This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0771
State of Minnesota, Respondent,
vs.
Devin Matthew Weiland, Appellant.
Filed June 17, 2024 Affirmed Smith, Tracy M., Judge
Freeborn County District Court File No. 24-CR-20-1674
Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and
David Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bratvold, Presiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Devin Matthew Weiland challenges his convictions for attempted first-
degree murder, arguing that the evidence was insufficient to prove the elements of intent
and premeditation beyond a reasonable doubt. He also argues that the district court erred by entering three convictions for second-degree assault with a dangerous weapon based on
the same conduct as the attempted first-degree murder convictions. Weiland raises
additional arguments in his pro se supplemental brief. We affirm.
FACTS
Following an eight-hour standoff with law enforcement during which Weiland shot
a police officer and two civilians, respondent State of Minnesota charged Weiland with
three counts of attempted first-degree murder, in violation of Minnesota Statutes section
609.185(a) (2020), and three counts of second-degree assault with a dangerous weapon, in
violation of Minnesota Statutes section 609.222, subdivision 1 (2020). Weiland
acknowledges that the facts surrounding the incident are largely undisputed. But he
contests whether the evidence is sufficient to prove beyond a reasonable doubt that he
intended to cause the death of the peace officer and acted with premeditation and intent to
cause the death of the two civilians. He contends that the evidence showed that his intent
was to commit “suicide by cop.”
Weiland lived on the third floor of an eight-story apartment building in Albert Lea.
On the evening of November 28, 2020, Weiland attended a party in another unit in the
building. According to what Weiland later told the police, there was a conflict between
Weiland and some attendees at the party and he returned to his apartment and took out his
firearms “just in case anything did happen.” Weiland then discharged one of his firearms
inside his apartment.
At 2:17 a.m., Weiland called 911. He reported that he had heard “either a firecracker
or a gunshot” near his apartment building and requested that an officer be dispatched “as
2 soon as possible.” He later stated that he was concerned that the police would take his
firearms away based on the discharge of his firearm inside his apartment.
Albert Lea Police Officer K.N. was immediately dispatched to the apartment
building, arriving minutes later. In his marked squad car, Officer K.N. entered the
building’s horseshoe-shaped driveway, driving slowly with his windows down “to see if
anything caught [his] eye.” As he was about to leave the driveway and enter the parking
lot, he heard several loud “explosions.” He heard something hit his squad car and felt
something “slam” into his chest. Realizing that he had been shot, Officer K.N. accelerated
through the parking lot, exited the parking lot through a field, and drove himself to the
hospital. Weiland had shot Officer K.N. on the right side of his chest; a bulletproof vest
stopped the bullet from entering his body. Later investigation showed that Officer K.N.’s
squad car was struck by gunfire several times.
Other police officers also responded to the original 911 dispatch. As they
approached the apartment building, they heard semiautomatic gunfire. They did not
immediately know where the gunfire was coming from. Once they realized that the shots
were coming from the apartment building, the officers established a position behind a water
pump house just northeast of the building. They continued to hear gunfire at random
intervals. They heard gunfire hit the trees in front of the pump house and the pavement
behind them.
D.T. lived on the same floor as Weiland and considered himself Weiland’s friend.
The night of the standoff, he went to bed around 1:00 a.m. He did not fall asleep because
he heard what he thought were “fireworks” starting around 1:00 a.m. At about 2:30 a.m.,
3 he decided to go check on his vehicle in the parking lot and then smoke a cigarette. After
seeing that his vehicle was undamaged, he headed east toward a bus shelter north of the
apartment building. As he was walking, he heard a loud noise and fell to the ground.
Realizing that he had been shot, D.T. got up and ran. He reached officers on the north side
of the building, who helped him evacuate to the pump house. Weiland had shot him. The
bullet entered the back of D.T.’s right arm, shattered his humerus bone, exited his arm, and
grazed his chest. D.T. was brought to the hospital in Albert Lea and then flown by
helicopter to Rochester for medical care.
