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This opinion will be unpublished and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
A19-0629

State of Minnesota,
Respondent,

vs.

Alexander John Cookson,
Appellant.

Filed June 22, 2020
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Clay County District Court
File No. 14-CR-17-4600

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

Brian J. Melton, Clay County Attorney, Pamela Foss, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

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

Considered and decided by Bryan, Presiding Judge; Reyes, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
Appellant argues that the district court committed the following two errors: (1) the
district court answered a question from the jury without first consulting the parties , and

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(2) the district court included an out -of-state conviction in appellant ’s criminal -history
score. We affirm the jury verdict because the trial error was harmless beyond a reasonable
doubt. In addition, because the state did not establish that the out-of-state conviction was
equivalent to a felony in Minnesota, we reverse the calculation of appellant ’s criminal-
history score and remand that issue to the district court.
FACTS
In 2017, respondent State of Minnesota charged appellant Alexander John Cookson
with third-degree criminal sexual conduct , and the case proceed ed to a jury trial. During
deliberations, the jury submitted a question to the district court, asking whether a witness
testified to a particular fact. Without convening the parties or consulting with defense
counsel, the district court instructed the jury to rely on their memory of the evidence. The
jury returned a guilty verdict and the case proceeded to sentencing. At sentencing, the
district court equated an out-of-state conviction to a felony in Minnesota over Cookson’s
objection. This appeal followed.
A. Evidence at Trial and Jury Question
In December 2017, Cookson was serving a jail sentence, but was allowed to leave
the jail during the day to go to work. On the day of the incident, Cookson’s girlfriend,
S.B., picked him up and took him to work at his automotive shop. When it came time to
drive Cookson back to jail, Cookson got into the front passenger seat of S.B.’s four-door
Chrysler Pacifica and had S.B. park behind the shop . According to S.B., Cookson was
upset with her because she did not spend time with him at the shop that day. S.B. told
Cookson they needed to get back to the jail, but Cookson refused to let them leave and kept

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trying to kiss her. Cookson went to the second row of S.B.’s vehicle, grabbed S.B. by her
coat and pulled her into the second row . Cookson wanted to have sexual intercourse, but
was unable to k eep an erection. Cookson then grabbed S.B. by the head and forced his
penis in her mouth . S.B. continually told Cookson “no,” that she didn ’t want to, and to
stop. Eventually, Cookson ejaculated on S.B.’s coat sleeve and a laundry bag.
On the day of the incident, Cookson’s friend, B.A., was helping out at the shop. 1
While Cookson and S.B. were in her vehicle, B.A. walked out of the shop and toward
S.B.’s vehicle. B.A. testified unequivocally on direct examination that he did not walk all
the way up to the Pacifica and that he could not see anybody in the vehicle because of its
tinted windows. In addition, B.A. testified that he heard Cookson say that it would be just
another minute and then he would come in and get B.A. when it was time to leave. At that
point, B.A. walked back into the shop. B.A. reiterated this testimony on cross-examination,
explaining that Cookson said it will be just a minute, that B.A. did not say anything to
prompt Cookson’s statement, that Cookson must have seen him coming toward to the
vehicle, and that he did not get within 10 feet of the vehicle.
After the alleged assault, S.B. drove to the side of the shop and B.A. got in the
vehicle with S.B. and Cookson. B.A. could tell something was wrong by the look on S.B.’s
face. S.B. dropped herself off at her apartment, and B.A. drove Cookson back to jail. S.B.
testified that Cookson called her on his way back to jail to say he was sorry for what

1 S.B. testified that she and Cookson started dating in the late spring of 2017 and that
Cookson was her boyfriend on the date in question. B.A. testified that he and S.B. began
a romantic relationship in December 2017 and were still together at the time of the trial.

