State v. Geiger , 2023 ND 222 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 24, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 222State of North Dakota, Plaintiff and Appellee
v.
David Emanuel Geiger, Defendant and Appellant
No. 20230146
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Julie A. Lawyer, State’s Attorney, Bismarck, ND, for plaintiff and appellee;
submitted on brief.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
State v. Geiger
No. 20230146
Jensen, Chief Justice.
David Geiger appeals from a criminal judgment entered following a jury
verdict finding him guilty of stalking. On appeal, Geiger asserts the district
court failed to make a mandatory determination regarding whether the
conduct he was alleged to have engaged in was constitutionally protected. He
further argues the evidence presented at trial was insufficient to support the
jury’s verdict of guilty. We affirm.
I
The State charged Geiger with stalking in violation of N.D.C.C. § 12.1-
17-07.1(2). The victim testified she was an employee at a bank where Geiger
was a customer. The victim, in conjunction with other bank employees, decided
to close out Geiger’s account after what the victim described as abusive conduct
by Geiger towards bank employees. Geiger was informed of the closure and
instructed to collect the remaining funds in his account through the drive-up
window. Geiger went to the drive-up window and during the process of
collecting the funds made statements to the teller to the effect of, “Do you know
what it’s like to lose? Well, you’re about to find out.” The victim and other
employees then observed Geiger sitting in his car across the street.
Due to concerns surrounding this behavior, bank staff contacted law
enforcement to escort staff from the building to their vehicles at closing. Later
that same night, the victim received a phone call to her personal phone, verified
by law enforcement as having been placed from a phone belonging to Geiger.
Upon answering the call, the victim’s husband said “hello” several times, but
there was no response.
Geiger called the victim’s office the next day, identifying himself by
name. During this call, the victim informed Geiger his account would remain
closed, at which point Geiger raised his voice and stated, “You will pay for this
decision.” After ending the call, Geiger was again observed parking his truck
outside the bank in the parking lot of a nearby business. Bank employees were
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instructed not to exit the building alone and to check in with another employee
upon arriving safely home. That evening, when the victim arrived in her
neighborhood, she observed Geiger sitting in his truck on an adjacent street, a
location providing him with a clear line of sight to the victim’s residence. The
victim contacted law enforcement, and Geiger was subsequently arrested.
At the conclusion of the State’s case, Geiger made a N.D.R.Crim.P. 29
motion asserting the State had failed to show a “prima facia case” that Geiger
had done anything intentional towards the victim to cause her fear.
Additionally, he asserted his other actions were “constitutionally protected in
terms of being able to park on a city street no matter what time of the day or
year or week it is.” The district court denied the motion, indicating “[t]hose are
all fact questions,” and finding sufficient evidence to put the charge before the
jury. Geiger renewed his Rule 29 motion prior to the case being submitted to
the jury, which the court again denied. The jury returned a verdict convicting
Geiger on the charge of stalking.
II
Geiger asserts the district court failed to make a mandatory
determination on whether his alleged criminal conduct was constitutionally
protected. He argues the language of N.D.C.C. § 12.1-17-07.1(5), “[i]f a person
claims to have been engaged in a constitutionally protected activity, the court
shall determine the validity of the claim as a matter of law and, if found valid,
shall exclude evidence of the activity[,]” required the court to conduct a legal
analysis after he raised a claim that his actions of parking on city streets were
constitutionally protected within his N.D.R.Crim.P. 29 motion. Instead, the
court found there was sufficient evidence to submit the case to the jury,
determining that Geiger’s arguments were questions of fact.
