State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0793

State of Minnesota,
Respondent,

vs.

Matthew Steven Kimmes,
Appellant.

Filed June 14, 2021
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Dakota County District Court
File No. 19HA-CR-18-762

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

Kathryn M. Keena, Acting Dakota County Attorney, Anna Light, Heather D. Pipenhagen,
Assistant County Attorneys, 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 Jesson, Presiding Judge; Wo rke, Judge; and
Reyes, Judge.
SYLLABUS
Tampering with a motor vehi cle is a lesser-included offense of motor-vehicle theft.
OPINION
JESSON, Judge
After police officers responded to reports of a vehicle in a ditch, they discovered
appellant Matthew Kimmes and his girlfriend. Though neither was the registered owner

2
of the car, they claimed to have the owner’s pe rmission to use it. B ecause of this, one of
the officers documented the scene by taking photographs of the car and its contents—
including several tools—with his cell phone . Kimmes then left the scene—with the
officer’s cell phone in his backpack. At roughly the same time, another officer had located
a recently stolen truck in a field less than tw o miles away from the car in the ditch.
Kimmes’s DNA was later found on the truck’s steering wheel.
Following these incidents, the state char ged Kimmes with theft of a motor vehicle,
theft of an item worth $500 or less, and tampering with a motor vehicle.1 He was convicted
on all three counts and sent enced for the theft-of-a-moto r-vehicle offense. Kimmes
appeals. Because the district court di d not abuse its discre tion by admitting limited
testimony about the tools and because the prosecutor did not elicit inadmissible testimony
which affected Kimmes’s substantial rights, we affirm in part. But because tampering with
a motor vehicle is a lesser-included offense of theft of a motor vehicle, we reverse in part,
and remand to the district court with instructions to vacate that conviction.
FACTS
This case involves two vehicles: a bl ue Dodge Avenger and a white Chevrolet
Silverado.2 Police officers received a report of th e Avenger crashed in a ditch in rural
Dakota County. When officers arrived on scene they found appe llant Matthew Kimmes
and his girlfriend, who claimed to have perm ission from the registered owner to use it.

1 Minn. Stat. §§ 609.52, subd. 2(a)(1), (17), .546(2) (2016).
2 The following is a summary of the facts established at trial.

3
Officers confirmed the story with the registered owner and a tow truck was called to haul
the Avenger away.
When Kimmes’s grandfather arrived to pi ck him up, officers helped move items
from the Avenger into grandfather’s car. Because Kimmes did not own the Avenger, one
of the officers, following standard procedure, took photographs of the scene and items in
the car with his department-issued cell phone. Inside the car were a black backpack, a
purse, a number of tools, and a case of wa ter. When the officer asked about the tools—
one of which had the initials “R.H.” and the name “Huber” on it—Kimmes stated that they
were his. Although the officer suspected that the tools were stolen, he had no reason to
prevent Kimmes from taking the tools with him. After taking the photographs, the officer
placed his phone on the hood of his squad car.
After Kimmes left the scen e, the officer noticed that his cell phone was missing.
Officers searched for and called the cell phone several times before contacting Kimmes’s
grandfather, who told officers that the phone was in Kimmes’s backpack. When Kimmes
returned to the scene, he was placed under arrest for theft of the officer’s phone.
As these events were unfolding, anothe r officer was responding to a report of a
stolen vehicle—the Silverado—nearby. The officer found the Silverado in a field less than
two miles away from where the Avenger had crashed a nd took DNA samples from the
steering wheel. The sample contained a mixtur e of DNA from three or more individuals,
but the major DNA profile matched Kimmes’ s. Based on the DNA evidence and the
officer’s belief that Kimmes had stolen the cell phone, the state charged Kimmes with theft

4
of a motor vehicle and theft of an item worth $500 or less. 3 A third count of tampering
with a motor vehicle was added at trial.4
Before trial, Kimmes moved the district court to exclude testimony about the first
officer’s suspicion that the tools were stol en, arguing that it was irrelevant, unnoticed
Spreigl evidence that was unfairly prejudicial.5 The state agreed that testimony about the
officer’s suspicion would be “highly improper,” but argued that “the relevance of why [the
officer was] taking these pictures is very important to the state’s case.” The district court
denied Kimmes’s motion, but s till limited the scope of admissible testimony to a “fair
inquiry” regarding why the officer took th e photographs with his phone. The court
explained:
[The officers] were there, th ey were investigating, they
see different initials on tools and whatever, and you just did an
inventory in case you find things out later, you just want to
have things—here’s the car, here’s what’s in the car. I wanted
to take an inventory and use my phone in that regard.

