State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0875

State of Minnesota,
Respondent,

vs.

Eugene Ryan Boos,
Appellant.

Filed April 17, 2017
Affirmed
Hooten, Judge

Anoka County District Court
File No. 02-CR-15-143

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kell ey, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appel late Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In his appeal from his convictions of one count of first-degree assault against a peace
officer and two counts of second -degree assault, appellant argues that his first -degree
2
assault conviction is legally invalid, that Minn. Stat. § 609.221, subd. 2 (2014), is
unconstitutionally vague as applied to him, a nd that he must be allowed to withdraw his
guilty pleas because they are invalid. We affirm.
FACTS
On December 30, 2014, members of a multi -jurisdictional law enforcement team,
including the Hennepin County Violent Offender Task Force, were surveil ling an
apartment in Fridley in which they believed appellant Eugene Ryan Boos was hiding. The
officers were attempting to locate Boos for suspected violations of his supervised release.1
Law enforcement had previously seized multiple firearms, 141 grams of
methamphetamine, and a methamphetamine lab from Boos’ residence, but Boos remained
at large.
During the surveillance, police received a child welfare call from a father who had
not heard from his child in several days. The call was for the same apartment where officers
suspected Boos was hiding. Officers knocked on the door and learned that Boos was in
the back bedroom of the apartment with his girlfriend. All other residents, including the
subject of the child welfare call, were evacuated from the apartment.
Police, while standing in the doorway of the apartment, commanded Boos to reveal
himself, but Boos refused to come out of the bedroom. Instead, he told police that he was

