State v. Hernandez

2024 UT App 71
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
VICTOR M ANUEL HERNANDEZ ,
Appellant.
Opinion
No. 20210849-CA
Filed May 9, 2024
Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 181501448
Nicolas D. Turner and K. Andrew Fitzgerald,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES R YAN D. TENNEY and A MY J. O LIVER concurred.
LUTHY, Judge:
¶1 	Victor Manuel Hernandez was found guilty of the murder
of Luwing Lopez. On appeal, Hernandez challenges the trial
court’s denial of his motion to suppress his confession to police,
the court’s refusal to give several requested jury instructions, and
the court’s determination that certain testimony was hearsay that
did not qualify for admission under any of the exceptions to the
rule against hearsay. The State responds that each alleged error
was either harmless or not an error at all. We agree with the State
and affirm.

State v. Hernandez
20210849-CA 	2 	2024 UT App 71
BACKGROUND
¶2 	In June 2018, Hernandez had recently moved in with his
sister (Sister) after having lived for a time with his friend, Lopez.
One evening around 5:00 p.m., Lopez picked up Hernandez from
Sister’s home, and the two left.
¶3 	Approximately two hours after leaving, Hernandez called
Sister and asked her to come pick him up because he and Lopez
had gotten into an argument. When Sister arrived to pick up
Hernandez, she observed “that he was afraid.” She noticed that
he was not wearing the black shirt, jeans, and black shoes that he
had been wearing when he left her house but was now barefoot
and wearing shorts but no shirt. She also noticed “a little bit” of
blood on him and thought that “maybe there were some blows”
in 	the 	argument 	with 	Lopez. 	She 	repeatedly 	questioned
Hernandez as to what had happened, but aside from telling her
that the argument with Lopez dealt with a Santa Muerte “game”
he and Lopez played,0F
1 Hernandez did not disclose more to Sister,
and her repeated questioning ultimately made him upset with
her.
¶4 	Sister called her other brother (Brother), told him what
was going on, and then said she was bringing Hernandez
to 	Brother’s 	home. 	After 	they 	arrived 	at 	Brother’s 	home,
Brother came outside to talk with Hernandez, who Brother
described as “[n]ervous, afraid, [and] crying.” Hernandez told
Brother that he “had a problem.” Hernandez also gave Brother a
black backpack and asked him to throw it away. Brother did as
requested, placing the backpack inside a white garbage bag
1. “Santa Muerte, [or Holy Death,] is a Mexican folk saint who
personifies death. . . . [S]he is most often depicted as a female Grim
Reaper, wielding the same scythe and wearing a shroud similar
to her European male counterpart.” R. Andrew Chesnut, Devoted
to Death: Santa Muerte, The Skeleton Saint 3 (2d ed. 2018).

State v. Hernandez
20210849-CA 	3 	2024 UT App 71
and 	throwing 	it 	into 	a 	nearby 	dumpster. 	Hernandez
remained 	outside 	Brother’s house 	crying in 	the 	vehicle 	for
several 	hours 	and 	eventually 	disclosed 	to 	Brother 	that 	he
had been in a fight and that he had hurt the other person in the
fight.
¶5 	Brother took Hernandez to a hotel to stay for the night.
Brother also called the police and told them that Hernandez had
fought with someone and “that the guy was in bad shape.”
Brother suspected that the man Hernandez had fought with was
the man Hernandez had previously lived with—because that man
“was the only person that [Hernandez] would . . . go out with”
and because Hernandez “always had problems with him”—
although Brother did not know Lopez by name. Brother showed
the police Lopez’s home, where Hernandez had previously lived,
thinking that was where the altercation likely took place. Brother
did 	not 	tell 	the 	police 	about 	Hernandez’s backpack 	in 	the
dumpster.
¶6 	The 	following 	morning, 	Brother 	again 	spoke 	with
Hernandez, 	and 	Hernandez 	disclosed 	that 	he 	had 	stabbed
someone. 	Brother 	responded 	that 	he 	could 	not 	help
Hernandez, and Hernandez asked Brother to call the police.
Brother 	again 	called 	the 	police, 	and 	when 	they 	arrived,
Brother told them about the backpack in the dumpster and
showed them where it was. Officers retrieved and opened the
backpack and found “a black shirt that was inside out,” a pair of
jeans “that were saturated in blood,” and a knife with blood on it.
Inside the jeans, the officers discovered a pill bottle with Lopez’s
name on it.
¶7 	Officers took Hernandez to the police station and put him
in 	an 	interview 	room. 	Two 	officers 	were 	present 	for 	the
questioning of Hernandez. After gathering some basic personal
information from Hernandez, the officers advised him of his

