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This opinion will be unpublished and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
A18-1848

State of Minnesota,
Respondent,

vs.

Tamico Annette Reed,
Appellant.

Filed December 16, 2019
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Hennepin County District Court
File No. 27-CR-17-8039

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

Erik Nilsson, Interim Minneapolis City Attorney, Paula Kruchowski Barrette, Assistant
City Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from judgment of conviction for DWI, appellant argues that the
prosecutor committed misconduct by: (1) disparaging the defense during the prosecution’s

2
closing statement ; (2) misstating the law concerning an element of the offense during
closing arguments; and (3) introducing inadmissible Spreigl evidence. We affirm in part,
reverse in part, and remand.
FACTS
In the early morning hours of April 2, 2017, J.B. and his husband were traveling in
a Mazda sedan near Hennepin Avenue and Dunwoody Boulevard in Minneapolis. As J.B’s
car proceeded through the intersection, it struck appellant Tamico Annette Reed’s
Chevrolet Tracker as she turned left through the intersection. Both drivers believed they
had a green light. Immediately after the crash, J.B. and his husband saw Reed exit from
the driver’s side of the vehicle. Both men also saw one or two other individuals run from
the passenger side of the Tracker.
Police responded to the scene of the accident shortly after the crash and s poke to
both parties. During this conversation, Reed identified herself as the owner and the driver
of the Tracker. After doing so, she changed her story and told the officer that her friend
“Jo-Jo” was actually the driver. Reed explained that she was in the passenger seat and was
briefly knocked unconscious by the collision. When she came to, Jo-Jo had fled the scene.
Reed tried to leave the car but the passenger -side door was jammed and so she slid across
the center console and exited through the driver’s side door. Officers found a one-quarter
full bottle of Miller High Life in Reed’s center console.
While Reed spoke, officers noticed a smell of alcohol on her breath and that her
eyes wer e bloodshot and glassy. Reed subsequently failed several fie ld sobriety tests.
Officers arrested Reed and she agreed to a breath test that returned a value of .20. A routine

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record check revealed that Reed had been convicted of two DWIs in the past . Reed’s
driving privileges had been revoked in early 2017 and had not been reinstated at the time
of the accident.
The state charged Reed with one count of second-degree driving while impaired—
under the influence of alcohol in violation of Minn. Stat. § 169A.20, subd. 1(1) (2016), one
count of second-degree driving while impaired with an alcohol concentration over .08 in
violation Mi nn. Stat. § 169A.20, subd. 1(5), one count of d riving after revocation in
violation of Minn. Stat. § 171.24, subd. 2 (2016), and one count of keeping an open bottle
in a motor vehicle in violation of Minn. Stat. § 169A.35, subd. 4 (2016).
Before trial, Reed stipulated that she had two prior DWI convictions and the state
agreed that it would not present those certified convic tions to the jury . A jury trial
commenced, and a partially redacted copy of Reed’s driving record was ad mitted into
evidence in order to show that Reed’s driver’s license had been revoked at the time of the
accident. Although the stipulated convictions were redacted, Reed’s driving record showed
many other unredacted offenses in addition to the fact that her license was revoked at the
time of the accident.
At the close of trial, the district court read the jury instructions to the jury . The
instructions stated that unsworn statements by the attorneys were not evidence and witness
testimony and admitted exhibits were the only evidence the jury was to consider . The
district court also made reference to Reed’s driving record, stating that it was a redacted
document and that the jury was not to speculate as to the nature of any of the redactions.

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The judge also instructed the jury on the meaning of “physical control” of a vehicle
under Minnesota’s DWI laws, stating:
A person is in physical control of a motor vehicle when
the person is present in a vehicle and is in a position to either
direct the movement of the vehicle or keep the vehicle in
restraint. It is not necessary for the engine to be running in
order for a person to be in physical control of a motor vehicle.

In his closing argument, the prosecutor referenced the judge’s recitation of the jury
instructions and highlighted that an individual need not be driving the car to be in physical
control of a car. The pros ecutor specifically stated, “S ometimes you can exert physical
control over a motor vehicle and not be driving.” Reed did not object to the prosecutor’s
statements.
The prosecutor concluded his closing statement. In his rebuttal, the prosecutor again
stated, “[t]his is what someone trying to get out of a DWI looks like.” The jury proceeded
to deliberation and Reed moved for a mistrial on the basis of the prosecutor’s “looks like”
statement. The district court responded by stating, “I think it was an improper statement.
I do not think that it is at the level that would warrant a mistrial.” The jury returned guilty
verdicts on all counts.
This appeal followed.
D E C I S I O N
I. The prosecutor’s actions at trial do not constitute prosecutorial
misconduct.

