Ricky Alan Geving v. State of Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1068

Ricky Alan Geving, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 18, 2015
Affirmed
Johnson, Judge

Isanti County District Court
File No. 30-CR-11-587

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Jeffrey R. Edblad, Isanti County Attorney, Scott A. Hersey, Special Assistant County
Attorney, Minnesota County Attorney’s Association, St. Paul, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Stoneburner, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

JOHNSON, Judge

In 2011, Ricky Alan Geving was found guilty of first-degree assault on a peace

officer based on evidence that he pointed a rifle at several law-enforcement officers. In

2014, Geving filed a petition for postconviction relief, arguing that the evidence was

insufficient to prove that he intended to cause fear of immediate bodily harm or death.

The postconviction court denied the petition. We conclude that the evidence was

sufficient to prove that Geving intended to cause the officers fear of immediate bodily

harm or death. Therefore, we affirm.

FACTS

In September 2011, Geving was living in a pop-up camper trailer on a wooded

property outside the city limits of Cambridge. A house and a detached garage were

located at the bottom of a driveway that slopes downhill from the road. Two other

campers were on the property, one of which was owned and occupied by a woman, B.J.,

who lived on the property and was in a relationship with the property owners’ son at that

time. B.J. had recently ended a relationship with Geving, who was struggling with other

personal issues.

On the night of September 29, 2011, B.J. called 911 because Geving was making

suicidal threats and had a rifle. The dispatcher contacted Investigator Robert Bowker of

the Isanti County Sheriff’s Office, who had spoken with Geving earlier that night about

Geving’s personal issues. Other officers from several law-enforcement agencies

responded to the call. Investigator Bowker called Geving on his cell phone. Geving was

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agitated about the squad cars on the property. Investigator Bowker encouraged Geving to

talk with the law-enforcement officers, but Geving refused and said that he had his

loaded rifle with him and “would shoot the first person who came to the door.”

Investigator Bowker radioed the officers on the scene and informed them of what Geving

had said. Meanwhile, Deputy John McCarty approached Geving’s camper, saw Geving

through a window, and noticed that he appeared to be loading his muzzle-loader rifle.

Upon hearing Investigator Bowker’s radio call, Deputy McCarty backed away from the

camper and instructed the other officers to position themselves at the end of the

driveway.

Investigator Bowker arrived soon thereafter and again made contact with Geving

by cell phone. Geving told him that he did not like the spotlights from the squad cars and

wanted them turned off. After that call, Geving concealed himself by turning off the

lights in his camper. Geving exited the camper, but officers did not realize this until he

started yelling while standing on the driveway. Investigator Bowker told Geving to drop

his rifle and reminded him of their earlier agreement that Geving would drop the rifle if

Investigator Bowker came to the property. But Geving said that “plans had changed” and

that he was not going to drop his rifle. Geving disappeared into a wooded area between

the driveway and the campers.

Deputy McCarty moved his squad vehicle, a Chevrolet Tahoe, closer to the

camper so that he could use the vehicle’s spotlight to illuminate the camper and the

nearby wooded area. Geving walked across the driveway to the other camper. Officers

yelled at Geving to drop his rifle, which he was holding in a “low-ready position,” which

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indicated to officers that he was prepared to shoot. Geving said that he had 100 rounds of

ammunition, that he was a good shot, and that he could hit targets up to 100 yards away.

Deputy Chad Meyer used the spotlight on his squad vehicle to follow Geving, which

agitated Geving further.

Geving stayed in the other camper for a short time and then emerged, again with

the rifle in a “low ready” position, and with what Investigator Bowker characterized as an

angrier, defensive demeanor. Geving walked toward the Tahoe, yelling at the officers to

turn off the spotlights or he would shoot them out. The officers were approximately 30 to

40 yards away from Geving. Geving yelled “watch this.” He turned the Tahoe’s

spotlight away from himself, though the spotlights on two other squad vehicles parked at

the end of the driveway remained focused on him. Geving then leveled his rifle on the

hood of the Tahoe, put the muzzle on his shoulder, pointed the barrel at the officers,

leaned over, and looked through the scope. Deputy Meyer later testified that Geving’s

rifle was pointed directly at him. Deputy Meyer pulled the trigger on his rifle, intending

to shoot Geving, but it jammed or misfired. Officer Chad Saelens of the Cambridge

Police Department fired two rounds at Geving but missed him. After 15 to 20 minutes,

officers convinced Geving to put down his rifle and lie on the ground, allowing officers

to arrest him.

The next morning, Investigator Bowker questioned Geving at the Isanti County

Jail. Geving stated that it was “very possible” that, when he was standing behind the

Tahoe, he made a motion as if he was going to shoot and that he understood why the

officers felt threatened. He stated that he could not see any of the officers at the end of

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the driveway but could hear the officers yelling at him. He stated that he never intended

to shoot any of the officers. Geving also said that he did not intend to kill himself that

night but, rather, that “it was an attention getter.”