State v. Hernandez
20210849-CA 	4 	2024 UT App 71
Miranda rights.1F
2 Hernandez said that he wanted to talk with the
officers and “was willing to go forward without counsel or an
attorney present.” At that point, the investigation at Lopez’s home
had led to the discovery of Lopez’s deceased body, but the body
had not yet been identified. Because the officers knew “the
murder had happened the previous day sometime,” they began
to question Hernandez as to his whereabouts over the last two
days. Initially, Hernandez claimed that he had been at Sister’s
home the entirety of the prior day. But he also told the officers that
if they talked to his family, his family members might say
something about him killing someone, yet he asserted that he had
not done so. Then, after about twenty-five minutes of questioning,
the officers left the room “to gather more information from the
detectives at the scene.”
¶8 	Officers took a “significant break” in questioning while the
investigation 	proceeded. 	During 	this 	break, 	which 	lasted
approximately five hours, Hernandez was kept in the interview
room, and officers “bought him food, gave him drink, [gave him]
a bathroom break, [and] made him comfortable.” And at least
once during this period, an officer checked in on Hernandez,
asking him “if everything was okay,” telling him that they were
“still trying to figure out all the evidence,” and “answer[ing] any
of his questions as far as that goes.” During the break, the police
were able to identify the decedent as Lopez.
¶9 	The 	officers 	then 	conducted 	two 	more 	periods 	of
questioning, which were divided by a forty-five-minute break.
2. In Miranda v. Arizona, 384 U.S. 436 (1966), “the United States
Supreme Court articulated a prophylactic rule that protects a
suspect’s 	Fifth 	Amendment 	rights 	against 	compelled 	self-
incrimination and requires that suspects be informed of their right
to remain silent and their right to counsel before a custodial
interrogation begins.” State v. Gardner, 2018 UT App 126, ¶ 15, 428
P.3d 58 (cleaned up).

State v. Hernandez
20210849-CA 	5 	2024 UT App 71
When the officers returned to the interview room after the five-
hour break, they brought a picture of Lopez and asked Hernandez
if he knew that individual. Hernandez responded affirmatively
and “changed his story and admitted that he was at [Lopez’s]
house the previous day at around 5:30 in the afternoon.” The
officers then showed Hernandez “a picture of the backpack that
the bloody clothes and the knife were located in,” and Hernandez
identified the backpack as his. Officers then showed Hernandez
pictures of some of the backpack’s contents, including the bloody
jeans, and Hernandez “admit[ted] that the jeans were his.” The
officers 	told 	Hernandez 	that 	they 	“needed 	to 	know 	what
happened,” and Hernandez responded that he “did it all.” He
described in detail the events of that evening, explaining that
Lopez came to pick him up so they could “go to [Lopez’s] house
and smoke,” that Hernandez has “a sixth sense that allows him to
speak to spirits” and “that the spirits in his head told him that
[Lopez] was going to sacrifice [Hernandez’s] newborn son,” and
that Hernandez had brought a knife with him and used that knife
to stab Lopez multiple times. Hernandez was arrested and
charged with murder.
¶10 	Early in the litigation of the case, Hernandez filed a motion
to suppress all incriminating statements he had made during the
later questioning by officers, arguing that when the officers had
returned to question him after each break, he “was not read his
Miranda rights and the officer conducting the interview did not
make any reference to Miranda rights allegedly read at the first
interview.” The trial court denied the motion, stating:
[T]he 	court 	does 	not 	find 	that 	[Hernandez’s]
circumstances during the period of interrogation
had changed, other than the passage of time. [He]
was the prime suspect from the beginning and the
focus 	remained 	on 	him 	throughout 	the
interrogation. . . . There is no evidence presented
that 	[Hernandez’s] 	answers 	were 	no 	longer

