State v. Ahmed , 441 P.3d 777 ( 2019 )

2019 UT App 65THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ADAM ZAKARIA A. AHMED,
Appellant.
Opinion
No. 20170539-CA
Filed April 25, 2019
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 161907424
Diana Pierson, Andrea J. Garland, and Sarah J.
Carlquist Attorneys for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Appellant Adam Zakaria A. Ahmed challenges his
conviction for possession of a controlled substance with intent to
distribute, arguing, primarily, that the trial court erred in
denying him access to the surveillance location from which law
enforcement observed the conduct that culminated in his arrest.
We reverse, provisionally, and remand for further proceedings.
State v. Ahmed
BACKGROUND 1
The Arrest
¶2 On a Spring day in 2016, a drug interdiction officer (the
Officer) conducted surveillance from a ground-level room of an
office building located, according to his testimony,
approximately forty feet from where Ahmed was arrested near
the homeless shelter in the crime-ridden Rio Grande
neighborhood of Salt Lake City. According to the Officer, while
standing on a desk and looking through the top of an 8-foot tall
window, “part[ing] the blinds just enough” to make room for his
binoculars, his attention was drawn to two men—later identified
as Ahmed and his cohort, Troy Pace. The Officer observed
“multiple different individuals” approach Ahmed and Pace and
“hand[] them money” in “quick, hand-to-hand transactions and
walk away.” Based on the Officer’s experience and training, he
recognized this behavior as being consistent with drug dealing.
¶3 The Officer testified that he observed Ahmed and Pace for
“about 30 minutes,” during which time he saw the men
distribute what was later determined to be spice 2 in “multiple
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. Spice is a synthetic cannabinoid made with “mind-altering
chemicals that are either sprayed on dried, shredded
plant material so they can be smoked or sold as liquids to
be vaporized and inhaled in e-cigarettes and other devices.”
Synthetic Cannabinoids (K2/Spice), National Institute on
Drug Abuse, https://www.drugabuse.gov/publications/drugfacts
/synthetic–cannabinoids–k2spice [https://perma.cc/ESC2–NMJ2].
(continued…)
20170539-CA 2 2019 UT App 65State v. Ahmed
different ways.” They sold spice in “joints that were already
rolled,” or in “containers that had some loose spice or . . . spice
joints in them.” He also observed them “pour out loose spice”
into purchasers’ own rolling paper. The Officer also testified that
throughout these exchanges, consistent with his past
observations of drug deals, Pace “act[ed] primarily as a holder,”
tasked with keeping the “majority of the drugs and the money,”
while Ahmed “act[ed] as a dealer,” “dealing out small amounts”
of spice and being “resupplied by . . . Pace.”
¶4 After approximately “10 to 15 separate individuals or
groups” interacted with Ahmed and Pace in this manner, the
Officer radioed “takedown officers” positioned “around the
corner” and instructed them to detain an individual who he
believed had just purchased spice from Ahmed. Upon searching
this buyer, the officers found what they believed to be spice
cigarettes, given their color and smell. Based on his observations
and the discovery made during the search of the buyer, the
Officer concluded there was probable cause to arrest Ahmed and
Pace, and he radioed the takedown officers and instructed them
to take the pair into custody.
¶5 The Officer described Ahmed to the takedown officers as
a “black [male] with a tan coat” and Pace as the “taller” of the
two and wearing a backpack. The Officer provided no additional
(…continued)
“These chemicals are called cannabinoids because they are similar
to chemicals found in the marijuana plant. Because of this
similarity, synthetic cannabinoids are sometimes misleadingly
called ‘synthetic marijuana’ (or ‘fake weed’), and they are often
marketed as safe, legal alternatives to that drug. In fact, they are
not safe and may affect the brain much more powerfully than
marijuana; their actual effects can be unpredictable and, in some
cases, more dangerous or even life­threatening.” Id.