In October 2011, the state charged Geving with one count of first-degree assault,

attempt to use deadly force against a peace officer, in violation of Minn. Stat. § 609.221,

subd. 2(a) (2010), and one count of second-degree assault with a dangerous weapon, in

violation of Minn. Stat. § 609.222, subd. 1 (2010). Geving waived his right to a jury

trial, and the district court held a two-day court trial in December 2011. The state called

eight witnesses: B.J., six officers who were involved in the incident, and a firearms expert

from the Bureau of Criminal Apprehension. All officers at the scene testified that they

were afraid of being shot when Geving pointed his rifle in their direction. Geving did not

present any evidence.

The district court issued an order in which it found Geving guilty on the first

count, first-degree assault with attempted use of deadly force against a peace officer. The

district court noted that the state also had proved the elements of the second count,

second-degree assault with a dangerous weapon, but did not adjudicate Geving guilty of

that offense because it is a lesser-included offense of first-degree assault. In March 2012,

the district court sentenced Geving to the mandatory-minimum sentence of 120 months of

imprisonment. See Minn. Stat. § 609.221, subd. 2(b) (2010).

Geving did not file a direct appeal. In February 2014, he petitioned for

postconviction relief, seeking reversal of his conviction on the ground of insufficient

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evidence of his intent. The district court denied the petition without an evidentiary

hearing. Geving appeals.

DECISION

Geving argues that the postconviction court erred by denying his petition because

the evidence was insufficient to prove that he intended to cause the officers fear of

immediate bodily harm or death.

Geving was convicted of first-degree assault, attempted use of deadly force against

a peace officer, in violation of Minn. Stat. § 609.221, subd. 2(a). That statute makes it a

crime to “assault[] a peace officer . . . by using or attempting to use deadly force against

the officer . . . while the officer . . . is engaged in the performance of a duty . . . .” Minn.

Stat. § 609.221, subd. 2(a). The word “assault” is defined in the criminal code to mean

“an act done with intent to cause fear in another of immediate bodily harm or death.”

Minn. Stat. § 609.02, subd. 10(1) (2010). The phrase “with intent to” is defined to mean

“the actor either has a purpose to do the thing or cause the result specified or believes that

the act, if successful, will cause that result.” Id. at subd. 9(4). In assault-fear cases, “The

intent of the actor, as contrasted with the effect upon the victim, becomes the focal point

for inquiry.” State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (quotation omitted).

An actor can commit the offense of assault-fear without knowing the exact identity of the

intended victim or victims. See id. at 397 (affirming conviction though defendant did not

know several victims were present).

In his postconviction petition, Geving argued that the state failed to prove the

element of intent. The postconviction court denied relief on the ground that the state

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proved beyond a reasonable doubt that Geving intended to cause the officers, and

specifically Deputy Meyer, fear of immediate bodily harm or death. On appeal, Geving

argues that the evidence was insufficient to prove that he intended to cause any of the

officers fear of immediate bodily harm or death when he pointed his rifle in their general

direction because he intended only to shoot out the spotlights that were pointed at him.

A.

We first must determine the applicable standard of review. Ordinarily, when

reviewing the sufficiency of the evidence, we undertake “a painstaking analysis of the

record to determine whether the evidence, when viewed in the light most favorable to the

conviction, was sufficient” to support the conviction. State v. Ortega, 813 N.W.2d 86,

100 (Minn. 2012) (quotation omitted). We “assume that the factfinder disbelieved any

testimony conflicting with the verdict,” State v. Palmer, 803 N.W.2d 727, 733 (Minn.

2011), and “we will not disturb the verdict if the [fact-finder], acting with due regard for

the presumption of innocence and the requirement of proof beyond a reasonable doubt,

could reasonably conclude that the defendant was guilty of the charged offense,” Ortega,

813 N.W.2d at 100. “We use the same standard of review in bench trials and in jury

trials in evaluating the sufficiency of the evidence.” Palmer, 803 N.W.2d at 733.

If circumstantial evidence is necessary to support a conviction, however, we apply

a different standard of review. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). In

those cases, the first step is to “identify the circumstances proved” and “assume that the

jury resolved any factual disputes in a manner that is consistent with the jury’s verdict.”

Id. (citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). The second step is to

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“examine independently the reasonableness of the inferences that might be drawn from

the circumstances proved,” and then determine whether “the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”

Id. (quotations omitted). The reviewing court must consider the evidence as a whole and

not examine each piece in isolation. Andersen, 784 N.W.2d at 332.

To determine whether to apply the traditional standard of review or the

circumstantial-evidence standard of review, we ask whether the state has introduced

sufficient direct evidence to prove each element of the crime. See, e.g., State v. Flowers,

788 N.W.2d 120, 133 n.2 (Minn. 2010). If the state’s direct evidence, by itself, proves

each element of the charged offense, we apply the traditional standard of review; but if

the state’s direct evidence, by itself, is insufficient to prove each element of the charged

offense, we apply the circumstantial-evidence standard of review. State v. Porte, 832

N.W.2d 303, 309-10 (Minn. App. 2013) (citing State v. Silvernail, 831 N.W.2d 594, 602-

06 (Minn. 2013) (Stras, J., concurring)); see also State v. Sam, 859 N.W.2d 825, 831

(Minn. App. 2015) (applying circumstantial-evidence standard of review because state

did not introduce direct evidence of possession of firearm). Direct evidence is “‘evidence

that is based on personal knowledge or observation and that, if true, proves a fact without

inference or presumption,’” while circumstantial evidence is “‘evidence based on

inference and not on personal knowledge or observation.’” Bernhardt v. State, 684

N.W.2d 465, 477 n.11 (Minn. 2004) (alterations omitted) (quoting Black’s Law

Dictionary 595-96 (8th ed. 2004)).