State v. Hernandez
20210849-CA 	6 	2024 UT App 71
voluntary [during the later questioning] or [that] he
was 	no 	longer 	relinquishing 	his 	rights 	under
Miranda.
¶11 	The case proceeded to trial. As part of the State’s case,
Sister, Brother, and police officers involved in the investigation
testified to the facts set forth above. On cross-examination of Sister
and Brother, the defense tried to elicit further information related
to what Hernandez had told them regarding the Santa Muerte
“game” and his related fear of Lopez, but such testimony was met
by hearsay objections by the State, which objections the trial court
sustained.
¶12 	In 	response 	to 	the 	objections 	to 	Brother’s 	proposed
testimony, the defense, outside the presence of the jury, proffered
what Brother’s testimony would be if he was allowed to testify
further. Brother would testify that during the prior month,
Hernandez had told Brother that he “hadn’t slept in days,” that
“[h]e was taking drugs to be able to stay awake because he was
afraid that [Lopez] would kill him in his sleep,” and that this was
related to the Santa Muerte “game” that Hernandez and Lopez
were involved in. Brother would testify that Hernandez had
expressed that “because of that fear[,] . . . he was wanting to
change his life and get out of that death game.” The defense
proffered that Brother would also testify that Hernandez had told
him the following regarding the death “game”:
[T]hey would have a death saint or angel that they
could ask certain favors from . . . . And that the
entity would grant them special gifts or powers:
better employment, better relationships, romantic
relationships, but they always wanted something in
exchange, whether it be fruit, or an item of clothing.
And then at some point, . . . Lopez, who was
practicing the same death game, was saying he was

State v. Hernandez
20210849-CA 	7 	2024 UT App 71
going to kill [Hernandez’s] very small infant as an
offering to his particular death saint.
The court ultimately sustained the hearsay objections to this
testimony, rejecting defense arguments that the testimony fell
under the hearsay exceptions of present sense impression, excited
utterance, 	and 	then-existing 	mental, 	emotional, 	or 	physical
condition.
¶13 	After Sister, Brother, and the police officers had testified,
the State turned to its presentation of the forensic evidence. The
State presented the testimony of the medical examiner who
conducted the postmortem exam on Lopez’s body. The medical
examiner explained that “Lopez had obvious traumatic injuries”;
that he had eight stab wounds on his head, neck, and torso; that
“[p]retty much every wound was not survivable”; and that the
knife found in the black backpack was “consistent with” the type
of object that caused those injuries. The medical examiner then
detailed the stab wounds. The medical examiner also described a
defensive wound on Lopez’s thumb, explaining, “There was an
incised wound at the base of the left thumb . . . which we typically
see in cases where the person is still trying to defend themselves.”
¶14 	The State also presented the testimony of the forensic
scientist and DNA analyst who conducted the testing on items
recovered in the black backpack, specifically the black shirt and
the knife. She testified that the blood stains on the black shirt
resulted in a DNA profile that “was consistent with a mixture of
two 	individuals.” 	She 	testified 	that 	“[a] 	major 	profile 	was
determined at 17 [out of 21 DNA] locations that is consistent with
[Lopez].” As to the blood on the knife, the analyst was “able to
match at all 21 [DNA] locations” to Lopez’s DNA profile.
¶15 	The State thereafter rested, and the defense presented its
case. The defense called Hernandez’s godmother and godfather
to 	testify. 	His 	godmother 	testified 	that 	during 	the 	month

State v. Hernandez
20210849-CA 	8 	2024 UT App 71
preceding the alleged crime, she had noticed that Hernandez was
“very fearful” and “very thin” and that “[h]is appearance was
like, he was just close to death.” She then related that she had
asked Hernandez what was wrong, which prompted another
hearsay objection by the State. The godmother proffered her
testimony 	outside 	the 	presence 	of 	the 	jury, 	indicating 	that
Hernandez had told her that he was afraid that Lopez was going
to kill him, that he kept referencing a “man here that’s taking care
of me,” and that he told her of the Santa Muerte “game” going on
between himself and Lopez, in which they would do “ritual
offerings.” 	The 	godmother 	then 	related 	other 	experiences
concerning Hernandez’s involvement with the Santa Muerte
“game” during the months leading up to the murder. The court
ultimately ruled that the proffered testimony was hearsay that did
not fit under any hearsay exception and that it would not be
admitted.
¶16 	The State likewise objected to the defense’s attempted
presentation 	of 	Hernandez’s 	godfather’s 	testimony, 	which
testimony primarily concerned Hernandez’s worshiping of Santa
Muerte. The court again determined that the statements were
hearsay and would not be admitted.
¶17 	After the defense rested its case, the court discussed
proposed jury instructions with the attorneys. The defense asked
that the jury be instructed regarding the affirmative defenses of
self-defense and defense of others. This request was based on
testimony indicating that Hernandez was afraid of Lopez and on
Hernandez’s expressed fear that “Lopez was going to kill his
child.” The trial court denied the request, determining, “[W]hat
[Hernandez] did was too soon. It was a pre-emptive strike. It was
a vigilante-type action in case, to try and protect his son who was
not there. There was no emergency.”
¶18 	The defense additionally requested an instruction on the
lesser included offense of manslaughter, arguing that imperfect