20170539-CA 3 2019 UT App 65State v. Ahmed
descriptive details about either Ahmed or Pace. The Officer
testified that when the takedown team was approximately
twenty feet away from Ahmed, he saw Ahmed drop his “very
large, heavy, tan coat.” A member of the takedown team also
testified that he saw Ahmed remove the coat and place it on the
ground as he approached. A search of the coat revealed
containers and joints of what appeared—and what testing later
confirmed—to be spice.
Legal Proceedings
¶6 The State charged Ahmed with possession of a controlled
substance with intent to distribute, a third degree felony, in
violation of Utah Code section 58-37­8(1)(a)(iii). 3 During the
preliminary hearing, Ahmed asked the Officer about the
Officer’s exact surveillance location from which he observed the
alleged spice-dealing. The State objected and the Officer declined
to disclose the information, citing safety concerns. Ahmed
argued that his due process rights entitled him to this
information. The trial court sustained the State’s objection “for
purposes of the preliminary hearing,” but it allowed inquiry into
the distances involved and the Officer’s ability to observe the
alleged crime.
¶7 Prior to trial, Ahmed moved to access the Officer’s exact
surveillance location “for the purpose of collecting relevant and
exculpatory evidence in the possession of law enforcement.” The
State urged the court to deny Ahmed’s motion, drawing an
analogy to the confidential informant evidentiary privilege
because “other courts have compared the location of a
surveillance tower area to the name of a [confidential
informant].” The State also argued that the court should deny
3. Pace was also charged and eventually pled guilty to violating
the same statute.
20170539-CA 4 2019 UT App 65State v. Ahmed
the motion due to “officer safety concern[s]” and concerns for
the owner of the particular building, and because disclosure
would result in law enforcement’s loss of the site for future
surveillance work.
¶8 The trial court denied Ahmed’s motion to access the
Officer’s surveillance location based on a “balance of interest.” It
reasoned that “there is a substantial need for law enforcement to
be able to conduct undercover operations to try and catch those
distributing controlled substance[s] in the area.” The court also
found the State had an interest in keeping the location secret
because “[t]here are only a few higher buildings” in the area and
disclosure of the surveillance location would limit its use by law
enforcement, thus increasing “the importance of not revealing
those locations.” 4 Ultimately, the court denied Ahmed’s request
because “the community has an interest in effective law
enforcement” in the Rio Grande neighborhood, which
outweighed Ahmed’s interest “in disclosure and [the]
opportunity to prepare.” The court did, however, instruct the
State “to work with the defense . . . to see if [they could] at least
allow some kind of viewing of a similar angle and distance.”
¶9 In making this ruling, the court rejected the State’s
assertion that an evidentiary privilege prohibited disclosure of
the site. Instead, the court found that this was “a question of the
credibility of the officer” and “the Defense’s need to try and
cross-examine” him.
¶10 Ahmed’s theory at trial was that he was misidentified. His
own testimony was supported by Pace, who testified that he was
4. Although the Officer testified to surveilling from a “ground
level” room, it was nonetheless from a somewhat elevated
position because the building’s 8-foot tall windows permitted
him to surveil while standing atop a desk.
20170539-CA 5 2019 UT App 65State v. Ahmed
carrying a “light tan” “camouflage” backpack that contained
spice. Pace also testified that he had a “tan” jacket that he had
taken off and that was “sitting next to” him on the street. Pace
further stated he was about 5'8'' or 5'9''. Finally, he testified that
Ahmed was not dealing spice with him and was simply
“walking by” when the takedown officers arrested both of them.
Ahmed testified that he was in the area where the arrest took
place because he “was visiting a friend.” He denied dealing with
Pace and insisted he had no spice on him that day. He also
testified that he was 6'3'', making him the taller of the two by
several inches.
¶11 At the close of the State’s case-in-chief, Ahmed moved for
a directed verdict. He argued the State presented insufficient
evidence to support a conviction, specifically, that “[w]e don’t
know who [the Officer] saw. He said a black male in a tan coat.
