State v. Hernandez

2024 UT App 127

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
OMAR HERNANDEZ,
Appellant.

Opinion
No. 20220416-CA
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.

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.
State v. Hernandez

BACKGROUND 1

¶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

1. “We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal.” State v. Black, 2015 UT App
30, ¶ 2, 344 P.3d 644.

20220416-CA 2 2024 UT App 127
State v. Hernandez

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, ¶ 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

2. Detective 2 testified that the term “johns” is used to refer to
“men who are looking to engage in prostitution and sexual
solicitation.” The parties use the term as such throughout their
briefing, and we do the same.

20220416-CA 3 2024 UT App 127
State v. Hernandez

“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.

20220416-CA 4 2024 UT App 127
State v. Hernandez

¶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

¶10 On appeal, Hernandez presents several issues for review.
First, he argues the State’s evidence was insufficient to support a
conviction because Detective 1’s testimony should have been
disregarded as inherently improbable. 3 Next, he argues that

3. Although the parties agree with each other that this issue was
preserved by Hernandez’s motion for a directed verdict and
(continued…)

20220416-CA 5 2024 UT App 127
State v. Hernandez

Detective 1’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).

motion for judgment as a matter of law, “we have stated that a
directed verdict motion that makes general assertions but fails to
assert the specific argument raised on appeal is insufficient to
preserve the more specific argument,” State v. Skinner, 2020 UT
App 3, ¶ 23, 457 P.3d 421 (cleaned up). The inherent improbability
claim Hernandez makes here is “unique,” id. ¶ 24, stemming from
our supreme court’s decision in State v. Robbins, 2009 UT 23, 210
P.3d 288. A Robbins claim “that a particular witness’s testimony is
inherently improbable is not the same as a claim that the State’s
evidence is insufficient.” Skinner, 2020 UT App 3, ¶ 24. And while
a Robbins claim “may be a component of an insufficiency
challenge,” “not every insufficiency challenge raises a Robbins
issue.” State v. Doyle, 2018 UT App 239, ¶ 19, 437 P.3d 1266. Based
on Hernandez’s motions, “the district court never would have
known that [Hernandez] wanted it to assess . . . inherent
improbability,” and thus the court “did not have an opportunity
to rule on the Robbins issue.” State v. Stricklan, 2020 UT 65, ¶ 128,
477 P.3d 1251. Thus, we conclude Hernandez’s “general”
sufficiency motions did not preserve the “specific inherent
improbability” claim he now raises on appeal. State v. Lewis, 2020
UT App 132, ¶ 45 n.5, 475 P.3d 956.

20220416-CA 6 2024 UT App 127
State v. Hernandez

ANALYSIS

¶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 1’s Testimony

¶12 First, Hernandez argues Detective 1’s testimony should
have been disregarded as inherently improbable, and without it,
the State’s evidence was too sparse to support his conviction. He
argues Counsel provided ineffective assistance in failing to raise
the issue at trial. And he argues the district court plainly erred in
not sua sponte disregarding the testimony when ruling on the
motion to arrest judgment. We disagree.

¶13 Appellate courts “are not normally in the business of
reassessing or reweighing evidence,” and “resolve conflicts in the
evidence in favor of the jury verdict.” State v. Prater, 2017 UT 13,
¶ 32, 392 P.3d 398 (cleaned up). But in certain “unusual
circumstances,” testimony may be “so inconclusive or inherently
improbable that it could not support a finding of guilt beyond a
reasonable doubt.” Id. (cleaned up). Witness testimony that leaves
“reasonable minds” with “a reasonable doubt that the defendant

20220416-CA 7 2024 UT App 127
State v. Hernandez

committed the crime” may be disregarded as inherently
improbable. State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665 (cleaned
up). In determining whether witness testimony is inherently
improbable, courts may examine the existence of three factors—
“material inconsistencies, patent falsehoods, and lack of
corroborating evidence,”—but should be wary of “inflexible
reliance on these factors.” Id. (cleaned up). Ultimately, “when
weighing the testimony in light of the other evidence, the
testimony of the witness must run so counter to human
experience that it renders the testimony inappropriate for
consideration in sustaining a finding of guilt.” Id. ¶ 36 (cleaned
up). Detective 1’s testimony does not meet this high bar.

