State v. Geiger

997 N.W.2d 845

2023 ND 222

STATE of North Dakota, Plaintiff and Appellee

v.David Emanuel GEIGER, Defendant and Appellant

No. 20230146

Supreme Court of North Dakota.

Filed November 24, 2023

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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.

Jensen, Chief Justice.

[¶ 1] 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

[¶ 2] 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.

[¶ 3] 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.

[¶ 4] 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 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.

[¶ 5] 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

[¶ 6] 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.

[¶ 7] 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 98, ¶ 8, 748 N.W.2d 709. While 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. In stead, 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 property or to explain why the communication should be designated constitutionally protected speech and withheld from the jury. Id.

[1] [¶ 8] 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, ih 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...