2021 UT App 17

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

AHMED HAWKEN RASHID,

Appellant.

Opinion

No. 20190682-CA

Filed February 19, 2021

Third District Court, Salt Lake Department

The Honorable Amber M. Mettler

No. 181909592

Melinda Dee, Attorney for Appellant

Simarjit S. Gill and Hyrum J. Hemingway, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

ORME, Judge:

¶1 Ahmed Hawken Rashid challenges his conviction for 

stalking. He contends the district court erred in rejecting his 

argument that section 76-5-106.5 of the Utah Code was 

unconstitutionally vague as applied to him. He also argues that 

the court erred in excluding his expert witness. We see no error 

in either respect and affirm.
State v. Rashid

20190682-CA 2 2021 UT App 17

BACKGROUND1

¶2 One Friday evening in 2018, a woman (Victim) was 

walking to her car after work. On her way, she saw Rashid also 

walking to his distinctive red car parked nearby. As Victim got 

into her car, she observed Rashid, now in his car, appearing to 

take pictures of her with his cell phone. Starting to feel unsafe, 

Victim pulled out of the parking lot and noticed that Rashid 

followed her. Seeing that Rashid was still following her even 

after she had taken a couple of turns and gotten on the interstate,

Victim called her mother to ask what she should do. Victim’s 

mother advised her to try and lose him by taking the next exit,

which she did, but Rashid still continued to follow her. At this 

point, Rashid “was directly behind” Victim, which caused her to 

“fear for [her] safety.” Victim then took a sharp left and Rashid 

finally stopped following her.

¶3 The following Monday, while leaving work, Victim again 

saw Rashid in his car, which was parked next to hers. This 

caused her to be “worried because [she] didn’t know why he 

would be back there again.” She “felt like he was watching 

[her].” Victim then went back into her workplace and asked a 

coworker to accompany her to her car. They agreed that Victim

would return to the parking lot if Rashid again followed her 

when she left. Victim then proceeded to get in her car and pull

away while her coworker “was watching and facing the red 

[car], kind of staring at [Rashid].” This time, Rashid did not 

follow Victim.

 

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.
State v. Rashid

20190682-CA 3 2021 UT App 17

¶4 The next day, Victim went to the property manager of her 

workplace and viewed security footage from the first incident. In 

that video, Victim observed Rashid take pictures of her license 

plate and “walk across to [her] car and lay down and put a 

tracker on [her] car,” which she described as “probably one of 

the scariest things I’ve ever seen.” This made Victim feel 

“paranoid” and distressed because the tracker had been on her 

car over the weekend, which caused her to believe “that [Rashid] 

knew where [she] lived” and “where [she] was going all 

weekend.” Victim then called the police.2

¶5 When the police arrived, they searched the undercarriage 

of Victim’s car and found the GPS tracking device Rashid had 

installed. The police determined that a local private detective 

agency was the owner of the device. The manager of the agency 

(Manager) told the police that the agency had “been hired to do 

. . . a private investigation which involved placing the GPS 

device” on Victim’s car and that he had tasked Rashid with that 

job.

¶6 The State subsequently charged Rashid with stalking, a 

class A misdemeanor, under Utah Code section 76-5-106.5. 

Rashid moved the district court to dismiss the charge, claiming 

“that the stalking statute as it applies to him is vague because it 

is void of any language that indicates his actions were for a 

legitimate purpose,” and “[i]f the statute included this language, 

he would not be prosecuted for stalking.” Rashid pointed out 

 

2. Victim testified that this entire experience was extremely 

distressing and that it had a lasting impact on her. At trial, she 

stated, “I’ve been more paranoid than I’ve ever been. I’ve written

down license plate numbers in my phone thinking maybe they 

are following me, but . . . I don’t know. . . [a]nd then I just erase 

them, but . . . for the last year and a half it’s been nonstop 

paranoia.” 
State v. Rashid

20190682-CA 4 2021 UT App 17

that “some [other] state stalking statutes specifically exempt 

private investigators . . . when they are acting within the scope of 

their employment.” He also noted that while “there is not an 

affirmative defense nor an exemption for private investigators to 

a stalking charge in Utah, the law does not allow a civil stalking 

injunction against private investigators,” and thus “[i]t is 

confusing whether [he] could be charged under the existing 

[criminal] stalking statute.” Rashid insisted that “[a]ll of his 

actions were for a legitimate purpose, to fulfill a contract [with a 

client], and were all done within the scope of his employment,” 

and “[t]hus, the way the stalking statute is written it did not 

provide sufficient notice to a person of ordinary intelligence that 

these actions were prohibited.” Finally, Rashid asserted that the 

State’s failure to charge Manager, who directed Rashid’s actions, 

was evidence of arbitrary enforcement.

