2019 UT App 65

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ADAM ZAKARIA A. AHMED,

Appellant.

Opinion

No. 20170539-CA

Filed April 25, 2019

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 161907424

Diana Pierson, Andrea J. Garland, and Sarah J. 

Carlquist Attorneys for Appellant

Sean D. Reyes and John J. Nielsen, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Appellant Adam Zakaria A. Ahmed challenges his 

conviction for possession of a controlled substance with intent to 

distribute, arguing, primarily, that the trial court erred in 

denying him access to the surveillance location from which law 

enforcement observed the conduct that culminated in his arrest. 

We reverse, provisionally, and remand for further proceedings.
State v. Ahmed

20170539-CA 2 2019 UT App 65

BACKGROUND1

The Arrest

¶2 On a Spring day in 2016, a drug interdiction officer (the 

Officer) conducted surveillance from a ground-level room of an 

office building located, according to his testimony,

approximately forty feet from where Ahmed was arrested near 

the homeless shelter in the crime-ridden Rio Grande 

neighborhood of Salt Lake City. According to the Officer, while 

standing on a desk and looking through the top of an 8-foot tall 

window, “part[ing] the blinds just enough” to make room for his

binoculars, his attention was drawn to two men—later identified 

as Ahmed and his cohort, Troy Pace. The Officer observed 

“multiple different individuals” approach Ahmed and Pace and

“hand[] them money” in “quick, hand-to-hand transactions and 

walk away.” Based on the Officer’s experience and training, he 

recognized this behavior as being consistent with drug dealing. 

¶3 The Officer testified that he observed Ahmed and Pace for 

“about 30 minutes,” during which time he saw the men 

distribute what was later determined to be spice2 in “multiple 

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. Spice is a synthetic cannabinoid made with “mind-altering 

chemicals that are either sprayed on dried, shredded 

plant material so they can be smoked or sold as liquids to 

be vaporized and inhaled in e-cigarettes and other devices.”

Synthetic Cannabinoids (K2/Spice), National Institute on 

Drug Abuse, https://www.drugabuse.gov/publications/drugfacts

/synthetic–cannabinoids–k2spice [https://perma.cc/ESC2–NMJ2]. 

(continued...)
State v. Ahmed

20170539-CA 3 2019 UT App 65

different ways.” They sold spice in “joints that were already 

rolled,” or in “containers that had some loose spice or . . . spice 

joints in them.” He also observed them “pour out loose spice” 

into purchasers’ own rolling paper. The Officer also testified that 

throughout these exchanges, consistent with his past 

observations of drug deals, Pace “act[ed] primarily as a holder,” 

tasked with keeping the “majority of the drugs and the money,”

while Ahmed “act[ed] as a dealer,” “dealing out small amounts”

of spice and being “resupplied by . . . Pace.”

¶4 After approximately “10 to 15 separate individuals or 

groups” interacted with Ahmed and Pace in this manner, the 

Officer radioed “takedown officers” positioned “around the 

corner” and instructed them to detain an individual who he 

believed had just purchased spice from Ahmed. Upon searching 

this buyer, the officers found what they believed to be spice 

cigarettes, given their color and smell. Based on his observations 

and the discovery made during the search of the buyer, the 

Officer concluded there was probable cause to arrest Ahmed and 

Pace, and he radioed the takedown officers and instructed them

to take the pair into custody. 

¶5 The Officer described Ahmed to the takedown officers as

a “black [male] with a tan coat” and Pace as the “taller” of the 

two and wearing a backpack. The Officer provided no additional

 

(...continued)

“These chemicals are called cannabinoids because they are similar 

to chemicals found in the marijuana plant. Because of this 

similarity, synthetic cannabinoids are sometimes misleadingly 

called ‘synthetic marijuana’ (or ‘fake weed’), and they are often 

marketed as safe, legal alternatives to that drug. In fact, they are 

not safe and may affect the brain much more powerfully than 

marijuana; their actual effects can be unpredictable and, in some 

cases, more dangerous or even life-threatening.” Id.
State v. Ahmed

20170539-CA 4 2019 UT App 65

descriptive details about either Ahmed or Pace. The Officer 

testified that when the takedown team was approximately 

twenty feet away from Ahmed, he saw Ahmed drop his “very 

large, heavy, tan coat.” A member of the takedown team also 

testified that he saw Ahmed remove the coat and place it on the 

ground as he approached. A search of the coat revealed 

containers and joints of what appeared—and what testing later 

confirmed—to be spice.

