State v. Hernandez

2024 UT App 127
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
O MAR 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 A MY J. O LIVER authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN 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
20220416-CA 	2 	2024 UT App 127
BACKGROUND1
¶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.

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

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

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

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

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

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

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

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

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

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

State v. Hernandez
20220416-CA 	13 	2024 UT App 127
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

State v. Hernandez
20220416-CA 	14 	2024 UT App 127
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;

State v. Hernandez
20220416-CA 	15 	2024 UT App 127
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

State v. Hernandez
20220416-CA 	16 	2024 UT App 127
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.