¶7 At a subsequent hearing, the district court denied 

Rashid’s motion. The court stated:

As I read the statute there is no exception for 

someone acting as a private investigator whether 

or not they have a license. There is no exception for 

whether or not you are acting under a “legitimate 

purpose,” whatever that might mean, and I think a 

person of reasonable intelligence reading the 

statute would see that there is no exception for 

those things. So I don’t think there is anything . . . 

vague about it at all.

¶8 Before trial, Rashid filed a motion seeking approval of 

testimony from an expert witness (Expert), whom Rashid 

intended to call at trial. Rashid asserted that Expert would testify 

“regarding correct private investigator procedures and practices 

and managing apprentices and interns training in the private 

investigator field.” Rashid sought to establish, through Expert,

that he was not properly trained and “was being basically sent, 
State v. Rashid

20190682-CA 5 2021 UT App 17

as a civilian, to engage in . . . acts that he had no business 

engaging in” and that if he had been properly trained (1) “he 

wouldn’t have put himself in the situation . . . that led to the 

stalking crime[],” (2) he would not have accepted the job of 

tracking Victim, and (3) he would have known that his actions 

would constitute stalking.

¶9 The district court denied the motion, stating as follows:

I do not see how information concerning a 

properly-run, well-organized private investigator 

agency is relevant to whether Mr. Rashid engaged

in the acts described in the information and knew 

or should have known that the course of conduct in 

which he engaged would cause a reasonable 

person to fear for that person’s safety . . . or to 

suffer emotional distress. 

If he wants to offer testimony about his mental 

state and what he knew or should have know or 

whatever/however you want to phrase it then 

that’s on him. But I don’t see how an expert 

opining on what a private investigator agency 

should or should not be doing is relevant to those 

questions. . . . So the Court is going to exclude it 

under Rule 402. 

To the extent it has any relevance at all, I think it’s 

so minimal that any such relevance is substantially 

outweighed by the likelihood that the evidence 

would confuse the issues, mislead the jury, cause 

undue delay and waste time. So I think it’s also 

inadmissible under Rule 403.

¶10 At trial, Victim, Manager, and Rashid all testified. 

Manager’s testimony was limited because he invoked his Fifth 

Amendment right against self-incrimination in response to 
State v. Rashid

20190682-CA 6 2021 UT App 17

nearly every question asked of him. Rashid testified that 

Manager instructed him to place the GPS tracking device on 

Victim’s car. He stated that Manager was “supposed to train 

[him]” but he did not “think he trained [him] well” and that 

Manager had informed him that he did not need a private 

investigator license to install GPS tracking devices. Rashid also 

explained that he received his private investigator license a few 

days after the incidents involving Victim but that he had 

believed he could practice under Manager’s supervision before 

obtaining his own license. He testified that “as part of [his] 

training,” it was his “understanding that [he was] immune[]

from prosecution for these installs” and that Manager had told 

him that it was not illegal to install GPS tracking devices. Rashid 

explained that he “fe[lt] sorry . . . for what happened and how it 

made [Victim] feel that day,” but he “was simply just doing 

what [he] was told to do.”

¶11 A jury convicted Rashid as charged. Following the

conviction, Rashid moved for a new trial, asserting that the 

district court’s earlier rulings denying his motion to dismiss and 

excluding Expert from testifying prejudiced his right to a fair 

trial. The court denied the motion “for all the same reasons it has 

previously articulated.” It did add, however, that given Rashid’s 

testimony at trial, any conceivable error in excluding Expert’s 

testimony was harmless because Expert’s “testimony would 

have been, at best, cumulative of [Rashid’s] own testimony.”

¶12 Rashid appeals. 