He failed to mention any braids. He failed to mention a hat. He
failed to estimate height, weight, features, hairstyle, age, eye
color, [or] hair color.” Ahmed further argued that “[w]ith regard
to [the substance found on the buyer], there is no reliable
evidence” that what was distributed was the same substance
found in the coat because the substance retrieved from the buyer
was never tested. Finally, Ahmed argued that the evidence was
speculative because there was no fingerprint, DNA, or video
evidence tying him to the alleged distribution. The court denied
the motion, and the jury convicted Ahmed.
¶12 Ahmed subsequently filed a motion to arrest judgment,
seeking dismissal or retrial following his being given access to
the surveillance location. He argued, quoting Nielsen v. State,
2016 UT 52, 391 P.3d 166, that a keener understanding of the
location was “necessary to a fair determination of the issue of
guilt or innocence.” Id. ¶ 22 (quotation simplified). The court
heard oral argument on the motion. Ahmed argued that being
“able to test whether there are reflections, . . . distortions, . . . odd
angles or shadows” or too much traffic “for [the Officer] to be
20170539-CA 6 2019 UT App 65State v. Ahmed
able to have reliably watched what he said he watched” was
“exculpatory information” to which he was constitutionally
entitled. Ahmed faulted the court for not requiring the location
to be revealed, claiming the court erred in relying on a supposed
“public interest privilege,” and argued that such a privilege was
not recognized in Utah. The State disagreed, claiming it could
withhold the location. In so arguing, the State drew an analogy
to the confidential informant privilege. The court denied
Ahmed’s motion but declined to embrace the analogy to the
confidential informant privilege, as it did not “see it as the . . .
same issue.” The court found that it was “more accurately
addressed in the context of . . . reasonable limits on
cross­examination,” which were appropriate in this case
“because . . . the interests of the State in maintaining the
confidentiality of the location” outweighed Ahmed’s interest in
accessing the surveillance location.
¶13 The court sentenced Ahmed to a prison term, but it
suspended that sentence and placed Ahmed on probation. This
appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶14 Ahmed raises two issues on appeal. First, Ahmed argues
that the trial court erred in denying him access to the
surveillance location as a reasonable limit on cross-examination
because the location “is not privileged under Utah law.” “A
court’s decision regarding the existence of a privilege is a
question of law for the court, and is reviewed for correctness.”
State v. Blake, 2002 UT 113, ¶ 6, 63 P.3d 56 (quotation simplified).
“When reviewing a trial court’s decision to limit
cross-examination, we review the legal rule applied for
correctness and the application of the rule to the facts of the case
for an abuse of discretion.” State v. Marks, 2011 UT App 262,
¶ 11, 262 P.3d 13 (quotation simplified).
20170539-CA 7 2019 UT App 65State v. Ahmed
¶15 Second, Ahmed contends that the trial court erred in
denying his motion for a directed verdict “because there was
insufficient evidence to sustain his conviction.” “In assessing a
claim of insufficiency of the evidence, we review the evidence
and all inferences which may reasonably be drawn from it in the
light most favorable to the verdict of the jury.” State v. Nielsen,
2014 UT 10, ¶ 30, 326 P.3d 645 (quotation simplified). “And a
jury’s inference is reasonable unless it falls to a level of
inconsistency or incredibility that no reasonable jury could
accept.” State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (quotation
simplified).
ANALYSIS
I. Surveillance Location
¶16 This appeal presents us with the question of whether
Ahmed’s rights were violated by the withholding of the Officer’s
surveillance location. Ahmed argues that his Sixth Amendment
right to “present a complete defense” was violated. See Crane v.
Kentucky, 476 U.S. 683, 690 (1986). Ahmed implores us to apply
the “higher standard of scrutiny” by requiring the State to prove
“the error harmless beyond a reasonable doubt.” See State v.
Crowley, 2014 UT App 33, ¶ 17, 320 P.3d 677. However, as
explained below, because the violation committed was of rule 16
of the Utah Rules of Criminal Procedure and is amenable to
remedial action, we decline to reach Ahmed’s claim that his
constitutional right to present a complete defense was violated.
A
¶17 Rule 16(a)(4) of the Utah Rules of Criminal Procedure
requires prosecutors to turn over evidence upon request from
the defense “that tends to negate the guilt of the accused.”