Reed argues that she is entitled to a new trial because the prosecutor committed
misconduct when he: (1) made disparaging comments about her defense during closing

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statements; (2) misled the jury by repeating the definition of “physical control” so as to
allow the inference that a passenger may still be in physical control of the car ; and (3)
exposed the jury to improper Spreigl evidence of other bad acts noted in her driving record.
As Reed did not object at trial, this court applies a modified plain -error test to the
alleged misconduct and considers whether there is “(1) error, (2) that is plain, and (3)
affects substantial rights.” State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). On the
first two elements, an error occurs if the prosecutor’s conduct “ contravenes case law, a
rule, or a standard of conduct,” and is plain if it is “clear or obvious.” State v. Peltier, 874
N.W.2d 792, 799 (Minn. 2016). If plain error is found, the state bears the burden of proving
that the misconduct did not affect the defendant’s substantial rights. Ramey, 721 N.W.2d
at 302. When deciding if the state has met this burden, this court considers: (1) the strength
of the evidence against the defe ndant; (2) the pervasiveness of the misconduct; and (3)
whether or not the defendant had the opportunity, or made efforts, to rebut the prosecutor’s
improper suggestions. State v. Hill, 801 N.W.2d 646, 654–55 (Minn. 2011).
If all three elements of the m odified plain-error test are met, this court must then
assess whether the error should be addressed “to ensure fairness and integrity of the judicial
proceeding.” Ramey, 721 N.W.2d at 302. Prosecutorial misconduct does not require that
a defendant be granted a new trial when, in spite of the conduct, the defendant received a
fair trial. State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997).
A. The prosecutor’s closing comments were improper but not plain error.
Reed argues that the prosecutor’s statement, “[t]h is is what someone trying to get
out of a DWI looks like,” was plain error because it amounted to the prosecutor suggesting

6
that Reed’s arguments were common to defendants who are, in fact, guilty. Such an
inference, Reed argues, has been repeatedly warned against by the supreme court.
During closing arguments, the state “may not belittle [the] defense either in the
abstract or by suggesting that the defendant raised the defense because it was the only one
with any hope for success.” Peltier, 874 N.W.2d at 804; see also Griese, 565 N.W.2d at
427 (warning against arguments that a defense is standard when “nothing else will work”).
However, a “prosecutor is free to specifically argue that there is no merit to a particular
defense in view of th e evidence or no merit to a particular argument.” State v. Salitros ,
499 N.W.2d 815, 818 (Minn. 1993). Furthermore, the state “is free to make arguments in
anticipation of the defense closing argument.” State v. Banks, 875 N.W.2d 338, 348 (Minn.
App. 2016), review denied (Minn. Sept. 28, 2016). When determining if a prosecutor’s
statements were plain error, a reviewing court looks to the closing argument as a whole.
State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).
In State v. Salitros, the supreme court held that a prosecutor’s actions are “clearly
improper” when he or she argues that a defendant is merely presenting a boiler -plate
defense common to defendants to avoid culpability when nothing else will work. 499
N.W.2d at 818. However, this holding was subsequently limited in Griese.
In Griese, the supreme court commented that a new trial was warranted in Salitros
not merely because the prosecutor suggested the defendant’s defense was some sort of
standard defense offered by defendan ts when nothing else would work, but also because
the prosecutor’s actions were “considerably more egregious” as the prosecutor suggested,
among other arguments, that constitutional rights were not designed to protect the guilty.