ISSUES AND STANDARDS OF REVIEW

¶13 Rashid raises two issues. First, he asserts that the district 

court erred in ruling that Utah Code section 76-5-106.5 was not 

unconstitutionally vague as applied to him. Rashid’s 

constitutional challenge presents a question of law that we 

review de novo, “recognizing that all statutes are presumed to 
State v. Rashid

20190682-CA 7 2021 UT App 17

be constitutional and the party challenging a statute bears the 

burden of proving its invalidity.” State v. Roberts, 2015 UT 24, 

¶ 16, 345 P.3d 1226 (quotation simplified). 

¶14 Second, Rashid contends that the court erred in excluding 

Expert’s testimony. “We review a court’s decision regarding the 

admissibility of expert testimony for an abuse of discretion.” 

Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 22, 466 P.3d 107.

ANALYSIS

I. Constitutionality

¶15 “A criminal statute is not unconstitutionally vague if it 

defines the criminal offense with sufficient definiteness that 

ordinary people can understand what conduct is prohibited and 

in a manner that does not encourage arbitrary and 

discriminatory enforcement.” State v. Garcia, 2017 UT 53, ¶ 56, 

424 P.3d 171 (quotation simplified). Moreover, “when a 

vagueness challenge does not involve First Amendment

freedoms,” as Rashid acknowledges is the case here, “this court 

examines the statute only in light of the facts of the case at 

hand.” See id. (quotation simplified).

¶16 We first address whether the challenged statute defines

stalking with sufficient definiteness that ordinary people would 

understand what actions are prohibited. Next, we consider 

whether the language of the statute at issue encourages arbitrary 

and discriminatory enforcement. 

A. Sufficient Definiteness

¶17 Rashid claims that Utah Code section 76-5-106.5 is

insufficiently definite to have put him on notice that his conduct 

was prohibited. The statute provides that 
State v. Rashid

20190682-CA 8 2021 UT App 17

[a] person is guilty of stalking who intentionally or 

knowingly engages in a course of conduct directed 

at a specific person and knows or should know that 

the course of conduct would cause a reasonable 

person: (a) to fear for the person’s own safety . . . or 

(b) to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2018). “Course of 

conduct” is defined, in relevant part, as 

two or more acts directed at or toward a specific 

person, including: 

(i) acts in which the actor follows, monitors, 

observes, photographs, surveils, threatens, 

or communicates to or about a person, or 

interferes with a person’s property: 

(A) directly, indirectly, or through 

any third party; and 

(B) by any action, method, device, or 

means[.]

Id. § 76-5-106.5(1)(a).

¶18 Rashid asserts that this language is “confusing because a 

person can be stalked through a third person” and “[a] person of 

ordinary intelligence who works as a private investigator or is 

supervised by a private investigator would be confused as to 

whether the stalking statute applies to them, their employer, or 

whoever hired them.” We disagree. The statutory language was 

not vague as applied to Rashid. There is no reasonable basis for 

confusion about whether his actions could result in a stalking 

conviction. The statute makes absolutely clear that Rashid could 

be convicted of stalking if he “directly” undertook following, 

monitoring, observing, photographing, or surveilling Victim, on 
State v. Rashid

20190682-CA 9 2021 UT App 17

two or more occasions, if he knew or should have known that by 

so doing it would have caused “a reasonable person . . . to fear 

for the person’s own safety or . . . to suffer other emotional 

distress.” See id. § 76-5-106.5(1)(a), (2). Based on this language,

there is no ambiguity about whether Rashid could be charged 

for his conduct toward Victim, and any confusion about other 

hypothetical circumstances, including whether Manager could 

also be charged, are not at issue in this as-applied challenge. 

¶19 Rashid also argues “that the stalking statute as it applies 

to him is vague because it is void of any language that exempts 

his actions if they were for a legitimate purpose.” Rashid 

contends that while an exemption does not exist under section 

76-5-106.5 for private investigators, confusion arises because the 

separate statutory provision dealing with civil stalking 

injunctions, found in a different title of the Utah Code, provides 

that “[s]talking injunctions may not be obtained against . . . 

licensed private investigators, acting in their official capacity.”

See Utah Code Ann. § 77-3a-101(1) (LexisNexis 2018).

3 In light of 

that provision, Rashid argues that he could not know that he 

might be charged under the criminal stalking statute. We 

disagree for three reasons.