We have previously considered what is required to preserve the issue of
constitutionally protected speech. In State v. Curtis, we determined a
defendant did not preserve an issue relating to constitutionally protected
speech for appeal when he failed to properly raise a constitutionally protected
speech defense to the district court through a motion in limine and instead
made only a Rule 29 motion at trial. 2008 ND 93, ¶ 8, 748 N.W.2d 709. While
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asserting his claim through the Rule 29 motion, Curtis failed to adequately
support the motion with a legal basis for why the communication should be
protected. Instead, he argued, “I think any person rationally reading the entire
document would not take it as a threat.” Id. There was no other indication
Curtis made any effort to raise the issue properly or to explain why the
communication should be designated constitutionally protected speech and
withheld from the jury. Id.Similarly, Geiger failed to make any pretrial motions to dismiss or
suppress evidence. Additionally, he failed to make any objection to any of the
descriptions of his conduct as they were offered through testimony, failed to
argue why the descriptions of his conduct should be excluded from evidence,
and failed to request the evidence be withheld from the jury. Instead, in his
initial request for a judgment of acquittal at the end of the State’s case, he
offered only a naked assertion, limited only to his conduct of parking, that his
conduct was constitutionally protected, stating:
His other actions are constitutionally protected in terms of
being able to park on a city street no matter what time of the day
or year or week it is. He has an absolute right to be on that—on
those parking lots as well as the Bluff Lane address.
In his oral request for a judgment of acquittal, Geiger failed to advance any
argument supporting his assertion his parking was protected activity and
failed to present any legal foundation for the assertion that parking is a
constitutionally protected activity. Geiger also failed to renew his Rule 29
motion for acquittal to the district court after the jury rendered their guilty
verdict or otherwise provide a legal basis for his claim his conduct was
constitutionally protected activity. We conclude Geiger did not sufficiently
raise constitutionally protected activity as a defense before the district court
and, therefore, did not preserve his constitutional argument for review by this
Court.
III
Geiger asserts there was insufficient evidence to sustain the guilty
verdict of stalking because the State failed to show evidence that there was no
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legitimate purpose for Geiger’s presence at both the bank and the victim’s
residence.
When reviewing challenges to the sufficiency of the evidence, we “must
view the evidence in a light most favorable to the verdict.” State v. Ismail, 2022
ND 199, ¶ 11, 981 N.W.2d 896 (citing State v. Yineman, 2002 ND 145, ¶ 8, 651
N.W.2d 648). “The conviction rests on insufficient evidence if no rational
factfinder could have found the defendant guilty beyond a reasonable doubt.”
Id. (citing Yineman, at ¶ 8). “In considering a sufficiency of the evidence claim,
we do not weigh conflicting evidence, or judge the credibility of witnesses.”
State v. Hannah, 2016 ND 11, ¶ 7, 873 N.W.2d 668 (quoting State v. Rufus,
2015 ND 212, ¶ 6, 868 N.W.2d 534).
Geiger was charged with violating N.D.C.C. § 12.1-17-07.1(2). Under this
section, a person is guilty of the class A misdemeanor of stalking if a person
intentionally stalks another. To “stalk” means “[t]o engage in an intentional
course of conduct directed at a specific person which frightens, intimidates, or
harasses that person and which serves no legitimate purpose. The course of
conduct . . . must cause a reasonable person to experience fear, intimidation,
or harassment[.]” N.D.C.C. § 12.1-17-07.1(1)(c)(1).
The victim testified that on the day his account was terminated, Geiger’s
truck was observed parked across the street from the bank. Bank employees
contacted the police and requested the police be present at the bank while they
got into their cars to leave. Later that same night, the victim received a phone
call to her personal phone, where there was no response, from a phone number
later verified by law enforcement as belonging to Geiger. Additionally, the
victim indicated that the following day Geiger called her office, stating, “You
will pay for this decision.” After ending the call, the victim again observed
Geiger parked in his truck outside the bank in the parking lot for another
business. The victim testified upon arriving home that evening, she observed
Geiger’s truck on an adjacent street, from where he could look down upon her
residence. Viewing this evidence in the light most favorable to the verdict, we
find there was sufficient evidence presented for a rational fact finder to find
Geiger guilty of stalking in violation of N.D.C.C. § 12.1-17-07.1(2).
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IV
Geiger failed to preserve his challenge to whether his conduct was
constitutionally protected. The evidence admitted at trial was sufficient to
support the conviction for stalking. We affirm.
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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