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happened and that he did not mean for it to happen. Later that night, S.B. told her daughter
and B.A. what happened with Cookson. Both B.A. and S.B.’s daughter testified that S.B.
was distraught, and that they urged her to go to the police.
The day after the incident, S.B. and her daughter spoke with D etective Hicks and
provided him with S.B.’s coat and the laundry bag. S.B. told Hicks that Cookson forced
her to perform oral sex inside her vehicle , and that Cookson ejaculated on her coat sleeve
and the laundry bag. Hicks later brought S.B.’s coat and the laundry bag to the Minnesota
Bureau of Criminal Apprehension (BCA). The BCA did not test the laundry bag, but did
find semen on the coat sleeve that matched Cookson’s DNA.
Hicks later obtained a recorded statement from Cookson which was played during
the trial. In the statement, Cookson stated that he was adamant that he and S.B. did not
have sex: “We fooled around but we didn’t have sex. Nothing entered her body at all in
any way, shape, or form. Go look for semen, go do whatever you need to do because
there’s not gonna be any. And I’m adamant about that. ” Cookson also stated that B.A.
walked up to the vehicle and knocked on the door. At that time, Cookson stated that he
and S.B. were just sitting in the car. Cookson also stated that he and S.B. kissed and fooled
around, but he could not get an erection. Cookson told Hicks that SB said no, but
maintained that it was only because of the location and the surroundings. After his arrest,
Cookson also made several calls to S.B. from jail, some of which were p resented to the
jury. In two calls to S.B., Cookson stated that he was sorry and fel t horrible about what
happened. Cookson also stated, “You’ve never turned me down. S o like I didn’t think it
was because of actually not wanting to, I thought it was because you were worried about

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the people.” In the other calls, Cookson told his sister to offer S.B. money or a house to
make this situation go away.
On cross-examination, Hicks was asked about the statement that S.B. gave to him.
While he did not recall her saying that she wanted to get away from Cookson, he thought
that S.B. said that B.A. walked up to the car and knocked on the window:
Q. Now, Detective, you spoke with [S.B.] on December l4,
is that correct?
A. Correct.
Q. And she came into your office? You recorded it?
A. Yes.
Q. You listened to that recording before court today?
A. Not today. I have listened it to throughout the course of
this investigation.
Q. Have you listened to it in preparation for trial today?
A. Yes, I have.
Q. And during that conversation you had with her, she had
told you that she had been trying to get away from him,
is that correct?
A. I can’t specifically say right now. She had told me that
specifically she was trying to get away from him?
Q. Get away from the relationship?
A. If we can refer to the transcribed copy of the interview
at the time ——
Q. You don’t remember?
A. Not off the top of my head, no.
Q. And then, Detective, she also told you that [B.A.] had
come to the door, knocked on the window; is that
correct?
A. As I recall, that is what she said, yes.

During its deliberations, the jury wrote a note to the judge asking about whether a
witness testified to a particular fact. The note read, “Det Hicks testimony: Did he testify
that [B.A.] knocked on window of car.” The district court did not contact the parties or
consult with counsel. The district court also did not meet with the jurors to deliver his

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answer. Instead, the district court wrote a response and provided the following written
answer to the jury: “You are to rely on your memory and recollection of the testimony.”
Upon learning that the jury had reached a verdict, the district court apprised the parties of
the jury’s quest ion and stated “because of the nature of the question I didn ’t bring the
parties back in. [My response] would have been the Court’s position in any event.” The
jury found Cookson guilty.
B. Calculation of Appellant’s Criminal-history score
Prior to sentencing, Clay County Department of Corrections submitted a
presentence investigation report (PSI). The PSI included a felony conviction in North
Dakota and concluded that Cookson had five criminal history points. Cookson contested
this calculation and requested that he be sentenced wit h a criminal-history score of four
points. In response, the state filed a memorandum and three marked exhibits consisting of
the information, the police report, and the sentencing disposition. None of the exhibits
were certified records. T he exhibits indicate that in January 2015, the State of North
Dakota charged Cookson with reckless endangerment in violation of N.D. Cent. Code
§ 12.1-17-03 (20 13). The exhibits allege that Cookson “chased and rammed head on
[another] vehicle while occupied, the approached [said] vehicle and punched the window,”
and by doing so Cookson “ willfully created a substantial risk of serious bodily injury or
death to another under circumstances manifesting extreme indif ference to the value of
human life.” Cookson pleaded guilty in North Dakota district court and was sentenced to
serve four years at the Department of Corrections and Rehabilitation. The district court
reviewed the exhibits and determined that the offense would be the equivalent of a second-

