State v. Hernandez

2025 UT App 90

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALBERTO FRANK HERNANDEZ,
Appellant.

Opinion
No. 20231047-CA
Filed June 12, 2025

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 221903825

Erick Grange, Attorney for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1 Alberto Frank Hernandez went to the tow yard to retrieve
his impounded vehicle. An argument soon ensued with a tow
yard employee. After threatening to physically harm the
employee, Hernandez pulled out an airsoft gun to frighten him.
Hernandez’s sister, who had accompanied him, left the scene with
the gun. When the police interviewed Hernandez, he insisted that
he never had any sort of firearm, but he later admitted that his
initial statement had been a lie. Hernandez was eventually
convicted of aggravated assault and obstruction of justice. He
now appeals, arguing that insufficient evidence supported the
charges. We affirm the convictions.
State v. Hernandez

BACKGROUND 1

¶2 Hernandez was charged with aggravated assault and
obstruction of justice for his actions during a confrontation with a
tow yard employee (Employee).

¶3 Employee, who testified at trial, explained that Hernandez
was among a group of customers waiting at the tow yard to get
their impounded vehicles released but that Hernandez was “not
happy and very upset about the whole situation.” Employee said
that before he could get out of his truck and open the gate,
Hernandez approached him, “very upset and very angry” and
uttering numerous obscenities. Employee characterized the
encounter as a “terrifying experience from the beginning.” As
Employee opened the gate to the tow yard, Hernandez attempted
to enter, but Employee asked him to wait outside on a nearby
sidewalk. At this point, Hernandez “pull[ed] out [a] gun from his
waist.” Employee testified that Hernandez “threaten[ed]” him
with the gun, which he described as a black 9mm, pointing it at
him for “[a]bout a minute.” Employee testified that he was
“shaking,” “couldn’t think straight,” and “was terrified through
the whole experience.” He added that he felt like his life was
“coming to an end” and remembered thinking that his life was
“worth more than that vehicle that was in the impound lot.” After
Hernandez lowered the gun, Employee retreated to the tow yard
office, where he locked himself in and called the police.
Meanwhile, Hernandez remained outside screaming and
swearing. Employee said that while he was waiting for the police
to arrive, a woman who was with Hernandez ran toward

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
up).

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State v. Hernandez

Hernandez, “grabbed the gun from him, and took off” in her
vehicle.

¶4 Police then arrived on the scene. One officer (First Officer)
testified that Hernandez said “he had a large thermos . . . around
his waistband” when he “got in an altercation” with Employee.
Hernandez said he “removed the thermos” as he got ready “to
fight” with Employee. Police found a thermos sitting beside a safe
in the area. 2 Inside the safe, after it was unlocked with
Hernandez’s consent, First Officer found some airsoft pellets.
First Officer then asked Hernandez, “The firearm that you
produced, was it a real one or was it a fake one?” Hernandez then
admitted that he had a gun, saying, “It was an airsoft gun.” 3 In
addition, First Officer testified that “airsoft guns can look just like
real guns.” He further testified that when officers found the
vehicle identified as having carried the gun away from the scene,
no weapon of any kind was found.

¶5 Another officer (Second Officer) who had responded to the
incident also spoke to Hernandez. Second Officer testified that
Hernandez “mentioned many times that there was no gun

2. As far as we can glean from the record, the safe—which appears
in a trial exhibit photograph to be portable and about the size of a
small briefcase—was transported to the scene of the incident in
the backseat of the vehicle that Hernandez used to get there. The
photograph depicts the safe sitting next to a thermos just outside
the tow yard gate, which is how they were situated when officers
arrived.

3. Hernandez sometimes described the gun as a “BB gun.”
Elsewhere in the record and the briefing, the gun is referred to as
an “airsoft gun.” There is no reason to think that the parties are
referring to different weapons. First Officer stated that he believed
an airsoft gun “can either shoot metal like a BB gun . . . or it can
shoot hard plastic pellets.”

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State v. Hernandez

involved,” that “he didn’t understand why anybody there . . .
would say there was a gun involved because there wasn’t,” and
that he didn’t “own guns [or] have guns.” Second Officer said the
safe was locked and the keys were found on Hernandez. After
obtaining Hernandez’s permission to open the safe, officers found
airsoft pellets inside. It was at this point that Hernandez admitted
to having taken out the airsoft gun, but he claimed that he “didn’t,
like, point it at” anybody. 4 Second Officer also confirmed that
airsoft guns are “easily mistaken for real guns,” and he recalled
telling Hernandez that if he were “to pull that out on an officer,
. . . he would be shot.”

