into patronizing a prostitute under
these circumstances is unsupportable. The standard is whether
the government’s methods create a substantial risk of inducing
the commission of a crime despite a person’s lack of initiative or
desire to commit it. See Kaufman, 734 P.2d at 468. We do not
think a person, not otherwise inclined, would be swayed to
patronize a prostitute by the methods employed in this case.
And finally, the court indicated that it was uncertain about
taking into account its factual finding that the detective was
attractive, but it did not expressly state whether or not it actually
considered that fact. To the extent the district court placed
weight on the detective’s looks, the fact that she may have been

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“attractive” 	does 	not, 	without 	more, 	constitute 	extreme 	or
excessive police conduct that would create a substantial risk of
inducing criminal conduct.
¶14 	We do not view the facts differently than the district
court, but we do draw a different conclusion therefrom. See id.
An analysis of the facts of this case under the objective standard
shows that the government merely afforded Hernandez the
opportunity to commit the offense. Therefore, an entrapment
defense 	is 	not 	sure 	to 	leave 	all 	reasonable 	minds 	with 	a
reasonable doubt as to whether Hernandez acted on his own
inclination. Accordingly, the court erred in concluding as a
matter of law that Hernandez was entrapped to commit the
offense of patronizing a prostitute.
CONCLUSION
¶15 	We hold that the court erred in concluding as a matter of
law that Hernandez was entrapped. We therefore reverse and
remand for further proceedings consistent with this opinion.