State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A21-0481

State of Minnesota,
Respondent,

vs.

Edbin Jose Coreas,
Appellant.

Filed May 2, 2022
Reversed and remanded
Slieter, Judge

Mower County District Court
File No. 50-CR-19-1128

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chie f Judge; Slieter, Judge; and Rodenberg,
Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal, appellant challenge s his conviction as an ineligible person in
possession of ammunition, arguing that hi s conviction was the result of inadmissible
hearsay evidence. Because the introducti on by the prosecutor of hearsay evidence
constituted prosecutorial misc onduct and defense counsel’s failure to object constituted
ineffective assistance of counsel, we reverse and remand.
FACTS
Appellant Edbin Jose Coreas was charged on June 3, 2019, with separate counts of
illegal possession of a firearm and ammunition, in violation of Minn. Stat. § 624.713,
subd. 1(2) (2018), in connection with an incident which occurred during the early morning
hours of August 5, 2018. When two deputies fro m the Mower County Sheriff’s Office
arrived at a residence in Austin, Minnesota in response to a noise complaint, they saw
Coreas and another man, C.O., sitting on the front steps of the house. As the deputies
approached the front steps, Coreas stood up a nd walked around to the side of the house,
from where the deputies heard “a loud clang, like, metal hitting metal.” With the help of
an Austin Police Department canine officer’s dog, the deputies recovered a handgun from
the overgrown vegetation near the side of the house where Coreas had gone.
On a step below where Coreas had been sitting and C.O. cont inued to sit, the
deputies observed ammunition in a plastic or ganizer. C.O. informed them that the
ammunition was not his. One of the deputies detained Coreas in the back of his squad car
because Coreas refused to state his name and tried to walk away. C.O.’s mother, A.O., in
3
response to a question from the deputy about the ammunition, sa id it was not C.O.’s and
that Coreas “brought it.” The discussion with A.O. was recorded.
During the jury trial, the state presen ted the testimony of six witnesses: both
deputies, the canine officer, tw o Bureau of Criminal Appreh ension (BCA) experts, and
C.O.’s mother, A.O. The state, through one of the deputies, also introduced the full audio
recording of the discussion with A.O. After both deputies testified and the audio recording
was played for the jury, A.O. testified that she “was sleeping” when Coreas was arrested,
did not “know exactly what happened,” did not “know where they come from and where
they went,” did not “recall that [she] called the police or de puty that somebody brought a
gun or weapon in [her] house,” and denied telling the deputy that Coreas “had” or
“brought” the ammunition. Coreas’ counsel did not cross-examine A.O.
The jury found Coreas guilty of illegally possessing ammunition but could not reach
a unanimous verdict regarding the firearm-possession charge. The district court accepted
a partial verdict and sentenced Coreas to 60 months’ imprisonment.1 Coreas appeals.
DECISION
“Appellate review of an evidentiary i ssue is forfeited when a defendant fails to
object to the admission of evidence.” State v. Vasquez, 912 N.W.2d 642, 649 (Minn. 2018).
However, an appellate court may consider a forfeited evidentiary issue if there is “(1) error,
(2) that is plain, and (3) the error affects the defendant’s substantial rights.” State v. Vick,

1 A district court “may accept a partial verdic t if the jury has reached a verdict on fewer
than all of the charges and is unable to reac h a verdict on the rest.” Minn. R. Crim. P.
26.03, subd. 20(7).
4
632 N.W.2d 676, 685 (Minn. 20 01). Coreas argues his conv iction must be reversed
because C.O.’s and A.O.’s statements we re hearsay, their presentation constituted
prosecutorial misconduct, and his trial c ounsel’s lack of objection to the evidence
constitutes ineffective assistance of counsel.2
“‘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). “Hearsay is no t admissible except as provided by these rules or by other
rules prescribed by the Supr eme Court or by the Legislatur e.” Minn. R. Evid. 802; State
v. DeRosier, 695 N.W.2d 97, 104 (Minn. 2005). “T he complexity and subtlety of the
operation of the hearsay rule and its exceptions make it particularly important that a full
discussion of admissibility be condu cted at trial” to establish “a record of the [district]
court’s decision-making process.” State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).
I. The prosecutor committed reversible misconduct by intentionally eliciting
inadmissible hearsay statements.