However, a defendant does not prevail on appeal simply by
showing that the State failed to turn over such evidence; he must
20170539-CA 8 2019 UT App 65State v. Ahmed
also demonstrate prejudice. The prejudice standard for rule 16
violations is prescribed by rule 30(a) of the Utah Rules of
Criminal Procedure, which provides that “[a]ny error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.” Our Supreme Court has
held that this ordinarily requires a defendant to show that,
absent the State’s violation, there is “a reasonable likelihood of a
more favorable result for the defendant.” State v. Knight, 734 P.2d
913, 919 (Utah 1987) (quotation simplified).
¶18 The State may withhold evidence, even following a
defendant’s request, if it is privileged by the United States or
Utah constitutions, the Utah Rules of Evidence, “[o]ther rules
adopted by the Utah Supreme Court,” “[d]ecisions of the Utah
courts,” and “[e]xisting statutory provisions not in conflict with
the above.” Utah R. Evid. 501. No privileges to withhold
evidence exist outside of these parameters. See Nielsen v. State,
2016 UT 52, ¶ 12, 391 P.3d 166 (“‘[N]o person shall have a
privilege to withhold evidence except as provided by these or
other rules adopted by the Utah Supreme Court or by existing
statutory provisions not in conflict with them.’”) (quoting Utah
R. Evid. 501 (1992)). See also Clark v. Arizona, 548 U.S. 735, 770
(2006) (“Well-established rules of evidence permit trial judges to
exclude evidence.”) (quotation simplified); Utah R. Evid. 501
advisory committee note (“There are no non­rule, non-statutory
privileges.”) (quotation simplified).
¶19 But a defendant’s Sixth Amendment rights may be
violated by even the proper assertion of one of these privileges if
it causes the defendant to lose the ability to use the evidence to
meaningfully confront and effectively cross-examine the State’s
witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). Still, in cases where invoking a privilege or otherwise
excluding evidence potentially violates a defendant’s Sixth
Amendment rights in this way, trial courts are nonetheless given
“wide latitude insofar as the Confrontation Clause is concerned
20170539-CA 9 2019 UT App 65State v. Ahmed
to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’[s] safety, or interrogation
that is repetitive or only marginally relevant,” id., while at the
same time not prohibiting “all inquiry” into the State’s evidence
or the credibility of the State’s witnesses, State v. Williams, 773
P.2d 1368, 1372–73 (Utah 1989) (emphasis in original).
¶20 Thus, if the State withholds evidence pursuant to a valid
privilege, which causes the defendant to lose the ability to
effectively cross-examine a witness for the State, the defendant
can assert a violation of his Sixth Amendment rights by reason of
the exclusion. The trial court must then consider whether
allowing the State to continue withholding the evidence will
violate the defendant’s Sixth Amendment right to confront the
witnesses against him. See id. at 1372 (holding the trial court did
not err by limiting cross-examination of victim after evidence of
victim’s consensual intercourse was deemed “not relevant”
under rule 403 of the Utah Rules of Evidence); State v. Marks,
2011 UT App 262, ¶¶ 13, 23, 86, 262 P.3d 13 (holding the trial
court properly restricted defendant from questioning victim
about previous sexual conduct after the court determined it to be
prohibited by rule 412 of the Utah Rules of Evidence); Marks,
2011 UT App 262, ¶ 11 (“When reviewing a trial court’s decision
to limit cross-examination, we [must first] review the legal rule
applied for correctness and the application of the rule to the facts
of the case for an abuse of discretion.”) (quotation simplified).
See also State v. Hamblin, 2010 UT App 239, ¶ 12, 239 P.3d 300(“Whether an evidentiary ruling violated a defendant’s right of
confrontation is a question of law that we review for
correctness.”). Often the trial court can strike the right balance
between the State’s invocation of an evidentiary privilege and
the defendant’s assertion of the right to confront the witnesses
against him by requiring the production of otherwise privileged
evidence while at the same time “impos[ing] reasonable limits
on . . . cross-examination.” Van Arsdall, 475 U.S. at 679.