Evidence of the tools was relevant and could be admitted, the district court determined,
because the presence of the tools tended to show that Kimmes knew that the officer took
pictures with his phone. But the district court also directed the state to avoid any discussion
of whether the tools were stolen. This limit ed use of the testimony about the tools, the
court reasoned, would not be “inflammatory” against Kimmes.

3 Minn. Stat. § 609.52, subd. 2(a)(1), (17).
4 Minn. Stat. § 609.546(2).
5 State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

5
At trial, the state called the officer who took the photographs to testify about them,
asking him to “tell the jury what we’re looking at in this photograph” and to “describe for
the jury the significance of [the] photogra ph” for each picture. Included in the
20 photographs the officer reviewed were imag es of the Avenger in the ditch, the car’s
license plate, damage to the exterior, and all of the items inside the car—both the tools and
other objects. While describing the images, th e officer also testified that it was typical
practice to inventory the items in a car when someone is “ going to be taking items with
them from the vehicle and it’s not their vehicle.” Kimmes objected to the questions about
the photographs multiple times during trial, most of which the district court overruled. But
the officer never mentioned his suspicion that the tools were stolen.
The state then called a second officer to the stand and asked similar questions,
including why the first officer took photographs of the items in the car with his cell phone.
This led to the following exchange between the prosecutor and the second officer:
Q: Did [the other officer] speak to you about the purpose of
taking any of those photographs?
A: Well, I believe that [the officer] thought that there was
some suspicious items in th e car, so he wanted to
photograph them in case they came back stolen later.

Kimmes did not object and the prosecutor moved on to other questions.
After hearing the parties’ arguments, th e jury found Kimmes guilty on all three
counts. The district court then sentence d Kimmes on the theft- of-a-motor-vehicle
conviction to 27 months’ imprisonment with credit for 205 days served. The district court

6
entered a judgment of conviction on the tamp ering-with-a-motor-vehicle conviction, but
did not impose a sentence.
Kimmes appeals.
ISSUES
I. Did the district court abuse its dis cretion by admitting testimony about the
tools?

II. Did the second officer’ s inadmissible testimony a ffect Kimmes’s substantial
rights?

III. Must Kimmes’s conviction of tampering with a motor vehicle be vacated as a
lesser-included offense of motor-vehicle theft?

ANALYSIS
Kimmes raises three challenges to his convic tion. First, he argues that the district
court abused its discretion by admitting testimony about the tools at trial because the tools
were irrelevant, inadmissible Spreigl evidence. Second, Kimmes contends that the
prosecutor committed misconduct by questioning the second officer about why pictures of
the tools were taken. Finally, Kimmes argues that the district co urt erred by convicting
him of tampering with a motor vehicle because it is a lesser-included offense of theft of a
motor vehicle. We address each argument in turn.
I. The district court did not abuse its di scretion by admitting testimony about the
tools.

Kimmes argues that the district court abus ed its discretion by admitting testimony
about the tools at trial because th e tools were irrelevant, unnoticed Spreigl evidence.
Although the court excluded testimony about the officer’s suspicions, Kimmes asserts that
the state still elicited testimony implying that he had stolen the tools. We review a district

