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This opinion is nonprecedential except as provided by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
A23-1075

State of Minnesota,
Respondent,

vs.

Kyle Grayling Tweed,
Appellant.

Filed July 22, 2024
Affirmed
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-19-2394

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

Kathryn M. Keena, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from a judgment of conviction for third-degree criminal sexual
conduct involving a mentally impaired or physically helpless victim, appellant argues that
the district court abused its discretion by admitting evidence that appellant previously had
2
sexually assaulted two other women while they were asleep. We conclude that the district
court did not abuse its discretion. Thus, we affirm.
FACTS
Respondent State of Minnesota charged appellant Kyle Grayling Tweed with
third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(d) (2018),
alleging that the victim, S.M., was mentally impaired or physically helpless when Tweed
sexually assaulted her in September 2019. The district court conducted a jury trial in
February 2023, and t he following summarizes the evidence received along with the
relevant procedural history.
On August 31, 2019, S.M. and her friend D.R. ate at a restaurant in Minneapolis.
During dinner, they consumed some alcohol. After dinner, they went to a bar, where they
“had a couple drinks” with D.R.’s friend J.W., who introduced them to his friend Tweed
and Tweed’s girlfriend.
After leaving the bar, the five of them went to Tweed’s split-level townhome in
Apple Valley. They drank more alcohol and used cocaine. Three times during the night,
Tweed’s girlfriend saw Tweed and S.M. downstairs on the lower level together and
observed that they were “facing each other, but they weren’t touching.” At one point,
Tweed asked his girlfriend and S.M. “to take off [their] tops,” but they refused. Eventually,
Tweed’s girlfriend got into an argument with Tweed, “kind of punched him in the face, ”
“grabbed [her] stuff,” and “left.” D.R. and J.W. fell asleep while S.M. danced to music and
videos in the living room. Tweed also remained awake.
3
S.M. and Tweed went to his bedroom. They talked about a man S.M. was dating,
and S.M. asked Tweed for a massage. Tweed pulled up S.M.’s dress, and she told him,
“Don’t do that.” Eventually, S.M. fell asleep. S.M. dreamed about having sex and woke
up; Tweed was penetrating her vagina with his penis. S.M.’s underwear was pulled down
around her legs. S.M. yelled at Tweed, and he denied penetrating her. D.R. “woke up to
[S.M.] screaming, ‘You raped me,’” at Tweed. Tweed left, and S.M. called 911. Law
enforcement responded to the call; S.M. gave a recorded statement, cooperated with the
investigation, and submitted to a sexual-assault exam.
At trial, the state offered testimony from S.M.’s mother that S.M. had died.1
Tweed’s girlfriend and D.R. also testified. S.M.’s recorded statements to law enforcement
and the medical report from the sexual-assault nurse-examiner who examined S.M. were
received into evidence. A forensic scientist testified that vaginal swabs from S.M.
contained “a Y chromosome profile that matched Kyle Tweed,” meaning that “neither Kyle
Tweed nor any of his paternally-related male relatives [could] be excluded as a
contributor.” As discussed below, the state also offered Spreigl evidence about two times
when Tweed sexually assaulted other women while they were sleeping.
2