1 Boos was convicted of second -degree murder in 1994 and sentenced to 306 months in
prison. He had been on supervised release for approximately 18 months at the time of this
incident.
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armed and would shoot anyone who entered. Police remained in the doorway and
attempted to negotiate Boos’ surrender.
As the confrontation escalated, Boos used his girlfriend’s cellphone to call into a
local news station, identifying himself as “Larry from Las Vegas.” Boos provided an
ongoing commentary of the standoff to the news station, which the news station recorded.
Throughout the at least 50 minutes of attempted negotiations, Boos repeatedly threatened
to kill the officers and shouted profanities at them. At one point during the standoff, Boos
told his girlfriend to get down on the ground because “ it’s going down here in about 15
seconds.” Boos then opened the door, crouched, extended his arm out the doorway , and
aimed a loaded revolver at the officers, yelling at the officers that he was “going to kill one
of [them].”
Unable to see Boos’ body and unwilling to risk firing through the wall and hitting
Boos’ girlfriend, an officer fired four shots at Boos’ extended hand. The shots disabled the
revolver and struck Boos’ hand, severing two fingers.
Officers were not certain if Boos had returned fire, so they immediately retreated.
While officers were retreating, Boos directed his girlfriend to apply a tourniquet on his arm
to control the bleeding from his hand. Shortly thereafter, Anoka County SWAT forces
arrived at the sce ne. The standoff continued for several hours before Boos finally
surrendered.
Boos was charged with three counts of first -degree assault of a peace officer, three
counts of second -degree assault, and three counts of being a prohibited person in
possession of a firearm. Boos pleaded guilty to one count of first-degree assault of a peace
4
officer and two counts of second-degree assault. As part of the plea arrangement, the state
dropped all other charges and agreed not to prosecute Boos’ girlfriend for he r role in the
standoff. Boos was sentenced to 120 months in prison. This appeal follows.
D E C I S I O N
Boos makes several arguments on appeal. First, he argues that his conviction for
first-degree assault of a peace officer is legally invalid because he was convicted of
attempting to engage in negligent deadly force, and a person cannot attempt to commit a
crime with a mens rea of negligence under Minnesota law. Second, he argues that the first
degree assault of a peace officer statute is unconstitutional as applied to him, based on the
same mens rea arguments. Third, he argues that his pleas were legally invalid, based on
the same mens rea arguments, but also because there was an insufficient factual basis to
support the pleas, and because his plea arrangement was a “package deal” which the district
court failed to properly scrutinize.
Pertinent to his mens rea arguments, Minn. Stat. § 609.221, subd. 2, provides that
“[w]hoever assaults a peace officer . . . by using or attempting to use deadly force against
the officer . . . while the person is engaged in the performance of a duty imposed by law”
commits first-degree assault of a peace officer . Releva nt to our analysis of this section,
assault includes “an act done with intent to cause fear in another of immediate bodily harm
or death.” Minn. Stat. § 609.02, subd. 10(1) (2014). Also relevant to our analysis, deadly
force means “force which the actor uses with the purpose of causing, or which the actor
should reasonably know creates a substantial risk of causing, death or great bodily harm. ”
Minn. Stat. §§ 609.066, subd. 1, .221, subd. 2(c)(2) (2014). “The intentional discharge of
5
a firearm . . . in the direction of another person . . . constitutes deadly force.” Minn. Stat.
§ 609.066, subd. 1.
In interpreting section 609.221, subdivision 2, this court has stated that “[t]o be
guilty of using deadly force against a peace officer or correctional em ployee, a defendant
must have the requisite mental state.” State v. Lindsey, 654 N.W.2d 718, 722 (Minn. App.
2002). Because the use or attempted use of deadly force is required for culpability under
the first-degree assault statute, there are two differe nt possible applicable mens reas, both
gleaned from the deadly force definition. Id. at 722–23. First, an actor is culpable if he
uses force “with the purpose of causing” death or great bodily harm; this is specific intent.
Id. Second, an actor is culpable if he uses force which the actor “should reasonably know”
creates a substantial risk of death or great bodily harm; we referred to this mental state as
“imputed knowledge.” Id. at 723.
All of Boos’ mens rea arguments rest on the foundation that this second mental state
described in Lindsey, imputed knowledge, actually describes a mens rea of negligence or
recklessness, and one cannot attempt an act with a negligence or recklessness mens rea.
See State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990) (noting that “[a]n attempted crime is
a specific intent crime” and that “one cannot attempt to commit negligent or reckless
acts.”). While Boos’ argument that attempt under the first -degree assault statute is
incompatible with the imputed knowledge mens rea from Lindsey may have merit, we need
not address it here.
6
Boos’ plea arrangement was a hybrid Norgaard plea,2 where Boos admitted the facts
he could remember and stipulated to the state’s offer of proof on the remaining facts. The
state’s offer of proof was that Boos pointed the revolver at the officers in his doorway with
the specific intent to shoot at the officers. If the record contains a sufficient factual basi s
to demonstrate or from which to infer Boos’ specific intent to use deadly force, the second
mental state described in Lindsey, imputed knowledge, is not implicated here. Therefore,
the first two of Boos’ arguments relating to his first -degree assault plea collapse into his
third argument, that his pleas are invalid and he must be allowed to withdraw them.
Absent manifest injustice, a defendant does not have an absolute right to withdraw
a guilty plea. See State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “[M]anifest injustice
exists where a guilty plea is invalid.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007).
A guilty plea is invalid if it is not “accurate, voluntary, and intelligent.” Perkins v. State,
559 N.W.2d 678, 688 (Minn. 1997). The val idity of a plea presents a question of law ,
which an appellate court reviews de novo. Raleigh, 778 N.W.2d at 94.