7
court’s evidentiary rulings fo r an abuse of discretion. State v. Ali, 855 N.W.2d 235, 249
(Minn. 2014). The appellant bears the burden of proving that the evidence was improperly
admitted and that it resulted in prejudice. State v. Ness , 707 N.W.2d 676, 685
(Minn. 2006).
We begin our review of the district c ourt’s evidentiary rulin g by identifying the
applicable rules of evidence. Generally, al l evidence must meet threshold questions of
relevance and prejudice to be admitted. Relevant evidence tends to make the existence of
any fact of consequence more or less probable and is admissible. Minn. R. Evid. 401, 402.
But even relevant evidence may be excluded if the court dete rmines that its potential for
unfair prejudice substantially outweighs its probative value. Minn. R. Evid. 403. So-called
Spreigl evidence—evidence of a cr iminal defendant’s other bad acts—is often excluded
for this reason. Spreigl, 139 N.W.2d at 172-73; see also Minn. R. Evid. 404(b). Therefore,
even when probative of a defendant’s guilt, Spreigl evidence is inadmissible if the danger
that the jury may convict the defendant based on those other cr imes outweighs the
evidence’s probative value. Spreigl, 139 N.W.2d at 172.
Here, the district court determined that th e presence of the tools in the vehicle was
relevant and probative of the fact that Kimmes saw the officer use his cell phone to
photograph the contents of the vehicle. But the court also reco gnized the potential for
prejudice and instructed the prosecutor to avoid eliciting testimony about whether the tools
were stolen. We discern no abuse of discreti on in the district court’s decision. And the
limited testimony about the tools di d not rise to the level of Spreigl evidence—it was not
evidence of a prior bad act. Ture v. State, 681 N.W.2d 9, 17 (Minn. 2004) (explaining that

8
where there is nothing “per se wrong” with the defendant’s actions, evidence of those acts
is not Spreigl evidence).
As the court noted, testimony about the tool s explained why the officer used his cell
phone. In turn, the fact th at the officer used his phone makes a fact of consequence—
whether Kimmes saw the office r use the phone—more likely. Minn. R. Evid. 401.
Whether Kimmes saw the officer use his cell ph one is a fact of consequence because it
relates to whether Kimmes stole the cell phone or mistakenly ended up with the phone in
his backpack. And although testimony about the officer’s suspicion could have been
prejudicial, the district court appropriately balanced the potential for unfair prejudice
against the probative value of the evidence by limiting the scope of admissible testimony
with this in mind. As such, the district court did not abuse its discretion by admitting the
officer’s testimony about taking pictures of the tools with his cell phone.
Despite this, Kimmes argues that the distri ct court’s instructions regarding the scope
of testimony still allowed the implication that the tools were stolen. We are not persuaded.
When asked about his reasons for taking the photos, the officer testified that it was standard
procedure to take pictures and inventory the contents of a car when someone other than the
registered owner would be taking the items with them. He also testified that there was no
reason to stop Kimmes from taking the tools from the car. Even if the testimony did suggest
that Kimmes might have stolen the tools, th at mere implication does not substantially
outweigh the probative value of testimony rega rding the tools. Minn. R. Evid. 403; see
also Ture, 681 N.W.2d at 17 (noting that although the defendant’s behavior in a previous

9
incident could be characterized as stalking, because there was nothing inherently wrong
with defendant’s conduct, evidence of his actions was not Spreigl evidence).
In sum, testimony about the tools was relevant to whether Kimmes had seen the
officer use his cell phone and any potential pr ejudice did not substantially outweigh the
probative value of testimony about the tools. As such, the district court did not abuse its
discretion by admitting testimony about the tools for the lim ited purpose of showing that
the officer used his cell phone.
II. The second officer’s inadmissible te stimony did not affect Kimmes’s
substantial rights.

Kimmes also makes a claim of prosecuto rial misconduct, al leging that the
prosecutor improperly elicited testimony from the second officer about why pictures of the
tools were taken. The state disagrees, arguing that any error was unintentional, and as such,
could not be prosecutorial misconduct.
Where, as here, a defendant alleges pros ecutorial misconduct but failed to object at
trial, we review the claim under a modified plain-error standard. State v. Ramey ,
721 N.W.2d 294, 302 (Minn. 2 006). Under this standard, the defendant must prove that
the prosecutor’s alleged misconduct constitute d plain error—usually by showing that it
contradicted caselaw, a standard of conduct, or a rule. Id. Once the defendant shows that
the prosecutor’s misconduct was plain error, the burden shifts to the state to prove that the
misconduct did not affect the defendant’s substantial rights. Id.