1 S.M. died for reasons unrelated to this case.

2 “Spreigl evidence is evidence of a defendant’s prior crimes, wrongs, or acts, which would
otherwise be inadmissible, but which the state can seek to have admitted for the limited
purpose of showing motive, intent, absence of mistake, identity, or a common scheme or
plan.” State v. Asfeld, 662 N.W.2d 534, 542 (Minn. 2003); see Minn. R. Evid. 404(b)(1);
State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).
4
Tweed testified that, while he and S.M. were downstairs at his house, they flirted
and did “body bumps.” He added that he snorted cocaine “off her vagina,” they “performed
oral sex on each other,” and the oral sex was consensual. Tweed also testified that “[t]here
was no time [he] penetrated” S.M. with his penis. Tweed called no other witnesses.
The jury found Tweed guilty, and the district court imposed a sentence of 180
months in prison. Tweed appeals.
DECISION
Tweed raises one issue in his brief to this court. He argues that “the district court
committed reversible error by allowing the state to introduce irrelevant and unfairly
prejudicial Spreigl evidence showing that on two prior occasions Tweed had sexually
assaulted women while they were asleep.” Tweed contends that he is entitled to a new trial.
Appellate courts review a district court’s decision to admit Spreigl evidence for an abuse
of discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). On appeal, a defendant
challenging the admission of Spreigl evidence “bears the burden of showing an error
occurred and any resulting prejudice.” State v. Buchan, 993 N.W.2d 614, 626 (Minn. 2023)
(quotation omitted).
A. The Spreigl Evidence
Before trial, the state filed a notice of its intent to offer Spreigl evidence showing
that Tweed previously sexually assaulted two women while they were sleeping. Tweed
moved in limine to exclude the proposed Spreigl evidence, including Tweed’s “two [prior
sexual-assault] convictions or any facts associated with them.” After hearing arguments on
the Spreigl evidence, the district court denied Tweed’s motion, stating that while “there is
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some prejudice to [Tweed] . . . the incidents do meet the standard to allow them” into
evidence “based upon modus operandi.”3
Before the two Spreigl witnesses testified and outside the presence of the jury,
Tweed’s attorney objected to their testimony to preserve the issue for appeal. The district
court reiterated that, before trial, it determined “that the [Spreigl] incidents go towards
modus operandi” and “that the probative value outweighs the prejudice based upon the
similarity between the offenses to the current events charged.”
The first Spreigl witness, M.C., testified that, in September 2009, she went out
drinking in Minneapolis with two friends. Tweed, who was the “on-and- off-again
boyfriend” of friend one, met up with them. The four of them went to three clubs, an
after-party, and then to friend one’s apartment. M.C. “felt pretty intoxicated” but consumed
more alcohol at the apartment. M.C. “started to feel a little sick” and went to “lay down”
in friend one’s bedroom. Tweed and M.C.’s two friends “were still up partying.”
When M.C. went to bed, she “had just night shorts on.” Later, M.C. woke up “a
little bit” because she felt “somebody on top” of her and “knew that [she] was having sex”;
M.C. “felt a penis inside of [her] vagina, ” but she was “too intoxicated” and “not awake
enough to try to stop what was happening.”
When M.C. fully woke up, her underwear and night shorts “were looped around one
leg” and her vagina was “kind of swollen” and “wet.” M.C. confronted Tweed, who was
“asleep on the couch,” and said, “What the f-- k did you do last night?” Tweed “woke up

3 The district court determined that Tweed’s two prior sexual-assault convictions related to
the two other incidents were not admissible “for impeachment purposes.”
6
right away” and said, “I know, I know. I’m sorry I was just f --ked up. I f--ked up.” M.C.
“started crying” and told friend one that Tweed “raped [her] last night.” Tweed “ran out of
the apartment,” and friend one “ran after him . . . and called the police.”
The second Spreigl witness, B.B., testified that, in January 2010, she lived with two
roommates in Savage. Roommate one “had dated” Tweed. One evening, B.B. watched
movies with her roommates and went to bed around 1:30 a.m. B.B. had consumed no
alcohol or drugs. B.B. did not know that Tweed was in her home when she went to bed.
B.B. woke up, and Tweed was “on top of [her], penetrating [her]” with his penis.
B.B. said, “No. Stop,” and Tweed instead placed his hand inside B.B.’s vagina. B.B. again
said, “Stop,” and “there was a noise upstairs,” which caused Tweed to leave her room.
B.B. went to roommate two’s bedroom and told him “what had just happened.”
Roommate one then “came downstairs,” and B.B. told her what happened as well.
Roommate one “left the room to go talk with [Tweed],” and they both “came downstairs.”
B.B. “didn’t talk to” Tweed because she was “[s]cared” and called the police after Tweed
left.
At trial, after the parties concluded their presentation of the evidence and d uring
final jury instructions, the district court gave a limiting instruction about the Spreigl
evidence that Tweed had sexually assaulted M.C. and B.B.
4

4 The instruction followed the pattern jury instruction. See 10 Minnesota Practice,
CRIMJIG 3.05 (2023).
7
B. The Spreigl Analysis
“Evidence of another crime, wrong, or act is not admissible to prove the charac ter
of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b)(1).
Such evidence “may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. The supreme court has established a five-step test to determine the
admissibility of evidence of a prior bad act or crime, referred to as Spreigl evidence:
(1) the State must provide notice of its intent to use the
evidence; (2) the State must clearly indicate what the evidence
is being offered to prove; (3) there must be clear and
convincing evidence that the defendant participated in the
other act; (4) the Spreigl evidence must be relevant and
material; and (5) the probative value of the evidence must not
be outweighed by the potential prejudice.