¶14 Hernandez points to Detective 1’s inability to remember
details such as what she was wearing and whether she had tattoos
when she interacted with Hernandez, what time of day the
interaction occurred, whether Hernandez made eye contact with
her before she approached, whether his car window was up or
down, which way his car was parked, or the “exact conversation”
she had with him. And he makes much of Detective 1’s
uncertainty about when, during their conversation, Hernandez
showed her his money. But her lack of memory about these details
does not invalidate her memory about whether Hernandez
agreed to exchange sex for money. “Inconsistencies with respect
to peripheral issues or details . . . will generally not implicate the
inherent-improbability doctrine but are matters for the jury to
resolve in assessing the witness’s credibility.” State v. Kamrowski,
2015 UT App 75, ¶ 16, 347 P.3d 861 (cleaned up). And the jury was
“free to believe or disbelieve all or part” of Detective 1’s
testimony. State v. Torres, 2018 UT App 113, ¶ 20, 427 P.3d 550
(cleaned up). Detective 1 memorialized and remembered the most
important details of her interaction with Hernandez. We fail to see
how her inability to remember other “peripheral issues or details”
about the brief interaction would “cast doubt on” the “central
allegation.” State v. Jok, 2019 UT App 138, ¶¶ 22–23, 449 P.3d 610

20220416-CA 8 2024 UT App 127
State v. Hernandez

(cleaned up), aff’d, 2021 UT 35, 493 P.3d 665. And her testimony
falls far short of running counter to human experience.

¶15 “[A]n inherent improbability claim will necessarily fail
where any evidence corroborates the witness’s testimony.” State
v. Skinner, 2020 UT App 3, ¶ 31, 457 P.3d 421 (emphasis added).
Here, Detective 1’s testimony was supported by corroborating
evidence. Detective 2 testified that the restaurant parking lot was
located in an area known for prostitution. He observed Detective
1 approach Hernandez’s car, and he testified that Hernandez did
not try to drive away from Detective 1 until after Detective 1 gave
the “done-deal” signal. Detective 2 testified that he saw
Hernandez drive to the convenience store next door, as Detective
1 had instructed him to do. And he testified about Hernandez
circling the block and driving back into the parking lot—
something someone rejecting Detective 1’s advances was not
likely to do. In fact, Detective 2 testified that this was behavior that
was common for potential johns. And he testified that inside
Hernandez’s car, he discovered several denominations of cash,
consistent with someone looking to exchange money for sex.
Hernandez admitted to Detective 2 that he agreed to a “date” with
Detective 1. Photos of Hernandez and the cash inside his car were
admitted as trial exhibits. Thus, Hernandez’s claim that Detective
1’s testimony should have been disregarded and, without it, the
evidence was insufficient to support his conviction necessarily
fails.

¶16 It was therefore reasonable for Counsel to forgo requesting
the testimony be wholesale disregarded as inherently improbable.
See State v. Whytock, 2020 UT App 107, ¶ 43, 469 P.3d 1150
(“[W]hen seeking particular relief would be futile, an attorney
does not perform deficiently by failing to seek it.”). And because
Detective 1’s testimony was not inherently improbable, the
district court did not plainly err in failing to sua sponte strike it.
See State v. Popp, 2019 UT App 173, ¶ 35, 453 P.3d 657 (stating that
plain error requires, of course, a showing of error).

20220416-CA 9 2024 UT App 127
State v. Hernandez

II. Hernandez’s Agreement to Pay for Sex

¶17 Next, Hernandez takes issue with Detective 1’s testimony
that Hernandez “agreed to a sex act in exchange for money” and
Detective 2’s testimony about receiving a signal from Detective 1
that “a deal had been done for sex solicitation.” He argues this
testimony violated rules 702, 704, and 403 of the Utah Rules of
Evidence and that Counsel provided ineffective assistance in
failing to object to its admission. And he argues the district court
plainly erred in failing to sua sponte strike the testimony. We are
not persuaded.

¶18 Rules 702 and 704 apply only to expert testimony. See Utah
R. Evid. 702(a) (allowing “a witness who is qualified as an expert
by knowledge, skill, experience, training, or education” to “testify
in the form of an opinion or otherwise” if the expert’s knowledge
“will help the trier of fact”); id. R. 704(b) (preventing “an expert
witness” from stating “an opinion about whether the defendant
did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense”). But the detectives
did not offer expert testimony on this issue.

¶19 Expert testimony “requires that the witness have scientific,
technical, or other specialized knowledge; in other words,
whether an average bystander would be able to provide the same
testimony.” State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176;
accord Utah R. Evid. 701(c). Detective 1 testified that she
disengaged from her conversation with Hernandez because “he
had agreed to a sex act in exchange for money” and she informed
the other officers that she “had a sex act for hire.” She was
testifying about her direct experience with Hernandez. Detective
2 testified that he received the “done-deal” signal from Detective
1, indicating that a “deal had been done for sex solicitation.” These
were also his direct observations. The detectives did not need
specialized knowledge to interpret Hernandez’s assent as an
agreement to pay for sex. And we fail to see how the detectives

20220416-CA 10 2024 UT App 127
State v. Hernandez

could have explained the interaction with Hernandez any other
way. Thus, this testimony did not implicate either rule 702 or 704.