¶6 Two tow yard customers also testified. The first customer
(First Witness) testified that a man went through the gate when
Employee opened it, prompting—in her perception—Employee
“to yell at him to not come inside just yet.” This led to the man
and Employee “exchanging some words” and becoming “heated
in their arguments.” At this point, according to First Witness, the
man “pull[ed] out his gun to the side.” When asked what the man
did with the gun, she responded, “So he took out the gun from his
holster, and then he pointed to the right of his side. But he just had
it pointed to the floor. He didn’t have it pointed at a person.” She
thought the gun was real and said that “it was obvious it wasn’t a
toy.” And when she saw the gun come out, First Witness left the
area, retreating to the vehicle in which she arrived. However, she
was still able to observe the altercation, which ended when
Employee stepped back behind the gate and Hernandez holstered
the gun and gave it to a woman who was with him; First Witness
specifically noted that Hernandez took “off the holster and the
gun, like [he] was taking off a belt, and then he handed everything

4. At trial, Second Officer’s body camera video recording of his
interaction with Hernandez was played for the jury. The contents
of the video track the testimony of the two officers as recounted
above.

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State v. Hernandez

to the lady.” The woman then took the gun and left. First Witness
estimated that Hernandez had the gun out for about five minutes.

¶7 The second customer (Second Witness) also testified about
the encounter between Employee and Hernandez:

[Employee] opened up the gate, and he started
putting his tow truck in. And as he was putting his
tow truck into park in front of the office, . . .
[Hernandez] rushes in and tries to sneak in to try to
take his car. And the dude notices [Hernandez], and
he tries to prevent him from coming back in, and
tells him to stop outside the gate because he’s
trespassing. And I guess, [Hernandez] was not
taking no for an answer, so he started retaliating
with demands of taking his car back.

¶8 Second Witness testified that the conversation between
Hernandez and Employee was “getting pretty loud,” with
Hernandez “demanding to get his car” and Employee “telling
him to stay behind the gate” and wait. Hernandez then said, “I’m
going to fuck you up if you don’t let me go through and get my
stuff out of there and get my car out. You don’t have a right to do
whatever you want, to hold my car.” Second Witness said his wife
was getting scared as the quarrel continued, so he decided to take
her back to their car. At this time, his wife exclaimed that
Hernandez pulled out a gun, prompting Second Witness to turn
around and watch. He noticed that Hernandez had the gun “on
the side of his body,” but he noted that he never saw the gun
pointed at anyone. He believed the gun was real.

¶9 At the close of the State’s case, Hernandez moved for a
directed verdict. 5 However, the district court expressed a

5. The trial transcript is not explicit that the motion was for a
directed verdict. But given the context, it is clear that such was its
nature. The parties agree on this point in their briefing.

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State v. Hernandez

preference to reserve the motion until after all the testimony was
presented to the jury.

¶10 Hernandez then took the stand. He testified that at the tow
yard he was being polite, even though Employee was “real
confrontational.” Hernandez said that he stepped out of the tow
yard when Employee told him to do so but that he was provoked
by the comments Employee made. Hernandez admitted that he
“yell[ed] profanities” at Employee and told him, “I’ll kick your
ass.” Hernandez said that at some point he pulled out an airsoft
gun from his waistband and “held [it] to the side” in an effort to
“scare” Employee and to “warn” Employee to not “come at” him.
Hernandez insisted that he did not point the gun at anyone or
have any intention to shoot.

¶11 Hernandez testified that his sister then approached him
and said, “Give me the gun,” and he did as she asked. But when
asked why he surrendered his weapon to her, he said he “wasn’t
really thinking.” However, he said he “figured” that he “might
get in trouble,” so he gave the gun to her when she asked for it.
He insisted that it wasn’t his “idea” to give the gun away, that he
did not give his sister any instructions about what to do with the
gun, and that he thought she was going to put it in her vehicle.
After giving up his gun, Hernandez remained at the scene and
waited for the police because he didn’t feel like he’d done
anything wrong: “I didn’t hurt [anybody]. We didn’t fight. There
was no altercation. Nobody got hurt. Other than our feelings,
nobody got hurt.”