20170539-CA 10 2019 UT App 65State v. Ahmed
¶21 A trial court’s ability to impose reasonable limits on
cross-examination arises in this context only after the court has
found a basis in a constitutional provision, statute, the rules of
evidence, or case law to exclude the evidence; the defendant
objects to that exclusion claiming it jeopardizes his ability to
effectively confront and cross-examine the State’s witness; and
the trial court resolves the apparent impasse by allowing some
inquiry into the evidence claimed to be privileged while
imposing reasonable limits on defendant’s cross-examination of
the State’s witness. But the imposition of “reasonable limits on
cross-examination” is not a stand-alone principle that can justify
the exclusion of evidence.
B
¶22 In the present case, the trial court expressly stated that it
did not base its ruling allowing the State to withhold the
surveillance location on an evidentiary privilege. Instead, it
characterized its ruling as a “reasonable limit on cross
examination.” But by allowing the State to withhold the
surveillance location from Ahmed, the court in essence
improvised a privilege because, as discussed above, the
exclusion of evidence is guided by the specific parameters set
forth in rule 501 of the Utah Rules of Evidence, regardless
of how the court characterized it. 5 Allowing the State to
5. The State urges us to affirm on the ground that, on appeal,
Ahmed did “not challenge[] each basis of the trial court’s ruling”
because Ahmed failed to address “the trial court’s denial of his
motion to arrest judgment—that denying disclosure imposed
reasonable limits on cross-examination.” However, as we have
explained, because the trial court in essence invoked a
surveillance location privilege in order to limit the
cross-examination of the Officer concerning the details of his
surveillance, Ahmed did address the basis of the trial court’s
(continued…)
20170539-CA 11 2019 UT App 65State v. Ahmed
withhold evidence can only be based on a privilege or equivalent
rule. See Utah R. Evid. 501. Reasonable limits on cross-
examination become relevant only after the court determines
that a privilege or other rule permits the withholding of
evidence and the defendant then claims his ability to effectively
cross-examine a State’s witness is compromised, in violation of
his Sixth Amendment right to confront the witnesses against
him.
¶23 Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986),
the State argues that the trial court’s ruling was proper because
courts “retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on cross-
examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally
relevant.” See id. at 679. But such latitude is conferred upon
the court only after a valid privilege or other rule permits the
State to withhold evidence and the defendant has asserted a
violation of his Sixth Amendment right to confront and
effectively cross-examine witnesses against him. See id. Only
then may the court “impose reasonable limits on . . . cross-
examination,” id., thereby striking the balance between the
State’s interest in not disclosing privileged information and
the defendant’s interest in maximizing his Sixth Amendment
rights.
(…continued)
ruling on appeal. In his opening brief, he argued that “the trial
court erred by denying Ahmed’s motion to access the police
surveillance location because [it] is not privileged under Utah
law” and “[t]his error allowed the State to refuse to disclose
exculpatory evidence that would have allowed the defense to
investigate the surveilling officer’s ability to observe and identify
Ahmed from the location.”
20170539-CA 12 2019 UT App 65State v. Ahmed
¶24 This did not happen here. The trial court did not base its
decision to protect the surveillance location on the United States
or Utah constitutions, the Utah Rules of Evidence, a statute, or
relevant case law. The trial court basically skipped that step in
the analysis and went directly to imposing limits on
cross-examination in a way that reinforced the evidentiary
limitation it imposed rather than moderating the limitation so as
to preserve Ahmed’s confrontation rights.
¶25 Without a basis in rule 501 of the Utah Rules of Evidence,
the court nonetheless determined, as a practical matter, that the
Officer’s surveillance location was privileged, which was
erroneous because Utah law does not recognize such a privilege.
Thus, the court erred in denying Ahmed the surveillance
location on the theory it was a reasonable limit on
cross-examination because there was no legal rule applied by the
court in doing so, see State v. Marks, 2011 UT App 262, ¶ 11, 262
P.3d 13, and no basis on which to restrict the scope of
cross-examination. With no privilege or other rule allowing the
State to withhold it, the prosecution was required to disclose the
surveillance location to Ahmed upon his request, in accordance
with rule 16 of the Utah Rules of Criminal Procedure.
