State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2084

State of Minnesota,
Respondent,

vs.

Jon Marvin Manypenny,
Appellant.

Filed November 4, 2019
Affirmed
Jesson, Judge

Becker County District Court
File No. 03-CR-17-2709

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Lisa M. Tufts, Assistant County Attorney,
Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, J u d g e ; a n d
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Jon Marvin Manypenny challenges his conviction of being an ineligible
person in possession of a firearm, which stemmed from him carry ing guns into an

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apartment. Because the district court did not abuse its discretion by admitting a witness’s
out-of-court statement as a present-sense impression and because any error in admitting a
second witness’s statement did not affect Manypenny’s substantial rights, we affirm.
FACTS
On December 27, 2017, M.N. and T.N. were playing cards and drin king beer at
T.N.’s apartment. Later, appella nt Jon Marvin Manypenny and tw o other individuals
arrived at the apartment. M.N. saw Manypenny grab latex rubber gloves, talk to T.N., and
leave. About 30 minutes later, Manypenny returned with the two individuals, and the group
brought four or five guns into the apartment. M.N. saw Manypen ny, who was wearing
gloves, carrying two guns that looked like rifles.
M.N. sent a text message to he r cousin stating, “SOS I’m at [T.N.’s] in the projects
and [Manypenny] came in with rubber gloves and many [gun emoji] I didn’t [d]o nothing
but I’m here and I saw what I saw help.” After receiving this message and several others,
M.N.’s cousin called the police. About 12 minutes after M.N.’s first message, a police
officer arrived at T.N.’s apartment. By the time police arrive d, Manypenny had left the
apartment.
Once at T.N.’s apartment, an officer asked M.N. and T.N. what happened. Although
the two first denied that anythi ng was going on, M.N. eventuall y told police that
Manypenny and two others brought guns to the apartment. M.N. t old the officer that the
guns were in the bedroom, and af ter a search, the officer found four firearms. While the
officer was recovering and securing the guns, T.N. left the apa rtment. Another officer

3
found T.N., and about 30 minutes later, officers interviewed he r. T.N. told police that
Manypenny and a man named Richard carried the guns into her bedroom.
Police did not locate Manypenny that night. But T.N. identifi ed the other man with
Manypenny as Richard Thompson ba sed on a photograph that police showed her. And
police found and interviewed Thom pson, who was in custody, the next day. Thompson
denied carrying any guns himse lf, but told police that Manypenn y carried firearms into
T.N.’s apartment.
Based on information from M.N., T.N., and Thompson, the state charged
Manypenny with being an ineligible person in possession of a firearm. The case proceeded
to a jury trial. Before the trial began, Manypenny’s counsel requested that the court prevent
the state from introducing any of T.N.’s prior statements to la w enforcement, informing
the court that T.N. indicated that she had no memory of the eve nt. The district court
determined that T.N.’s statement to police qualified as a prese nt-sense impression under
rule 801(d)(1)(D) of the Minnesota Rules of Evidence.
At trial, the state presented testimony from M.N., who testified about what happened
as described above, including t hat she observed Manypenny carry firearms into T.N.’s
apartment and that he was wearing gloves. M.N. acknowledged that she had been drinking
that night, but testified that it did not affect her memory. T he state then called T.N. as a
witness, but she testified that she had no recollection of the night due to a traumatic brain
injury and the fact that she was drunk.1 According to T.N., she did not remember giving a

1 T.N. acknowledged that her criminal history made her ineligible to possess a firearm but
that the state never charged her with a crime for this incident.

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statement to police, although she did not deny doing so. Revie wing a transcript of her
statement did not refresh her recollection.
Thompson also testified for the state. He explained that a wom an contacted him
about selling some firearms, so he asked some people he knew if they wanted to buy any
guns. According to Thompson, h e and Manypenny are friends, but he never talked to
Manypenny about guns. He went to T.N.’s apartment with a woman on December 27 and
brought four firearms, but Thomps on testified Manypenny was alr eady in the apartment
when he arrived. When asked if he remembered giving a statemen t to police, Thompson
responded that he did “not really” remember because he was stil l high when talking to
officers, but that he recalled that he told officers he was not involved in what happened.
Thompson explained that his initia l statement to police—in whic h he implicated
Manypenny—differed significantly from his testimony because he had “a lot to lose” when
he talked to police. But becaus e he pleaded guilty to being a prohibited person in
possession of a firearm before Manypenny’s trial, Thompson test ified—with “nothing to
lose” at this point—that his trial testimony that he carried th e firearms into T.N.’s
apartment was the truth.
After presenting the testimony of these three witnesses who pre viously gave
statements to police, the state called one of the police officers who interviewed M.N., T.N.,
and Thompson. The officer testified that he responded to T.N.’s apartment and spoke with
M.N. and T.N., and his body camera captured M.N. and T.N.’s sta tements. The district
court admitted, without objection, general footage from when the officer arrived, including
M.N. and T.N. initially speaking with police. The state then s ought to admit T.N.’s