¶12 When asked why he brought the airsoft gun with him,
Hernandez testified that he stored the gun in his waistband to
keep his son from playing with it, explaining that his son could
get into the safe because there were multiple keys and that his son
had recently used the gun to shoot his older brother. Since that
shooting incident, Hernandez asserted, he carried the gun with
him at all times.

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State v. Hernandez

¶13 Hernandez testified that he initially told police that he
didn’t have a gun because he was “not too familiar with the gun
laws” and he had “no idea if [he] was going to get in trouble.”
And when asked if he allowed his sister to take the gun and if he
subsequently lied to the police about having the gun “to avoid
getting into trouble,” Hernandez responded in the affirmative.

¶14 After Hernandez testified, the district court invited his
counsel to revisit the motion for a directed verdict. Trial counsel
argued there was insufficient evidence for either aggravated
assault or obstruction of justice.

¶15 For the aggravated assault charge, see Utah Code § 76-5-
103(2) (stating that an “actor commits aggravated assault if . . . the
actor makes a threat, accompanied by a show of immediate force
or violence, to do bodily injury to another” and the conduct
includes “the use of . . . a dangerous weapon” 6), counsel argued
that Employee was “the only witness who said that the gun was
pointed at him” and that two witnesses contradicted “his
testimony and [said] that the gun was never pointed at”
Employee. Given this testimony, counsel asserted that there was
nothing to “suggest that . . . Hernandez meant to shoot the gun,
or that he meant to give [Employee] the impression by an
immediate show of force that he meant to follow through with
any kind of threat of using the gun.”

¶16 For the obstruction charge, counsel argued that there was
insufficient evidence under either theory advanced by the State.
See id. § 76-8-306(2)(c), (j) (stating that “an actor commits

6. The aggravated assault statute defines a dangerous weapon as
“any item capable of causing death or serious bodily injury; or . . .
a facsimile or representation of the item, if . . . the actor’s use or
apparent intended use of the item leads the victim to reasonably
believe the item is likely to cause death or serious bodily injury.”
Utah Code § 76-1-101.5(7); see also id. § 76-5-103(1)(b).

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State v. Hernandez

obstruction of justice in a criminal investigation or proceeding if
the actor, with intent to hinder, delay, or prevent the
investigation, . . . alters, destroys, conceals, or removes an item or
other thing; [or] . . . provides false information regarding a
suspect, a witness, the conduct constituting an offense, or any
other material aspect of the investigation”). More specifically,
counsel asserted that there was insufficient evidence that
Hernandez attempted to remove the gun from the scene because
his sister was the one who “took it and drove away” and “[n]one
of the witnesses were aware of him giving her any instructions
about what to do with it.” And as far as withholding information
or being untruthful about the investigation, counsel argued that
Hernandez “ultimately told the truth” about having a gun rather
than just a thermos.

¶17 The State opposed the motion, arguing that the “show of
force” was “simply the drawing of the weapon” and that
“whether he pointed” the weapon didn’t really matter given that
he was already angry with, yelling at, and threatening Employee.
The State asserted that “the effect of that action of just pulling out
the gun in that context [was] inherently threatening.” As for
obstruction, the State argued that Hernandez “cooperated in
handing over” his gun to his sister and that a reasonable inference
of her immediate departure from the scene was that Hernandez
did so “to get rid of the gun and prevent [it] from coming to light.”
Moreover, the State argued that Hernandez lied about using a gun
and didn’t tell the truth until “he was caught out a little bit” when
the airsoft pellets were discovered inside the safe.

¶18 The district court denied the motion. As to aggravated
assault, the court ruled that there was “sufficient evidence”
through “witness testimony” of “verbal threats [being] made in
addition to the use of the firearm.” And as to obstruction of justice,
the court ruled there was “believable evidence” for “both of the
alternatives . . . being put forward by the State.”

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State v. Hernandez

¶19 The jury found Hernandez guilty of aggravated assault
and obstruction of justice.