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565 N.W.2d at 428. The s upreme court also noted that w here disparaging comments
occupied only a small portion of a larger closing argument, and did not permeate the entire
closing argument, the supreme court was reluctant to find the conduct so egregious as to
deny a defendant the right to a fair trial and warrant the grant of a new trial. Id.; see also
State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (stating that prosecutorial misconduct
occurs when a prosecutor’s impermissible arguments permeate an entire closing argument
and are intended to play on the fears and emotions of a jury).
Reed argues that by telling the jury that Reed “looks like” a typical person “trying
to get out of a DWI,” the prosecutor is impermissibly suggesting that Reed’s arguments
were “part of some sort of syndrome of standard arguments that one finds defense counsel
making in ‘cases of this sor t.’” Salitros, 499 N.W.2d at 818 . The state responds that not
only did Reed fail to object to the statement at the time it was made, but that the prosecutor
was merely arguing that Reed’s testimony was not credible. See State v. Fields , 730
N.W.2d 777, 786 (Minn. 2007) (noting that the state is free to argue that a particular witness
was not credible). Although the district court agreed that the remarks were im proper, it
noted that the remarks were not so improper as to warrant a new trial.
The prosecutor ended his nearly 20-page closing argument by stating:
There’s a lot of evidence. Two eye witnesses, an
admission, purse in the center console of a vehicle that you
own. All that evidence pitted against a claim, an
unsubstantiated claim that “I wasn’t driving.” You have all the
evidence in this case, and for the reasons that I set out, the State
is asking that you find the defendant guilty of all counts. The
factual disparities, we would argue, no disrespect to the
defendant, but we would argue: This is what someone trying to
get out of a DWI looks like.

8

(Emphasis added). The prosecutor went on to state in his nearly four-page rebuttal:
All the evidence that you need to figure out all these questions
is in the testimony, it’s in the exhibits that have been submitted
by the State, and it’s in the video that you observed. For these
reasons, the State is asking that you not find the defendant
credible when she said that she was [sic] driving and as I stated
in my first closing is that this is somebody trying to get out of
a DWI.

(Emphasis added).

Like in Griese, the prosecutor’s statement s generalizing Reed’s defense as “ what
someone trying to get out of a DWI looks like” were merely two lines out of nearly 25
pages of argument. Although the statement itself was disparaging, the prosecutor did not
rely on an impermissible inference as a significant theme of his argument. Indeed, there is
no evidence in the record that the prosecutor suggested that this was the only argument
available to Reed.
Reed was given an opportunity to respond to the prosecutor’s statement in her own
closing statement. The jury listened to both attorneys, as well as the actual evidence from
the trial, and came to the conclusion that Reed’s defense lacked credibility. See Fields,
730 N.W.2d at 786 (holding it is not misconduct for a prosecutor to state that a witness is
not credible). Although the supreme court has noted that it has a “strong distaste” for such
tactics, Griese instructs that a prosecutor’s disparaging comments must permeate the entire
argument to be so egregious as to deny a defendant the right to a fair trial and constitute
reversible prosecutorial misconduct. 565 N.W.2d at 428.

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Although the district court was correct in critici zing the prosecutor’s statement, its
brevity in light of the scope of evidence presented to the jury at trial suggests that the
comments were not plain error because they did not deny Reed the right to a fair trial.
B. The prosecutor’s description of “physical control” was not plain error.

Reed argues that the prosecutor’s recitation of the jury instruction for “ physical
control” improperly le d the jury to infer that Reed could be a passenger but still be in
“physical control” of the veh icle under Minn. Stat. § 169A.20. The state responds by
arguing that the prosecutor simply was relaying the content of the jury instruction itself
and directing the jury to follow the instruction already recited by the district court.
Although misleading the jury about the law is plain error and constitutes
prosecutorial misconduct, State v. Salyers , 842 N.W.2d 28, 36 (Minn. App. 2014), aff’d,
858 N.W.2d 156 ( Minn. 2015), it is presumed that juries follow instructions. State v.
Gatson, 801 N.W.2d 134, 151 (Minn. 2011). Yet, even when the district court properly
instructs a jury, when an attorney clearly misstates the law, a reviewing court may be more
likely to find the error contributed to the jury’s verdict. See, e.g., State v. Strommen, 648
N.W.2d 681, 689–90 (Minn. 2002).
In Strommen, the supreme court held that a prosecutor errored, and therefore
committed prosecutorial misconduct, when he misstated th e law on abandonment in his
closing argument by telling the jury that the defendant’s actions after he entered a store
were immaterial despite strong evidence that the defendant abandoned the crime after
entering the store. Id. The supreme court held tha t even though the district court recited
the correct instruction on abandonment to the jury, and ample evidence existed to suggest

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abandonment occurred, the prosecutor’s misstatements likely played a role in the jury’s
rejection of the defendant’s abandonment defense. Id. at 690.
In this case, the district court’s instructions to the jury on the definition of physical
control stated:
A person is in “physical control” of a motor vehicle
when the person is present in a vehicle and is in a position to
either direct the movement of the vehicle or keep the vehicle
in restraint. It is not necessary for the engine to be running in
order for a person to be in physical control of a motor vehicle.