Legal Proceedings 

¶6 The State charged Ahmed with possession of a controlled 

substance with intent to distribute, a third degree felony, in 

violation of Utah Code section 58-37-8(1)(a)(iii).3 During the

preliminary hearing, Ahmed asked the Officer about the 

Officer’s exact surveillance location from which he observed the 

alleged spice-dealing. The State objected and the Officer declined 

to disclose the information, citing safety concerns. Ahmed 

argued that his due process rights entitled him to this 

information. The trial court sustained the State’s objection “for 

purposes of the preliminary hearing,” but it allowed inquiry into 

the distances involved and the Officer’s ability to observe the 

alleged crime. 

¶7 Prior to trial, Ahmed moved to access the Officer’s exact 

surveillance location “for the purpose of collecting relevant and 

exculpatory evidence in the possession of law enforcement.” The 

State urged the court to deny Ahmed’s motion, drawing an 

analogy to the confidential informant evidentiary privilege 

because “other courts have compared the location of a 

surveillance tower area to the name of a [confidential 

informant].” The State also argued that the court should deny 

 

3. Pace was also charged and eventually pled guilty to violating 

the same statute. 
State v. Ahmed

20170539-CA 5 2019 UT App 65

the motion due to “officer safety concern[s]” and concerns for 

the owner of the particular building, and because disclosure

would result in law enforcement’s loss of the site for future 

surveillance work. 

¶8 The trial court denied Ahmed’s motion to access the 

Officer’s surveillance location based on a “balance of interest.” It 

reasoned that “there is a substantial need for law enforcement to 

be able to conduct undercover operations to try and catch those 

distributing controlled substance[s] in the area.” The court also 

found the State had an interest in keeping the location secret 

because “[t]here are only a few higher buildings” in the area and 

disclosure of the surveillance location would limit its use by law 

enforcement, thus increasing “the importance of not revealing 

those locations.”4 Ultimately, the court denied Ahmed’s request 

because “the community has an interest in effective law 

enforcement” in the Rio Grande neighborhood, which 

outweighed Ahmed’s interest “in disclosure and [the] 

opportunity to prepare.” The court did, however, instruct the 

State “to work with the defense . . . to see if [they could] at least 

allow some kind of viewing of a similar angle and distance.” 

¶9 In making this ruling, the court rejected the State’s 

assertion that an evidentiary privilege prohibited disclosure of 

the site. Instead, the court found that this was “a question of the 

credibility of the officer” and “the Defense’s need to try and 

cross-examine” him. 

¶10 Ahmed’s theory at trial was that he was misidentified. His 

own testimony was supported by Pace, who testified that he was 

 

4. Although the Officer testified to surveilling from a “ground 

level” room, it was nonetheless from a somewhat elevated 

position because the building’s 8-foot tall windows permitted 

him to surveil while standing atop a desk. 
State v. Ahmed

20170539-CA 6 2019 UT App 65

carrying a “light tan” “camouflage” backpack that contained 

spice. Pace also testified that he had a “tan” jacket that he had 

taken off and that was “sitting next to” him on the street. Pace

further stated he was about 5'8'' or 5'9''. Finally, he testified that 

Ahmed was not dealing spice with him and was simply 

“walking by” when the takedown officers arrested both of them. 

Ahmed testified that he was in the area where the arrest took 

place because he “was visiting a friend.” He denied dealing with 

Pace and insisted he had no spice on him that day. He also 

testified that he was 6'3'', making him the taller of the two by 

several inches. 

¶11 At the close of the State’s case-in-chief, Ahmed moved for 

a directed verdict. He argued the State presented insufficient 

evidence to support a conviction, specifically, that “[w]e don’t 

know who [the Officer] saw. He said a black male in a tan coat. 

He failed to mention any braids. He failed to mention a hat. He 

failed to estimate height, weight, features, hairstyle, age, eye

color, [or] hair color.” Ahmed further argued that “[w]ith regard 

to [the substance found on the buyer], there is no reliable 

evidence” that what was distributed was the same substance 

found in the coat because the substance retrieved from the buyer 

was never tested. Finally, Ahmed argued that the evidence was 

speculative because there was no fingerprint, DNA, or video 

evidence tying him to the alleged distribution. The court denied 

the motion, and the jury convicted Ahmed.