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statement to police describing Manypenny’s involvement with the firearms, and defense
counsel did not object. As a re sult, the state played T.N.’s s tatement for the jury. Then,
the state offered the recording of Thompson’s prior interview w ith police, and again,
defense counsel did not object. Thompson’s interview implicating Manypenny was played
for the jury.2
The jury found Manypenny guilty of being an ineligible person in possession of a
firearm.3 The district court sentenced M anypenny to the mandatory 60 months in prison.
Manypenny appeals.
D E C I S I O N
Manypenny argues that the distri ct court erroneously admitted b oth T.N.’s and
Thompson’s out-of-court statements to police. According to Manypenny, both statements
are inadmissible hearsay and no exception to the rule against h earsay allowed the district
court to admit them. We address each statement in turn.
I. The district court did not a buse its discretion by admitting T.N.’s out-of-court
statement to police as a present-sense impression.

Manypenny asserts that the distr ict court abused its discretion by admitting T.N.’s
out-of-court statement to police because it constituted inadmissible hearsay. We review a

2 Although Manypenny did not testify, he presented a witness who testified that he saw
Manypenny on the night the event occurred, but that Manypenny d id not have any guns
with him. Manypenny’s witness al so explained that Manypenny never tried to sell him a
gun.
3 Manypenny stipulated that his pr ior criminal history made him ineligible to possess a
firearm.

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district court’s evidentiary decisions for an abuse of discretion.4 State v. Ali, 855 N.W.2d
235, 249 (Minn. 2014). A district court abuses its discretion when its decision is against
facts in the record or based on an erroneous view of the law. State v. Hallmark, 927 N.W.2d
281, 291 (Minn. 2019).
Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). And hearsay is not admissible at trial unless it falls into one of several
exceptions delineated in the rules of evidence. Minn. R. Evid. 802.
But the rules also exempt some prior statements by a witness from being classified
as hearsay. Minn. R. Evid. 801(d)(1). One type of statement t hat is not hearsay is a
statement known as a present-sense impression, or as an “unexcited utterance.”5 Minn. R.
Evid. 801(d)(1)(D); State v. Pieschke , 295 N.W.2d 580, 583 (Minn. 1980). Under that
provision, if a declarant testif ies at trial and is subject to cross-examination, and the
statement is “a statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition or immediately thereafter,” the statement

4 It is not entirely clear from the record whether Manypenny pro perly maintained his
objection to the admission of T.N.’s statement. But both the plain-error and harmless-error
standards of review require us to first conclude that the distr ict court erred. Because we
conclude that the district court did not err, it is unnecessary for us to determine whether
Manypenny properly maintained his objection.
5 The present-sense impression, which is not hearsay, differs fr om the hearsay exception
known as the excited utterance because it does not require that the declarant be under the
“stress of excitement” when making the statement. 11 Peter N. Thompson, Minnesota
Practice § 801.09 (4th ed. 2012). Further, the present-sense impression has the additional
requirements that the declarant actually testify at trial and be subject to cross-examination,
whereas the availability of the declarant is immaterial for a s tatement to be considered an
excited utterance. Minn. R. Evid. 801(d)(1)(D); 803(2).

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is not hearsay. Minn. R. Evid. 801(d)(1)(D). The purpose of r equiring that the statement
be “made contemporaneously with the event or immediately thereafter [is] so that there is
little time to consciously fabricate a story.” Pieschke, 295 N.W.2d at 583.
Here, the district court admitted T.N.’s statement as a present-sense impression. In
discussing admitting the statement, the district court stated, “I don’t know that the rule
requires that it be absolutely c ontemporaneous or immediately a fter the incident so it’s
fresh and reliable.” The district court then stated that it believed T.N.’s statement was the
type of statement that would fit under rule 801(d)(1)(D).
But Manypenny argues that caselaw dictates that too much time e lapsed between
the event and T.N.’s statement for it to qualify as a present-sense impression. Manypenny
draws our attention to Pieschke, a case in which the supreme court determined that
statements made within a few minutes of an incident were close enough in time to qualify
as present-sense impressions, but those made nearly an hour lat er did not qualify because
they were too remote in time. 295 N.W.2d at 582, 584. But Pieschke is not as helpful as
Manypenny asserts. Rather, Pieschke establishes a spectrum of time—ranging from a few
minutes to nearly an hour—duri ng which a statement can qualify a s a p r e s e n t - s e n s e
impression. Id. T.N.’s statement to police falls squarely within that time spec trum.
Further, Pieschke reiterates that the purpose of requiring a statement be “made
contemporaneously with the event or immediately thereafter” is so there is not time for the
declarant to “consciously fabricate a story.” Id. at 583; see also State v. Hogetvedt ,
623 N.W.2d 909, 913 (Minn. App. 2001) (determining that an assa ult victim’s statement
given to police at the hospital nearly three hours after the attack could fall under rule 801(d)