¶20 First, and most importantly, unlike the civil stalking 

injunction provision, which explicitly provides a defense for 

licensed private investigators,4 Utah Code section 76-5-106.5 

 

3. By means of an amendment in 2020, the civil injunction statute 

has been moved from title 77 to title 78B. See Utah Code Ann.

§ 78B-7-701 (LexisNexis Supp. 2020).

4. There has been much made on appeal about Rashid being 

unlicensed during the events in question. But this point is 

ultimately irrelevant to our decision because, as discussed 

below, see infra ¶¶ 20–22, the lack of a private investigator 

(continued...)
State v. Rashid

20190682-CA 10 2021 UT App 17

simply does not provide such an affirmative defense to the crime

of stalking. Thus, an ordinary person of reasonable intelligence 

would not interpret the complete absence of such a defense in 

the criminal code to mean that the defense could be raised in a 

criminal context. Rashid even appears to have acknowledged 

this point when he stated at the hearing on his motion for a new 

trial that “it is a “no-brainer”—“[t]here is no defense for a 

private investigator as to stalking,” just as “[t]here is no defense

as to anybody as to stalking.”

¶21 Second, the criminal stalking statute is found in title 76,

while the civil stalking injunction provision was, at the time,

contained in title 77. See supra note 3. Thus, the location of the 

private investigator defense in the civil stalking injunction 

provision of title 77 underscores its inapplicability to a criminal 

charge of stalking as established in title 76. 

¶22 Finally, for a civil stalking injunction to be entered, the 

petitioner must only “show by a preponderance of the evidence 

that stalking of the petitioner by the respondent has occurred.” 

Utah Code Ann. § 77-3a-101(6)(a) (LexisNexis 2018). This is a 

lower burden of proof than the beyond-a-reasonable-doubt 

standard that the prosecution must meet to obtain a criminal 

stalking conviction under Utah Code section 76-5-106.5. Thus, 

our Legislature has allowed private investigators an escape 

hatch only in civil stalking injunction cases, and by not including 

such a defense in section 76-5-106.5, it is clear that our 

Legislature was not inclined to offer that defense to private 

investigators when the government could prove beyond a 

reasonable doubt that an investigator’s actions constituted 

stalking. Basically, these two sections concern stalking in

 

(...continued)

defense to a criminal stalking charge subjects even licensed 

private investigators to criminal liability.
State v. Rashid

20190682-CA 11 2021 UT App 17

different contexts, dealt with in different statutes, and no person 

of ordinary intelligence would conflate the two and believe that 

inclusion of a private investigator defense in only one context 

actually means that it is available in both contexts. 

¶23 Essentially, Rashid’s argument on this point is not that 

Utah Code section 76-5-106.5 is vague, but rather that our 

Legislature has made a poor policy choice in not allowing an 

affirmative defense to criminal stalking for private investigators 

acting within the scope of their employment.5 But such policy 

judgments are for the Legislature, not the judiciary, to make. See 

State v. Jeffries, 2009 UT 57, ¶ 13 n.3, 217 P.3d 265 (“The job of the 

legislature is to define crimes, prescribe penalties, and establish 

guidelines for prosecutors, judges, and juries for enforcing the 

law.”).

¶24 Ultimately, the language of section 76-5-106.5 is not vague 

as applied to Rashid because it “specifically defines the types of 

[prohibited activity] and describes the act[s] required to violate 

the statute” and their corresponding consequences. See State v. 

Pence, 2018 UT App 198, ¶ 22, 437 P.3d 475. Accordingly, Rashid 

“cannot persuasively argue that he would not have known that 

 

5. Rashid is correct that the statutes of many states provide 

otherwise. See, e.g., Ark. Code Ann. § 5-71-229(d) (2017) (“It is an 

affirmative defense to [stalking] if the actor is a . . . licensed 

private investigator . . . acting within the reasonable scope of his 

or her duty.”); Del. Code Ann. tit. 11, § 1312(j) (2008) (stating that 

the stalking statute “shall not apply to conduct which occurs in 

furtherance of legitimate activities of . . . private investigators”); 

N.D. Cent. Code § 12.1-17-07.1(4) (2019) (“[I]t is a defense [to 

stalking] that a private investigator . . . was acting within the 

scope of employment.”). But the laws in other states are

irrelevant in determining whether the Utah Code is vague in 

providing such a defense, which it is not. 
State v. Rashid

20190682-CA 12 2021 UT App 17

[his actions in twice observing and surveilling Victim] would 

constitute acts sufficient to violate the [statute].”6 See id.