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 Geving contends that the circumstantial-evidence standard of review applies. In

general, intent is “generally proved circumstantially by drawing inferences from the

defendant’s words and actions in light of the totality of the circumstances.” State v.

Cooper, 561 N.W.2d 175, 179 (Minn. 1997). But the state contends that the traditional

standard of review applies because its direct evidence is sufficient to prove Geving’s

intent. The state refers to the officers’ testimony about Geving’s statements and actions

before and after he pointed his rifle at the officers. The state contends that the district

court could have relied solely on this evidence to find Geving’s intent, without making

any inferences. The state cites State v. McClain, 208 Minn. 91, 292 N.W.2d 753 (1940),

and the concurring opinion in Silvernail in support of this contention. The direct

evidence in those cases, however, was the defendant’s confession, which established that

the defendant, and not another person, committed the charged offense. See McClain, 208

Minn. at 92, 292 N.W. at 753, Silvernail, 831 N.W.2d at 598. In the present case, it is

undisputed that Geving was the person who pointed his rifle at the officers on the night in

question. The element that is challenged on appeal relates to Geving’s state of mind.

The officers’ testimony provides direct evidence of what Geving did and said during the

incident, but it provides only circumstantial evidence of Geving’s state of mind because

the district court was required to draw inferences from Geving’s actions and statements to

make a finding about his intent. See State v. Fort, 768 N.W.2d 335, 343 (Minn. 2009)

(characterizing defendant’s statements that “‘if you don’t shut up, I’m going to kill you”

and “now you’re going to die” as circumstantial evidence of defendant’s state of mind).

Thus, we will apply the circumstantial-evidence standard of review.

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 B.

We engage in a two-step process when applying the circumstantial-evidence

standard of review. See Moore, 846 N.W.2d at 88. First, we identify the circumstances

proved during trial, which include the following: Geving was upset that law-enforcement

officers were on the property. He told Investigator Bowker that he would shoot anyone

who came to the door of his camper. He stated that he had 100 rounds of ammunition,

that he was a good shot, and that he could hit targets up to 100 yards away. The officers

were only 30 to 40 yards away from him when he pointed his rifle at them. Officers told

Geving numerous times to drop his weapon, and he repeatedly refused. When

Investigator Bowker reminded Geving that he had agreed to drop his rifle, Geving

responded defiantly that “plans have changed.” Geving turned off the lights in his

camper, concealing his movements. When Geving walked across the driveway to the

other camper, he held his rifle in a low-ready position. Officers testified that carrying a

rifle in a low-ready position generally indicates that a person is ready to fire. Geving

stated several times that he would shoot out the spotlights. Geving could hear the

officers’ voices coming from the same direction as the spotlights. The officers used the

spotlights to follow Geving and track his movements. Geving placed his rifle on the

hood of the Tahoe, pointed it in the direction of the spotlights and the officers, and looked

through the scope. Geving’s demeanor directly before he pointed his rifle at the officers

was angry and defiant, not fearful. Deputy Meyer saw that Geving’s rifle was pointed

directly at him. All officers at the scene were afraid of being shot when Geving pointed

his rifle in their direction. Both Deputy Meyer and Officer Saelens felt so threatened that

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they used their own firearms to shoot at Geving. Geving admitted that he understood

why the officers felt threatened by his actions. When asked whether he intended to kill

himself that night, Geving said that “it was an attention getter.”

Next, we consider whether the reasonable inferences from the circumstances

proved are “consistent with guilt and inconsistent with any rational hypothesis except that

of guilt.” Andersen, 784 N.W.2d at 330. Geving argues that it is reasonable to infer from

the circumstances proved that he intended only to shoot the spotlights when he pointed

his rifle at the officers and did not intend to cause the officers fear of immediate bodily

harm or death. An individual acts with intent to cause a result when he “believes that his

act, if successful, will cause that result.” Minn. Stat. § 609.02, subd. 9(4); see also

Hough, 585 N.W.2d at 396-97 (concluding that defendant intended natural and probable

consequences of shooting at house). Geving knew that the officers were located near the

spotlights. It is a reasonable inference that Geving intended to cause the officers fear of

immediate bodily harm or death when he pointed his rifle in that direction, and it is not a

reasonable inference that he did not intend to cause them fear of immediate bodily harm

or death. Even if Geving’s purpose was to shoot out the spotlights, the only reasonable

inference is that he believed that doing so also would cause the officers to fear immediate

bodily harm or death.

Thus, we conclude that the circumstantial evidence was sufficient to prove that

Geving intended to cause the officers fear of immediate bodily harm or death. Therefore,

the postconviction court did not err by denying Geving’s petition.

Affirmed.

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