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This opinion will be unpublished and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
A17-1411

State of Minnesota,
Respondent,

vs.

Kyle Grayling Tweed,
Appellant.

Filed August 6, 2018
Affirmed
Halbrooks, Judge

Dakota County District Court
File No. 19HA-CR-17-119

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

James C. Backstrom, Dakota County Attorney, Jackie Warner, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his convictions of domestic assault (strangulation), domestic
assault (harm), domestic assault (fear), child endangerment, and third-degree driving while

2
impaired (DWI) on the grounds that his substantial rights were violated during a bench trial
because (1) the prosecutor el icited improper testimony referencing his time in prison and
(2) the district court did not sanitize his two prior third-degree criminal -sexual-conduct
convictions. We affirm.
FACTS
Appellant Kyle Tweed and J.S. had an on -and-off relationship for approximately
seven years. Between 2015 and 2016, Tweed and J.S. lived together, started a trucking
business together, and were engaged to be married. In February 2016, J.S. became
pregnant with Tweed’s child.
In May 2016, J.S. noticed that Tweed was expensing purchases that were not
business-related, which strained their relationship. When J.S. discovered that Tweed was
seeing other women, she cancelled the engagement, and in August 2016, J.S. moved out of
Tweed’s house. Tweed subsequently visited J.S. at her home on weekdays. After J.S. gave
birth to their child in November 2016, she and Tweed continued to have what J.S. described
as a “casual” relationship for their child’s sake.
On January 5, 2017, J.S. and her female friend, D.P., invited Twe ed over to J.S.’s
home for a sexual threesome. After Tweed arrived around 8:30 p.m., the three started
drinking alcoholic beverages. Later, they went upstairs to the master bedroom. Tweed and
J.S.’s child was sleeping inside a crib in the master bedroom , while another child of J.S.
was sleeping in another bedroom.

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Initially, Tweed watched as D.P. and J.S. kissed and groped each other. D.P. then
began playfully hitting and slapping Tweed. After D.P. and Tweed unsuccessfully
attempted intercourse, D.P. went to take a shower.
The encounter then turned violent. While D.P. was in the shower, J.S. and Tweed
began arguing. Tweed put his hand around J.S.’s throat and started choking her. Tweed
eventually let go. J.S. threat ened to call the police and to take their child away with her.
Tweed responded that he would not let her do so.
When D.P. returned to the bedroom, she could tell that J.S. was upset. But because
D.P. perceived J.S. to be the aggressor in the situation, D.P. picked up the child from his
crib in an effort to protect him. In response, J.S. slapped D.P. in the face and D.P. put the
child back in the crib. Tweed again grabbed J.S. by the throat and pushed her into a closet
as he continued to choke her.
J.S. got free, ran out of the master bedroom, and hid in another bathroom. She
eventually opened the bathroom door and tried to run downstairs to find her cell phone.
But Tweed got down the stairs first. When J.S. reached the bottom of the stairs, she turned
and tried to run back up. In the process, Tweed grabbed her by the leg and pulled her back
down. As she was being pulled down the stairs, J.S. grabbed a bannister post, which broke.
J.S. swung it, hitting Tweed in the back of the head. He then began choking her again and
slammed her head into the floor.
At this point in time, D.P. came downstairs and saw Tweed standing over J.S. J.S.
eventually freed herself, stood up, and ran outside to a neighbor’s house. The neighbor

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called the police. A police officer arrived and took a statement from J.S. She was
subsequently taken to the hospital where she was treated for her injuries.
Before law enforcement arrived at J.S.’s house, Tweed and D.P. took Tweed and
J.S.’s child and drove away. An Eagan police officer later located Tweed’s car, initiated a
traffic stop, and arrested him for DWI after a breath test of Tweed revealed an alcohol
concentration of 0.14. During the traffic stop and arrest, two officers observed a child
sitting unsecured in a car seat.
The state charged Tweed with (1) domestic assault (strangulation) under Minn. Stat.
§ 609.2247, subd. 2 (2016); (2) domestic assault (harm) under Minn. Stat. § 609.2242,
subd. 4 (2016); (3) domestic assault (fear) under Minn. Stat. § 609.2242, subd. 4;
(4) fourth-degree DWI under Minn. Stat. § § 169A.20, subd. 1(1) , .27, subd. 1 (2016);
(5) fourth-degree DWI (.08 or more) under Minn. Stat. §§ 169A.20, subd. 1(5), .27, subd. 1
(2016); (6) third-degree assault (harm) under Minn. Stat. § 609.223, subd. 1 (2016);
(7) child endangerment under Minn. Stat. § 609.378, subd. 1(b)(1) (2016); (8) interference
with an emergency call under Minn. Stat. § 609.78, subd. 2(1) (2016); (9) third -degree
DWI (aggravating factor) under Minn. Stat. § 169A.26, subd. 1( a) (2016); and (10) third-
degree DWI (aggravating factor) under Minn. Stat. § 169A.26, subd. 1(a). The state later
dismissed the third-degree-assault charge.
Before trial, Tweed moved in limine, requesting that the district court exclude
evidence of two prior felony third-degree criminal-sexual-conduct convictions and prohibit
the prosecutor from using the convi ctions for impeachment purposes. I n the alternative,