B. Arbitrary and Discriminatory Enforcement

¶25 Even if a statute “is sufficiently definite to have notified [a 

defendant] that his conduct was prohibited,” it may nonetheless 

be deemed unconstitutionally vague if it is not “sufficiently 

definite so as to discourage arbitrary and discriminatory 

enforcement.” State v. Green, 2004 UT 76, ¶ 50, 99 P.3d 820 

(quoting Kolender v. Lawson, 461 U.S. 352, 358, 360 (1983)). To 

pass muster under this standard, “a statute must ‘establish 

minimal guidelines to govern law enforcement’ such that it 

avoids entrusting ‘lawmaking to the moment-to-moment 

judgment’” of individual officers in determining the statute’s 

applicability. Id. But a statute does not run afoul of this 

prohibition simply by leaving in place the traditional discretion 

granted to prosecutors to determine whom to charge in a 

particular circumstance. See State v. Carter, 578 P.2d 1275, 1277 

(Utah 1978) (“[D]iscretion rests in the prosecutor in every case as 

to whether or not to charge a violation of a criminal statute. 

Some selectivity is always permitted, so long as the election is 

not discriminatorily based on classifications of race, national 

origin, sex, religion, etc.”). See also Bordenkircher v. Hayes, 434 U.S. 

357, 364 (1978) (holding that “so long as the prosecutor has 

 

6. Indeed, Rashid even admitted at trial that “if [his] mother 

called [him] and said this happened to her, [he] would . . . have 

been concerned for her.” While this statement does not 

categorically prove Rashid’s state of mind, it was clearly 

probative of whether he knew or should have known the effect 

of his actions on Victim and was evidence that the jurors could 

rely on, in addition to their own experience, in determining

whether a reasonable person would have feared for her safety or 

suffered emotional distress in these circumstances. 
State v. Rashid

20190682-CA 13 2021 UT App 17

probable cause to believe that the accused committed an offense 

defined by statute, the decision whether or not to prosecute, and 

what charge to file . . . generally rests entirely in [the 

prosecutor’s] discretion,” and “the conscious exercise of some 

selectivity in enforcement is not in itself a federal constitutional 

violation so long as the selection was not deliberately based 

upon an unjustifiable standard such as race, religion, or other 

arbitrary classification”) (quotation simplified); State v. Mohi, 901 

P.2d 991, 1002–03 (Utah 1995) (explaining that “traditional 

prosecutor[ial] discretion” encompasses “[s]electing a charge to 

fit the circumstances of a defendant and his or her alleged acts” 

and is not a constitutional violation); State v. Garcia, 504 P.2d 

1015, 1015–16 (Utah 1972) (holding that it is not an “error for [a] 

prosecutor to treat . . . defendants in a different manner” by 

“proceed[ing] against one defendant [and] charging him with a 

felony and [reducing] the charge against the codefendant to a 

misdemeanor”).

¶26 Rashid asserts that section 76-5-106.5 encourages arbitrary 

and discriminatory enforcement in two ways.7 First, he claims 

 

7. Here, Rashid’s argument on appeal takes an unexpected turn. 

In asserting that the statute encourages arbitrary and 

discriminatory enforcement under the vagueness doctrine,

Rashid cites State v. Mohi, 901 P.2d 991 (Utah 1995). He claims

that application of “the analysis set forth in Mohi to the stalking 

statute shows that the stalking statute violates the uniform 

operation of laws provision of the Utah Constitution.” But the 

analysis for a uniform operation of laws challenge is different 

from a vagueness challenge. Compare State v. Robinson, 2011 UT 

30, ¶ 17, 254 P.3d 183 (“To determine whether a statute violates 

the uniform operation of laws, we apply a three-step analysis: (1) 

whether the statute creates any classifications; (2) whether the 

classifications impose any disparate treatment on persons 

similarly situated; and (3) if there is disparate treatment, whether 

(continued...)
State v. Rashid

20190682-CA 14 2021 UT App 17

that the statute is unconstitutional “[b]ecause the statute permits 

police, prosecutors, and judges to have arbitrary discretion in 

determining who can and cannot be charged.” Rashid points to 

the prosecutor’s decision in this case not to charge Manager as 

evidence of arbitrary enforcement. This argument is unavailing 

because it implicates only traditional prosecutorial discretion.