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degree assault in Minnesota. The district court sentenced Cookson using five criminal
history points.
D E C I S I O N
I. Answer to the Jury Question
Cookson argues he is entitled to a new trial because the district court erred in
answering the jury ’s question without convening the parties . We agree that the district
court erred. However, because the jury verdict was surely unattributable to this error, the
district court’s error was harmless beyond a reasonable doubt.
“[T]he Sixth Amendment to the United States Constitution grants a defendant the
right to be present at all stages of trial. ” State v. Sessions , 621 N.W.2d 751, 755 ( Minn.
2001). The Minnesota Rules of Criminal Procedure dictate that a defendant must be
present at every stage of the trial including “ any jury questions dealing with evidence or
law.” Minn. R. Crim. P. 26.03, subd. 1(1)(f). A district court’s response to a jury question
in the absence of a defendant, without obtaining a waiver, is a violation of that defendant’s
constitutional right to be present and rule 26.03. Sessions, 621 N.W.2d at 756. But, “a
new trial is warranted only if the error was not harmless. ” Id. “If the verdict was surely
unattributable to the error, the error is harmless beyond a reasonable doubt.”2 Id. “When
considering whether the erroneous exclusion of a defendant from judge -jury

2 Appellant argues that this court should review the district court’s conduct for an abuse of
discretion. Respondent refers to an abuse of discretion in its standard -of-review section,
but also cites State v. Sessions and acknowledges that the district court’s response to the
jury in Cookson’s absence violated his constitutional rights. We follow Sessions and apply
the constitutional standard.

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communications constitutes harmless error, we consider the strength of the evidence, and
substance of the judge’s response.” Id. (citation omitted). For example, in Cooper v. State,
“the jury sent a note to the trial judge requesting to revie w a state’s witness’ testimony.”
745 N.W.2d 188, 191 (Minn. 2008). In the absence of Cooper and his counsel, “[t]he judge
responded to the note in writing, stating that no transcript was available and that the jury
members would have to rely on their own memories.” Id. The Minnesota Supreme Court
held that the error was harmless beyond a reasonable doubt because the responses were
neutral, appropriate, and would have been the same even in Cooper’s presence. Id. at 192;
see also, e.g., Mckenzie v. State, 687 N.W.2d 902, 906 ( Minn. 2004) (concluding that the
district court ’s error responding to jury questions in the absence of the defendant w as
harmless beyond a reasonable doubt because the jury received no new information and the
responses given were appropriate and neutral).
Cookson argues that the district court’s error caused harm because it denied him the
opportunity to request that the d istrict court read the transcript of Hicks ’ testimony to the
deliberating jury. We disagree because of the strength of the state’s evidence and because
of the substance of the district court’s response.
First, we consider Cookson’s argument in light of the state’s evidence. Cookson
asserts that listening to the transcript of Hicks’ testimony would have changed the outcome
of the case because after hearing Hicks’ testimony a second time, the jury would conclude
that S.B. lied about the incident it in order to preserve her relationship with B.A. We cannot
accept this attenuated argument. The jury heard S.B.’s detailed testimony and the
corroborating testimony of her daughter and B.A. In addition, the jury considered forensic

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evidence that the BCA found Cookson’s semen where S.B. had identified it would be. The
district court also admitted recordings of Cookson denying any sexual contact with S.B. on
that date. In addition, in the recorded statement Cookson said he was “adamant” that law
enforcement could “[g] o look for semen, go do whatever you need to do because there’s
not gonna be any. ” The jury also heard other recordings of Cookson apologizing to S.B.
for his actions and acknowledging that she said she did not want to have sex, but explaining
that he misinterpreted what S.B. meant . Given the strength of th is evidence, we cannot
agree that hearing Hicks’ testimony regarding whether B.A. knocked on the vehicle calls
into question S.B.’s credibility.
Next, we analyze the substance of the district court ’s response. The district court
told the jury members they were to rely on their memory and recollection of the testimony.
This is an appropriate response. Sessions, 621 N.W.2d at 757 (“ In response to the jury ’s
question . . . the court appropriately advised jurors that they were to decide the case based
upon their own collective recollection of the evidence”). Further, the district court did not
give the jury any new information, and the response neither favored Cookson nor the state.
The district court also stated that the response to the question would have been the same
had Cookson and his counsel been present. In short, the substance of the district court ’s
response is nearly identical to that in Cooper and Mckenzie. Thus, we reach the same
conclusion as the supreme court in those two cases. B ecause the district court’s response
to the jury question was harmless beyond a reasonable doubt, we affirm the jury’s verdict.