Claims of unobjected-to prosecutorial misconduct are revi ewed pursuant to a
modified-plain-error standard which first requi res the defendant to demonstrate “that the
prosecutor’s conduct constitutes an error that is plain,” then the burde n shifts to the state
“to demonstrate lack of prejudice.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006);
see also State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). “An error is plain if it is

2 Coreas also argues the district court should have acted sua sponte to limit the impact of
the hearsay statements. Because we concl ude his conviction must be reversed and
remanded for prosecutorial misconduct and ine ffective assistance of counsel, we do not
address this argument.
5
clear or obvious; usually this means an error that violates or contradicts case law, a rule, or
an applicable standard of conduct.” State v. Bustos, 861 N.W.2d 655, 660-61 (Minn. 2015)
(quotation omitted). An error is prejudicial if it affects the defendant’s substantial rights.
Ramey, 721 N.W.2d at 299. “Plain error affects a defendant’s substantial rights if there is
a reasonable likelihood that the error had a significant effect on the jury’s verdict.” Bustos,
861 N.W.2d at 663 (quotation omitted).
“The prosecutor is an officer of the cour t charged with the affirmative obligation to
achieve justice and fair adjudication, not merely convictions.” State v. Fields, 730 N.W.2d
777, 782 (Minn. 2007) “A prosecutor e ngages in prosecutorial misconduct when the
prosecutor violates clear or established standards of conduct, e.g., rules, laws, orders by a
district court, or clear commands in this state’s case law.” State v. Smith, 876 N.W.2d 310,
334-35 (Minn. 2016). “[A]ttempting to elic it or actually eliciting clearly inadmissible
evidence may constitute misconduct.” Fields, 730 N.W.2d at 782 (citing State v. Williams,
525 N.W.2d 538, 544-45, 549 (Minn. 1994)). When a defendant proves that an error was
plain and the state fails to demonstrate a lack of prejudice, “[a]ppellate courts should not
hesitate in a suitable case to grant re lief in the form of a new trial.” Ramey, 721 N.W.2d
at 303 (quotation omitted).
The supreme court has “said a number of tim es that a police officer testifying in a
criminal case may not, under the guise of e xplaining how the investigation focused on
defendant, relate hearsay statements of others.” Williams, 525 N.W.2d at 544 (quoting
State v. Cermak, 365 N.W.2d 243, 247 (Minn. 1985)). “The state has a duty to prepare its
witnesses, prior to testifyi ng, to avoid inadmissible or prejudicial statements.” State v.
6
McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003) (citing State v. Carlson , 264 N.W.2d
639, 641 (Minn. 1978)). We are “much more likely to find prejudicial misconduct when
the state intentionally elicits impermissible testimony.” Id. (citing State v. Richmond, 214
N.W.2d 694, 695 (Minn. 1974)).
The prosecutor, with no objection by Coreas’s trial coun sel, played for the jury an
audio recording, which included the following exchange between C.O.’s mother, A.O., and
the deputy:
DEPUTY: So tell me why there’s handgun ammunition sitting
out here on the [steps].
A.O.: That guy in there in the car right now [Coreas].
DEPUTY: He had it?
A.O.: He got it taken.
. . .
DEPUTY: So [Coreas] had it?
A.O.: [Coreas] had it. I don’t know who had it. Maybe
[Coreas] get it.

After playing the recording, the prosecutor examined the deputy re garding the events,
during which the following exchange occurred:
Q: And did you ask [A.O.] about the ammunition?
A: I did.
Q: Okay. What did she say?
A: She told me that it was not [C.O.]’s and that she thought
[Coreas] brought it.

The prosecutor later returned to this exchange, again asking the deputy:
Q: What happened after that?
A: After taking [Coreas] into custody?
Q: Yeah. After taking him in to custody and speaking with
[A.O.].
A: Okay. So I spoke with [A .O.] for a while, ag ain, she told
me that she believed that [Coreas] had brought the
7
ammunition. And he’d only been there, approximately, for
five minutes.

The prosecutor also asked the deputy about his unrecorded discussion with C.O.:
Q: After you found that ammunition, what did you do?
A: The ammunition -- I continued talking to [C.O.] for a brief
while. I asked him about the ammunition. He looked down at
it and said it was not his.

Later, after Coreas’s counsel elicited testimony from the deputy which suggested that C.O.
was sitting close enough to the ammunition to possess it, on redirect examination the
prosecutor asked:
Q: Did [C.O.] make any motion toward [the ammunition]?
A: No, he remained very calm through the entire thing and said
it wasn’t his.