¶27 Here, the statute does not encourage arbitrary 

enforcement simply because it allows prosecutors the 

“traditional prosecutorial discretion” afforded them under 

nearly all criminal statutes in the Utah Code “in determining 

what charges to pursue” and against whom. State v. Angilau, 

2011 UT 3, ¶ 28, 245 P.3d 745 (quotation simplified). See 

Bordenkircher, 434 U.S. at 364. And the prosecutor’s decision to 

charge Rashid and not Manager was a classic use of that 

discretion and does not amount to arbitrary enforcement,

because it was apparently not “based on classifications of race, 

national origin, sex, religion, etc.”8 See Carter, 578 P.2d at 1277. 

 

(...continued)

the legislature had any reasonable objective that warrants the 

disparity.”) (quotation simplified), with State v. Garcia, 2017 UT 

53, ¶ 56, 424 P.3d 171 (“[A] criminal statute is not 

unconstitutionally vague if it defines the criminal offense with 

sufficient definiteness that ordinary people can understand what 

conduct is prohibited and in a manner that does not encourage 

arbitrary and discriminatory enforcement.”) (quotation 

simplified). Because Rashid has not undertaken a uniform 

operation of laws analysis, we decline to address this argument

further.

8. Rashid has not asserted that the decision of the prosecutor to 

charge him and not Manager was based on his race, religion, 

national origin, sex, or any other impermissible category, and 

thus we assume, for purposes of our analysis, that the 

(continued...)
State v. Rashid

20190682-CA 15 2021 UT App 17

See also Mohi, 901 P.2d at 1008 (Russon, J., concurring in part) 

(stating that a “prosecutor has the discretion in regard to an 

alleged criminal act to file felony charges, or misdemeanor 

charges, or no charges whatsoever” and “can even do so in 

relation to a single criminal act involving more than one person” 

such that it would not be an act of “‘unconstitutional discretion’ 

if the prosecutor charged A with a felony, B with a 

misdemeanor, and C with nothing at all”). Accordingly, the 

complained-of language does not encourage arbitrary 

enforcement. While the language does allow prosecutorial

discretion in deciding whom to charge criminally for conduct

that clearly violates the statute, it “establish[es] minimal 

guidelines to govern law enforcement,” see Kolender, 461 U.S. at 

358 (quotation simplified), and does not leave law enforcement 

officials who encounter Rashid’s circumstances free “to pursue 

their own personal predilections in determining the applicability

of [the] statute,” see Green, 2004 UT 76, ¶ 52 (emphasis added).

¶28 Second, Rashid asserts that “there could be a valid 

argument that a private investigator has a defense by citing the 

defense against a civil stalking injunction” and “the statute 

would allow a judge discretion to determine if there is a valid 

defense without enough guidance in the criminal stalking 

statute.” Rashid is mistaken. As we have already determined 

above, see supra ¶¶ 20–22, there is no “valid argument,” as 

Rashid asserts, that a defense exists for private investigators 

charged with criminal stalking. As such, the statute would not 

allow law enforcement officers, prosecutors, or judges to grant 

some private investigators the benefit of such a defense while 

not allowing the same benefit to others.

 

(...continued)

prosecutor’s decision was based on permissible prosecutorial 

discretion. 
State v. Rashid

20190682-CA 16 2021 UT App 17

¶29 For all these reasons, we reject Rashid’s argument that 

Utah Code section 76-5-106.5 is unconstitutionally vague as 

applied to him.