P.F. lived across the street from the apartment building. On the day of the incident,
he woke up at about 5:00 a.m. and left for work at about 5:30 a.m. As he was driving down
the street, he heard a “loud bang” under his car and pulled to the side of the road. Weiland
had shot P.F. The bullet had pierced the car and traveled through the left side of the back
of P.F.’s knee into his calf. Four officers were able to get to P.F., and they carried him to
an armored vehicle and transported him to the hospital. P.F. was then flown by helicopter
to Rochester for medical care. He spent two-and-a-half to three months in intensive care.
Around 6:00 a.m., officers deployed a video surveillance drone to pinpoint the
shooter’s location in the apartment building. When the drone operator flew the drone close
to the building, Weiland shot at the drone several times, eventually shooting it out of the
air. During this time, officers determined that Weiland was shooting from his third-floor
apartment.
4 SWAT teams worked to evacuate residents from the apartment building. When the
building was mostly evacuated, officers took up positions inside the building, with
approximately 25 to 30 officers on the ends of the third-floor hallway.
Around 8:45 a.m., a SWAT team used tear gas to try to force Weiland to leave his
apartment. The team drove its armored vehicle in front of the building, and officers shot
tear gas canisters, at least one of which entered Weiland’s apartment. Weiland responded
with gunfire toward the armored vehicle. One bullet struck its bulletproof windshield,
directly in front of the driver’s seat. Because of damage to the windshield, the vehicle had
to retreat. Later investigation revealed that the vehicle had been hit by at least six rifle shots
on the driver’s side.
Immediately after shooting at the armored vehicle, Weiland fired his rifle at his
apartment door. Bullets went through his door and across the hallway. No officers were
struck. Weiland later told the interviewing investigator that, after the teargas came into his
apartment, he thought that “an assault team” would be in the hallway.
A neighbor who had awakened to a popping sound watched events unfold
throughout the standoff. He saw muzzle flashes from Weiland’s gunfire and saw Weiland
shoot both D.T. and P.F. He also saw the armored vehicle take gunfire. When asked
whether he saw a pattern to Weiland’s gunfire, he said that Weiland shot “[a]nything
moving.”
Three sniper teams were stationed across the street from the apartment building.
Around 9:40 a.m., one of the snipers saw Weiland appear at a window and take aim out the
window. The sniper fired a bullet that ricocheted off Weiland’s windowsill and hit Weiland
5 in the forehead. Weiland, who had fired his rifle at nearly the same moment, did not know
that he had been shot, instead thinking that a ricochet from his own gunshot had struck him.
Officers on the third floor were using a robot equipped with a speaker system to
communicate with Weiland. Before he was shot, Weiland had been directed to surrender,
but he did not. After he was shot, Weiland told officers that he was injured, and they
responded that they could help him. Weiland eventually opened his apartment door and, as
directed by officers, showed an empty hand, but he then retreated back into his apartment.
In continued communications with officers, Weiland said that he was breaking down his
weapons. At 10:48 a.m., Weiland finally surrendered—coming out of his apartment
unarmed—and was taken into custody.
Weiland was transported to the hospital and treated for his injury. At the hospital,
he claimed that he did not mean to shoot the police or P.F. He denied knowing that he had
shot D.T. When informed that his own head injury was from a bullet, Weiland said, “Too
bad it didn’t kill me. I wish it would have.” The next day, he gave a Mirandized 1 statement
to an investigator from the Minnesota Bureau of Criminal Apprehension. He claimed that
he did not intend to kill anyone but was instead trying to commit suicide by having the
police shoot him.
The jury found Weiland guilty of all counts. The district court entered convictions
for all counts and sentenced Weiland to three consecutive executed terms of 200 months
1 See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (holding that, when a person is in custody and questioned, the person must be informed of their rights, including the right to remain silent and the right to an attorney).
6 each for the attempted first-degree murders. The district court imposed no sentences for
the three assault convictions.
Weiland appeals.
DECISION
I. The circumstantial evidence is sufficient to prove intent and premeditation.
Weiland argues that the state presented insufficient evidence of intent and
premeditation because, he contends, the circumstances proved are consistent with a rational
theory other than guilt. Weiland suggests that the circumstances proved are consistent with
him trying to commit “suicide by cop,” which he claims is inconsistent with him acting
with premeditation and intending to cause the deaths of D.T., P.F, and Officer K.N.