¶12 Ahmed subsequently filed a motion to arrest judgment,

seeking dismissal or retrial following his being given access to

the surveillance location. He argued, quoting Nielsen v. State, 

2016 UT 52, 391 P.3d 166, that a keener understanding of the 

location was “necessary to a fair determination of the issue of 

guilt or innocence.” Id. ¶ 22 (quotation simplified). The court 

heard oral argument on the motion. Ahmed argued that being 

“able to test whether there are reflections, . . . distortions, . . . odd 

angles or shadows” or too much traffic “for [the Officer] to be 
State v. Ahmed

20170539-CA 7 2019 UT App 65

able to have reliably watched what he said he watched” was 

“exculpatory information” to which he was constitutionally 

entitled. Ahmed faulted the court for not requiring the location 

to be revealed, claiming the court erred in relying on a supposed 

“public interest privilege,” and argued that such a privilege was 

not recognized in Utah. The State disagreed, claiming it could 

withhold the location. In so arguing, the State drew an analogy

to the confidential informant privilege. The court denied 

Ahmed’s motion but declined to embrace the analogy to the 

confidential informant privilege, as it did not “see it as the . . .

same issue.” The court found that it was “more accurately 

addressed in the context of . . . reasonable limits on 

cross-examination,” which were appropriate in this case

“because . . . the interests of the State in maintaining the 

confidentiality of the location” outweighed Ahmed’s interest in 

accessing the surveillance location. 

¶13 The court sentenced Ahmed to a prison term, but it 

suspended that sentence and placed Ahmed on probation. This 

appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶14 Ahmed raises two issues on appeal. First, Ahmed argues

that the trial court erred in denying him access to the 

surveillance location as a reasonable limit on cross-examination 

because the location “is not privileged under Utah law.” “A 

court’s decision regarding the existence of a privilege is a 

question of law for the court, and is reviewed for correctness.” 

State v. Blake, 2002 UT 113, ¶ 6, 63 P.3d 56 (quotation simplified). 

“When reviewing a trial court’s decision to limit 

cross-examination, we review the legal rule applied for 

correctness and the application of the rule to the facts of the case 

for an abuse of discretion.” State v. Marks, 2011 UT App 262, 

¶ 11, 262 P.3d 13 (quotation simplified).
State v. Ahmed

20170539-CA 8 2019 UT App 65

¶15 Second, Ahmed contends that the trial court erred in 

denying his motion for a directed verdict “because there was 

insufficient evidence to sustain his conviction.” “In assessing a 

claim of insufficiency of the evidence, we review the evidence 

and all inferences which may reasonably be drawn from it in the 

light most favorable to the verdict of the jury.” State v. Nielsen, 

2014 UT 10, ¶ 30, 326 P.3d 645 (quotation simplified). “And a 

jury’s inference is reasonable unless it falls to a level of 

inconsistency or incredibility that no reasonable jury could 

accept.” State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (quotation 

simplified). 

ANALYSIS

I. Surveillance Location

¶16 This appeal presents us with the question of whether 

Ahmed’s rights were violated by the withholding of the Officer’s

surveillance location. Ahmed argues that his Sixth Amendment

right to “present a complete defense” was violated. See Crane v. 

Kentucky, 476 U.S. 683, 690 (1986). Ahmed implores us to apply 

the “higher standard of scrutiny” by requiring the State to prove 

“the error harmless beyond a reasonable doubt.” See State v. 

Crowley, 2014 UT App 33, ¶ 17, 320 P.3d 677. However, as 

explained below, because the violation committed was of rule 16

of the Utah Rules of Criminal Procedure and is amenable to

remedial action, we decline to reach Ahmed’s claim that his 

constitutional right to present a complete defense was violated. 

A

¶17 Rule 16(a)(4) of the Utah Rules of Criminal Procedure 

requires prosecutors to turn over evidence upon request from 

the defense “that tends to negate the guilt of the accused.” 

