State of North Dakota, Plaintiff and Appellee v. David Emanuel Geiger, Defendant and Appellant
No. 20230146
IN THE SUPREME COURT STATE OF NORTH DAKOTA
NOVEMBER 24, 2023
2023 ND 222
Jensen, Chief Justice.
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.
[¶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
[¶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
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
[¶7] We have previously considered what is required to preserve the issue of constitutionally protected speech. In State v. Curtis, 2008 ND 93, ¶ 8, 748 N.W.2d 709, 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 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,
[¶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, 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
[¶9] Geiger asserts there was insufficient evidence to sustain the guilty verdict of stalking because the State failed to show evidence that there was no legitimate purpose for Geiger‘s presence at both the bank and the victim‘s residence.
[¶10] 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).
[¶11] Geiger was charged with violating
[¶12] 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
IV
[¶13] 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.
[¶14]
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr