State v. Hernandez

2020 UT App 58THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellant,
v.
OMAR HERNANDEZ,
Appellee.
Opinion
No. 20190347-CA
Filed April 9, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 181906502
Simarjit S. Gill and Nicole Kunzler Pearce, Attorneys
for Appellant
Alan J. Buividas, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Omar Hernandez was arrested and charged for
patronizing a prostitute who was actually an undercover
detective. Hernandez filed a motion to dismiss the charge,
asserting a defense of entrapment. Following a hearing on the
matter, the district court ruled that Hernandez was entrapped as
a matter of law and dismissed the case with prejudice. The State
appeals. We reverse and remand.
BACKGROUND
¶2 On June 1, 2018, Hernandez pulled into the secluded
portion of a McDonald’s parking lot that was frequented by men
State v. Hernandez
seeking prostitutes. Hernandez remained in his car for possibly
less than a minute and was approached by an undercover
detective. 1 The detective asked Hernandez if he was “looking for
a date”—lingo used to offer prostitution services. Hernandez
responded in the affirmative and asked her to get into his
vehicle. The detective did not do so but asked Hernandez if he
had any money. Hernandez indicated that he did. The detective
then inquired whether Hernandez wanted “to fuck” or if he just
“wanted a blowjob.” Hernandez responded that he “wanted to
go all out” and “make it worth [her] while”—which the detective
understood to mean that he wanted to have sexual intercourse in
exchange for money. The detective told Hernandez to show her
the money. Hernandez pulled out a five-dollar bill and several
ones, prompting the detective to retort, in character, “I’m not
going to fuck you for five dollars.” Hernandez indicated he had
more money, pulled out a fifty-dollar bill, and asked her, “Fifty
dollars?” The detective indicated that was acceptable and
inquired whether Hernandez had a condom. Hernandez said he
did. The detective then directed Hernandez to meet her at a
7-Eleven around the corner to consummate the transaction.
Hernandez pulled out of the parking spot and headed in that
direction, at which point he was apprehended by the law
enforcement take-down team.
¶3 Hernandez was charged with one count of patronizing a
prostitute. See Utah Code Ann. § 76-10-1303 (LexisNexis 2018).
Thereafter, Hernandez filed a motion to dismiss, arguing that the
detective entrapped him. After briefing, an evidentiary hearing,
additional briefing, and oral argument, the district court granted
Hernandez’s motion and dismissed the case with prejudice. The
court found that the “attractive” detective approached
1. When the detective was asked if she could estimate how much
time elapsed before she approached Hernandez, she stated,
“Maybe several—less than a minute. A minute or two.”
20190347-CA 2 2020 UT App 58State v. Hernandez
Hernandez’s car within possibly less than one minute and
initiated contact that “creat[ed] a substantial risk that [she
would] convince some people who [were] not there for that
purpose [of prostitution] to engage in . . . criminal behavior.”
The court concluded that “a reasonable jury [would] have to
entertain at least reasonable doubt about whether or not the
entrapment defense applies” and therefore ruled that Hernandez
was entrapped as a matter of law. The State appeals.
ISSUE AND STANDARD OF REVIEW
¶4 The State contends that the district court erred by ruling
as a matter of law that Hernandez was entrapped by the
detective. When considering a district court’s entrapment
determination, we review factual findings for clear error and
legal conclusions for correctness. See State v. Torres, 2000 UT 100,
¶¶ 8–14, 16 P.3d 1242; State v. Curtis, 542 P.2d 744, 746–47 (Utah
1975).
ANALYSIS
¶5 The State contends that the district court erred in
determining as a matter of law that the detective entrapped
Hernandez, arguing that the facts as found by the district court
do not, as a matter of law, amount to entrapment under the
statute and our case law. We agree.
¶6 A defendant may assert entrapment as a defense to a
charge of criminal conduct by making a written motion, Utah
Code Ann. § 76-2-303(4) (LexisNexis 2017), and pointing to
some evidence of entrapment, cf. State v. Tebbs, 786 P.2d 775, 779
(Utah Ct. App. 1990) (“As a practical matter, a defendant may
have to assume the burden of producing some evidence of
the affirmative defense if there is no evidence in the
prosecution’s case that would provide some kind of evidentiary
20190347-CA 3 2020 UT App 58State v. Hernandez
foundation for an affirmative defense claim.” (cleaned up)).
The court then hears the evidence on the issue and determines
“as a matter of fact and law whether the defendant was
entrapped to commit the offense.” Utah Code Ann. § 76-2-303(4).
After determining the facts, the court must consider whether
those facts establish entrapment as a matter of law. Id.Entrapment is established as a matter of law when an
entrapment defense—asserting the offense was impermissibly
induced—is sure to leave all reasonable minds reasonably
doubting whether the commission of the offense was the
product of a defendant’s inclination. See State v. Torres, 2000 UT
100, ¶ 8, 16 P.3d 1242 (“To prove the defense of entrapment, the
evidence must be sufficient to raise a reasonable doubt . . . .”