8
of the Minnesota Rules of Evidence), review denied ( M i n n . M a y 2 9 , 2 0 0 1 ) . T . N . ’ s
statement to police—given while she asserts she was drunk—occurred in the context of an
ongoing police investigation, making it unlikely that she had t ime to fabricate a story.
Accordingly, because the district court’s decision to admit T.N . ’ s s t a t e m e n t a s a
present-sense impression is not contrary to the time spectrum e stablished by caselaw, it
was not an abuse of discretion. See Hallmark, 927 N.W.2d at 291 (stating that a district
court abuses its discretion when it bases its decision on an erroneous view of the law).
Finally, we note that even if t he district court abused its di scretion by admitting
T.N.’s statement, any error was harmless. The state presented testimony from M.N. that
Manypenny brought guns to T.N.’s apartment, which was corroborated by the text message
that she sent her cousin. The jury found M.N. credible and cre dited her testimony, which
is its role. See State v. Landa , 642 N.W.2d 720, 725 (Minn. 2002) (noting that it is the
jury’s role to weigh the credibi lity of witnesses). Because th e jury believed M.N.’s
testimony, the admission of T.N.’s statement did not substantia lly influence the jury’s
verdict. State v. Taylor, 869 N.W.2d 1, 14 (Minn. 2015).
II. Any error in admitting Thomp son’s out-of-court statement to police did not
affect Manypenny’s substantial rights.

Manypenny also argues that the d istrict court abused its discre tion by admitting
Thompson’s out-of-court statement to police. But at trial, Manypenny did not object to the
admission of Thompson’s statement. When a defendant does not object to the admission
of evidence, he forfeits appellate review of that evidentiary i ssue. State v. Vasquez ,
912 N.W.2d 642, 649 (Minn. 2018). But this court can review fo rfeited issues for plain

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error. Id. at 650. Under the plain-error standard of review, “there must be (1) error; (2) that
is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736,
740 (Minn. 1998). If each prong is met, this court then determines whether to address the
error “to ensure fairness and the integrity of the judicial proceedings.” Id.
Thompson’s statement to police is hearsay: an out-of-court statement offered for its
truth. Minn. R. Evid. 801(c). And hearsay is inadmissible unl ess an exemption or
exception applies. Minn. R. Evid. 802. Here, the state presents no argument justifying the
admission of Thompson’s statement. In passing, the state sugge sts that Thompson’s
statement was not “offered to assert matters of truth,” but the state provides no rationale—
legal or factual—for its assertion. Accordingly, because Thompson’s statement is hearsay
and the state has provided no basis for its admission, the dist rict court plainly erred by
admitting Thompson’s statement.
Having concluded that the distric t court plainly erred by admit ting Thompson’s
statement, we turn to the questio n of whether the error affecte d Manypenny’s substantial
rights. Manypenny bears the burden of demonstrating that “there is a reasonable likelihood
that the absence of the error would have had a significant effe ct on the jury’s verdict.”
State v. Horst , 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted). To evalu ate the
likelihood that the erroneously admitted evidence significantly affected the verdict, we
consider “the persuasiveness of that evidence” and “the manner in which the evidence was
presented.” State v. Jackson , 764 N.W.2d 612, 620 (Minn. App. 2009), review denied
(Minn. July 22, 2009).

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In addition to the erroneously admitted statement, the state pr esented both M.N.’s
testimony that Manypenny carried guns into the apartment and her consistent statement to
police the night of the incident. T h e j u r y a l s o r e v i e w e d M . N . ’s text message to her
cousin—sent around the time th e event occurred— explicitly namin g Manypenny as a
person who brought guns into the apartment. Given the other ev idence that the state
presented against Manypenny, the admission of Thompson’s statem ent did not affect
Manypenny’s substantial rights.
Further, in Thompson’s statement to police, he stated that Many penny carried
firearms into T.N.’s apartment. But before the statement was p layed for the jury,
Thompson testified that he carried the firearms into the apartment and that he was not
truthful in his prior statement to police. And Thompson explained that he had a reason to
lie to police in his initial stat ement—avoiding being charged w ith a crime himself—but
that since he already pleaded guilty, he had no motive to be untruthful in his trial testimony.
As a result, Thompson’s testimo ny minimized the persuasiveness of the out-of-court
statement. Jackson, 764 N.W.2d at 620.
But Manypenny argues that the state’s case against him was not strong because the
guns were not found in his posse ssion and because no physical o r forensic evidence
connected him to the firearms. A lack of physical evidence, however, does not necessarily
undermine a guilty verdict. State v. Landin, 472 N.W.2d 854, 858 (Minn. 1991). And the
supreme court has stated “that a conviction can rest on the unc orroborated testimony of a
single credible witness.” State v. Foreman , 680 N.W.2d 536, 539 (Minn. 2004).
M.N. testified that Manypenny brought firearms to the apartment , and her testimony was

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corroborated by her text message to her cousin. And the jury found M.N. credible. Landa,
642 N.W.2d at 725. Because the state presented strong evidence of Manypenny’s guilt and
because Thompson’s testimony minim ized the persuasiveness of hi s out-of-court
statement, the admission of Thompson’s statement to police did not affect Manypenny’s
substantial rights. See State v. Sontoya, 788 N.W.2d 868, 873 (Minn. 2010) (evaluating
the strength of the state’s case to determine if plain error ha d a significant effect on the
jury’s verdict).
Affirmed.