However, a defendant does not prevail on appeal simply by

showing that the State failed to turn over such evidence; he must 
State v. Ahmed

20170539-CA 9 2019 UT App 65

also demonstrate prejudice. The prejudice standard for rule 16 

violations is prescribed by rule 30(a) of the Utah Rules of 

Criminal Procedure, which provides that “[a]ny error, defect, 

irregularity or variance which does not affect the substantial 

rights of a party shall be disregarded.” Our Supreme Court has 

held that this ordinarily requires a defendant to show that, 

absent the State’s violation, there is “a reasonable likelihood of a 

more favorable result for the defendant.” State v. Knight, 734 P.2d 

913, 919 (Utah 1987) (quotation simplified). 

¶18 The State may withhold evidence, even following a 

defendant’s request, if it is privileged by the United States or 

Utah constitutions, the Utah Rules of Evidence, “[o]ther rules 

adopted by the Utah Supreme Court,” “[d]ecisions of the Utah 

courts,” and “[e]xisting statutory provisions not in conflict with 

the above.” Utah R. Evid. 501. No privileges to withhold 

evidence exist outside of these parameters. See Nielsen v. State, 

2016 UT 52, ¶ 12, 391 P.3d 166 (“‘[N]o person shall have a 

privilege to withhold evidence except as provided by these or 

other rules adopted by the Utah Supreme Court or by existing 

statutory provisions not in conflict with them.’”) (quoting Utah 

R. Evid. 501 (1992)). See also Clark v. Arizona, 548 U.S. 735, 770 

(2006) (“Well-established rules of evidence permit trial judges to 

exclude evidence.”) (quotation simplified); Utah R. Evid. 501 

advisory committee note (“There are no non-rule, non-statutory 

privileges.”) (quotation simplified).

¶19 But a defendant’s Sixth Amendment rights may be 

violated by even the proper assertion of one of these privileges if 

it causes the defendant to lose the ability to use the evidence to

meaningfully confront and effectively cross-examine the State’s 

witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). Still, in cases where invoking a privilege or otherwise 

excluding evidence potentially violates a defendant’s Sixth 

Amendment rights in this way, trial courts are nonetheless given 

“wide latitude insofar as the Confrontation Clause is concerned 
State v. Ahmed

20170539-CA 10 2019 UT App 65

to impose reasonable limits on such cross-examination based on 

concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness’[s] safety, or interrogation 

that is repetitive or only marginally relevant,” id., while at the 

same time not prohibiting “all inquiry” into the State’s evidence 

or the credibility of the State’s witnesses, State v. Williams, 773 

P.2d 1368, 1372–73 (Utah 1989) (emphasis in original).

¶20 Thus, if the State withholds evidence pursuant to a valid 

privilege, which causes the defendant to lose the ability to 

effectively cross-examine a witness for the State, the defendant 

can assert a violation of his Sixth Amendment rights by reason of 

the exclusion. The trial court must then consider whether

allowing the State to continue withholding the evidence will

violate the defendant’s Sixth Amendment right to confront the 

witnesses against him. See id. at 1372 (holding the trial court did 

not err by limiting cross-examination of victim after evidence of 

victim’s consensual intercourse was deemed “not relevant” 

under rule 403 of the Utah Rules of Evidence); State v. Marks, 

2011 UT App 262, ¶¶ 13, 23, 86, 262 P.3d 13 (holding the trial 

court properly restricted defendant from questioning victim 

about previous sexual conduct after the court determined it to be

prohibited by rule 412 of the Utah Rules of Evidence); Marks, 

2011 UT App 262, ¶ 11 (“When reviewing a trial court’s decision 

to limit cross-examination, we [must first] review the legal rule 

applied for correctness and the application of the rule to the facts 

of the case for an abuse of discretion.”) (quotation simplified).