State v. Hernandez
20210849-CA 	9 	2024 UT App 71
legal justification merited such an instruction. That is, the defense
argued that even if Hernandez’s actions were “not legal or
justifiable,” a reasonable person in his shoes may have thought
they were. The trial court determined that such an instruction was
not supported by the evidence because even if Hernandez had
been fearful of Lopez and thought that Lopez wanted to kill his
son, “[h]e never . . . accuse[d] [Lopez] of trying to kill his son at
that time,” so a reasonable person would not have thought killing
Lopez at that time was justifiable.
¶19 	Finally, 	the 	defense 	requested 	an 	instruction 	on
manslaughter based on a special mitigation for mental illness,
arguing 	that 	Hernandez 	had 	“act[ed] 	under 	a 	delusion
attributable to a mental illness.” (Quoting Utah Code § 76-5-205.5
(2018).) The trial court declined to give the requested instruction,
reasoning that because there had been “no evidence whatsoever
presented” as to a mental illness, “the special mitigation for
mental illness . . . cannot be argued.”
¶20 	The jury instructions were then read to the jury, closing
arguments were presented, and the jury began its deliberations.
Thereafter, 	the 	jury 	found 	Hernandez 	guilty 	of 	murder.
Hernandez now appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 	Hernandez asserts that the trial court erred in denying his
motion to suppress. “A trial court’s ruling on a motion to suppress
is reviewed for correctness, including its application of the law to
the 	facts. 	The 	trial 	court’s 	underlying 	factual 	findings 	are
reviewed under the clearly erroneous standard.” State v. Tripp,
2010 UT 9, ¶ 23, 227 P.3d 1251 (citation omitted).
¶22 	Hernandez also challenges the trial court’s refusal to give
the requested affirmative defense instructions as well as a special

State v. Hernandez
20210849-CA 	10 	2024 UT App 71
mitigation instruction to the jury. “The refusal to give a jury
instruction is reviewed for abuse of discretion. . . . On issues that
are primarily or entirely factual, we afford significant deference;
on issues that are primarily or entirely legal in nature, we afford
little or no deference.” State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d
1133 (cleaned up). The specific issue here “of whether the record
evidence, viewed in its totality, supports the defendant’s theory
of the case is primarily a factual question,” entitled to a large
degree of deference. Id. ¶ 9.
¶23 	As 	an 	alternative 	argument 	related 	to 	the 	special
mitigation 	instruction, 	Hernandez 	argues 	that 	he 	received
ineffective assistance of counsel when his attorney failed to
present 	additional 	evidence 	of 	Hernandez’s 	mental 	health.
“Ineffective assistance of counsel claims raised for the first time
on appeal are issues of law that we review for correctness.” State
v. Sessions, 2012 UT App 273, ¶ 11, 287 P.3d 497, aff’d, 2014 UT 44,
342 P.3d 738.
¶24 	Lastly, Hernandez argues that the trial court erred in
disallowing certain testimony under the rule against hearsay.
Our standard of review on the admissibility of
hearsay 	evidence 	often 	contains 	a 	number 	of
rulings, each of which may require a different
standard of review. We review the legal questions
to 	make 	the 	determination 	of 	admissibility 	for
correctness. We review the questions of fact for clear
error. Finally, we review the district court’s ruling
on admissibility for abuse of discretion.
Arnold v. Grigsby, 2018 UT 14, ¶ 21, 417 P.3d 606 (cleaned up).
¶25 	Even if there is error on the part of the trial court, “an error
is harmless and does not require reversal if it is sufficiently
inconsequential 	that 	we 	conclude 	there 	is 	no 	reasonable