II. Expert Witness Testimony

¶30 Rashid next asserts that the district court erred in 

excluding Expert’s testimony under rules 402 and 403 of the 

Utah Rules of Evidence. Evidence is admissible only if it is 

relevant, see Utah R. Evid. 402; in other words, if “it has any 

tendency to make a fact more or less probable than it would be 

without the evidence” and “the fact is of consequence in 

determining the action,” id. R. 401. But “the court may [still] 

exclude relevant evidence if its probative value is substantially 

outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative 

evidence.” Id. R. 403. As noted above, we review a court’s 

decision to admit or exclude expert testimony for an abuse of 

discretion, and “a court does not abuse its discretion in 

admitting or excluding expert testimony unless the decision 

exceeds the limits of reasonability.” Harrison v. SPAH Family Ltd., 

2020 UT 22, ¶ 22, 466 P.3d 107 (quotation simplified). Finally,

even if the court erred in excluding expert testimony, we will not

reverse if that “error . . . does not affect the substantial rights of 

[the] party.” Utah R. Crim. P. 30(a). “Our Supreme Court has 

held that this ordinarily requires a defendant to show that, 

absent the [error], there is ‘a reasonable likelihood of a more 

favorable result for the defendant.’” State v. Ahmed, 2019 UT App 

65, ¶ 17, 441 P.3d 777 (quoting State v. Knight, 734 P.2d 913, 919 

(Utah 1987)).

¶31 Rashid asserts that Expert’s testimony was relevant to his 

defense because it showed “that he did not possess the required 

intent of ‘knows or should know’ that his actions would ‘cause a 

reasonable person’ to fear for their safety [or] to ‘suffer other 
State v. Rashid

20190682-CA 17 2021 UT App 17

emotional distress.’” Specifically, Rashid contends that “Expert 

would have testified about the correct procedures and practices 

private investigators use and correct training for apprentices and 

interns in the private investigator field” and that, had Rashid

been properly trained, “the actions that led to the stalking 

charges would not have occurred.”

¶32 While we are not unsympathetic to Rashid’s plight in this 

general regard, receiving poor training and hypothetically 

discussing what he would have done if he had been properly 

trained does not have any tendency to make the fact that he 

committed stalking in this case “more or less probable.” See Utah 

R. Evid. 401. The proposed testimony has no rational connection 

to whether Rashid knew or should have known at the moment he 

surveilled Victim that his actions would cause a reasonable 

person to fear for their safety or to suffer other emotional 

distress. When Rashid placed the GPS device on Victim’s car, 

waited for her in the parking lot, followed her for a significant 

distance, and then returned a few days later, he should have 

known his actions might cause a reasonable person in those 

circumstances to fear for her safety. Rashid basically 

acknowledged as much when he stated that he would have been 

concerned if the same things had happened to his own mother, 

presumably because he knew how distressing it would be for 

her. And any testimony about training, which is not relevant to 

an element of criminal stalking, would be irrelevant to what he 

knew or should have known, as a rational person, about the 

effect his actions would likely have on a reasonable person 

under the circumstances.

¶33 Additionally, because there is no private investigator 

defense to the crime of stalking available even to highly trained 

private investigators, the level and scope of their training is 

irrelevant. If a properly trained investigator forgot or neglected

his or her training and undertook the same actions Rashid did,

that investigator would also be guilty of criminal stalking. Thus, 
State v. Rashid

20190682-CA 18 2021 UT App 17

the district court did not abuse its discretion in excluding 

Expert’s testimony.

¶34 Finally, we agree with the district court that given 

Rashid’s own testimony at trial regarding his poor training, he 

cannot show that he was prejudiced, i.e., that there is “a 

reasonable likelihood of a more favorable result” at trial had 

Expert testified about the same thing. See Knight, 734 P.2d at 919

(quotation simplified). This is so because, as the district court 

rightly acknowledged, it “would have been, at best, cumulative 

of [Rashid’s] own testimony.” Additionally, any reasonable juror 

hearing about Rashid’s questionable exploits in this case could 

readily determine, without Expert’s testimony, that he had not 

yet been properly trained to be a private investigator. Therefore, 

it is highly unlikely that had Expert testified at trial, the jury 

would have acquitted Rashid. 

¶35 For these reasons, we cannot say that the district court’s 

decision to exclude Expert’s proposed testimony “exceed[ed] the 

limits of reasonability.” See Harrison v. SPAH Family, Ltd., 2020 

UT 22, ¶ 22, 466 P.3d 107 (quotation simplified). On the contrary,

it seems to have been a very sensible decision.

CONCLUSION

¶36 The district court did not err in ruling that Utah Code 

section 76-5-106.5 was not unconstitutionally vague as applied to 

Rashid, and it did not abuse its discretion in excluding Expert’s 

proposed testimony under the Utah Rules of Evidence. Rashid’s 

conviction is affirmed.