of Appellate Courts Ramsey County
Swanson, Minnesota Attorney General, Saint Paul, Minnesota;
and John J. Choi, Ramsey County Attorney, Peter R. Marker,
Assistant Ramsey County Attorney, Saint Paul, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie
J. Rosenberg, Assistant State Public Defender, Saint Paul,
Minnesota, for appellant.
district court did not abuse its discretion when, by pretrial
order, it excluded certain evidence proffered by appellant.
The district court's exclusion of one piece of evidence
was harmless error.
district court did not abuse its discretion when it denied
appellant's request for a third-degree murder
district court did not err when it denied appellant's
motion to dismiss the charge of first-degree murder.
Ramsey County jury found appellant Neal Zumberge guilty of
first-degree murder, first-degree attempted murder,
second-degree murder, and second-degree attempted murder, for
fatally shooting Todd Stevens and wounding Jennifer Cleven on
May 5, 2014. The district court sentenced Zumberge to
consecutive terms of life imprisonment without the
possibility of release for the first-degree murder of Stevens
and 180 months for the attempted first-degree murder of
direct appeal, Zumberge contends that the district court
erred when it excluded evidence relevant to his reasonable
fear of Stevens on the night of the shooting, denied his
request for a third-degree murder instruction, and denied his
motion to dismiss the charge of first-degree murder. For the
reasons that follow, we affirm his convictions.
Zumberge and Todd Stevens were neighbors. Stevens and his
longtime girlfriend, Jennifer Cleven, enjoyed feeding deer in
their yard and did so for more than a decade. Zumberge, who
lived across the street, did not like having deer in the
period of about two years, Zumberge's relationship with
Stevens and Cleven deteriorated. In 2012, Zumberge circulated
a letter to neighbors expressing frustration about the deer.
Later that year, Stevens and Cleven found mutilated animals
in their yard and suspected that Zumberge was responsible.
Cleven testified that when she confronted Zumberge about the
dead animals, he threatened to kill her. In response, Cleven
obtained a harassment restraining order against Zumberge.
Tensions continued to rise. Cleven repeatedly accused
Zumberge of blowing an air horn to scare the deer feeding in
her yard. While talking with a neighbor about the deer,
Zumberge said "it would all be over soon."
April 29, 2014, Cleven called police and claimed that
Zumberge's son, Jacob, had threatened to kill her. Police
told Cleven to call them if she saw Jacob so that they could
arrest him. Zumberge testified that, following this incident,
and out of fear that hostilities would escalate further, he
retrieved a 12-gauge shotgun from his basement and taught his
wife, Paula, how to use it. He then loaded the gun with four
shells, each containing eight pellets of buckshot, removed
the trigger lock, and placed the gun under the living room
week later, Cleven saw Jacob at a bar and called the police.
Jacob was arrested. Jacob's brother, who was also at the
bar, called Paula to tell her about Jacob's arrest. When
Cleven returned home that night, Paula went outside to
confront her. Paula stood at the end of her driveway and
yelled across the street at Cleven, who stood near her own
front door. Zumberge watched the confrontation through the
living room window.
point during the cross-street yelling, Stevens came out of
the house and stood next to Cleven. Upon seeing Stevens leave
his house, Zumberge retrieved his shotgun, went to the
basement, climbed through an egress window, and peered around
the corner of the house toward Stevens and Cleven. Zumberge
was located about 145 feet from Stevens. After about one
minute, using lip-reading skills allegedly honed when growing
up with a deaf brother, Zumberge testified that he thought he
saw Stevens say, "I'm gonna kill that f***ing
b****." Zumberge testified that he saw Stevens reach for
his belt, where Zumberge said Stevens previously kept a gun.
Zumberge brought his shotgun up, "it went off, "
and "everything . . . was just a blur." Zumberge
fired four shots in quick succession, hitting Stevens three
times, and hitting Cleven once as she ran back into her
house. Stevens died soon after. Cleven recovered from her
injuries after hospitalization.
testified that he intended to "stop" Stevens and
did not intend to hurt Cleven. Stevens had a phone holder
attached to his belt and was not armed when Zumberge shot
State initially charged Zumberge by complaint with
second-degree intentional murder, Minn. Stat. § 609.19,
subd. 1(1) (2016), and attempted second-degree intentional
murder, Minn. Stat. § 609.17 (2016). Later, the State
obtained an indictment on those charges as well as for
first-degree premeditated murder, Minn. Stat. §
609.185(a)(1) (2016), and attempted first-degree premeditated
murder, Minn. Stat. § 609.17. The district court denied
Zumberge's motion to dismiss the first-degree murder
charge. The ...