State v. Hernandez
20210849-CA 	11 	2024 UT App 71
likelihood that the error affected the outcome of the proceedings.”
State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (cleaned up). In other
words, “the likelihood of a different outcome absent the error
must be sufficiently high to undermine confidence in the verdict.”
Id. (cleaned up). “And the defendant generally bears the burden
to demonstrate that the error . . . affected the outcome of [the]
case.” 	Id. 	However, 	when 	addressing 	claims 	involving 	the
“violation of a federally protected constitutional right,” federal
law sets a higher standard and instructs that “we cannot declare
federal constitutional error harmless unless we sincerely believe
that it was harmless beyond a reasonable doubt.” State v. Genovesi,
909 P.2d 916, 922 (Utah Ct. App. 1995) (cleaned up).
ANALYSIS
I. Motion to Suppress
¶26 	Hernandez first challenges the trial court’s denial of his
motion to suppress evidence obtained during questioning at the
police station. See generally Miranda v. Arizona, 384 U.S. 436, 444
(1966) (“[T]he prosecution may not use statements, whether
exculpatory 	or 	inculpatory, 	stemming 	from 	custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination.”). He argues that the officers who questioned
him violated his Fifth Amendment rights by failing to read the
Miranda warnings to him at any point after the five-hour break in
questioning. He characterizes the first round of questioning as
“brief” 	and 	“informational 	only” 	and 	contends 	that 	the
questioning “morphed” from an interview into an interrogation
during 	the 	five-hour 	break. 	He 	asserts 	that 	the 	“[l]engthy
incommunicado 	detention” 	combined 	with 	“the 	changed
circumstances 	between 	the 	first 	and 	second 	interrogation”
required additional readings of his Miranda rights.

State v. Hernandez
20210849-CA 	12 	2024 UT App 71
¶27 	The State, on the other hand, argues that “Hernandez’s
interviews were a murder interrogation from the beginning” and
that the “‘mere passage of time’” did not require further Miranda
warnings. (Quoting Mitchell v. Gibson, 262 F.3d 1036, 1057 (10th
Cir. 2001).) Additionally, the State argues that even assuming
error in the trial court’s denial of Hernandez’s motion to suppress,
any such error “was harmless beyond a reasonable doubt in light
of the other overwhelming evidence that Hernandez murdered
Lopez.”
¶28 	We agree with the State that any error in the denial of the
motion to suppress was harmless beyond a reasonable doubt.
“[A]n otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that
the 	constitutional 	error 	was 	harmless 	beyond 	a 	reasonable
doubt.” State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (alteration
in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986)). “Several factors are relevant to our determination of
whether an error in admitting evidence was harmless beyond a
reasonable doubt, including the importance of the evidence to the
prosecution’s case, whether the evidence was cumulative, and, of
course, the overall strength of the prosecution’s case.” State v.
Genovesi, 909 P.2d 916, 923 (Utah Ct. App. 1995). Here, the
strength of the other evidence presented by the State lessened the
importance 	to 	the 	State’s 	case 	of 	the 	allegedly 	improperly
admitted statements to such an extent that we are convinced that
any error in admitting the statements was harmless beyond a
reasonable doubt.
¶29 	First, there was the evidence regarding the black backpack.
Brother testified that after Sister brought Hernandez over to
Brother’s home, Hernandez told Brother that he “had a problem”
and gave Brother the backpack, instructing him to throw it away.
And the jury was shown evidence that the contents of that
backpack included bloody clothes, a knife with blood on it, and a
pill bottle with Lopez’s name on it. The bloody clothes matched