ISSUE AND STANDARD OF REVIEW

¶20 Hernandez appeals, raising a single issue for our review.
He asserts that the district court erred when it denied his motion
for a directed verdict regarding sufficiency of the evidence on
both charges. “We review a trial court’s ruling on a motion for
directed verdict for correctness.” State v. Gonzalez, 2015 UT 10,
¶ 21, 345 P.3d 1168. And “we will uphold a trial court’s denial of
a motion for directed verdict based on a claim of insufficiency of
the evidence if, when viewed in the light most favorable to the
State, some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” State v. Samora, 2021 UT App 29, ¶ 20, 484 P.3d
1206 (cleaned up), aff’d, 2023 UT 5, 529 P.3d 330. Moreover, “for a
sufficiency of the evidence challenge, we will reverse the fact
finder’s verdict only when the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” State v.
Hughes, 2024 UT App 168, ¶ 26, 560 P.3d 188 (cleaned up), cert.
denied, 564 P.3d 957 (Utah 2025).

ANALYSIS

¶21 Hernandez argues that insufficient evidence existed to
support a conviction of aggravated assault or obstruction of
justice. We address each claim in turn.

I. Aggravated Assault

¶22 Hernandez first asserts that the court erred in denying his
directed verdict motion related to insufficiency of the evidence to

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State v. Hernandez

support the aggravated assault charge. Specifically, Hernandez
points out that aggravated assault requires “a threat,
accompanied by a show of immediate force or violence, to do
bodily injury to another.” See Utah Code § 76-5-103(2)(a)(ii). He
asserts that the gun “in this case was never pointed at Employee.”
Hernandez supports this assertion by focusing on the testimony
of the two customers, one of whom said the gun was pointed at
the ground, while the other stated that he never saw the gun
pointed at anyone. And Hernandez also turns to his own
assertions that he never pointed the gun at anybody. The only
testimony that Hernandez pointed the gun at Employee came
from Employee, but Hernandez says Employee’s “testimony was
inherently improbable and his credibility at trial was not
substantially reliable” because (1) his testimony contradicted the
testimony of the other customers and Hernandez and (2)
Employee had prior felony convictions for crimes involving
untruthfulness (namely, impersonating a police officer and theft
by deception). Given this contradiction and credibility issue,
Hernandez concludes that Employee’s testimony about the gun
being pointed at him was “incredibly dubious and, as such,
apparently false.” (Quoting State v. Robbins, 2009 UT 23, ¶ 18, 210
P.3d 288.) Hernandez asserts that with the gun drawn only to his
side and pointed at the ground, there was no show of the
immediate force necessary to support the charge of aggravated
assault. Without the “inherently improbable” testimony from
Employee, Hernandez argues that there was insufficient evidence
to establish that he threatened Employee with “a show of
immediate force or violence.” Accordingly, Hernandez asserts
that “reasonable minds must have entertained a reasonable
doubt” that the gun was pointed at Employee. See State v.
Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94 (“We will reverse a jury
conviction for insufficient evidence only when the evidence is
sufficiently inconclusive or inherently improbable that reasonable
minds must have entertained a reasonable doubt that the
defendant committed the crime of which he was convicted.”).

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State v. Hernandez

¶23 We recently pointed out that “in situations like this one,
our analysis has two parts.” State v. Mayorga, 2024 UT App 182,
¶ 27, 561 P.3d 1184 (cleaned up), cert. denied, 568 P.3d 261 (Utah
2025). The first part is to “analyze the evidence that the movant
claims is inherently improbable,” determining “whether the
challenged piece of evidence is of such a poor quality that it
should be disregarded.” Id. (cleaned up). Answering “this
question will dictate the dimensions of the universe of evidence
that may be considered in the ensuing sufficiency-of-the-evidence
analysis.” Id. (cleaned up). The second step is the sufficiency
analysis itself, in which we address “all evidence that has not been
excluded from consideration on grounds of inherent
improbability.” Id. ¶ 28. This means that if we determine that the
challenged evidence is inherently improbable, then it’s excluded
from the sufficiency analysis, but if the challenged testimony is
not inherently improbable, then it is included in our analysis to
determine whether “some evidence exists that could support the
verdict.” State v. Skinner, 2020 UT App 3, ¶ 25, 457 P.3d 421
(cleaned up).