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Tweed ask ed the district court to prohibit the prosecutor from referring to the specific
nature of the convictions. The district court did not rule on the motion.
On the first day of trial, Tweed waived his right to a jury and stipulated to more than
60 exhibits. Tweed also stipulated to the two prior felony convictions for third-degree
criminal sexual conduct that had occurred within the last ten years, which, under Minn.
Stat. §§ 609.02, subd. 16 , .2242, subd. 4 (2016), enhanced Tweed’s domestic -violence
charge to a felony.
During the state’s case, the prosecutor elicited the following testimony from J.S.:
Q: And when did [your relationship] change?
A: He ended up being convicted of his first felonies, and I have
no idea what happened to him at that point.
. . . .
Q: And then did he eventually become able to see you outside
of confinement?
A: Yes, he did.

Tweed did not object during this line of questioning.
Tweed testified on the second day of trial. The prosecutor impeached him with the
two prior felony convictions . Again, Tweed did not object . With respect to the current
incident, Tweed testified that the fight occurred between J.S. and D.P. and that he did not
hurt J.S. Tweed admitted that he had consumed alcohol but claimed that he was not
impaired.
The district court issued its findings of fact and conclusio ns of law. The district
court found Tweed guilty and convicted him of felony domestic assault (strangulation);
felony domestic assault (harm); felony domestic assault (fear); child endangerment; and
third-degree DWI. The district court found Tweed guilty but did not enter convictions on

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the counts of fourth-degree DWI; fourth-degree DWI (.08 or more); and third-degree DWI
(aggravating factor). The district court found Tweed not guilty of interfering with an
emergency call. The district court sentenced Tweed to 24 months’ imprisonment for his
domestic-assault (strangulation) conviction, and 365 days of imprisonment for his third -
degree DWI conviction, to be served concurrently. This appeal follows.
D E C I S I O N
I.

Tweed argues that the district court erred because it allowed the prosecutor to elicit
testimony that he was incarcerated for his prior convictions, reasoning that “[b]y telling the
trier of fact that [he] had been to prison, it provided Spreigl-type details of his offense
because his previous crimes required a prison commit.” Generally, we review evidentiary
rulings for an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). But
because Tweed did not object to these claimed errors, our standard of review is for plain
error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Under the plain-error standard, the defendant must show: (1) error; (2) that the error
was plain; and (3) that it affected the defendant’s substantial rights . State v. Strommen ,
648 N.W.2d 681, 686 (Minn. 2002). An error is plain if it is “clear or obvious,” which is
usually shown “if the error contravenes case law, a rule, or a standard of conduct.” State
v. Davis , 735 N.W.2d 674, 681 (Minn. 2007) (quotation omitted) . Plain error is
“determined at the time of appellate review.” State v. Kelley, 855 N.W.2d 269, 275 (Minn.
2014). Concerning the third prong, the defendant has the burden to establish that “there is
a reasonable likelihood that the absence of the error would have had a significant effect on

7
the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted ).
If the defendant establishes all three prongs, this court may correct the error if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Strommen,
648 N.W.2d at 686 (quotation omitted).
Tweed’s argument is more akin to a prosecutorial-misconduct claim. The supreme
court has recognized that the state has a duty to caution its witnesses against prejudicial
testimony. State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979). “Minnesota law is
crystal clear on this issue—the state has an absolute duty to prepare its witnesses to ensure
that they are aware of the limits of permissible testimony.” State v. McNeil, 658 N.W.2d
228, 232 (Minn. App. 2003). For prosecutorial-misconduct claims, the plain-error standard
is modified. State v. Ramey , 721 N.W.2d 294, 30 2 (Minn. 2006). Under the modified
plain-error test, the burden on the third prong shifts to the state to demonstrate that the error
did not affect Tweed’s substantial rights. Id.
Tweed contends that J.S.’s trial testimony that referred to his incarceration
constituted improper Spreigl evidence and is therefore plain error. We disagree. It is true
that “[e]vidence of another crime, wrong, or act is not admissible to prove the character of
a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). It is
also true that J.S. mentioned Tweed’s prior confinement. But the evidence was not elicited
to prove Tweed’s character in order to show “action in conformity therewith.” Minn. R.
Evid. 404(b). Rather, t he testimony came in response to a question about how J.S.’s
relationship with Tweed changed over time. On this record, Tweed has not demonstrated
that the prosecutor committed plain error.