State v. Hernandez
20210849-CA 	13 	2024 UT App 71
Sister’s description of what Hernandez had been wearing earlier,
which included a black shirt, jeans, and black shoes.
¶30 	Second, there was the evidence of Hernandez’s other
incriminating statements. Brother testified that on the evening of
the murder, Hernandez disclosed, sometime during his hours of
crying, that he had fought with someone and that the person he
had fought with had been hurt. Brother also testified that the
following morning, Hernandez specified that he had stabbed
someone. 	Additionally, 	when 	first 	questioned 	by 	police,
Hernandez warned police that if they talked to his family, his
family members “may say something about him saying that he
killed someone.”
¶31 	Third, there was the forensic evidence. The State conducted
testing on the blood on the black shirt and the knife retrieved from
the backpack, and that testing showed matches between the DNA
profiles 	of 	the 	tested 	blood 	and 	Lopez’s 	DNA 	profile.
Additionally, evidence was presented by the medical examiner as
to the eight stab wounds on Lopez’s head, neck, and torso. The
medical examiner testified that the stab wounds were consistent
with the type of knife recovered from the backpack. And he
testified regarding the severity of each wound—that “[p]retty
much every wound was not survivable.” He also testified to “an
incised wound at the base of [Lopez’s] left thumb,” which medical
examiners “typically see in cases where the person is still trying
to defend themselves.”
¶32 	This evidence overwhelmingly establishes Hernandez’s
guilt, showing that Hernandez repeatedly stabbed Lopez and
intentionally caused his death. Considering these facts, we are
convinced that any error in the denial of Hernandez’s motion to
suppress was harmless beyond a reasonable doubt. That is, we are
convinced beyond a reasonable doubt that had the trial court
suppressed 	Hernandez’s 	incriminating 	statements 	made

State v. Hernandez
20210849-CA 	14 	2024 UT App 71
following the five-hour break in questioning, the jury would have
still convicted Hernandez of murdering Lopez.
II. Jury Instructions
¶33 	Hernandez also challenges the trial court’s refusal to
instruct the jury on self-defense, defense of others, and a special
mitigation 	for 	mental 	illness. 	Hernandez 	argues 	that 	these
instructions were warranted based on his “delusions” and his
belief “that he and his child were in danger from Lopez and that,
under his present state-of-mind, he had no choice but to protect
his family.”
¶34 	“A defendant is entitled to have the jury instructed on the
defense’s theory of the case if there is any basis in the evidence to
support that theory.” State v. Berriel, 2013 UT 19, ¶ 12, 299 P.3d
1133 (cleaned up). The trial court determined that there was no
such basis in the evidence here, and we see no abuse of discretion
in this determination.
A. 	Perfect Self-Defense, Imperfect Self-Defense, and Defense
of Others
¶35 	The Utah Code excludes criminal responsibility for actions
taken in perfect self-defense or defense of others: “An individual
is justified in threatening or using force against another individual
when and to the extent that the individual reasonably believes
that force or a threat of force is necessary to defend the individual
or another individual against the imminent use of unlawful
force.” Utah Code § 76-2-402(2)(a).2F
3 Additionally, our murder
3. The several statutes relevant to our analysis regarding the
proposed jury instructions have been amended since the events
giving rise to this case. We cite the current versions of those
statutes whenever the alterations to the relevant language have
been slight and do not impact our analysis.

State v. Hernandez
20210849-CA 	15 	2024 UT App 71
statute includes the following provision addressing imperfect
self-defense or defense of others: “It is an affirmative defense to a
charge of murder . . . that the defendant caused the death of
another 	individual 	. 	. 	. 	under 	a 	reasonable 	belief 	that 	the
circumstances provided a legal justification or excuse for the
conduct although the conduct was not legally justifiable or
excusable under the existing circumstances.” Id. § 76-5-203(4)(a).
Imperfect self-defense can reduce a charge from murder to
manslaughter. Id. § 76-5-203(4)(c).
¶36 	“For both perfect and imperfect self-defense, the same
basic facts are at issue.” State v. Silva, 2019 UT 36, ¶ 26, 456 P.3d
718 (cleaned up). The only difference between the two is whether
“the 	use 	of 	deadly 	force 	was 	legally 	justifiable 	under 	the
circumstances” 	or 	whether 	the 	defendant 	mistakenly, 	but
reasonably, concluded it was. Id. But both defenses “require the
defendant to present the same evidence: that the defendant had a
reasonable belief that force was necessary to defend himself [or
another]” against imminent unlawful force. Id. (cleaned up). And
it is this requirement that Hernandez failed to meet.
¶37 	When 	considering 	whether 	there 	is 	evidence 	that
Hernandez reasonably believed force was necessary to defend
himself or his son, we do so “from the viewpoint of a reasonable
person under the then existing circumstances.” Utah Code § 76-5-
203(4)(b). And even if we do as Hernandez urges and credit his
great fear of Lopez as well as his delusions regarding the danger
to his infant son, there is no evidence that a reasonable person
who is nevertheless suffering under these fears or delusions
would reasonably believe that force was necessary to defend
against imminent harm. There was no evidence of any present
threat to Hernandez on the night of the murder. Additionally,
because there was no evidence that Hernandez’s infant son was
with him or Lopez the night of the murder, there was likewise no
risk of imminent harm to Hernandez’s son from Lopez. Any fear
of harm from Lopez must necessarily have related entirely to