Coreas argues that “[a]ll of those out of court statements were hearsay which was
plainly inadmissible under the Rules of Ev idence” and require reversal because “the
repeated inadmissible hearsay was by far the most compelling evidence that [he] possessed
the ammunition.” The state concedes that C.O.’s statements, which the prosecutor elicited
from the deputy, were inadmissible and does not dispute that admitting these statements
was plain error. The state argues that A.O.’s statements were admissible as present sense
impressions and that neither A.O.’s statements nor C.O.’s statements prejudiced Coreas.
For the reasons set forth below, A.O.’s statements were not present sense impressions and
were, instead, hearsay.
Plain Error
A statement which “describ[es] or explain[s] an event or condition made while the
declarant was perceiving the event or condition or immediately thereafter” is not hearsay,
8
and therefore admissible, if the declarant te stifies at trial and is subject to cross
examination. Minn. R. Evid. 801(d)(1)(D) (emphasis added). Such statements, commonly
referred to as present sense impressions, ar e not hearsay because the immediacy of the
statements indicates “that there [was] little time to consciously fabricate a story.” State v.
Pieschke, 295 N.W.2d 580, 583 (Minn. 198 0). The supreme court in Pieschke
acknowledged the difficulty of determining whether the stat ements qualified as present
sense impressions because defense counsel did not object to admission on this ground and
the district court did not have an opportun ity to fully evaluate whether the exclusion
applied. Id. at 583-84. However, Pieschke concluded that, on the record before it, the
statements “probably made within a few minutes” of the event were present sense
impressions. Id. at 584.
The record does not reveal wh en or how A.O. perceived that Coreas “brought” or
“had” the ammunition. The deputy never aske d A.O. about the basis of her statements.
Additionally, the record reveals that the only reference to the timing of Coreas’s arrival is
A.O.’s statement to the deputy that “the people” arrived five minutes ago. She made this
statement nearly seven and one-half minutes into the audio recording, which did not begin
when the deputy first arrived. Thus, it is not clear when Coreas arrived at A.O.’s house.
In sum, the record is devoid of any basis to suggest that A.O.’s statements were made while
“perceiving the event . . . or immediately th ereafter.” Minn. R. Evid. 801(d)(1)(D).
Therefore, it was error to elicit this hearsay evidence.
The inadmissible nature of A.O.’s statemen ts was also plain. “The complexity and
subtlety of the operation of the hearsay rule and its excep tions” is well-known, but the
9
violation here was neither subtle nor complex. Manthey, 711 N.W.2d at 504. Because the
statements elicited by the prosecutor from the deputy and presented to the jury via the
recording were hearsay, the error is plain. Minn. R. Evid. 801(c).3
Substantial Rights
The state argues that, even if we conclu de Coreas meets his burden to show plain
error, it has demonstrated that the error did not prejudice Coreas. Ramey, 721 N.W.2d at
302. The state claims the h earsay evidence was neither perv asive nor persuasive to the
jury in reaching its verdict. The record compels our disagreement.
The state must “show that there is no reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(emphasis added) (quotation omitted).
The prosecutor informed the jury during his opening st atement that a key piece of
evidence was that A.O. “inf ormed [the deputy] that Mr. Coreas had brought the
ammunition.” Both C.O.’s and A.O.’s statements were repeated by the deputy during the
prosecutor’s direct examination, and A.O .’s statement was rep eated via the audio
recording, emphasizing their im portance to the jury . The only phase of the trial during
which the prosecutor did not reference the hearsay statements was during closing argument.

3 We note that it is preferable in cases like this, when a party desi res to admit evidence
which is likely hearsay though possibly admi ssible pursuant to a hearsay exclusion or
exception, to present a pre-trial motion to the district court for its consideration and ruling.
See Minn. R. Crim. P. 11 cmt. (encouraging early resolution of pretrial evidentiary motions
to promote “more efficient handing of criminal cases at subsequent stages”). The state did
not do so here.
10
Absent the hearsay statements, the only evidence presented by the state that Coreas
possessed the ammunition was that he stood up from the step near where it was located
and, before being detained in the squad car, shouted “Grab it, grab it, grab it!” when the
deputy pointed out that ther e was ammunition on the steps. No fingerprint or DNA
evidence tied Coreas to the ammunition. A.O.’s testimony was, at most, inconclusive and
conflicting. As noted above, she testified that she “was sleeping” when Coreas was
arrested, did not “know exactly what happened,” did not “know where they come from and
where they went,” did not “recall that [she ] called the police or deputy that somebody
brought a gun or weapon in [her] house,” and denied telling the deputy that Coreas “had”
or “brought” the ammunition. The properly adm itted evidence simply demonstrated his
proximity to the ammunition when it was on the steps.
Given the sparse and ambiguous admissibl e evidence indicating Coreas possessed
the ammunition, it is reasonably likely the jury relied significan tly on the hearsay
statements of C.O. and A.O. in reaching its verdict. Accordingly, these plain errors
affected Coreas’s substantial rights.
As officers of the court, “[p]rosecutors ha ve an affirmative obligation to ensure that
a defendant receives a fair tria l” and an obligation “to guard the rights of the accused as
well as to enforce the rights of the public.” Ramey, 721 N.W.2d at 300 (quotation omitted).
The prosecutor did not meet th ese obligations here, and, therefore, we reverse Coreas’s
conviction and remand for a new trial.