¶24 Here, Hernandez’s inherent probability claim under State
v. Robbins, 2009 UT 23, 210 P.3d 288, fails for lack of preservation.
This is the entirety of Hernandez’s motion for a directed verdict
on the aggravated assault charge:

[T]he State has not presented a prima facie case for
aggravated assault. There has been extensive
evidence that [Hernandez] and [Employee] were
arguing. But [Employee] is the only witness who
said that the gun was pointed at him, and we have
two other witnesses who contradict his testimony
and say that the gun was never pointed at [him].
[Second Witness] said it seemed clear to him that
[Hernandez] was not going [to] use that weapon.
No witnesses other than [Employee] mentioned any
kind of immediate show of force. I think the only

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State v. Hernandez

thing that [Employee] mentioned that could be
considered an immediate show of force is just
pointing the gun. Nobody else mentioned any
details that would suggest that [Hernandez] meant
to shoot the gun, or that he meant to give
[Employee] the impression by an immediate show
of force that he meant to follow through with any
kind of threat of using the gun.

Notably missing from this motion is an allegation that Employee’s
testimony was inherently improbable—as that term is understood
under Utah precedent. The directed verdict motion did not assert
that Employee’s testimony should be wholly disregarded;
instead, the motion went to the weight of the totality of the
evidence. Thus, the motion represents a “generalized challenge to
the sufficiency of the State’s evidence” that does not include any
discernable assertion that Employee’s testimony was inherently
improbable. Skinner, 2020 UT App 3, ¶ 25. We have been clear that
a Robbins inherent improbability claim “raises a whole new legal
theory,” id. ¶ 26 (cleaned up); see also State v. Doyle, 2018 UT App
239, ¶ 19, 437 P.3d 1266 (“[The contention on appeal] introduces a
new legal theory: that the insufficiency should be reviewed only
after [a witness’s] testimony is ignored as ‘inherently
improbable.’”), that “is subject to a separate preservation
requirement,” Mayorga, 2024 UT App 182, ¶ 29. “To preserve any
issue for appellate review, the issue must be specifically raised such
that the issue was sufficiently raised to a level of consciousness
before the trial court.” Id. (cleaned up). And in the context of
inherent improbability, we have repeatedly clarified that a
“defendant who wants a trial court to disregard a witness’s
testimony under Robbins before, or in connection with,
undertaking a sufficiency-of-the-evidence review must make that
request known to the trial court so that the court has an
opportunity to rule on the issue.” Skinner, 2020 UT App 3, ¶ 29.

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State v. Hernandez

¶25 That’s not what happened here. The inherent
improbability doctrine is undetectable in Hernandez’s directed
verdict motion. At most, Hernandez “argued that the State’s
evidence was insufficient to convict him.” Mayorga, 2024 UT App
182, ¶ 30. But Hernandez never raised a “Robbins claim with
regard to [Employee’s] testimony: at no point did he assert that
[Employee’s] testimony should be disregarded in an insufficiency
analysis due to inherent improbability, and at no point did he cite
Robbins or any subsequent similar case law.” Mayorga, 2024 UT
App 182, ¶ 30. Accordingly, we conclude that “this particular
challenge was not presented to the trial court and was not
preserved for appeal.” Doyle, 2018 UT App 239, ¶ 19. 7

¶26 Thus, we are left with Hernandez’s general insufficiency
challenge to the denial of his directed verdict motion. Because
Hernandez’s inherent improbability challenge fails for lack of
preservation, we consider Employee’s testimony as “proper
evidence for purposes of our sufficiency analysis.” See Mayorga,
2024 UT App 182, ¶ 35. In other words, “the universe of evidence
to be considered in our analysis includes [Employee’s] testimony
as well as all other evidence presented at trial.” See id. (cleaned
up); see also State v. Hughes, 2024 UT App 168, ¶ 41, 560 P.3d 188
(“We now turn to the question of whether in light of all the
evidence admitted at trial, there was sufficient evidence to
support [the] conviction . . . .”), cert. denied, 564 P.3d 957 (Utah
2025). “And with that universe of evidence in mind, there is

7. Hernandez has not asked us to apply any of the exceptions to
the preservation rule (namely, plain error, ineffective assistance
of counsel, or exceptional circumstances). “Accordingly, we do
not reach the merits of [Hernandez’s] Robbins claim” under an
established exception to preservation. See State v. Mayorga, 2024
UT App 182, ¶ 34, 561 P.3d 1184, cert. denied, 568 P.3d 261 (Utah
2025).

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State v. Hernandez

clearly enough evidence to support” Hernandez’s conviction for
aggravated assault. See Mayorga, 2024 UT App 182, ¶ 36.