Buchan, 993 N.W.2d at 626 (quotation omitted). Tweed concedes that the state satisfied
steps one and three. This opinion considers Tweed’s arguments about steps two, four, and
five in turn.
Step 2: The state clearly indicate d what the evidence was offered to
prove.
Under step two, “the State must clearly indicate what the [Spreigl] evidence is being
offered to prove.” Id. (quotation omitted). “Implicit in the requirement that the proponent
of Spreigl evidence disclose its purpose is that there also be some showing or determination
that the evidence reasonably and genuinely fits that purpose.” State v. Montgomery,
707 N.W.2d 392, 398 (Minn. App. 2005). The state cannot merely “recite a [rule] 404(b)
purpose without also demonstrating at least an arguable legitimacy of that purpose.” Id.
8
Tweed argues that “the state failed to articulate a specific purpose for admission of
the Spreigl evidence” and “merely recited the bulk of the allowed purposes for admitting
other-bad-acts evidence as set forth in Minn. R. Evid. 404(b).” The state disagrees, arguing
that its memorandum to the district court in support of admitting the Spreigl evidence
“indicated that modus operandi in the charged offense and the proposed Spreigl incident[s]
was the same,” “that [Tweed’s] similar behavior of penetrating women with his penis while
they were sleeping shows intent, motive, absence of mistake, common scheme or plan,”
and that the allegations were not fabricated.
The record shows that the state clearly indicated what the Spreigl evidence was
offered to prove. While the state’s initial notice was broad and stated all the rule 404(b)
permissible purposes for introducing Spreigl evidence, its later submission was more
specific. The state’s supporting memorandum focused on modus operandi, which when
repeated is synonymous with a common plan or scheme. See State v. Forsman, 260 N.W.2d
160, 167 (Minn. 1977) (stating that the common-scheme- or-plan exception “has evolved
to embrace evidence” of modus operandi). The state also explained how the Spreigl
evidence fit that purpose. The state’s memorandum argued that the “three offenses [were]
very similar” and that Tweed showed the “same modus operandi in each case” by
“penetrat[ing] each of the victims’ vaginas with his penis while they were sleeping” and
by having no preexisting romantic relationship with the victims. Accordingly, the state
satisfied step two of the Spreigl analysis.
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Step 4: The Spreigl evidence was relevant and material.
Step four of the Spreigl analysis requires that the evidence be relevant and material.
Buchan, 993 N.W.2d at 626. “[T]he closer the relationship between the other acts and the
charged offense, in terms of time, place, or modus operandi, the greater the relevance and
probative value of the other-acts evidence and the lesser the likelihood that the evidence
will be used for an improper purpose.” State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006).
To show a common plan or scheme, the Spreigl evidence must “have a marked similarity
in modus operandi to the charged offense.” Id. (emphasis omitted) (quotation omitted).
Tweed argues that the Spreigl evidence was “not relevant to the charged offense”
because there was a “ lack of similarity between the Spreigl evidence and the charged
offense.” The state responds that the Spreigl evidence was “relevant to the charged offense”
because “the three offenses, while not identical, are very similar.” The state contends that,
in each sexual assault, Tweed “penetrated each of the victims’ vaginas with his penis while
they were sleeping,” which “is the same modus operandi.”
Precedent guides us in this step of the Spr eigl analysis. Minnesota courts have
repeatedly recognized the relevance of Spreigl evidence in criminal-sexual-conduct cases.
See State v. Boehl, 697 N.W.2d 215, 219 (Minn. App. 2005) (“In criminal sexual conduct
cases . . . prior acts of sexual conduct are often relevant where the defendant disputes that
the sexual conduct occurred or where the defendant asserts the victim is fabricating the
allegations.”), rev. denied (Minn. Aug. 16, 2005).
For example, in State v. Wermerskirchen, the state charged Wermerskirchen with
second-degree criminal sexual conduct involving his nine-year -old daughter. 497 N.W.2d
10
235, 236 (Minn. 1993). The district court admitted Spreigl evidence of similar incidents of
sexual contact between Wermerskirchen and his stepdaughter and two nieces. Id. at 237.
Wermerskirchen appealed his conviction, and the supreme court determined that the
district court did not abuse its discretion. Id. at 243. The supreme court stated that the
Spreigl “evidence was highly relevant in that it showed an ongoing pattern of opportunistic
fondling of young girls within the family context and, therefore, tended to disprove the
defense that [the victim] was fabricating or imagining the occurrence of sexual contact.”
Id. at 242.
Similarly, in State v. Washington, the supreme court upheld the admission of Spreigl
evidence during Washington’s trial for sexually abusing his girlfriend’s 15- year-old
daughter. 693 N.W.2d 195, 198 (Minn. 2005). The Spreigl evidence showed Washington
previously had sexually assaulted a 15-year-old girl. Id. The supreme court determined that
the Spreigl evidence was relevant because it suggested “that Washington’s modus operandi
was to initiate sexual contact with teenage girls, train them to perform sexual acts on him,
control them by threats and coercion, and encourage them to exploit their sexuality.” Id. at
203. The supreme court also noted that “evidence of modus operandi was relevant because
Washington claimed that [the victim] had fabricated her claims.” Id.
Based on this caselaw, we conclude that the Spreigl evidence in Tweed’s case is
markedly similar to the charged offense involving S.M. and relevant to prove modus
operandi. See Ness, 707 N.W.2d at 688 (requiring a marked similarity in modus operandi
between the Spreigl evidence and the charged offense). In all three sexual assaults, the
women met Tweed through a friend, had no preexisting romantic relationship with Tweed,
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and after going to sleep, woke up as Tweed was penetrating their vaginas with his penis.
Tweed had also been in or was currently in a romantic relationship with one of the other
women who was present for the events right before the sexual assault. Two of the three
sexual assaults involved the victim consuming alcohol.
Tweed argues that the prior sexual assaults were “markedly different” because they
“occurred at the homes of friends of Tweed’s . . . whereas the events alleged in this case
occurred . . . at Tweed’s home,” and the incident with B.B. did not involve “a high
consumption of alcohol.” Tweed also argues that, unlike M.C. and B.B., S.M. “flirted with
Tweed,” “actively sought opportunities to be alone with him,” and was “alert” due to her
drug use. Even so, the Spreigl evidence shows Tweed’s modus operandi amounted to a
common plan or scheme of sexually assaulting sleeping women. Thus, we conclude that
the Spreigl evidence admitted in Tweed’s case is “highly relevant.” See Wermerskirchen,
497 N.W.2d at 242.
Tweed also claimed that S.M. fabricated the sexual assault. Tweed testified that
“[t]here was no time [he] penetrated [S.M.]” and that the alleged sexual assault “didn’t
happen.” The Spreigl evidence is thus also relevant to determine whether S.M. fabricated
the sexual assault. See id. (determining that Spreigl evidence was relevant where it tended
to disprove the defense that the sexual-assault allegations were fabricated).
Step 5: The probative value of the Spreigl evidence outweighed its
potential unfair prejudice.