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But even if the prosecutor arguably committed plain error by fail ing to adequately
prepare J.S. for her testimony , t he state satisfied its burden to establish that Tweed’s
substantial rights were not affected by this isolated statement . First, when there is an
overwhelming amount of evidence to support a conviction, we are less inclined to conclude
that a defendant’s substantial rights were affected by prosecutorial misconduc t. McNeil,
658 N.W.2d at 232 -33. And h ere, there is an overwhelming amount of evidence
demonstrating Tweed’s guilt.
J.S. testified that Tweed strangled her multiple times, pulled her down the stairs,
and slammed her head into the floor. The district court found J.S. credible. The doctor
who examined J.S. at the hospital testified that he observed ruptured blood vessels and
petechial hemorrhaging in J.S.’s eyes and signs of blunt-force trauma, which he stated are
consistent with strangu lation. The doctor also testified that he noticed abrasions and
excoriations on J.S.’s neck that were consistent with strangulation. And the doctor testified
that he observed bruising on the left side of J.S.’s head and around her eye, forehead, and
nose. The district court determined that the doctor testified credibly.
In addition, D.P. testified that she saw Tweed pull J.S. down the stairs and that she
asked Tweed to stop strangling J.S. The district court determined that D.P. testified
credibly. Contrastingly, t he district court determined that Tweed’s testimony was not
credible, reasoning that “Tweed’s explanation of events is inconsistent with the evidence
from the scene, the statements from the parties that night, the injuries to [J.S.], the injuries
to Tweed himself, and the testimony at trial.”

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Second, this was a court trial. The Minnesota Supreme Court has determined that
there is an important distinction between the potential for prejudice in a jury trial versus a
bench trial. In State v. B urrell, the Minnesota Supreme Court concluded that a district
court did not abuse its discretion by admitting bad -acts evidence during a bench trial,
reasoning that “there is comparatively less risk that the district court judge, as compared to
a jury of laypersons, would use the evidence for an improper purpose or have his sense of
reason overcome by emotion.” 772 N.W.2d 459, 467 (Minn. 2009). The supreme court
explained that “excluding relevant evidence at a bench trial on the grounds of unfair
prejudice is in a sense ridiculous” because “it is the district court judge who is called upon
in the first instance to rule on the admissibility of the evidence.” Id. (quotation omitted).
Here, the district court’s factual findings and legal conclusions do not reference the
allegedly inadmissible evidence. See State v. Mosley, 853 N.W.2d 789, 803 (Minn. 2014)
(stating that when the district court made detailed findings of fact with significant evidence
pointing to the defendant’s guilt and did not include references to the inadmissible
evidence, there was no reasonable likelihood that the inadmissible evidence had a
significant effect on the judge’s conclusion). Although district court judges are not
immune from “emotional appeals or the temptation to misuse evidence,” when considering
the district court judge’s experience and familiarity with the rules of evidence, “the risk of
unfair prejudice is lessened.” Burrell, 772 N.W.2d at 467; see also Irwin v. State , 400
N.W.2d 783, 786 (Minn. App. 1987) (determining that Spreigl evidence was properly
admitted, reasoning that “the probative value outweighed its prejudicial effect, particularly

10
where the trial was to the court rather than a jury” (emphasis added)), review denied (Minn.
Mar. 25, 1987).
Because there is an overwhelming amount of record evidence that supports Tweed’s
convictions, because it was a court trial with a low risk of unfair prejudice, and because the
potentially impermissible evidence was not relied on by the district court, we conclude that
there i s no reasonable likelihood that any error had a significant effect on the guilty
verdicts.
II.
Tweed contends that the district court erred by failing to sanitize his two prior third-
degree criminal-sexual-conduct convictions. A district court’s ruling on the impeachment
of a witness by a prior conviction is reviewed under an abuse-of-discretion standard. State
v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). And, again, because Tweed did not object,
we review this claim for plain error. Griller, 583 N.W.2d at 740.
After Tweed waived his right to a jury trial, he and the prosecutor stipulated to two
prior felony convictions that occurred within the previous ten years. When Tweed took
the stand on the second day of trial, the prosecutor impeached him with his two prior felony
convictions.
Evidence of a conviction punishable by imprisonment beyond one year may be
admitted to attack a witness’s credibility if the district court determines that the probative
value of admitting the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1).
In doing so, a district court normally considers what are known as the Jones factors:

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“(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’ s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use of
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.”

State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006) (quoting State v. Jones, 271 N.W.2d
534, 538 (Minn. 1978)). The district court may also allow a party to impeach a witness
with an unspecified felony conviction if it finds that the prejudicial effect of disclosing the
nature of a felony conviction outweighs its probative value. State v. Hill, 801 N.W.2d 646,
652-53 (Minn. 2011). Even if a defendant stipulates to a prior conviction, the prosecutor
may still impeach him with it. State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984).
Here, the district court did not conduct a Jones analysis or articulate whether the
prejudicial effect of disclosing the nature of the felony convictions outweighed its
probative value. But , significantly, the district court knew the details of Tweed’s prior
convictions. Therefore, sanitizing them would have been a distinction without a difference.
Because this was a court trial, not a jury trial, the district court did not err by not engaging
in a Jones analysis or by failing to sanitize the convictions. Burrell, 772 N.W.2d at 467.
Affirmed.