See also State v. Hamblin, 2010 UT App 239, ¶ 12, 239 P.3d 300 

(“Whether an evidentiary ruling violated a defendant’s right of 

confrontation is a question of law that we review for 

correctness.”). Often the trial court can strike the right balance 

between the State’s invocation of an evidentiary privilege and 

the defendant’s assertion of the right to confront the witnesses

against him by requiring the production of otherwise privileged 

evidence while at the same time “impos[ing] reasonable limits 

on . . . cross-examination.” Van Arsdall, 475 U.S. at 679.
State v. Ahmed

20170539-CA 11 2019 UT App 65

¶21 A trial court’s ability to impose reasonable limits on 

cross-examination arises in this context only after the court has 

found a basis in a constitutional provision, statute, the rules of 

evidence, or case law to exclude the evidence; the defendant 

objects to that exclusion claiming it jeopardizes his ability to 

effectively confront and cross-examine the State’s witness; and 

the trial court resolves the apparent impasse by allowing some 

inquiry into the evidence claimed to be privileged while 

imposing reasonable limits on defendant’s cross-examination of

the State’s witness. But the imposition of “reasonable limits on 

cross-examination” is not a stand-alone principle that can justify 

the exclusion of evidence.

B

¶22 In the present case, the trial court expressly stated that it 

did not base its ruling allowing the State to withhold the 

surveillance location on an evidentiary privilege. Instead, it

characterized its ruling as a “reasonable limit on cross 

examination.” But by allowing the State to withhold the 

surveillance location from Ahmed, the court in essence 

improvised a privilege because, as discussed above, the 

exclusion of evidence is guided by the specific parameters set 

forth in rule 501 of the Utah Rules of Evidence, regardless 

of how the court characterized it.5 Allowing the State to 

 

5. The State urges us to affirm on the ground that, on appeal, 

Ahmed did “not challenge[] each basis of the trial court’s ruling” 

because Ahmed failed to address “the trial court’s denial of his 

motion to arrest judgment—that denying disclosure imposed 

reasonable limits on cross-examination.” However, as we have 

explained, because the trial court in essence invoked a 

surveillance location privilege in order to limit the 

cross-examination of the Officer concerning the details of his 

surveillance, Ahmed did address the basis of the trial court’s 

(continued...)
State v. Ahmed

20170539-CA 12 2019 UT App 65

withhold evidence can only be based on a privilege or equivalent 

rule. See Utah R. Evid. 501. Reasonable limits on crossexamination become relevant only after the court determines

that a privilege or other rule permits the withholding of 

evidence and the defendant then claims his ability to effectively 

cross-examine a State’s witness is compromised, in violation of 

his Sixth Amendment right to confront the witnesses against 

him. 

¶23 Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986),

the State argues that the trial court’s ruling was proper because 

courts “retain wide latitude insofar as the Confrontation 

Clause is concerned to impose reasonable limits on crossexamination based on concerns about, among other things, 

harassment, prejudice, confusion of the issues, the witness’[s]

safety, or interrogation that is repetitive or only marginally 

relevant.” See id. at 679. But such latitude is conferred upon 

the court only after a valid privilege or other rule permits the 

State to withhold evidence and the defendant has asserted a 

violation of his Sixth Amendment right to confront and 

effectively cross-examine witnesses against him. See id. Only 

then may the court “impose reasonable limits on . . . crossexamination,” id., thereby striking the balance between the 

State’s interest in not disclosing privileged information and 

the defendant’s interest in maximizing his Sixth Amendment 

rights.

 

(...continued)

ruling on appeal. In his opening brief, he argued that “the trial 

court erred by denying Ahmed’s motion to access the police 

surveillance location because [it] is not privileged under Utah 

law” and “[t]his error allowed the State to refuse to disclose 

exculpatory evidence that would have allowed the defense to 

investigate the surveilling officer’s ability to observe and identify 

Ahmed from the location.”
State v. Ahmed

20170539-CA 13 2019 UT App 65

¶24 This did not happen here. The trial court did not base its 

decision to protect the surveillance location on the United States 

or Utah constitutions, the Utah Rules of Evidence, a statute, or 

relevant case law. The trial court basically skipped that step in 

the analysis and went directly to imposing limits on 

cross-examination in a way that reinforced the evidentiary 

limitation it imposed rather than moderating the limitation so as 

to preserve Ahmed’s confrontation rights. 

¶25 Without a basis in rule 501 of the Utah Rules of Evidence, 

the court nonetheless determined, as a practical matter, that the 

Officer’s surveillance location was privileged, which was 

erroneous because Utah law does not recognize such a privilege.