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II. Coreas’s trial couns el was ineffective.
Though our analysis in the previous section resolves this appeal, we believe it
important to also consider the ineffective-assistance-of-counsel argument, which was fully
briefed by the parties. See Ramey, 721 N.W.2d at 300 n.5 (noting that “the problem of trial
misconduct is not limited to the prosecution”). When an ineffective-assistance-of-counsel
claim is properly raised in a direct appeal, we examine the claim pursuant to the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). State v. Ellis-Strong,
899 N.W.2d 531, 535 (M inn. App. 2017) (citing Andersen v. State , 830 N.W.2d 1, 10
(Minn. 2013)). Pursuant to the Strickland test, a defendant “must demonstrate that (1) his
counsel’s performance fell below an objective standard of re asonableness, and (2) that a
reasonable probability exists that the outcome would have been different but for counsel’s
errors.” Andersen, 830 N.W.2d at 10. We are genera lly reluctant to question counsel’s
strategic decisions, including whether to obje ct to introduction of hearsay evidence.
Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004); Leake v. State, 737 N.W.2d 531, 542
(Minn. 2007) (concluding that “there were sound strategic reasons for Leake’s counsel not
to object to the admission of the hearsay”).
Coreas argues he received ineffective a ssistance of counsel because his privately
retained trial counsel failed to object to violations of “perhaps the best-known evidentiary
rule in law,” which were “particularly egregious and inexplicable given that counsel relied
on a defense strategy of arguing the ammunition may have belonged to [C.O.], not Coreas.”
The record supports his argument.
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Although Coreas’s trial counsel was made aware of the state’s intention to present
this evidence and filed a pretri al motion to address other ev identiary issues, no motion to
suppress hearsay testimony or the audio record ing was raised. During trial, Coreas’s
counsel did not object when the state, on mu ltiple occasions, introduced A.O.’s hearsay
statements that Coreas “had” or “brought” the ammunition. Counsel did not object when
the deputy testified that C.O., who had been seated on the step s next to Coreas one step
above the ammunition, “said [the ammunition] was not his.”
The state argues that counsel’s failure to object was a trial strategy and, therefore,
not an indication of ineffective assistance of counsel. We can discern no basis from the
record that the lack of an objection was based upon effective trial strategy.
It is true that we generally defer to tria l counsel’s determination of what might be
an effective strategy in a particular case. See State v. Rhodes, 657 N.W.2d 823, 840 (Minn.
2003). However, “[a]lthough [appellate] scru tiny of defense attorneys is, and must
continue to be, highly deferential, [this] deference has limits.” State v. Beecroft , 813
N.W.2d 814, 855 (Minn. 2012) (Anderson, G. Barry, J., concurring) (quotation and citation
omitted). “[D]eference is unwarranted if an attorney’s unreasonable error ‘was not based
on strategy’ but was instead the result of . . . an inexcusable oversight.” Id. (quoting
Kimmelman v. Morrison, 477 U.S. 365, 385 (1986)).
During closing argument, Coreas’s trial counsel emphasized that “the ammunition
was found at the home of anot her person on a stoop where someone else was, actually,
sitting.” This reflects a reasonable defense st rategy that Coreas was not the most likely
possessor of the ammunition. Given this apparent and reasonable strategy, trial counsel’s
13
failure to object to the only evidence that Coreas brought the ammunition with him was “an
inexcusable oversight.” Id.
The state also renews its argument that Coreas was not prejudiced by his trial
counsel’s ineffective assistance. For the reasons discussed in section I, supra, there is a
reasonable probability that the outcome would have been diffe rent if the hearsay had not
been admitted. We also find it notable that the jury did not reach a verdict as to whether
Coreas possessed the handgun, which sim ilarly was presented by the state with
circumstantial evidence, though without the hearsay statements the jury received regarding
possession of the ammunition. Because there is a reasona ble probability the outcome
would have been different absent trial counsel ’s errors, we reverse and remand for a new
trial.
Reversed and remanded.