State v. Rashid

               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


                        BACKGROUND 1

¶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, 

, 

.




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                           State v. Rashid


¶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.”




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                          State v. Rashid


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,



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                          State v. Rashid


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


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                          State v. Rashid


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


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                          State v. Rashid


be constitutional and the party challenging a statute bears the
burden of proving its invalidity.” State v. Roberts, 

, 

 (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., 

, 

.


                           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, 

,

 (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 

 (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




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                           State v. Rashid


       [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.

(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[.]

 § 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



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                          State v. Rashid


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 

 § 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 

-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…)


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                          State v. Rashid


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.”

-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.




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                           State v. Rashid


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, 

, ¶ 13 n.3, 

 (“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, 

, 

. 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., 

(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.”); 

(j) (2008) (stating that
the stalking statute “shall not apply to conduct which occurs in
furtherance of legitimate activities of . . . private investigators”);

.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.




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                            State v. Rashid


[his actions in twice observing and surveilling Victim] would
constitute acts sufficient to violate the [statute].” 6 See 

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, 

, 

(quoting Kolender v. Lawson, 

 (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. 

 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, 

(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, 

 (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.




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                           State v. Rashid


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, 

, 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, 

, 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, 

 (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, 

, 

 (“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…)


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                           State v. Rashid


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,

, 

 (quotation simplified). See
Bordenkircher, 

. 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, 

.


(…continued)
the legislature had any reasonable objective that warrants the
disparity.”) (quotation simplified), with State v. Garcia, 

, 

 (“[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…)


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                          State v. Rashid


See also Mohi, 

 (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, 

 (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, 

 (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.




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                           State v. Rashid


¶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,” 

 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.” 

 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.,

, 

 (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, 

, 

 (quoting State v. Knight, 

(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



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                          State v. Rashid


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,



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                          State v. Rashid


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, 

(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., 

, 

 (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.




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