Thus, the court erred in denying Ahmed the surveillance 

location on the theory it was a reasonable limit on 

cross-examination because there was no legal rule applied by the 

court in doing so, see State v. Marks, 2011 UT App 262, ¶ 11, 262 

P.3d 13, and no basis on which to restrict the scope of 

cross-examination. With no privilege or other rule allowing the 

State to withhold it, the prosecution was required to disclose the

surveillance location to Ahmed upon his request, in accordance 

with rule 16 of the Utah Rules of Criminal Procedure. 

C

¶26 Having determined that there was no privilege or other 

rule allowing the State to withhold the surveillance location after 

Ahmed requested disclosure of the location pursuant to rule 16, 

see Utah R. Crim. P. 16(a)(4), we next consider whether this error 

prejudiced him.

¶27 Ordinarily, the defendant carries the burden of showing

prejudice. But as the Utah Supreme Court stated in State v. 

Knight, 734 P.2d 913 (Utah 1987), this burden occasionally shifts

to the State, requiring it to show “that despite the errors, the 

outcome of trial merits confidence and there is no reasonable 
State v. Ahmed

20170539-CA 14 2019 UT App 65

likelihood of a more favorable result for defendant.” Id. at 921. 

See also State v. Bell, 770 P.2d 100, 106 (Utah 1988) (“[I]n some 

circumstances the nature of the error involved is such that this 

de facto burden should be shifted [to] the State.”). This burden 

shifting “does not occur automatically” whenever the State 

violates rule 16. State v. Draper-Roberts, 2016 UT App 151, ¶ 38, 

378 P.3d 1261. Rather, it shifts when it is “difficult for th[e] Court 

to determine from the record whether [the defendant] might 

have been able to prepare a better defense and achieve a more 

favorable result at trial” and the defendant has presented “a 

credible argument that the prosecutor’s errors have impaired the 

defense.” Bell, 770 P.2d at 106 (quotation simplified). Accord

Knight, 734 P.2d at 921. 

¶28 Here, it is difficult to discern from the record whether

Ahmed might have had a more favorable result had he been 

granted access to the surveillance location. But he has presented 

a credible argument that his defense was impaired by the State’s 

refusal to disclose the location. Thus, the burden shifts to the 

State to show that, despite the court’s error, “the outcome of

[Ahmed’s] trial merits confidence and there is no reasonable 

likelihood of a more favorable result for [Ahmed].” See Knight, 

734 P.2d at 921.

¶29 In this regard, we note that there are a few aspects of this 

case that are troubling. First, the Officer was confused as to who 

the taller of the two suspects was, telling the takedown officers 

that Pace was “taller” than Ahmed when in reality Pace was 

about half a foot shorter than Ahmed. Did some problem with 

the angle of view from the surveillance location skew the 

Officer’s visual perspective? Second, the Officer did not provide 

any description of Ahmed’s hat, distinctive braids, height, 

weight, hair color, or any other features typical in registering an 

identification. Did obstacles impede the Officer’s ability to 

properly observe Ahmed from the surveillance location? Third, 

both Pace and Ahmed testified to wearing a “tan” jacket or coat.
State v. Ahmed

20170539-CA 15 2019 UT App 65

Did the Officer possibly confuse the two because his view was 

obstructed or due to other issues causing some visual 

impediment from the surveillance location? These unanswered 

questions make it difficult for us to determine whether Ahmed 

might have been able to prepare a better defense and achieve a 

more favorable result at trial had he been able to investigate the 

surveillance location.

¶30 We do not necessarily fault the Officer for these 

oversights. It is obviously difficult for law enforcement officers

stationed in the Rio Grande area, who make numerous

drug-related arrests each month, to be able to accurately and 

quickly identify every suspect they take into custody. Given the 

rest of the inculpatory evidence—specifically, the substance 

found on the alleged buyer that appeared to match the spice

found in the tan coat that both the Officer and the takedown

officer testified Ahmed dropped, along with the Officer’s 

testimony that he observed Ahmed and Pace interact for “about 

30 minutes” in a manner consistent with a holder-dealer 

relationship, directly contradicting Ahmed’s claim of being a 

mere passerby at the time of his arrest—our confidence in the 

jury’s verdict would remain strong despite the Officer’s limited 

description of the dealer, should an investigation of the 

surveillance location produce no exculpatory evidence. 