¶27 “In considering an insufficiency-of-evidence claim, an
appellate court will not reverse a jury verdict provided it can
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime have been proven
beyond a reasonable doubt.” Hughes, 2024 UT App 168, ¶ 42
(cleaned up). “A person commits aggravated assault . . . if he or
she uses a dangerous weapon and intentionally, knowingly, or
recklessly makes a threat, accompanied by a show of immediate
force or violence, to do bodily injury to another.” State v. Brown,
2025 UT App 31, ¶ 16, 566 P.3d 737 (cleaned up); see also Utah
Code § 76-5-103(2)(a)(ii), (b)(i)(A) (defining aggravated assault in
the context of using a dangerous weapon).

¶28 Here, there is ample evidence that Hernandez made a
threat and a show of immediate force or violence against
Employee. Hernandez admitted that he swore at Employee and
told him that he was going to “kick [his] ass” before pulling out
his airsoft gun in an effort to “warn” and “scare” Employee. And
while Hernandez insisted that he did not point the gun at
Employee or have any intention to shoot, Employee testified that
Hernandez did point the gun at him. The jury could have chosen
to believe Employee’s testimony on this point. After all, the “jury
is the exclusive judge of credibility,” see Utah Code § 78B-1-128(4),
and it could have credited Employee’s recollection of the
encounter even though the two other customers and Hernandez
either could not corroborate or contradicted Employee’s account.
Indeed, “when the evidence presented is conflicting or disputed,
the jury serves as the exclusive judge of both the credibility of
witnesses and the weight to be given to particular evidence.” State
v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644 (cleaned up); see also
State v. Rivera, 2019 UT App 188, ¶ 21, 455 P.3d 112 (“The choice
between conflicting testimony is within the province of the jury.”
(cleaned up)). As an appellate court, “we are not normally in the

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State v. Hernandez

business of reassessing or reweighing evidence”; instead, “we
resolve conflicts in the evidence in favor of the jury verdict.” State
v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (cleaned up). Accordingly,
since there was “some evidence . . . from which a reasonable jury
could find that the elements” of aggravated assault have been
proved “beyond a reasonable doubt,” Hernandez’s first claim of
error fails. See Hughes, 2024 UT App 168, ¶ 42 (cleaned up). 8

II. Obstruction of Justice

¶29 Hernandez next argues that the district court erred in
denying his directed verdict motion in which he asserted that
insufficient evidence supported the obstruction of justice charge
under either theory advanced by the State.

A. Removing the Gun

¶30 First, Hernandez argues that there was no evidence that he
“removed the alleged gun from the scene with intent to hinder,
delay, or prevent an investigation because he did not know what
his sister would do with it.” Instead, Hernandez claims that his
“sister removed the alleged gun from the scene and no evidence
shows that Hernandez told her to get rid of it, hide it, or do
anything with it.” Given this circumstance, Hernandez argues
that he never concealed or removed the gun with the intent of
hindering the investigation. See Utah Code § 76-8-306(2)(c)
(defining “obstruction of justice” as concealing or removing an
item “with intent to hinder, delay, or prevent” an investigation).
More specifically, because “obstruction of justice requires proof of
both a general culpable mental state as to conduct and the specific
intent to cause a result,” State v. Vigil, 2019 UT App 131, ¶ 13, 448

8. Given our resolution of this issue, we do not need to address
whether drawing the gun but not pointing it at anyone was
sufficient to support the conviction for aggravated assault.

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State v. Hernandez

P.3d 738, Hernandez argues that the evidence fell short of
supporting his conviction.

¶31 Ample evidence shows that Hernandez intended to
remove the gun from the scene in order to prevent police from
finding it. Our supreme court has explained,

A defendant’s mental state can be proven by
circumstantial evidence, including the nature and
extent of the criminal act. When the mental state is
proven by circumstantial evidence, we examine
whether the State presented any evidence that the
defendant had the requisite intent or knowledge
and whether the inferences that can be drawn from
that evidence have a basis in logic and reasonable
human experience sufficient to prove that the
defendant possessed the requisite intent.

State v. Maestas, 2012 UT 46, ¶ 179, 299 P.3d 892 (cleaned up).

