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This opinion will be unpublished and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
A16-2040

State of Minnesota,
Respondent,

vs.

Morgan Leslie Pavey,
Appellant.

Filed December 11, 2017
Affirmed
Schellhas, Judge

Chisago County District Court
File No. 13-CR-14-594

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

Janet Reiter, Chisago County A ttorney, David Hemming, A ssistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges her conviction of, and sentence for, third-degree murder,
arguing that the district court abused its di scretion by admitting cer tain hearsay evidence
and denying her motion for a downward dispositional sentencing departure. We affirm.
FACTS
When friends inquired at a social ou ting about Samuel Manthey’s apparent
intoxication, Manthey said, “I’m on liquid methadone” and “I got it from [appellant
Morgan Pavey].” Later that day, Manthey also told other friends that he was on “liquid
methadone.” The next morning, Manthey’ s family found him unresponsive; first
responders could not revive him. The medical examiner ruled that Manthey’s death was
accidental, caused by methadone toxicity in hi s blood. Respondent State of Minnesota
charged Pavey with third-degree murder in connection with Manthey’s death. At Pavey’s
jury trial, the district court allowed the admission of Manthey’s out-of-court statements
under the residual-hearsay exception. The jury found Pavey guilty as charged.
Pavey moved the district court for downward dispositional and durational
departures. The district court denied the mo tions and sentenced Pavey to an 86-month
presumptive sentence for third-degree murder.
This appeal follows.

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D E C I S I O N
Admission of out-of-court statements
Pavey objected at trial to the admission of Manthey’s out-of-court statements and
argues on appeal that the district court erred by admitting the statements because they did
not contain circumstantial guarantees of trustw orthiness, that the er ror was not harmless,
and that she is entitled to a new trial. “[E]videntiary rulings rest within the sound discretion
of the [district] court and will not be reversed absent a clear abuse of discretion.” State v.
Griffin, 834 N.W.2d 688, 693 (Minn. 2013) (quo tation omitted). Pavey has the burden of
establishing that the court abused its disc retion and that she was prejudiced by the
evidentiary ruling. Id.
“When a defendant has objected to an a lleged error, the harmless-error standard
applies.” State v. Lilienthal, 889 N.W.2d 780, 786 (Minn. 2017). “When an error implicates
a constitutional right, [appellate courts] will award a new trial unless the error is harmless
beyond a reasonable doubt.” Id. at 786−87 (quotation omitted). Here, Pavey does not argue
that Manthey’s statements were testimonial and that the Confrontation Clause therefore is
implicated. Indeed, Manthey’s statements were not testimonial. See State v. Moua Her, 750
N.W.2d 258, 265 (Minn. 2008) (“[S]tatements made to non-government questioners who
are not acting in concert with or as ag ents of the government are considered
nontestimonial.”), rev’d on other grounds by, 555 U.S. 1092, 129 S. Ct. 929 (2009).
“Erroneous admission of evidence that does not have constitutional implications is
harmless if there is no reasonable possib ility that the wrongful ly admitted evidence
significantly affected the verdict.” State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006)

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(quotation omitted). “In evaluating whether an error was harmless, [appellate courts] will
not analyze whether a jury would have convi cted the defendant without the error, but
instead look to whether the error reasonably impacted upon the jury’s decision.” Lilienthal,
889 N.W.2d at 787 (quotations omitted).
Here, after properly classifying Manthey’s statements as hearsay, see Minn. R. Evid.
801(c), 802, the district court admitted the hearsay statements under Minn. R. Evid. 807,
which allows admission of hearsay that possesses “equivalent circumstantial guarantees of
trustworthiness.”
Rule 807 of the Minnesota Rules of Evidence provides
that a hearsay statement not specifically covered by rule 803 or
804 but having equi valent circumstantial guarantees of
trustworthiness, may be admitted into evidence if it meets the
criteria identified in the rule. When determining whether the
statement has equivalent circumstantial guarantees of
trustworthiness, a district court uses a totality of the
circumstances test.

Griffin, 834 N.W.2d at 693 (quotations omitted).
A district court should generally consid er the following factors in evaluating
trustworthiness:
whether the statement was given voluntarily, under oath, and
subject to cross-examination and penalty of perjury; the
declarant’s relationship to th e parties; the declarant’s
motivation to make the statem ent; the declarant’s personal
knowledge; whether the declarant ever recanted the statement;
the existence of corroborating ev idence; and the character of
the declarant for truthfulness and honesty.