Appellate courts apply a two-step analysis to review the sufficiency of
circumstantial evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, the
court identifies the circumstances proved, deferring “to the jury’s acceptance of the proof
of these circumstances and rejection of evidence in the record that conflicted with the
circumstances proved by the State.” Id. at 598-99 (quotations omitted). In other words, in
determining the circumstances proved, the court considers “only those circumstances that
are consistent with the verdict.” Id. at 599. Second, the court determines “whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt, not simply whether the inferences that point to guilt are
reasonable.” Id. (quotations omitted). At this step, the court does not defer to the jury’s
choice between reasonable inferences. Id. “Circumstantial evidence must form a complete
chain, that in view of the evidence as a whole, leads so directly to the guilt of the defendant
7 as to exclude beyond a reasonable doubt any reasonable inference other than guilt.” State
v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted).
Weiland was convicted of three counts of attempted first-degree murder. The statute
criminalizing first-degree murder reads:
(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life: (1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another; . . . [or] (4) causes the death of a peace officer . . . with intent to effect the death of that person or another, while the person is engaged in the performance of official duties.
Minn. Stat. § 609.185(a)(1), (4); see also Minn. Stat. § 609.17, subd. 1 (2020) (stating that
“[w]hoever, with intent to commit a crime, does an act which is a substantial step toward,
and more than preparation for, the commission of the crime is guilty of an attempt to
commit that crime”). Because Officer K.N. is a peace officer, the state had to prove that
Weiland intended to cause the death of Officer K.N. but did not have to prove
premeditation. For Weiland’s shootings of D.T. and P.F., the state had to prove both intent
and premeditation. Intent and premeditation are usually proved with circumstantial
evidence. State v. Balandin, 944 N.W.2d 204, 217 (Minn. 2020).
For first-degree murder, “‘[w]ith intent to’ . . . means that 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.” Minn. Stat. § 609.02, subd. 9(4) (2020). Intent can be inferred from
the actor’s words and actions before and after the incident, the nature of the victim’s
wounds, and the extent of the victim’s wounds. Balandin, 944 N.W.2d at 216.
8 In the context of first-degree murder, “‘premeditation’ means to consider, plan or
prepare for, or determine to commit, the act referred to prior to its commission.” Minn.
Stat. § 609.18 (2020). It “requires some amount of time to pass between formation of the
intent and the carrying out of the act.” Balandin, 944 N.W.2d at 213 (quotation omitted).
Where there is only circumstantial evidence, “premeditation may be inferred from planning
activity, motive, the nature of the killing, and a defendant’s actions following the killing.”
Id. (quotation omitted). Courts can consider the number of wounds, whether the wounds
were inflicted on vital areas, and the passage of time between the infliction of wounds in
determining whether the nature of the killing supports premeditation. Id. at 215.
A. Officer K.N.
To prove attempted first-degree murder with respect to Officer K.N., the state had
to prove that Weiland had the intent to cause Officer K.N.’s death.
Assuming that the jury believed all evidence that showed that Weiland had an intent
to cause the death of Officer K.N. and disbelieved all inconsistent evidence, the
circumstances proved are:
1. Weiland discharged a firearm into the ceiling of his apartment;
2. Weiland feared that the discharge of his firearm would cause law enforcement to confiscate his firearms;
3. Weiland called 911 and informed the dispatcher that he had heard fireworks or a gunshot outside;
4. Weiland requested that an officer be dispatched “as soon as possible”;
5. Weiland stored his firearms unloaded;
9 6. Weiland waited for Officer K.N.’s squad car to turn into the parking lot before firing at the squad car; and
7. Weiland fired four shots that hit the exterior of the squad car and a fifth shot that passed through the vehicle’s open window and hit the right side of Officer K.N.’s bulletproof vest, above his chest.