(cleaned up)); State v. Kaufman, 734 P.2d 465, 468 (Utah 1987)
(observing that an objective standard prompts entrapment as
a matter of law when “offenses committed were not the
product of defendant’s initiative or desire, but were induced
by the conduct of the undercover officer”); State v. Curtis, 542
P.2d 744, 746 (Utah 1975) (“[T]he only requirement on the
defense of entrapment is that it be sufficient to raise a reasonable
doubt that the defendant freely and voluntarily committed the
crime.”); State v. Haltom, 2005 UT App 348, ¶ 7, 121 P.3d 42(“Only when reasonable minds could not differ can we find
entrapment as a matter of law.”). If a court finds that entrapment
occurred as a matter of law, then it must dismiss the case with
prejudice. See Utah Code Ann. § 76-2-303(5). In contrast, if a
court determines that an entrapment defense will leave fewer
than all reasonable minds with a reasonable doubt, then the
court must deny the motion, but the defendant is able to present
the defense to the jury at trial. See id.; see also Haltom, 2005 UT
App 348, ¶ 7.
¶7 “Entrapment occurs when a peace officer . . . induces
the commission of an offense in order to obtain evidence of
the commission for prosecution by methods creating a
substantial risk that the offense would be committed by one not
20190347-CA 4 2020 UT App 58State v. Hernandez
otherwise ready to commit it.” Utah Code Ann. § 76-2-303(1).
However, “[c]onduct merely affording a person an opportunity
to commit an offense does not constitute entrapment.” Id. Utah
courts have embraced an objective standard focusing on
whether the methods used by law enforcement create a
substantial risk of inducement. E.g., Torres, 2000 UT 100, ¶ 8. 2
Thus, an entrapment determination rests on whether law
enforcement officials or their agents use methods which create
a substantial risk that a person would be induced or persuaded
to commit an offense when that person was not otherwise ready
to commit it. State v. Taylor, 599 P.2d 496, 503 (Utah 1979);
see Curtis, 542 P.2d at 746–47 (stating that entrapment
doctrine prevents law enforcement from catching “innocent
persons [who] may be induced into transgression”). See generally
State v. Cripps, 692 P.2d 747, 750 (Utah 1984) (explaining the
objective standard for an entrapment determination focuses
on the government’s conduct, not the predisposition of the
defendant to commit a crime).
2. Utah’s embrace of the objective standard has been complicated
by a reluctance to depart from the subjective standard. See State
v. Taylor, 599 P.2d 496, 504 (Utah 1979) (Hall, J., concurring)
(positing as valid both the objective and subjective standards).
Consequently, our courts have on occasion mingled the objective
standard with vestiges of the subjective standard as we have
sought to extract and apply valid principles from prior cases
analyzed through the subjective lens. Our supreme court’s most
recent clarification that Utah courts use “an objective standard
for entrapment cases,” focusing “solely on police conduct, rather
than on the defendant’s predisposition to commit a crime,” State
v. Torres, 2000 UT 100, ¶ 8, 16 P.3d 1242, was also somewhat
diminished by the proximate instruction that “to prove the
defense of entrapment, the evidence must be sufficient to raise a
reasonable doubt that the defendant freely and voluntarily
committed the offense,” id. (cleaned up).
20190347-CA 5 2020 UT App 58State v. Hernandez
¶8 In evaluating whether government action impermissibly
induces criminal activity, as opposed to permissibly affording
the mere opportunity to participate in criminal activity, we
consider actions leading up to the offense, interactions between a
defendant and the government agent, the nature of the
inducements, and the responses to the inducements. State v.
J.D.W., 910 P.2d 1242, 1243–44 (Utah Ct. App. 1995). Notably, our
courts have previously identified extreme pleas of desperate
illness; appeals to sympathy, pity, or close personal
relationships; offers of inordinate monetary gain; and excessive
or persistent pressure as methods that create a substantial risk of
inducing criminal conduct. See State v. Sprague, 680 P.2d 404, 406
(Utah 1984); accord J.D.W., 910 P.2d at 1244.