Under step five of the Spreigl analysis, “the probative value of the evidence must
not be outweighed by the potential prejudice.” Buchan, 993 N.W.2d at 626 (quotation
12
omitted). To make this determination, appellate courts “balance the relevance of the [prior]
offenses, the risk of the evidence being used as propensity evidence, and the State’s need
to strengthen weak or inadequate proof in the case.” State v. Fardan, 773 N.W.2d 303, 319
(Minn. 2009). “[E]vidence of criminal sexual conduct can be highly prejudicial.” Id. Unfair
prejudice, however, “is not merely damaging evidence, even severely damaging evidence;
rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party
an unfair advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted).
Tweed argues that the “prejudicial effect of the prior offenses substantially
outweighed any probative value.” Tweed contends that the Spreigl evidence was “not
relevant” and that the state “did not need the Spreigl evidence to strengthen otherwise weak
or inadequate proof.” The state contends that the “district court properly exercised its
discretion in admitting the Spreigl evidence.”
At a pretrial hearing, the district court discussed step five and stated that, while
“there is some prejudice to the defendant, . . . the incidents do meet the standard to allow
them” into evidence “based upon modus operandi.” In response to Tweed’s objection to
the Spreigl evidence at trial, the district court reiterated that it found “that the probative
value outweighs the prejudice based upon the similarity between the [prior] offenses to the
current events charged.”
The district court’s determination is supported by the record and relevant caselaw.
As detailed above, Tweed’s prior sexual assaults are markedly similar to the sexual assault
of S.M. and thus are “highly relevant” as they establish modus operandi, a common plan
or scheme, and help the jury determine whether S.M. fabricated the sexual assault.
13
Wermerskirchen, 497 N.W.2d at 242; see also Ness, 707 N.W.2d at 688 (stating that the
“closer the relationship between the other acts and the charged offense, in terms
of . . . modus operandi, the greater the . . . probative value of the other-acts evidence and
the lesser the likelihood that the evidence will be used for an improper purpose”).
While the risk exists that the jury would improperly use the Spreigl evidence to
assess Tweed’s propensity to sexually assault women, the risk was reduced by the district
court’s limiting instruction. See State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008)
(explaining, in the context of Spreigl evidence, that “a cautionary instruction lessens the
probability of undue weight being given by the jury to the evidence” (quotation omitted));
see also State v. Welle, 870 N.W.2d 360, 366 (Minn. 2015) (stating that appellate courts
presume the jury followed cautionary instructions).
We also observe that Tweed denied penetrating S.M. with his penis while she was
asleep—claiming instead that they had consensual oral sex—and that S.M. did not testify
because she died before trial. In these circumstances, the district court did not abuse its
discretion by determining that the probative value of the Spreigl evidence outweighed any
potential for unfair prejudice.
In sum, the district court did not abuse its discretion when it admitted the Spreigl
evidence of Tweed’s two prior sexual assaults of sleeping women. We conclude that the
evidence satisfies steps two, four, and five of the Spreigl analysis. And Tweed concedes
that steps one and three of the analysis were satisfied. Because the district court’s admission
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of Spreigl evidence was not an abuse of discretion, we need not consider Tweed’s argument
that the erroneous admission of Spreigl evidence was prejudicial.
Affirmed.