State v. Hernandez, 040920 UTCA, 20190347-CA

Docket Nº:20190347-CA
Opinion Judge:MORTENSEN, JUDGE
Party Name:State of Utah, Appellant, v. Omar Hernandez, Appellee.
Attorney:Simarjit S. Gill and Nicole Kunzler Pearce, Attorneys for Appellant Alan J. Buividas, Attorney for Appellee
Judge Panel:Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.
Case Date:April 09, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 58

State of Utah, Appellant,

v.

Omar Hernandez, Appellee.

No. 20190347-CA

Court of Appeals of Utah

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.

OPINION

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 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 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...

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