¶31 But as we have little or no information on the surveillance 

location and potential obstructions—such as shadows, glares, 

dirty glass, cars, buses, trees, and sunlight—and given the 

possibility of error in the identification of the dealer, the validity 

of Ahmed’s conviction hinges on the quality of the surveillance 

from the Officer’s vantage point. Thus, it is “difficult for [us] to 

determine from the record whether [Ahmed] might have been 

able to prepare a better defense and achieve a more favorable 

result at trial.” See Bell, 770 P.2d at 106. This, combined with the 

“credible argument” presented by Ahmed that because of the 

possible mistaken identification, the State’s refusal to turn over 
State v. Ahmed

20170539-CA 16 2019 UT App 65

the surveillance location “impaired [his] defense,” leads us to 

conclude that the burden concerning prejudice shifted to the

State. See id. And the State has not carried this burden for the 

simple reason that it did not provide any evidence of the 

surveillance location or objective evidence concerning the 

quality of the view from that location. Therefore, “[b]ecause the 

State has failed to persuade us that the defense was not 

prejudiced by its nondisclosure of the [surveillance location], we 

conclude that absent the prosecutor’s error[], there is a 

reasonable likelihood of a more favorable result for [Ahmed].”

See Knight, 734 P.2d at 923.

D

¶32 Ahmed, however, is not automatically entitled to a new 

trial notwithstanding the apparent prejudice. This case is in a 

somewhat unusual posture. Ahmed has demonstrated only a 

single error by the trial court, while other evidence supports his

conviction. But because the State has not persuaded us that 

“there is no reasonable likelihood that absent the error, the 

outcome of trial would have been more favorable” for Ahmed,

see State v. Knight, 734 P.2d 913, 921 (Utah 1987), we are 

compelled to reverse the conviction despite the distinct 

possibility that an examination of the surveillance location may 

not provide any helpful evidence for Ahmed whatsoever. Thus, 

this error may ultimately prove not to have prejudiced Ahmed, 

rendering his conviction perfectly valid. Granting a new trial 

would then result in wasted resources and an unwarranted 

second bite at the apple for Ahmed.

¶33 “Given this imperfect state of affairs and the highly 

unusual posture of this case, we believe justice requires a 

remedy which is itself unusual.” State v. Ford, 793 P.2d 397, 405 

(Utah Ct. App. 1990). Accordingly, we provisionally reverse 

Ahmed’s conviction and remand to the trial court with 

instructions that the surveillance location be disclosed to the
State v. Ahmed

20170539-CA 17 2019 UT App 65

defense so it can make its own inquiries, observations, and 

measurements. If having done so, the defense recognizes there is 

nothing that would undermine the Officer’s testimony, it will so 

advise the trial court, and Ahmed’s conviction and sentence will 

simply be reinstated. But if the defense determines that there is 

substantial reason to believe it can more meaningfully 

cross-examine the Officer and throw Ahmed’s guilt into doubt

based on what it discovers at the surveillance location, the 

defense can present this evidence to the trial court. If the trial 

court views the evidence, resolving any doubt in favor of 

Ahmed, and “concludes that [Ahmed] would realistically have 

received no better [result at trial] with [the new evidence,] the 

[conviction and] sentence previously entered may simply be 

reimposed.” See id. But if the court agrees that the defense will be 

able to more effectively cross-examine the Officer and cast 

reasonable doubt on Ahmed’s guilt, it shall order a new trial.6

¶34 We believe this to be an appropriate remedy for all parties 

involved.7 It provides Ahmed the ability to vindicate his rights if 

 

6. Our holding does not prevent the trial court from directing the 

defense not to disclose to others in the community or, if the case 

proceeds to a new trial, to the jury, the specific address of the 

surveillance location, name of the property owner, name of the 

tenant if applicable, or name of the business if applicable. 

Ahmed has a right to view the surveillance location and his 

counsel will likely learn some of the details just mentioned in the 

process of doing so, but it does not follow that the information 

should be shared more widely. The trial court is free to restrict 

the further dissemination of this information to protect future 

police operations in the area as well as the privacy of the 

property owner, tenants, etc.

7. While unusual, this course of action is not unprecedented. In 

both State v. Ford, 793 P.2d 397, 405 (Utah Ct. App. 1990), and 

(continued...)
State v. Ahmed

20170539-CA 18 2019 UT App 65

withholding the surveillance location prejudiced him, while 

maximizing judicial efficiency in upholding the conviction if his 

investigation of the surveillance location fails to reveal the 

helpful evidence he hopes for. 