As Weiland concedes, the circumstances proved are consistent with the reasonable
inference that Weiland had the intent to cause Officer K.N.’s death. Weiland feared losing
his guns after discharging his weapon into the ceiling. He lured Officer K.N. to the
apartment building by making a false report to the 911 dispatcher, took the time to load his
firearm, waited until Officer K.N. had turned into the driveway to make his escape more
difficult, and then aimed and fired five shots at Officer K.N.’s moving vehicle, including
one that would have hit Officer K.N. in a critical area had he not been wearing a bulletproof
vest.
Weiland contends, though, that the circumstances proved are also consistent with
the rational hypothesis that he intended only to incite fear to provoke officers to shoot and
kill him. We are not convinced.
First, the circumstances described above are inconsistent with an intent to cause
mere fear.
Second, we are not persuaded that the circumstances proved support a reasonable
inference that Weiland intended to be shot by the police. On the contrary, the circumstances
proved suggest that he was trying to avoid that result. Weiland did not identify himself or
his apartment number when he called 911, he interfered with law enforcement’s ability to
locate him as the shooter by keeping officers pinned down through gunfire and shooting
10 down a surveillance drone, he fired through his apartment door into the hallway when he
believed officers would be trying to enter, and he twice opened his apartment door while
unarmed, including when he finally surrendered. These actions are not consistent with the
inference that he was seeking to be shot by police.
Third, even if the circumstances proved did lead to the rational inference that
Weiland intended to be shot by police, that inference is not inconsistent with guilt. Under
the circumstantial-evidence test, the defense’s proposed inference must lead to a rational
hypothesis “inconsistent with guilt,” State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017),
or, stated differently, a “rational hypothesis of innocence,” State v. Hawes, 801 N.W.2d
659, 669 (Minn. 2011). Weiland’s proposed inference, that he intended to commit “suicide
by cop,” is not inconsistent with an intent to kill Officer K.N.—he could have intended to
cause the death of Officer K.N. as part of a broader plan to be killed by the police. The
“suicide by cop” inference regarding Officer K.N. therefore does not lead to a rational
hypothesis of innocence. Accordingly, the circumstantial evidence is sufficient to show
that Weiland intended to cause the death of Officer K.N.
B. D.T. and P.F.
To prove attempted first-degree murder with respect to D.T. and P.F., the state had
to prove that Weiland acted with both premeditation and the intent to cause their deaths.
Along with the above circumstances, the state also proved:
1. During the incident, Weiland shot at “anything moving”;
2. Weiland’s ammunition clips held only ten bullets at a time;
11 3. Around ten minutes passed between when Weiland shot Officer K.N. and when Weiland shot D.T.;
4. Weiland fired at D.T. shortly after D.T. walked in front of the apartment building;
5. Weiland shot D.T. through the upper arm, and the bullet grazed his chest;
6. D.T. was airlifted to Rochester for medical care;
7. Weiland shot P.F. about three hours after shooting D.T.;
8. Weiland shot P.F. through the door of P.F.’s car while the car was moving;
9. P.F. was shot in the leg;
10. P.F. was airlifted to Rochester for medical care, where he spent approximately two-and-a-half months in intensive care;
11. Weiland shot both D.T. and P.F. with his rifle, not a shotgun; and
12. Weiland later shot at the armored vehicle, striking the windshield directly in front of the driver’s head.
As Weiland concedes, the circumstances proved are consistent with the reasonable
inference that Weiland intended to cause the deaths of D.T. and P.F. and that Weiland acted
with premeditation. As for intent, the circumstances proved show that Weiland shot D.T.
at chest level—had his humerus not deflected the blow, D.T. likely would have died.
Weiland carefully aimed at the driver’s side door of P.F.’s moving vehicle to shoot him.
Weiland used a rifle, not his shotgun, when firing at D.T. and P.F., who were both at a
distance from him. Weiland made specific efforts to target people throughout the night,
including shooting at the head of the driver of the armored vehicle. As for premeditation,
the circumstances proved show that Weiland loaded his unloaded guns at the start of the
incident; had time to consider his actions between shooting Officer K.N. and D.T. and
12 between shooting D.T. and P.F.; and, because his ammunition clip held only ten bullets,
had to repeatedly decide to reload his firearm between every ten shots.