This instruction is a precise recitation of the element of physical control for driving while
under the influence of alcohol. 10 Minnesota Practice, CRIMJIG 29.02 (2018).
In his closi ng argument, the prosecutor reiterated the elements of a DWI and
highlighted the district court’s instruction on physical control by stating:
[W]hat this statutory definition suggests is that you don’t have
to be driving or operating a motor vehicle to be guilty of a
DWI. As long as you meet the element of physical control,
you are still just as culpable of DWI. You’re going to see that
instruction when you go in there. The court has given you
instructions about physical control, but if you are driving, you
are exerting physical control; however, the inverse is not true.
Sometimes you can exert physical control over a motor vehicle
and not be driving.

Reed argues that the prosecutor’s statement, “you can exert physical control over a
motor vehicle and not be driving,” although not an incorrect statement of law, was intended
to mislead the jury to find that Reed could be guilty of a DWI even if she was a pass enger
in the car. Yet, throughout the proceeding, the state’s theory of the case was that Reed was
driving the vehicle. Furthermore, the state presented testimonial evid ence from several
witnesses to support this theory.

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Unlike in Strommen, t he prosecutor here did not clearly misstate the law.
Furthermore, “physical control” is a broad term that encompasses more than just the act of
driving the car. State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). And although this
term is not intended to encompass intoxicated passengers, State v. Fleck, 777 N.W.2d 233,
236 (Minn. 2010), the record does not support the assertion that the prosecutor argued that
Reed would be guilty of a DWI even if she was a passenger. A single line highlighting the
district court’s instruction was not plain error as the statement , while potentially
misleading, was not clearly erroneous.
In light of the presumption that the jury follows the ins tructions presented to them
by the district court, and the evidence presented at trial to support the jury’s determination
that Reed was the driver of the car, the prosecutor did not commit plain error when he
described the broad definition of “physical control” in his closing statements.
C. The improper use of Spreigl evidence was plain error.
Reed argues that the prosecutor committed plain error when he exposed the jury to
Reed’s partially redacted driving record that contained inadmissible Spreigl evidence of
Reed’s other bad acts without proper notice. The state contends that Reed’s driving record
is not Spreigl evidence because the record was used as direct evidence to prove Reed’s
driving privileges had been revoked on the date of the accident. In the alternative, the state
argues that even if the record contains Spreigl evidence: (1) no objection was made to its
admission; (2) the listed convictions were exempt from the notice requirement of Minn. R.
Evid. 404(b) by Minn. R. Crim. P. 7.02, sub d. 1(a); and (3) Reed had knowledge of her

12
various license revocations thereby satisfying the notice requirement in Minn. R. Evid.
404(b).
Spreigl evidence is evidence of a defendant’s prior bad acts. State v. Thao , 875
N.W.2d 834, 839 (Minn. 2016); see State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). There
is a danger in admitting such evidence as “the jury may convict because of those other
crimes or misconduct, not because the defendant’s guilt of the charged crime is proved.”
State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006).
Although Spreigl evidence is not admissible to prove that a defendant acted in
conformity with her prior bad acts, it is admissible for other purposes such as to prove
knowledge or absence of mistake. Minn. R. Evid. 404(b) (1). However, evidence of prior
acts presented by the prosecutor must be relevant, must be proved by clear and convincing
evidence, the prosecutor must give explicit notice of intent to offer such evidence, and the
probative value of the evidence must not be outweighed by its potential for unfair prejudice
to the defendant. Id. Notice is not required for previously prosecuted convictions. Minn.
R. Crim. P. 7 .02, subd. 1(a). Yet, evidence calculated to elicit or insinuate inadmissible
and highly prejudicial character evidence is not tolerable. See State v. Harris, 521 N.W.2d
348, 353 (Minn. 1994) (holding a prosecutor’s efforts to elicit inadmissible evidence,
among other errors, deprived the defendant of a fair trial).
At the beginning of trial, Reed stipulated that she had two prior DWI convictions
and the state agreed to keep those certified convictions from the jury. The district court
ordered that the stipulated convictions be redacted from Reed’s driving record. T he
prosecutor submitted a copy of Reed’s driving record for the purpose of proving that