II. Insufficiency of the Evidence

¶35 Given the unique nature of our remand, we must address 

Ahmed’s second issue on appeal, which could still be relevant if 

the defense finds no helpful evidence at the surveillance location 

and Ahmed is not granted a new trial. 

¶36 Ahmed argues that, totally aside from the surveillance 

location issue, there was insufficient evidence to sustain his

conviction because “the evidence was too speculative to support 

a conclusion that [the Officer] . . . correctly identified Ahmed as a 

person selling drugs, that the substance found on [the buyer] 

was spice, and that Ahmed possessed spice.” Because the 

evidentiary sufficiency issue is germane only if the surveillance 

location provides no evidence in support of Ahmed’s theory of 

misidentification, we assume for purposes of this analysis that 

the Officer had an unobstructed view from his location. 

¶37 With this assumption in mind, there is sufficient evidence 

to support Ahmed’s conviction. On the record before us, the jury 

 

(...continued)

State v. Stidham, 2014 UT App 32, ¶ 31, 320 P.3d 696, we reversed 

and remanded convictions and sentences, instructing the trial 

courts to conduct evidentiary hearings and, if the trial court 

found no prejudice, to reinstate the convictions and sentences. 

Our approach is permitted under rule 30(b) of the Utah Rules of 

Appellate Procedure, which states, with our emphasis, that “[i]f 

a judgment of conviction is reversed, a new trial shall be held 

unless otherwise specified by the court.” 
State v. Ahmed

20170539-CA 19 2019 UT App 65

could conclude that the Officer would have had a clear view,

with the use of binoculars, of Ahmed and Pace dealing drugs for 

“about 30 minutes.” During this time the Officer testified that he 

witnessed Ahmed and Pace deal spice in “multiple different 

ways” to approximately “10 to 15 separate individuals.” This 

behavior was consistent with the Officer’s experience in 

observing drug dealing. 

¶38 The Officer also testified that Ahmed wore a “very large, 

heavy, tan coat” that he dropped as the takedown officers 

approached him. This was corroborated by one of the takedown 

officers who testified that he also saw Ahmed drop the coat. This 

coat had containers and joints of what was later confirmed, 

through testing, to be spice. In addition, while the joints found 

on the buyer were not tested, it is reasonable to infer that it was 

spice, as the joints in Ahmed’s coat were confirmed to be spice 

and the buyer had joints on him immediately after interacting 

with Ahmed. While this may be circumstantial evidence, “it has 

long been established” that elements of crimes may be proven by 

circumstantial evidence as well as by direct evidence. State v. 

Romero, 554 P.2d 216, 217 (Utah 1976). 

¶39 This evidence, assuming the Officer had an unobstructed 

view, clearly provides “some evidence” on “which a reasonable 

jury could find that the elements of the crime had been proven 

beyond a reasonable doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 

P.3d 1183 (quotation simplified). Thus, assuming unimpeachable 

surveillance, the trial court did not err in denying Ahmed’s 

directed verdict motion as there was sufficient evidence to 

submit this case to the jury.

CONCLUSION 

¶40 The trial court erred in denying Ahmed’s request to 

access the Officer’s surveillance location. This violated Ahmed’s 
State v. Ahmed

20170539-CA 20 2019 UT App 65

right to discovery of the evidence against him as required by 

rule 16 of the Utah Rules of Criminal Procedure. And the State, 

having the burden concerning prejudice shifted to it, has failed 

to persuade us that absent this error there is no reasonable 

likelihood that Ahmed would have had a more favorable 

outcome at trial. Therefore, we provisionally reverse Ahmed’s 

conviction and remand with instructions that Ahmed’s defense 

be granted access to the surveillance location, and if the defense

finds evidence that will allow it to more effectively 

cross-examine the Officer and cast reasonable doubt on Ahmed’s 

guilt, that Ahmed be granted a new trial. If the surveillance 

location proves to be unassailable then the trial court shall

simply reinstate Ahmed’s conviction and sentence, as the 

evidence of record was sufficient to warrant submitting the case 

to the jury and to sustain Ahmed’s conviction.