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II. Criminal-History Score
Cookson argues that the district court erred in calculating his criminal-history score
because it counted an out -of-state conviction as equivalent to a felony in Minnesota.
Because the state did not establish that the facts underlying the conviction would have
constituted a felony in Minnesota, we reverse the sentence and remand to the district court
for resentencing.
The sentencing guidelines “provide uniform standards for the inclusion and
weighting of criminal history information that are intended to increase the fairness and
equity in the consideration of criminal history.” State v. Reece , 625 N.W.2d 822, 824
(Minn. 2001) (quotation omitted). Convictions from other jurisdictions must be considered
in calculating an offender’s criminal-history score under the guidelines. Id.; see also Minn.
Sent. Guidelines 2.B.5.a ( Supp. 2017). An out-of-state conviction may be counted as a
felony only if it would be defined as a felony in Minnesota “based on the elements of the
prior non -Minnesota offense” and “the offend er received a sentence that in Minnesota
would be a felony-level sentence.” Minn. Sent. Guidelines 2.B.5.b (Supp. 2017). The state
bears the burden to “show that a prior conviction qualifies for inclusion within the criminal-
history score.” Williams v. State, 910 N.W.2d 736, 740 ( Minn. 2018). “The state must
establish by a fair preponderance of the evidence that the prior conviction was valid, the
defendant was the person involved, and the crime would constitute a felony in Minnesota.”
State v. Maley , 714 N.W.2d 708, 711 (Minn. App. 200 6). This court reviews a district
court’s determination of a defendant’s criminal-history score for an abuse of discretion.

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State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20,
2002).
In this case, Cookson argues that the state failed to prove by a fair preponderance of
the evidence that the facts underlying his North Dakota conviction 3 for reckless
endangerment would amount to a felony under Minnesota law.4 Clearly, the allegations in
the three sentencing exhibits, if prove d, could support a felony, second -degree assault
conviction in Minnesota. But the guidelines refer to convictions, not charges or police
reports. Minn. Sent. Guidelines 2.B.5.a; see also State v. Johnson, 411 N.W.2d 267, 270
(Minn. App. 1987) (“guideline comment II.B.501 refers to out -of-state convictions, not
charges or statements by complainants or charges that may have been brought”). Cookson
pleaded guilty to reckless endangerment in violation of N.D. Cent. Code § 12.1-17-03, but
the state did not present any information regarding what facts Cookson admitted at the time
of his guilty plea. Without this information, we cannot determine whether Cookson
admitted conduct that would equate to an assault with a dangerous weapon or conduct that
would equate to reckless driving in Minnesota. Compare Minn. Stat. § 169.13, subd. 1(a)
(2016) with Minn. Stat. § 609.222 (2016). The factual basis for Cookson’s North Dakota
plea could have supported either Minnesota offense. Therefore, the state failed to establish

3 Cookson does not challenge that the sentence he received would constitute a felony-level
sentence in Minnesota.
4 Cookson also contends that we must reverse because the state did not present certified
copies of his North Dakota conviction . We have previously held, however, that the state
need not provide a certified copy of the conviction. State v. Griffin, 336 N.W.2d 519, 525
(Minn. 1983); Maley, 714 N.W.2d at 712 (permitting district courts to rely on uncertified
out-of-state convictions in computing a defendant ’s criminal -history score ). Thus, the
district court did not err in relying on uncertified records.

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that the North Dakota offense would constitute a felony in Minnesota, and the district court
abused its discretion when it used a criminal-history score of five points to determine
Cookson’s sentence. Because Cookson objected to the use of his out -of-state conviction
and the state failed to meet its burden of proof, we reverse the district court’s decision and
remand for resentencing based on four criminal history points.
Affirmed in part, reversed in part, and remanded.