¶32 Employee and First Witness testified that Hernandez
transferred the gun to his sister. Employee said that the sister
approached Hernandez and “grabbed the gun from him” and
then left in her car. First Witness said that Hernandez put the gun
in its holster and “handed everything” to his sister. And
Hernandez himself said that he “figured” that he “might get in
trouble” for using the gun, so he “gave it” to his sister when she
approached him and told him to do so. From this evidence, the
jury was certainly entitled to draw an inference that had “a basis
in logic and reasonable human experience sufficient to prove”
that Hernandez “possessed the requisite intent” to remove the
gun from the scene in to order hinder the investigation. See id.
(cleaned up). Hernandez clearly did not want to be holding the
gun when the police arrived—after all, he conceded that doing so
“might get [him] in trouble.” The inference from all this is clear:
he gave the gun to his sister to avoid being connected with it when
the police arrived.

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State v. Hernandez

¶33 This inference that Hernandez caused the gun to be
removed from the scene to cover up the fact that he used it during
the altercation is further supported by the fact that Hernandez
lied to the police about owning a gun. Second Officer testified that
Hernandez “mentioned many times that there was no gun
involved,” that “he didn’t understand why anybody there . . .
would say there was a gun involved because there wasn’t,” and
that he didn’t “own guns [or] have guns.” The inference here is
obvious. Hernandez knew that he would “get in trouble” for
using a gun, so he intended to tell the police that no gun was
involved and express utter incredulity should anyone suggest
otherwise. And this plan would surely not work if he was found
possessing a gun, so he had to make sure it was nowhere to be
found. His plan may not have been a good one given that
Employee and the witnesses saw him draw the gun, but that
doesn’t mean the jury was unjustified in inferring that Hernandez
intended to impede the investigation based on the evidence. 9

¶34 In sum, ample evidence shows that Hernandez intended to
obstruct justice by facilitating the removal of the gun from the
scene.

B. Providing False Information

¶35 Second, Hernandez argues that there was insufficient
evidence to show that he “provided false information with intent
to hinder, delay, or prevent an investigation because he ultimately
told the police about the airsoft gun.” Instead, he asserts that the
evidence showed that even though he initially told police he had
only pulled out his thermos, he “ultimately told the truth” that he

9. Hernandez also argues that it wasn’t his idea to give the gun to
his sister, that he didn’t tell her what to do with it, and that he
didn’t know what she did with it. But these circumstances do not
change the inference that Hernandez removed the gun from the
scene so he would not be found with it when the police arrived.

20231047-CA 17 2025 UT App 90
State v. Hernandez

had an airsoft gun and was thereafter compliant with officers.
Given that he eventually came clean about the gun, Hernandez
argues that there was insufficient evidence to prove that he
intended to hinder the investigation. See Utah Code § 76-8-
306(2)(j) (stating that “obstruction of justice” includes providing
“false information regarding a suspect, a witness, the conduct
constituting an offense, or any other material aspect of the
investigation”).

¶36 Once again, ample evidence supports that Hernandez
obstructed justice—this time by providing false information
regarding his conduct. There is no dispute that Hernandez
initially lied to police when he told them he pulled out a thermos
instead of a gun during the altercation. It was only after airsoft
pellets were found inside the safe that Hernandez admitted to
having pulled out a gun. This fabrication allowed the jury to infer
that Hernandez provided false information in an effort to
frustrate the investigation. That Hernandez “ultimately told the
truth” about the gun is of little consequence in refuting the
inference that the jury was inclined to draw from the evidence.
After all, Hernandez likely saw the evidence arrayed against
him—a safe with airsoft pellets in it and witnesses and Employee
saying he had drawn a gun—and concluded that there was more
to be lost than gained in maintaining the charade that he hadn’t
used a gun. Eventually telling the truth doesn’t change the
inference that Hernandez floated his story about not using a gun
to see how it would go over. When he realized that the police did
not buy his unlikely story about the thermos, he told the truth
about using a gun. Even though he eventually told the truth, the
fact remains that Hernandez didn’t want to be associated with
using a gun and he intentionally provided false information to
prevent the police from finding out that he did. Accordingly, the
evidence also proves that Hernandez intended to obstruct justice
by lying to police.

20231047-CA 18 2025 UT App 90
State v. Hernandez

CONCLUSION

¶37 Hernandez’s claim of error fails. Sufficient evidence
existed to support the charge of aggravated assault. And there
was sufficient evidence to show that Hernandez intended to
obstruct justice by causing the gun to be removed and by lying to
the police.

¶38 Affirmed.

20231047-CA 19 2025 UT App 90