C
¶26 Having determined that there was no privilege or other
rule allowing the State to withhold the surveillance location after
Ahmed requested disclosure of the location pursuant to rule 16,
see Utah R. Crim. P. 16(a)(4), we next consider whether this error
prejudiced him.
¶27 Ordinarily, the defendant carries the burden of showing
prejudice. But as the Utah Supreme Court stated in State v.
Knight, 734 P.2d 913 (Utah 1987), this burden occasionally shifts
to the State, requiring it to show “that despite the errors, the
outcome of trial merits confidence and there is no reasonable
20170539-CA 13 2019 UT App 65State v. Ahmed
likelihood of a more favorable result for defendant.” Id. at 921.
See also State v. Bell, 770 P.2d 100, 106 (Utah 1988) (“[I]n some
circumstances the nature of the error involved is such that this
de facto burden should be shifted [to] the State.”). This burden
shifting “does not occur automatically” whenever the State
violates rule 16. State v. Draper-Roberts, 2016 UT App 151, ¶ 38,
378 P.3d 1261. Rather, it shifts when it is “difficult for th[e] Court
to determine from the record whether [the defendant] might
have been able to prepare a better defense and achieve a more
favorable result at trial” and the defendant has presented “a
credible argument that the prosecutor’s errors have impaired the
defense.” Bell, 770 P.2d at 106 (quotation simplified). Accord
Knight, 734 P.2d at 921.
¶28 Here, it is difficult to discern from the record whether
Ahmed might have had a more favorable result had he been
granted access to the surveillance location. But he has presented
a credible argument that his defense was impaired by the State’s
refusal to disclose the location. Thus, the burden shifts to the
State to show that, despite the court’s error, “the outcome of
[Ahmed’s] trial merits confidence and there is no reasonable
likelihood of a more favorable result for [Ahmed].” See Knight,
734 P.2d at 921.
¶29 In this regard, we note that there are a few aspects of this
case that are troubling. First, the Officer was confused as to who
the taller of the two suspects was, telling the takedown officers
that Pace was “taller” than Ahmed when in reality Pace was
about half a foot shorter than Ahmed. Did some problem with
the angle of view from the surveillance location skew the
Officer’s visual perspective? Second, the Officer did not provide
any description of Ahmed’s hat, distinctive braids, height,
weight, hair color, or any other features typical in registering an
identification. Did obstacles impede the Officer’s ability to
properly observe Ahmed from the surveillance location? Third,
both Pace and Ahmed testified to wearing a “tan” jacket or coat.
20170539-CA 14 2019 UT App 65State v. Ahmed
Did the Officer possibly confuse the two because his view was
obstructed or due to other issues causing some visual
impediment from the surveillance location? These unanswered
questions make it difficult for us to determine whether Ahmed
might have been able to prepare a better defense and achieve a
more favorable result at trial had he been able to investigate the
surveillance location.
¶30 We do not necessarily fault the Officer for these
oversights. It is obviously difficult for law enforcement officers
stationed in the Rio Grande area, who make numerous
drug-related arrests each month, to be able to accurately and
quickly identify every suspect they take into custody. Given the
rest of the inculpatory evidence—specifically, the substance
found on the alleged buyer that appeared to match the spice
found in the tan coat that both the Officer and the takedown
officer testified Ahmed dropped, along with the Officer’s
testimony that he observed Ahmed and Pace interact for “about
30 minutes” in a manner consistent with a holder-dealer
relationship, directly contradicting Ahmed’s claim of being a
mere passerby at the time of his arrest—our confidence in the
jury’s verdict would remain strong despite the Officer’s limited
description of the dealer, should an investigation of the
surveillance location produce no exculpatory evidence.