10
Here, Kimmes points to a single exchange between the prosecutor and the second
officer as evidence of misconduct:
Q: Did [the other officer] speak to you about the purpose of
taking any of those photographs?
A: Well, I believe that [the officer] thought that there was
some suspicious items in th e car, so he wanted to
photograph them in case they came back stolen later.

The second officer’s statemen t violated the district court’s instructions to exclude
testimony about whether the tools were stolen . But our review of the record does not
suggest that the prosecutor intentionally elicited that testimony. See State v. McNeil ,
658 N.W.2d 228, 232 (Minn. App. 2003) (“A reviewing court is much more likely to find
prejudicial misconduct when the state intentionally elicits impermissible testimony.”). The
prosecutor’s question was effectively the same as those posed to the first officer—“what is
the significance of taking th is photograph?” That ques tion, although it elicited
inadmissible testimony, was part of the “fair inquiry” allowed by the district court.
But assuming the prosecutor’s question wa s misconduct, we discern no prejudice.
Under the modified plain-error standard, the st ate must prove that there is “no reasonable
likelihood that the absence of the misconduct in question wo uld have had a significant
effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotations omitted). To
determine whether there is a reasonable likelihood that the misconduct impacted the jury’s
verdict, we look to the strength of the evidence against the defendant, the pervasiveness of
the alleged misconduct, and the defendant’s opportunity or effort to rebut the misconduct.
State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

11
Here, the state’s evidence against Kimme s was substantial. The DNA evidence
collected from the Silverado’s steering wheel identified Kimmes as the major DNA profile
in that sample. As one of the state’s witnesses, a forensic scientist, explained:
A major profile means that one person is contributing a
significant amount more DNA than the other contributors in
that profile. So major profiles, we almost treat like it’s a single
source. So we can say a major profile is almost like a single
source profile, meaning it came from one person.

The probability of th at DNA profile ma tching an unrelated individu al is one in 980,000.
The state also produced strong evidence against Kimmes with regard to the officer’s cell
phone. The first officer testified that he had not mistakenly placed the phone in Kimmes’s
backpack, nor had the backpack been placed on the hood of the s quad car with the cell
phone.
Furthermore, the alleged misconduct was not pervasive. The prosecutor asked one
question—which was compliant with the distri ct court’s instructions—that elicited one
inadmissible statement in the course of a three-day trial. No further reference was made to
that statement.
6
In sum, there is no support in the reco rd for Kimmes’s claim that the prosecutor
intentionally elicited inadmissible testimony from the second officer. The second officer’s

6 Still, Kimmes cites to State v. Ray to argue that the pros ecutor committed misconduct.
659 N.W.2d 736 (Minn. 2003). But the facts here are distinct from those in Ray. There,
the supreme court concluded that the pros ecutor committed misconduct by repeatedly
attempting to elicit inadmissible testimony and failing to properly instruct the witness to
avoid the inadmissible testimony. Id. at 744-45. The prosecutor’s actions in this case do
not rise to the same level of repeated, in tentional violation of the district court’s
instructions.

12
statement about the first officer’s suspicions was the result of questioning consistent with
the district court’s instructions. Most fu ndamentally, assuming that the prosecutor did
commit misconduct, there is no reasonable likelihood that it affected Kimmes’s substantial
rights.
III. Kimmes’s conviction of tampering wi th a motor vehicle must be vacated
because it is a lesser-included offense of motor-vehicle theft.

Kimmes argues, and the state agrees, that the district court erred by convicting him
of tampering with a motor vehicle because it is a lesser-included offense of theft of a motor
vehicle. Whether an offense is a lesser-in cluded offense is a ques tion of law which we
review de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
A defendant may only be convicted of ei ther the crime charged or an included
offense, but not both. Minn. Stat. § 609.04, subd. 1 (2016). Included offenses encompass
both a lesser degree of the same crime and crimes necessarily proved if the crime charged
is proved. Id., subd. 1(1), (4). To determine whether tampering with a motor vehicle is a
lesser-included offense of theft of a motor vehicle, we look to the elements of each crime.
State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).
Theft of a motor vehicle is defined as the taking or driving of a motor vehicle
without the consent of the owner, knowing or having reason to know that the owner did
not give consent for the person to use the motor vehicle. Minn. Stat. § 609.52, subd. 2(17).
Of particular relevance to this case are the terms “taking” and “driving.” But because the
statute does not define either term, we look to appropriate dictionary definitions for
guidance. State v. Friese, ___N.W.2d ___, 2021 WL 1774478, at *3 (Minn. May 5, 2021).