Id. (quotation omitted). Here, Manthey made his statem ents voluntarily, based on his
personal knowledge, but not under oath or s ubject to cross-examination. He made the

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statements to friends, who di d not know Pavey. Manthey ne ver recanted his statements,
and no record evidence suggests that he had a motive to lie.
Moreover, other evidence co rroborates Manthey’s statements. The state offered
testimony about the observations of multiple friends of Manthey regarding his intoxicated
state the night before his death, including from a friend experienced with using methadone.
The state also offered testimony from K.T., one of Manthey’s friends. After Manthey’s
death, K.T. confronted Pavey on Facebook regarding her involvement in Manthey’s death.
Pavey thereafter engaged in text messaging with K.T., saying,
Your [sic] pathetic it wasn’t even mine im on 48 mgs just stop
. . . That wouldn’t of even got high he had 150i told him exactly
how to take it he was doing what he always did. Pushed his
limits that the way sam was . . . That goes for a dollar a mg I
didn’t make a profit on it so stfu you sound so ignorant you
have no idea what happened so why do you act like you do?

To determine “that the statement has the necessary ‘guarantees of trustworthiness,’”
Minnesota Rule of Evidence 807 also requires that the district court consider whether
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is
offered than any other eviden ce which the proponent can
procure through reasonable e fforts; and (C) the general
purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.

Id. (quotation omitted).

Here, the state offered Manthe y’s statements as evidence of a material fact to prove
that Manthey was intoxicated from methadone and that Pavey provided him with the
methadone. The district court correctly determ ined that Manthey’s statements were more
probative about the source of the methadone that caused his death than any other available

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evidence. Manthey’s statements were the only direct evid ence that Pavey provided the
methadone to Manthey that caused his death.
We conclude that the general purposes of the rules of eviden ce and interests of
justice were served by admitting the statem ent into evidence. Ma nthey’s statements
allowed the jury to better ascertain the tr uth by considering Manthey’s out-of-court
statements. See Minn. R. Evid. 102 (providing that the rules shall be construed “to the end
that the truth may be ascertained”). Because the district court applied the correct legal test
and based its decision on its overall analysis of the relevant factors under rule 807, we hold
that the court did not abuse its discretion by admitting Manthey’s out-of-court statements.
We therefore need not address whether the court’s admission of Manthey’s out-of-court
statements significantly affected the verdict.
Denial of Downward Dispositional Sentencing Departure
The district court sentenced Pavey to a presumptive guidelines sentence of 86
months executed. Pavey argues that the district court abused its discretion by denying her
motion for a downward dispositional sentencing departure because her age and amenability
to treatment provided “substantial and compelling circumstances” warranting a downward
departure.1
“[Appellate courts] afford the [district] court great discretion in the imposition of
sentences and reverse sentenci ng decisions only for an abuse of that discretion.” State v.

1 Pavey does not challenge the district cour t’s denial of her motion for a downward
durational departure.

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Soto, 855 N.W.2d 303, 307–08 (Minn. 2014 ) (quotation omitted). “The Minnesota
Sentencing Guidelines . . . limit the sentencing court’s discretion by prescribing a sentence
or range of sentences that is presumed to be appropriate. Id. at 308 (quotation omitted).
Only in a rare case will a reviewing court reverse the imposition of a presumptive sentence.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A sentencing court can exercise its di scretion to depart downward from the
guidelines only if mitigating circumstances are present and those circumstances provide a
substantial and compelling reason to depart. Soto, 855 N.W.2d at 308. “If the district court
has discretion to depart from a presumptive se ntence, it must exercise that discretion by
deliberately considering circumstan ces for and against departure.” State v. Pegel , 795
N.W.2d 251, 253 (Minn. App. 2011).
The supreme court has established a list of factors for sentencing courts to consider
when deciding whether to grant a downward dispositional departure. See State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982).2 One of the Trog factors is a defendant’s particular suitability
to treatment in a probationary setting. Id.; see also Soto, 855 N.W.2d at 308.
In this case, the district court considered Pavey’s amenability to treatment and other
Trog factors and concluded that the factors disfavored a downward dispositional departure.
The court noted that Pavey had an extensive juvenile record and charges in two other
pending criminal files; she fa iled to cooperate with the initia l investigation; she failed to

2 “Numerous factors, including the defendant’s age, his prior record, his remorse, his
cooperation, his attitude while in court, an d the support of friends and/or family, are
relevant to a determination whether a defendan t is particularly suitable to individualized
treatment in a probationary setting.” Trog, 323 N.W.2d. at 31.

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show remorse; she showed “a great lack of respect” by violating the court’s pretrial-release
orders; and she lacked familial support to as sist her in treatment. The court accordingly
deemed Pavey to be unamenable to treatment due to her prob ation violations, failure to
remain law-abiding, and failu re to abide by various court-ordered instructions. We
conclude that the district court properly exercised its discretion by considering the Trog
factors and denying Pavey’s downward dispositional departure request.
Affirmed.