13
Reed’s license was withdrawn at the time of the accident. It was admitted into evidence
with no objection. However, the driving record showed that Reed’s license was revoked
not only at the time of the accident, but had been revoked no fewer than 20 times prior to
the accident. Additionally, the record identified various other convictions and offenses
completely unrelated to the purpose for which the prosecutor submitted the record.
A threshold determination for the admission of any prior act under rule 404(b) is
relevance. See, e.g., State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995) (noting that a
basic requisite for the admissibility of any evidence is that it be competent and relevant).
Evidence is relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Minn. R. Evid. 401.
Although Reed’s driving record contains relevant evidence as to the status of her
license on the date in question, it contains other information not relevant to the purpose for
which the record w as submitted, including a child -restraint violation and m any driving-
after-withdrawal violations. These other offenses do not tend to make the fact that Reed
drove with a suspended license in this instance any more likely apart from impermissibly
implying Reed’s propensity to do so. The procedural safeguards in Minn. R. Evid. 404(b),
including notice, are dependent on the evidence being relevant. The unrelated offenses
simply lack the necessary relevance to be admissible.
As the driving record contains evidence that is not relevant to the purpose for which
it is being offered, and therefore is inadmissible under Minn. R. Evid. 404(b), the

14
prosecutor committed plain error when he moved to admit Reed’s entire certified driving
record with limited redactions.
D. The prosecutor’s plain error did not affect Reed’s right to a fair trial.
Committing an error that is plain , while sufficient to demonstrate misconduct,
Peltier, 874 N.W.2d at 799, is insufficient to demonstrate that Reed is entitled to a new
trial; the error must also affect her substantial right to a fai r trial. State v. Johnson , 616
N.W.2d 720, 727–28 (Minn. 2000). The defendant bears the burden of establishing error
that is plain, but once plain error is established , the burden shifts to the state to prove that
there is no reasonable likelihood that the absence of the misconduct would have had a
significant impact on the jury’s verdict. Ramey, 721 N.W.2d at 302.
In determining if the misconduct had a significant impact on the jury’s verdict, this
court considers the strength of the evidence against the defendant, the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to rebut the improper
suggestion. Hill, 801 N.W.2d at 654–55.
The evidence that Reed drove her Tracker that night included a confession and
testimony from two witnesses. Based on this evidence, the jury determined that Reed was
the driver of the car and found her guilty of all counts.
Although the presentation of irrelevant Spreigl evidence was plain error, in light of
the two witnesses who testified they saw Reed alight from the driver’s side door moments
after the accident occurred , we do not hold that the admission of the partially redacted
driving record influenced the jury’s decision so as to substantially affect her right to a fair
trial.

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Reed’s sole defense was that she was not driving the car. This was a strategic
decision made by her attorney and the success of which relied on Reed’s credibility at trial.
The prosecution submitted testimony from the occupants of the Mazda, as well as Reed’s
own statement to the police, to suggest that Reed was driving that night. Reed had an
opportunity to cross-examine these witnesses and to object to the admission of the partially
redacted driving record. Reed failed to do so and t he jury found that she was guilty of all
charges brought against her by the state.
Despite the admission of Spreigl evidence, the strength of the evidence against
Reed, the relatively limited nature of the misconduct, and the opportunity Reed had to rebut
or object to the conduct during trial suggests that any misconduct did not substantially
affect her right to a fair trial.
II. Reed’s conviction for driving while impaired must be vacated.
Among other convictions, the district court convicted Reed of one count of second-
degree driving while impaired —under the influence of alco hol in violation of Minn.
Stat. § 169A.20, subd. 1(1) and one count of second -degree driving while impaired with
an alcohol concentration over .08 in violation of Minn. Stat. § 169A.20, subd. 1(5).
Minn. Stat. § 609.04, subd. 1 (2018) prohibits multiple convictions under different
subdivisions of a criminal statute for acts committed during a single behavioral incident.
State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992). Accordingly, a defendant cannot
be convicted of driving under the influence of alcohol and driving with an alcohol
concentration of o ver .08 when the two charges ari se from the same behavioral incident.
Id. at 170–71.

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Both charges against Reed are under Minn. Stat. § 169A.20, subd. 1, and arose from
the same behavioral incident . Even though Reed was only sentenced for the latter
conviction, Minn. Stat. § 609.04 , subd. 1, prohibits a district court from convicting Reed
for both offenses based on this single behavioral incident . Therefore, the conviction for
driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) must be vacated.
Affirmed in part, reversed in part, and remanded.