¶20 Hernandez also argues Counsel should have objected to
Detective 1’s testimony under rule 403, which allows otherwise
relevant evidence to be excluded if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
Utah R. Evid. 403. Although Hernandez agrees with the State’s
contention that this testimony was “undeniably probative,” he
argues this probative value was substantially outweighed by
unfair prejudice because the testimony was a legal conclusion,
which “told the jury what result to reach.” But the detectives were
not testifying that Hernandez “agreed” to pay for sex in the legal
sense. 4 They were testifying about their direct observations of the
interaction. The jury was instructed that it was to “decide if the
defendant is guilty or not guilty” and that it should presume
Hernandez was innocent in the meantime. Thus, the jurors knew
that it was their job to determine Hernandez’s guilt—not
Detective 1’s job. See State v. Sorenson, 2023 UT App 159, ¶ 28, 542
P.3d 529. So even if the detectives’ factual testimony prejudiced
Hernandez, any such prejudice was not unfair prejudice that
outweighed—let alone substantially outweighed—its crucial
probative value.

¶21 Because any objection to the detectives’ testimony about
Hernandez’s agreement to exchange money for sex would be
unlikely to succeed under rules 702, 704, or 403, Counsel did not
render deficient performance in failing to object. See State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does
not constitute ineffective assistance of counsel.”). And because
this testimony did not violate these rules, the district court did not

4. The State asked Detective 1 what she considered to be “legally
significant” enough to include in her report of the incident. But
the resulting testimony was limited to Detective 1 explaining the
information that she recorded in her report.

20220416-CA 11 2024 UT App 127
State v. Hernandez

err in failing to sua sponte intervene to prevent its admission. See
State v. Boyer, 2020 UT App 23, ¶ 48, 460 P.3d 569 (holding that
where counsel did not object to admissible testimony, “the district
court did not plainly err by not excluding the testimony sua
sponte”).

III. Typical Behavior of Johns

¶22 Hernandez argues Counsel was ineffective for not
objecting to the detectives’ testimony about typical behavior of
johns under rules 702 and 403 of the Utah Rules of Evidence. He
also argues the district court plainly erred in not sua sponte
striking this testimony. The State concedes that this was expert
testimony under rule 702, so Hernandez must demonstrate that
an objection would have been successful. We conclude that he has
fallen short of meeting this burden.

¶23 Both detectives testified about their experience
participating in “hundreds” of other prostitution stings, including
in that particular location. Detective 1 then testified as to the
behaviors typical of johns in that location and the street meaning
of terminology she used in her interactions with Hernandez, such
as “date,” “fuck,” and “blowjob.” Detective 2 testified that the
amount of cash found on Hernandez was “consistent with
someone seeking to pay for a prostitute.” This type of testimony
“is the quintessential expression of the precept that law
enforcement officers may offer expert testimony on a range of
subjects,” such as the behavior of johns. State v. Bowdrey, 2024 UT
App 113, ¶ 28 (cleaned up) (holding expert testimony from law
enforcement on the behavior of drug dealers was admissible
under rule 702). And it did not run afoul of rule 403 because the
detectives “did not testify as to whether [Hernandez] was telling
the truth or whether he was statistically more likely to be [guilty]
of the charged crime.” State v. Nunez-Vasquez, 2020 UT App 98,
¶ 66, 468 P.3d 585 (cleaned up). Rather, the testimony explained

20220416-CA 12 2024 UT App 127
State v. Hernandez

to the jury the specific interaction between Detective 1 and
Hernandez. Thus, the testimony was not improper.

¶24 Because the detectives’ testimony about the behavior of
johns was admissible, Counsel was not ineffective for failing to
object, and the district court did not plainly err when it did not
intervene to strike the testimony. See State v. Boyer, 2020 UT App
23, ¶ 48, 460 P.3d 569.

IV. Dangers of Undercover Work

¶25 Hernandez asserts that Counsel was ineffective for failing
to object to the detectives’ testimony about the dangers of
undercover work under rule 403 of the Utah Rules of Evidence.
He also argues the district court plainly erred in not sua sponte
striking this portion of the detectives’ testimony. But we need not
determine whether Counsel’s performance was deficient or the
district court plainly erred because Hernandez cannot show
prejudice.

¶26 To evaluate whether a defendant has established prejudice
for an ineffective assistance claim, we “consider a hypothetical—
an alternative universe” where the testimony was not presented
to the jury. State v. Garcia-Flores, 2021 UT App 97, ¶ 27, 497 P.3d
847 (cleaned up). We ask “whether, in the absence of the
improperly admitted evidence, the likelihood of a different
outcome is sufficiently high to undermine our confidence in the
verdict.” State v. Aiken, 2023 UT App 44, ¶ 51, 530 P.3d 148
(cleaned up), cert. denied, 537 P.3d 1010 (Utah 2023). Here, had
Counsel successfully objected to the detectives’ testimony about
the dangers of undercover work, we fail to see a reasonable
likelihood of a more favorable outcome for Hernandez.