¶31 But as we have little or no information on the surveillance
location and potential obstructions—such as shadows, glares,
dirty glass, cars, buses, trees, and sunlight—and given the
possibility of error in the identification of the dealer, the validity
of Ahmed’s conviction hinges on the quality of the surveillance
from the Officer’s vantage point. Thus, it is “difficult for [us] to
determine from the record whether [Ahmed] might have been
able to prepare a better defense and achieve a more favorable
result at trial.” See Bell, 770 P.2d at 106. This, combined with the
“credible argument” presented by Ahmed that because of the
possible mistaken identification, the State’s refusal to turn over
20170539-CA 15 2019 UT App 65State v. Ahmed
the surveillance location “impaired [his] defense,” leads us to
conclude that the burden concerning prejudice shifted to the
State. See id. And the State has not carried this burden for the
simple reason that it did not provide any evidence of the
surveillance location or objective evidence concerning the
quality of the view from that location. Therefore, “[b]ecause the
State has failed to persuade us that the defense was not
prejudiced by its nondisclosure of the [surveillance location], we
conclude that absent the prosecutor’s error[], there is a
reasonable likelihood of a more favorable result for [Ahmed].”
See Knight, 734 P.2d at 923.
D
¶32 Ahmed, however, is not automatically entitled to a new
trial notwithstanding the apparent prejudice. This case is in a
somewhat unusual posture. Ahmed has demonstrated only a
single error by the trial court, while other evidence supports his
conviction. But because the State has not persuaded us that
“there is no reasonable likelihood that absent the error, the
outcome of trial would have been more favorable” for Ahmed,
see State v. Knight, 734 P.2d 913, 921 (Utah 1987), we are
compelled to reverse the conviction despite the distinct
possibility that an examination of the surveillance location may
not provide any helpful evidence for Ahmed whatsoever. Thus,
this error may ultimately prove not to have prejudiced Ahmed,
rendering his conviction perfectly valid. Granting a new trial
would then result in wasted resources and an unwarranted
second bite at the apple for Ahmed.
¶33 “Given this imperfect state of affairs and the highly
unusual posture of this case, we believe justice requires a
remedy which is itself unusual.” State v. Ford, 793 P.2d 397, 405
(Utah Ct. App. 1990). Accordingly, we provisionally reverse
Ahmed’s conviction and remand to the trial court with
instructions that the surveillance location be disclosed to the
20170539-CA 16 2019 UT App 65State v. Ahmed
defense so it can make its own inquiries, observations, and
measurements. If having done so, the defense recognizes there is
nothing that would undermine the Officer’s testimony, it will so
advise the trial court, and Ahmed’s conviction and sentence will
simply be reinstated. But if the defense determines that there is
substantial reason to believe it can more meaningfully
cross-examine the Officer and throw Ahmed’s guilt into doubt
based on what it discovers at the surveillance location, the
defense can present this evidence to the trial court. If the trial
court views the evidence, resolving any doubt in favor of
Ahmed, and “concludes that [Ahmed] would realistically have
received no better [result at trial] with [the new evidence,] the
[conviction and] sentence previously entered may simply be
reimposed.” See id. But if the court agrees that the defense will be
able to more effectively cross-examine the Officer and cast
reasonable doubt on Ahmed’s guilt, it shall order a new trial. 6
¶34 We believe this to be an appropriate remedy for all parties
involved. 7 It provides Ahmed the ability to vindicate his rights if
6. Our holding does not prevent the trial court from directing the
defense not to disclose to others in the community or, if the case
proceeds to a new trial, to the jury, the specific address of the
surveillance location, name of the property owner, name of the
tenant if applicable, or name of the business if applicable.
Ahmed has a right to view the surveillance location and his
counsel will likely learn some of the details just mentioned in the
process of doing so, but it does not follow that the information
should be shared more widely. The trial court is free to restrict
the further dissemination of this information to protect future
police operations in the area as well as the privacy of the
property owner, tenants, etc.
7. While unusual, this course of action is not unprecedented. In
both State v. Ford, 793 P.2d 397, 405 (Utah Ct. App. 1990), and
(continued…)
20170539-CA 17 2019 UT App 65State v. Ahmed
withholding the surveillance location prejudiced him, while
maximizing judicial efficiency in upholding the conviction if his
investigation of the surveillance location fails to reveal the
helpful evidence he hopes for.