2 Though the district court and the parties refer to the proceeding as a hybrid Alford plea
hearing, Boos specifically stated on the record that he was not claiming he was innocent.
Instead, Boos claimed he could not remembe r w hat happened. Therefore, the plea
arrangement would more pr operly be described as a hybrid Norgaard plea. See State ex
rel. Norgaard v. Tahash , 261 Minn. 106, 110 N.W.2d 867 (1961). However, the
sufficiency standards for a Norgaard plea do not differ from the sufficiency standards for
an Alford plea, so this mischaracterization does not materially affect our analysis. See
Williams v. State, 760 N.W.2d 8, 12–13 (Minn. App. 2009), review denied (Minn. Apr. 21,
2009).
7
a. Accuracy of Boos’ first-degree assault of a peace officer plea
“A proper factual basis must be established for a guilty plea to be accurate.” Theis,
742 N.W.2d at 647 (quotation omitted). “Ordinarily, an adequate factual basis is
established by questioning the defendant and asking the defendant to explain in his or her
own words the circumstances surrounding the crime.” Williams, 760 N.W.2d at 12
(quotation omitted). However, in a Norgaard plea situation, “the defendant asserts an
absence of memory on the essential elements of the offense but pleads guilty because the
record establishes, and the defendant reasonably believes, that the state has sufficient
evidence to obtain a conviction.” Id. A district court must ensure that “the record clearly
shows that in all likelihood the defendant committed the offense” and that the defendant
acknowledges “that the evidence would be sufficient for a jury to find the defendant guilty
beyond a reasonable doubt.” Id. at 12–13.
Regarding the first requirement, during the plea hearing, Boos admitted that he did
not surrender peacefully when police arrived. Though he did not remember specifically
what he said during the incident, Boos admitted that he threatened officers with the intent
to scare them. Boos also remembered being armed, but did not remember whether the
revolver police recovered from the scene was the gun he was carrying that day.
When the plea hearing transitioned into a Norgaard hearing, the state supplemented
Boos’ admissions with evidence that there were three officers in the hallway, two behind
shields who Boos could not see directly, and one officer who was in Boos’ direct line of
sight. The state pointed to evidence in the record from the taped recording of Boos’ phone
call to the news station . During this call, Boos told his girlfriend to get as far away from
8
him as possible because “it’s going down here in about 15 seconds.” In the 20 seconds
between telling his girlfriend to get down and the time police fired on Boos, Boos told
officers he was armed and had his weapon trained on one of them, and told officers twice
that he was “going to kill one of [them].”
The state also referenced contemporaneous accounts of the officers in the hallway.
In his post -incident interview, the officer who shot Boos recalled stating seconds after
firing that Boos had “pointed a gun ” at him. The officer stated that Boos was hold ing a
gun for some time, but that immediately before the officer fired at Boos, he saw Boos’ arm
raise up to Boos’ shoulder level in a motion indicative of pointing a gun. The officer stated
that he fired at Boos because he felt he was in “grave danger.”
The officer also identified the weapon in Boos’ hand as some kind of revolver. The
state offered into evidence a revolver recovered at the scene. The revolver was rendered
inoperable by the officer’s shots, but it was discovered cocked and fully loaded.
Boos admitted that he intended to use the revolver to scare the officers in his
doorway. As part of the Norgaard plea, he claimed that he could not remember if he
pointed the gun at the officer who shot him. However, “[i]ntent can be inferred from . . .
the defendant’s conduct, the nature of the assault, and the events leading up to and
immediately following the crime.” State v. Barshaw, 879 N.W.2d 356, 367 (Minn. 2016).
Further, Boos’ statement that he was “going to kill” one of the officers is direct evidence
of his specific intent to kill. See State v. Horst , 880 N.W.2d 24, 40 (Minn. 2016). The
totality of the evidence offered by the state is sufficient to support the inference that when
9
he pointed a cocked and loaded revolver at an officer h e had just threatened to kill, Boos
had the specific intent to use force with the purpose of causing death or great bodily harm.
This conclusion is further supported by Barshaw. In Barshaw, the supreme court
affirmed a conviction of first -degree assault of a police officer where the defendant, who
was in a building surrounded by law enforcement, refused to surrender and was shot when
he raised a loaded gun in the direction of an officer. Id. at 367–68. Given the similarity of
the circumstances surrounding the assault in Barshaw and the assault here, we conclude
that the record demonstrates a strong factual basis for Boos’ first-degree assault plea.
The second requirement, that Boos acknowl edge the evidence was sufficient for a
jury to find him guilty beyond a reasonable doubt, is easily met. During the plea hearing,
the district court confirmed that Boos understood his right to a jury trial and that a jury
would have to find him guilty bey ond a reasonable doubt. Boos was asked by the district
court if Boos believed there was “a substantial likelihood a jury would find [him] guilty
beyond a reasonable doubt if they believed the evidence that the police have.” Boos
responded, “Yes, sir.” Over the course of the plea hearing, Boos was asked at least seven
times by either the prosecutor or the district court if he believed that a jury would find him
guilty of first -degree assault of a peace officer based on the ev idence the state would
present. Boos answered in the affirmative all seven times.
Given that the record demonstrates a strong factual basis showing that in all
likelihood Boos did commit the first-degree assault crime to which he pleaded guilty, and
that Boos repeatedly acknowledged that he believed a jury would find him guilty based on
10
the evidence the state was likely to present at trial, we conclude that Boos’ first-degree
assault plea was accurate.
b. Voluntariness of Boos’ pleas