13
To “take” in the context of motor-vehicle theft mean s to adversely possess the
vehicle. State v. Thonesavanh , 904 N.W.2d 432, 436 (Minn. 2017). And to adversely
possess a movable object is to exercise control over it to the exclusion of all others. Black’s
Law Dictionary 67, 1408 (11th ed. 2018) (defining “adverse possession” and
“possession”). To “drive” a motor vehicle m eans to “guide, control, or direct” it. The
American Heritage Dictionary of the English Language 547 (5th ed. 2018).
Tampering with a motor vehicle is defined as tampering with or entering into or on
a motor vehicle without the owner’s permission. Minn. Stat. § 609.546(2). Again, because
the statute does not define the essential te rms—tampering and entering—we look to their
dictionary definitions. Friese, 2021 WL 1774478, at *3. To “tamper” with something is
to “interfere improperly” with it. Black’s Law Dictionary , supra, at 1766. To “enter”
something is to “come or go into” it. Id. at 672.
Having established the definitions of both crimes, we now consider whether
tampering with a motor vehicle is a lesser-included offense of motor-vehicle theft. To do
so, we ask whether any element of tampering with a motor vehicle—tampering or entering
into or on a motor vehicle—is true for each element of theft of a motor vehicle—taking or
driving. Bertsch, 707 N.W.2d at 664.
We begin by determining wh ether “driving” a motor vehicle always entails either
entering into or on the vehicle or tampering w ith it. Our review of the plain language of
the statute leads us to conclude that it does. To “guide, control, or direct” a motor vehicle
requires a person to enter into or onto a car. The most obvious example of this is a person
getting into a car and driving away without the owner’s consent. Because a person who

14
drives a car must also have entered into or onto the car to do so, at least one means of
tampering with a motor vehicle will always be satisfied if the “driving” element of
motor-vehicle theft is proven.
The same is true whenever a person takes a motor vehicle, ev en without entering
into or on it. Again, to take a motor vehicle is to adversely possess it. Thonesavanh,
904 N.W.2d at 436. But a person who possesse s a car to the exclusion of others does not
need to enter into or onto the car in order to do so. For example, a person could tow a car
away—and then possess it to the exclusion of others—without ever being in or on it.
A person cannot, however, take a motor vehicle without tampering with it. To
adversely possess a car necessarily entails interfering improperly with the car and another’s
ownership of it. Our example of a person who steals a car by towing it away supports this
conclusion. By towing a car away and possessing it to the exclusion of others without the
owner’s permission, the car is also interfered with improperly. Therefore, at least one form
of tampering with a motor vehicle is always true for the “take” element of motor-vehicle
theft. And because a form of tampering with a motor vehicle is true for both elements of
theft of a motor vehicle, tampering with a motor vehicle is a lesser-included offense of theft
of a motor vehicle.
Because the elements of tampering with a motor vehicle ar e necessarily proven
when the elements of theft of a motor vehicle are proven, the former is a lesser-included
offense of the latter. We conclude that th e district court erred in convicting Kimmes of
tampering with a motor vehicle.

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DECISION
The district court did not abuse its disc retion by admitting testimony about the tools
for the narrow purpose of showing that the officer used his cell phone. Nor did the second
officer’s inadmissible testimony about the t ools affect Kimmes’s substantial rights.
Therefore, we affirm in part. But beca use tampering with a motor vehicle is a
lesser-included offense of motor-vehicle theft, we reverse and remand to the district court
to vacate Kimmes’s conviction of tampering with a motor vehicle.
Affirmed in part, reversed in part, and remanded.