State v. Rashid

2021 UT App 17
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
A HMED HAWKEN R ASHID,
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
J UDGE G REGORY K. ORME authored this Opinion, in which
J UDGES MICHELE M. C HRISTIANSEN FORSTER and R YAN 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.