Weiland contends, though, that the circumstances proved are consistent with the
rational hypothesis that he lacked intent and premeditation. He points to an absence of
motive and planning before the incident, the fact that Weiland did not fire finishing shots
at D.T. and P.F. after shooting them, and that he fired at them from a distance, not close
range. He also argues that his actions and statements to law enforcement afterward suggest
that he was trying to commit “suicide by cop.” We are not persuaded. Weiland loaded and
reloaded his rifle, took aim at D.T. and P.F. where he found them, and shot them in a
manner that would not suggest merely trying to injure them. And, for the reasons described
above with respect to Officer K.N., the circumstances proved do not lead to the rational
inference that Weiland was trying to get shot by the police and, even if that was his intent,
“suicide by cop” is not inconsistent with the intent to kill D.T. and P.F. The circumstantial
evidence is sufficient to prove that Weiland acted with both intent and premeditation.
II. The district court did not err by entering convictions for second-degree assault.
Both Weiland and the state agree that the district court erred by entering the three
convictions for second-degree assault because the assaults are lesser-included offenses of
the attempted first-degree murders. Although the parties agree, we review the question
because “it is the responsibility of appellate courts to decide cases in accordance with law.”
State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).
A person “may be convicted of either the crime charged or an included offense, but
not both.” Minn. Stat. § 609.04, subd. 1 (2020). Appellate courts review de novo whether
13 an offense is an included offense. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012). An
included offense is, among other things, “a crime [that is] necessarily proved if the crime
charged were proved.” Minn. Stat. § 609.04, subd. 1(4). To determine whether an offense
is necessarily proved by proof of another, the reviewing court looks at the elements of the
offenses rather than the facts of the particular case. State v. Roden, 384 N.W.2d 456, 457
(Minn. 1986).
Second-degree assault with a dangerous weapon is not a lesser-included offense of
attempted first-degree murder because, based on the elements of the statutes, one could
commit the offense of attempted first-degree murder without committing the offense of
second-degree assault. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983). We
therefore conclude that the district court did not err by entering convictions for second-
degree assault.
III. Weiland’s arguments in his supplemental brief lack merit.
A. Void for Vagueness
Weiland argues that the first-degree murder and second-degree murder statutes are
unconstitutionally vague because “there is no difference between the conduct the two
statutes cover.” Weiland asserts that “[t]he crimes of first-degree premeditated murder and
second-degree intentional murder are thus void, as are all convictions and sentences under
them.”
Weiland did not make this argument to the district court, so it is not properly before
us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts
generally will not consider matters not argued to and considered by the district court); Roby
14 v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts “generally will
not decide issues which were not raised before the district court, including constitutional
questions of criminal procedure”). In any event, the Minnesota Supreme Court has ruled
that the statutes are not void for vagueness because there is a difference between intent and
premeditation. State v. Moore, 846 N.W.2d 83, 87 n.1 (Minn. 2014).
B. Separation of Powers and Double Jeopardy
Weiland argues that the district court violated the constitutional separation of
powers and the bar on double jeopardy by imposing separate sentences for the attempted
murder of each of his victims.
Under Minnesota Statutes section 609.035 (2020), a person generally cannot be
sentenced for more than one offense arising out of the same behavioral incident. State v.
Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). We need not review whether Weiland’s
offenses arose from the same behavioral incident because, even if they did, multiple
sentences are permitted for offenses that have multiple victims. See State v. Alger, 941
N.W.2d 396, 400 (Minn. 2020). And the Minnesota Supreme Court has determined that
the multiple-victim rule does not violate the separation of powers, Munt v. State, 920
N.W.2d 410, 419 (Minn. 2018), and does not violate the bar on double jeopardy, State v.
Mitjans, 408 N.W.2d 824, 835 (Minn. 1987). We therefore conclude that the district court
did not err by imposing three consecutive sentences for Weiland’s attempted first-degree
murder of Officer K.N., his attempted first-degree murder of D.T., and his attempted first-
degree murder of P.F.
Affirmed.