¶27 The testimony of both Detective 1 and Detective 2 about
the dangerous nature of undercover operations focused on
explaining the logistics of their work. For instance, Detective 1

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State v. Hernandez

testified as to why it was important to have safety precautions,
such as backup officers nearby and protocols for how to respond
to various circumstances. But none of the dangers that the
detectives testified about actually occurred in this case. At most,
this testimony informed the jury that undercover work had the
potential to be dangerous. Had the jury not heard this testimony,
it would have been presented with the same factual scenario that
it heard at trial regarding Detective 1’s interaction with
Hernandez. And nothing in that testimony described the
interaction as dangerous. Thus, Hernandez has failed to
demonstrate prejudice.

¶28 Because both ineffective assistance and plain error require
a showing of prejudice, “failure to meet the plain error
requirement of prejudice means that the defendant likewise fails
to meet the required showing under the ineffective assistance of
counsel standard” and vice versa. State v. Popp, 2019 UT App 173,
¶ 40, 453 P.3d 657 (cleaned up). Accordingly, both Hernandez’s
ineffective assistance and plain error claims fail.

V. Erroneous Jury Instruction

¶29 Lastly, Hernandez argues Counsel should have objected to
an incorrect jury instruction on the elements of the offense. And
he argues the district court plainly erred in submitting the flawed
instruction to the jury. Instruction 29 informed the jury that it
must find

1. That the defendant, OMAR HERNANDEZ;
2. acting intentionally;
3. did either:
I. pay; OR
II. offer; OR
III. agree to pay;

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State v. Hernandez

4. another person either a fee OR the functional
equivalent of a fee;
5. for the purpose of engaging in an act of
sexual activity . . . .

(Emphasis added.) The relevant statute provided at the time that

(1) An individual is guilty of patronizing a
prostitute when the individual:

(a) pays or offers or agrees to pay a prostitute, or an
individual the actor believes to be a prostitute, a fee,
or the functional equivalent of a fee, for the
purpose of engaging in an act of sexual activity
....

Utah Code § 76-10-1303(1)(a) (2021) (emphasis added). Thus,
Instruction 29 instructed the jury to find only that Hernandez
offered to pay “another person” for sex, rather than a prostitute,
or someone he believed to be a prostitute. This instruction,
modeled after a prior version of the statute, see id. § 76-10-
1303(1)(a) (2017), was legally incorrect. Even so, we conclude it
did not prejudice Hernandez.

¶30 Instruction 29 was titled “PATRONIZING A
PROSTITUTE.” And the phrase “PATRONIZING A
PROSTITUTE” appeared two more times in the text of the
instruction. It would have been difficult for the jury to ignore that
it must find that Hernandez agreed to pay a prostitute—or,
logically, someone he believed to be a prostitute—for sex. In
assessing jury instructions, “we affirm when the instructions,
taken as a whole, fairly tender the case to the jury even where one
or more of the instructions, standing alone, are not as full or
accurate as they might have been.” State v. Perdue, 813 P.2d 1201,
1203 (Utah Ct. App. 1991) (cleaned up). Here, Instruction 29 fairly
informed the jury that it must find that the person Hernandez
offered to pay for sex was a prostitute—or at least someone he

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believed to be one. And to the extent that the instruction omitted
this latter element, it helped, not harmed Hernandez, as the jury
could have concluded that because Detective 1 was not actually a
prostitute, Hernandez could not be convicted at all. Thus, even
had Counsel objected to Instruction 29, we fail to see how the
inclusion of the precise language from section 76-10-1303(1)(a)
would have resulted in a different outcome. Because Hernandez
cannot demonstrate prejudice for purposes of ineffective
assistance or plain error, his claims regarding the jury instruction
both fail. See State v. Popp, 2019 UT App 173, ¶ 40, 453 P.3d 657. 5

CONCLUSION

¶31 Hernandez cannot show that Counsel provided ineffective
assistance in failing to object to the detectives’ testimony or to the
erroneous jury instruction. Nor can he show that the district court
plainly erred in failing to sua sponte raise these issues.
Accordingly, we affirm.

5. In Hernandez’s view, his claims of error accumulate to warrant
reversal of his conviction. “A reviewing court will reverse a jury
verdict under the cumulative error doctrine only if the cumulative
effect of the several errors undermines confidence that a fair trial
was had.” State v. Miles, 2020 UT App 120, ¶ 20 n.5, 472 P.3d 978
(cleaned up). Because none of the issues Hernandez raises amount
to an error with potential prejudicial effect, “there are no errors to
accumulate,” see id., and this claim likewise fails.

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