Boos also argues that all three of his pleas were not voluntary because a condition
of his pleas was the state’s promise not to prosecute his girlfriend for her role in the
standoff, and the district court did not conduct further inquiry into the voluntariness of his
pleas. We disagree.
While “package deal” plea agreements, such as the one agreed to by Boos, are not
“per se invalid,” they are “fraught with danger.” State v. Danh , 516 N.W.2d 539, 542
(Minn. 1994). This is because “package deal” plea agreements generally pose a higher risk
of coercion, whereby a defendant pleads guilty out of a sense of loyalty to the third party.
Id. In order to protect against this danger, the state must “fully inform” the district court
when a defendant is entering into a plea as part of a package deal, and the district court
must “conduct further inquiries to determine whether the plea is voluntar ily made.” Id.
Though the Minnesota Supreme Court has not specified precisely what further inquiries
must be made, Danh instructs that voluntariness should be determined by examining “the
totality of the circumstances” surrounding the guilty plea. Id. at 543 (quotation omitted).
The central question is whether the promise not to prosecute the third party was a
“significant factor” in the defendant’s decision to enter a guilty plea. Id.
At the outset of the plea hearing, the state informed the district court that the state’s
agreement not to prosecute Boos’ girlfriend was a part of Boos’ plea arrangement. Shortly
thereafter, Boos’ attorney asked him if he was entering into the plea freely and voluntarily,
11
to which Boos replied in the affirmative. The district court then also asked Boos if anyone
had made any promise or threats to coerce him to plead guilty, and Boos replied in the
negative. The district court then remarked that Boos “appears to me clearly to understand
what’s going on. He’s clearly a smart man, understands what we’re talking about. He’s
answered all of the questions I think clearly and unequivocally.”
Additionally, a review of the record indicates that the state was not seriously
inclined to charge Boos’ girlfriend, and investigating officers informed Boos that his
girlfriend was being treated as a witness, not a suspect. The state’s lack of intent to
prosecute Boos’ girlfriend is a factor that weighs against a finding of coercion. See Butala
v. State, 664 N.W.2d 333, 340 (Minn. 2003) (determining that where state promised not to
prosecute defendant’s family member, but never intended to do so, “the coercive effect of
offers of leniency . . . was absent”).
In sum, the totality of the circumstances, including Boos’ unequivocal responses to
the district court’s questions regarding whether he was coerced to plead guilty and evidence
that the state was not seriously inclined to charge Boos’ girlfriend, lead s us to the
conclusion that the state’s representation that it would not pro secute Boos’ girlfriend was
not a significant factor in Boos’ decision to enter a guilty plea. We conclude that because
Boos’ pleas were both accurate and voluntary, they were not invalid, and Boos is not
entitled to withdraw his pleas.
Affirmed.