II. Insufficiency of the Evidence
¶35 Given the unique nature of our remand, we must address
Ahmed’s second issue on appeal, which could still be relevant if
the defense finds no helpful evidence at the surveillance location
and Ahmed is not granted a new trial.
¶36 Ahmed argues that, totally aside from the surveillance
location issue, there was insufficient evidence to sustain his
conviction because “the evidence was too speculative to support
a conclusion that [the Officer] . . . correctly identified Ahmed as a
person selling drugs, that the substance found on [the buyer]
was spice, and that Ahmed possessed spice.” Because the
evidentiary sufficiency issue is germane only if the surveillance
location provides no evidence in support of Ahmed’s theory of
misidentification, we assume for purposes of this analysis that
the Officer had an unobstructed view from his location.
¶37 With this assumption in mind, there is sufficient evidence
to support Ahmed’s conviction. On the record before us, the jury
(…continued)
State v. Stidham, 2014 UT App 32, ¶ 31, 320 P.3d 696, we reversed
and remanded convictions and sentences, instructing the trial
courts to conduct evidentiary hearings and, if the trial court
found no prejudice, to reinstate the convictions and sentences.
Our approach is permitted under rule 30(b) of the Utah Rules of
Appellate Procedure, which states, with our emphasis, that “[i]f
a judgment of conviction is reversed, a new trial shall be held
unless otherwise specified by the court.”
20170539-CA 18 2019 UT App 65State v. Ahmed
could conclude that the Officer would have had a clear view,
with the use of binoculars, of Ahmed and Pace dealing drugs for
“about 30 minutes.” During this time the Officer testified that he
witnessed Ahmed and Pace deal spice in “multiple different
ways” to approximately “10 to 15 separate individuals.” This
behavior was consistent with the Officer’s experience in
observing drug dealing.
¶38 The Officer also testified that Ahmed wore a “very large,
heavy, tan coat” that he dropped as the takedown officers
approached him. This was corroborated by one of the takedown
officers who testified that he also saw Ahmed drop the coat. This
coat had containers and joints of what was later confirmed,
through testing, to be spice. In addition, while the joints found
on the buyer were not tested, it is reasonable to infer that it was
spice, as the joints in Ahmed’s coat were confirmed to be spice
and the buyer had joints on him immediately after interacting
with Ahmed. While this may be circumstantial evidence, “it has
long been established” that elements of crimes may be proven by
circumstantial evidence as well as by direct evidence. State v.
Romero, 554 P.2d 216, 217 (Utah 1976).
¶39 This evidence, assuming the Officer had an unobstructed
view, clearly provides “some evidence” on “which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84
P.3d 1183 (quotation simplified). Thus, assuming unimpeachable
surveillance, the trial court did not err in denying Ahmed’s
directed verdict motion as there was sufficient evidence to
submit this case to the jury.
CONCLUSION
¶40 The trial court erred in denying Ahmed’s request to
access the Officer’s surveillance location. This violated Ahmed’s
20170539-CA 19 2019 UT App 65State v. Ahmed
right to discovery of the evidence against him as required by
rule 16 of the Utah Rules of Criminal Procedure. And the State,
having the burden concerning prejudice shifted to it, has failed
to persuade us that absent this error there is no reasonable
likelihood that Ahmed would have had a more favorable
outcome at trial. Therefore, we provisionally reverse Ahmed’s
conviction and remand with instructions that Ahmed’s defense
be granted access to the surveillance location, and if the defense
finds evidence that will allow it to more effectively
cross-examine the Officer and cast reasonable doubt on Ahmed’s
guilt, that Ahmed be granted a new trial. If the surveillance
location proves to be unassailable then the trial court shall
simply reinstate Ahmed’s conviction and sentence, as the
evidence of record was sufficient to warrant submitting the case
to the jury and to sustain Ahmed’s conviction.
20170539-CA 20 2019 UT App 65