State v. Hernandez
20210849-CA 	16 	2024 UT App 71
future—as opposed to imminent—harm. We therefore see no
abuse of discretion in the trial court’s refusal to instruct the jury
on perfect self-defense, imperfect self-defense, or defense of
others.
B. 	Special Mitigation for Mental Illness
¶38 	Hernandez also requested a jury instruction addressing
special mitigation based on mental illness, which would have
likewise reduced the murder charge to a manslaughter charge, see
Utah Code § 76-5-205(2) (2018). The relevant statute declared:
Special mitigation exists when the actor causes the
death of another or attempts to cause the death of
another:
(a)(i) 	under 	circumstances 	that 	are 	not 	legally
justified, 	but 	the 	actor 	acts 	under 	a 	delusion
attributable to a mental illness as defined in Section
76-2-305;
(ii) the nature of the delusion is such that, if the
facts existed as the defendant believed them to be in
the delusional state, those facts would provide a
legal justification for the defendant’s conduct; and
(iii) the 	defendant’s 	actions, 	in 	light 	of 	the
delusion, 	were 	reasonable 	from 	the 	objective
viewpoint of a reasonable person . . . .
Id. § 76-5-205.5(1). The definition of “mental illness” incorporated
by reference at the time of the offense in this case was as follows:
“‘Mental 	illness’ 	means 	a 	mental 	disease 	or 	defect 	that
substantially impairs a person’s mental, emotional, or behavioral
functioning. A mental defect may be a congenital condition, the
result of injury, or a residual effect of a physical or mental disease

State v. Hernandez
20210849-CA 	17 	2024 UT App 71
and includes, but is not limited to, intellectual disability.” Id. § 76-
2-305(4)(b)(i).3F
4
¶39 	Hernandez 	argues 	that 	testimony 	below 	provided
substantial evidence that he suffered from delusions that were
attributable to a mental illness. He thus contends that the trial
court abused its discretion by declining to give a jury instruction
on special mitigation based on mental illness. The State, on the
other 	hand, 	defends 	the 	trial 	court’s 	determination 	that
Hernandez presented “no evidence whatsoever” supporting the
existence of a mental illness. Ultimately, we need not decide
whether Hernandez put on adequate evidence of a delusion
attributable to a mental illness.
¶40 	To merit a jury instruction on special mitigation based on
mental illness, Hernandez was required to put on evidence of
more than a delusion attributable to a mental illness. He was also
required to put on evidence that “the nature of the delusion [was]
such that, if the facts existed as [Hernandez] believed them to be
4. The current version of the special mitigation statute refers not
to a “mental illness” but to a “mental condition,” Utah Code § 76-
5-205.5(2)(a)(i), which is statutorily defined as “a mental illness or
a mental disability that substantially impairs an individual’s
mental, 	emotional, 	or 	behavioral 	functioning,” 	id. 	§ 	76-2-
305(1)(a)(i). The current code then defines “mental disability” as
“an intellectual disability or a neurodevelopmental disorder as
those terms are defined in the current edition of the Diagnostic
and Statistical Manual of Mental Disorders published by the
American 	Psychiatric 	Association,” 	id. 	§ 	76-2-305(1)(b), 	and
“mental illness” as “the following mental disorders as described
in the most recent edition of the Diagnostic and Statistical Manual
of Mental Disorders published by the American Psychiatric
Association: 	(i) 	schizophrenia 	spectrum 	and 	other 	psychotic
disorders; or (ii) other serious mental health conditions with
psychotic features,” id. § 76-2-305(1)(c).