¶9 For example, in State v. J.D.W., an undercover officer
randomly approached the defendant and his friend who were at
the mall to buy a compact disc. 910 P.2d at 1243. After the officer
indicated his ability to sell the youths marijuana, he invited them
outside and there showed the defendant the product. Id. The
defendant evaluated the marijuana by separating the buds from
the shake—an action demonstrating familiarity with
marijuana—inquired about the price, purchased the marijuana,
and took possession of it, whereupon he was arrested for
possession. Id. We observed that the officer’s actions did not rely
upon a close personal relationship to induce the defendant’s
purchase, the offer did not provide an inordinate financial
incentive, and the officer did not badger or harass the defendant
into making the purchase. Id. at 1244. Accordingly, we held that
the officer merely provided the opportunity for the drug
purchase and possession. Id.¶10 In this case, the district court identified the objective
standard, but did not apply it correctly. The court focused its
analysis on at least two (maybe three) factors: first, the limited
time between Hernandez’s arrival and the approach of the
detective; second, that “a significant number of people” could be
20190347-CA 6 2020 UT App 58State v. Hernandez
induced to patronize a prostitute even though “they weren’t
there for it,” if the “opportunity present[ed] itself”; and third,
although unclear as to the extent the court actually gave weight
to it, the attractiveness of the detective. Based primarily on these
factors, the court concluded that Hernandez was entrapped as a
matter of law.
¶11 We evaluate whether any of the methods used by the
government create a substantial risk of inducing a person to
commit an offense when that person was not otherwise inclined
to commit it by looking through the lens of the objective
standard—focusing on the government’s conduct. Using that
standard, the following facts are pertinent to a consideration of
entrapment. After Hernandez parked his car in an area known
for prostitution, the detective—an “attractive” woman dressed in
“very dingy,” unprovocative attire—approached him after
possibly less than a minute and asked him if he was “looking for
a date.” Only after Hernandez responded in the affirmative did
the detective proceed to solicit payment for sex in explicit terms
and engage him in negotiation about the type of sex act and the
payment amount. The detective offered Hernandez an
opportunity to desist when she denied his initial low-ball offer.
The detective then accepted Hernandez’s second offer of fifty
dollars. After confirming Hernandez had a condom, the
detective directed him to another area to purportedly
consummate the transaction. Based on those facts, we cannot
conclude as a matter of law that the government employed
prohibited methods of inducement.
¶12 As in J.D.W., the government agent in this case initiated
contact and started the discussion about engaging in illegal
activity. Like in J.D.W., where the defendant was shopping,
Hernandez could have been in the area for a legally permissible
purpose such as sending a text, searching for the nearest
Starbucks, or thinking about his McDonald’s order. But as in
J.D.W., when Hernandez was approached and offered the
20190347-CA 7 2020 UT App 58State v. Hernandez
opportunity to engage in criminal conduct, he expressed interest
without impermissible prompting. Hernandez responded to the
detective’s invitation in a manner demonstrating knowledge of
typical prostitution protocol by confirming he was “looking for a
date” and inviting the detective into his car without further
discussion. As the conversation continued, like in J.D.W.,
Hernandez participated without being badgered, pressured,
coerced by pleas of sympathy or a personal relationship, or
tempted with an inordinate monetary incentive. Ultimately,
Hernandez made a realistic offer of payment to the detective to
engage in a sex act when provided with the mere opportunity to
do so. See J.D.W., 910 P.2d at 1244.
¶13 While engaged in its entrapment analysis, the district
court stated that the time period that lapsed before the detective
approached Hernandez was “a critical factor.” But that time
period is of little effect given the facts of this case. While the
detective’s choice to approach a vehicle after only a short lapse
of time following its arrival may enable the government to
permissibly afford more people an opportunity to commit an
offense, we cannot conclude based on the facts here that the
timing of the solicitation could affect the risk of inducing a
person—not otherwise ready—to commit the crime.
Additionally, the court’s supposition that a “significant number
of people” could be talked into patronizing a prostitute under
these circumstances is unsupportable. The standard is whether
the government’s methods create a substantial risk of inducing
the commission of a crime despite a person’s lack of initiative or
desire to commit it. See Kaufman, 734 P.2d at 468. We do not
think a person, not otherwise inclined, would be swayed to
patronize a prostitute by the methods employed in this case.
And finally, the court indicated that it was uncertain about
taking into account its factual finding that the detective was
attractive, but it did not expressly state whether or not it actually
considered that fact. To the extent the district court placed
weight on the detective’s looks, the fact that she may have been
20190347-CA 8 2020 UT App 58State v. Hernandez
“attractive” does not, without more, constitute extreme or
excessive police conduct that would create a substantial risk of
inducing criminal conduct.
¶14 We do not view the facts differently than the district
court, but we do draw a different conclusion therefrom. See id.An analysis of the facts of this case under the objective standard
shows that the government merely afforded Hernandez the
opportunity to commit the offense. Therefore, an entrapment
defense is not sure to leave all reasonable minds with a
reasonable doubt as to whether Hernandez acted on his own
inclination. Accordingly, the court erred in concluding as a
matter of law that Hernandez was entrapped to commit the
offense of patronizing a prostitute.
CONCLUSION
¶15 We hold that the court erred in concluding as a matter of
law that Hernandez was entrapped. We therefore reverse and
remand for further proceedings consistent with this opinion.
20190347-CA 9 2020 UT App 58