State v. Hernandez
20210849-CA 	18 	2024 UT App 71
in 	the 	delusional 	state, 	those 	facts 	would 	provide 	a 	legal
justification for [Hernandez’s] conduct.” Id. § 76-5-205.5(1)(a)(ii).
And as the trial court pointed out, there was no evidence
suggesting that any delusions under which Hernandez may have
been suffering mistakenly gave him the impression that he or his
son were in imminent danger of being harmed by Lopez. The
delusions as described related only to future anticipated harm.
Thus, even if Hernandez put on substantial evidence that he had
delusions attributable to a mental illness, he did not show that
those delusions, if real, would have provided legal justification for
his actions against Lopez. Accordingly, the court did not abuse its
discretion by declining to instruct the jury on special mitigation.
III. Ineffective Assistance of Counsel
¶41 	Related to the asserted lack of evidence supporting the
existence of a mental illness as the cause of his delusions,
Hernandez argues that his counsel was ineffective for failing to
present more evidence related to his mental health. “To prevail on
a claim of ineffective assistance of counsel, a defendant must show
(1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense.” State v. Calvert,
2017 UT App 212, ¶ 21, 407 P.3d 1098 (cleaned up).
¶42 	Hernandez contends that his counsel “had an obligation to
fully investigate Hernandez’s mental health issues” and that the
“failure 	to 	investigate 	prejudiced 	Hernandez 	because 	this
information would have explained why Hernandez acted the way
he did and took the action he did.” However, Hernandez’s
ineffective assistance claim suffers from the same problem that his
jury instruction claims do: even if he proved that he suffered from
delusions attributable to a mental illness, this would benefit him
only if he could prevail under a theory of self-defense, defense of
others, or special mitigation. And as explained above, Hernandez
provided no evidence that any of his delusions gave him the
impression that he or his son were in imminent danger of being

State v. Hernandez
20210849-CA 	19 	2024 UT App 71
harmed by Lopez, so he would not have prevailed on any of those
theories. Thus, Hernandez’s counsel did not perform deficiently
by not presenting more evidence regarding Hernandez’s mental
health, and Hernandez’s ineffective assistance argument fails.
IV. Hearsay Statements
¶43 	Finally, Hernandez argues that the trial court erred by
excluding certain witness testimony as hearsay. See generally Utah
R. Evid. 801(c) (“‘Hearsay’ means a statement that: (1) the
declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.”); id. R. 802 (“Hearsay is not
admissible except as provided by law or by these rules.”).
Hernandez asserts that the evidence fell under several exceptions
to the hearsay rule and should therefore have been admitted. See
generally 	id. 	R. 	803(1)–(3) 	(providing 	that 	present 	sense
impressions, 	excited 	utterances, 	and 	then-existing 	mental,
emotional, or physical conditions “are not excluded by the rule
against hearsay”).
¶44 	We do not reach Hernandez’s arguments regarding the
admissibility of the evidence at issue because we determine that
any abuse of discretion by the trial court in excluding the evidence
was clearly harmless. Each statement that Hernandez wanted to
present to the jury was related to his fear of Lopez or his related
involvement with the Santa Muerte “game.” And as we have
explained in Part II, there was no basis in the evidence—even had
these hearsay statements been admitted—to support instructing
the 	jury 	on 	the 	requested 	affirmative 	defenses 	or 	special
mitigation because none of the evidence presented (or proffered)
suggested that a person in Hernandez’s position on the night
Lopez was murdered would have had any fear of imminent harm
to himself or his child. Therefore, any abuse of discretion on the
part of the trial court in relation to its hearsay determinations was
harmless and does not merit reversal.

State v. Hernandez
20210849-CA 	20 	2024 UT App 71
CONCLUSION
¶45 	Any error or abuse of discretion the trial court may have
committed 	in 	denying 	Hernandez’s 	motion 	to 	suppress 	or
excluding 	witness 	testimony 	under 	the 	hearsay 	rule 	was
harmless. And the trial court did not abuse its discretion in
refusing to give instructions on affirmative defenses and special
mitigation for which there was no support in the evidence. Nor
has Hernandez shown that his counsel provided ineffective
assistance in failing to investigate or present evidence of alleged
mental illness. We therefore affirm.