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This opinion is nonprecedential except as provided by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
A20-0144

State of Minnesota,
Respondent,

vs.

Alexander James Ray,
Appellant.

Filed February 8, 2021
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-19-4820

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from the judgment of conviction for first-degree criminal sexual
conduct, appellant Alexander James Ray argues that the prosecutor committed misconduct

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during closing arguments by misstating th e evidence—specifically, by attributing
statements to Ray that Ray did not make. We affirm.
FACTS
The following facts were established at tr ial. Ray and C.M. met in 2016 when C.M.
was a college student in North Dakota and Ra y was living in Minnesota. They began an
on-and-off-again relationship. Ab out six months after they me t, Ray introduced C.M. to
cocaine, and their relationship began to “re volve[] around drugs.” Their relationship
deteriorated. Ray would beco me angry and would take hi s frustration out on C.M.; he
“became physical” with her, including pushing her and grabbing her by the neck.
At the end of January 2019, C.M. move d out of state to start a new job. On
February 22, 2019, she flew b ack to Minnesota to spend the weekend with Ray. She did
not notify her family that she was returning for a visit. C.M. arrived late at night. Ray
picked her up at the airport, and they went straight to a bar and started drinking. During the
night, Ray became angry with C.M. for wanting to sleep, so she used cocaine to stay awake.
Ray and C.M. went to Ray’s apartment, dra nk alcohol, and hung out with friends. They
stayed up all night, partying.
The following day, C.M. rented a room at a hotel with a pool because Ray wanted
to go swimming. After checking in, Ray and C.M. went out drinking. They eventually
returned to the hotel in the early hours of Fe bruary 24, along with three of Ray’s friends,
including A.K. They hung out, drank, and used drugs.
Ray decided to go swimming, and his friends followed hi m downstairs. C.M.
remained in the room to change into her swimsuit and to call her sister. It was around

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6:00 a.m. Because her sister’s phone was broken, C.M. had to call her sister’s boyfriend.
Ray returned to the room and became angry that C.M. was talking to another male. Ray
took C.M.’s phone and sent a text message to the number she was calling. Ray then left the
hotel room, and C.M. went look ing for him. She was told that Ray had gone back to the
room, so she returned, along with Ray’s friend, A.K. C.M. told Ray that one of his friends
had messaged her, and he “freaked out.” Ray was “really angry” and called C.M. a “whore”
and a “slut,” said that he would “bang” C.M.’s sister, and broke a vase. After about half an
hour, A.K. left the hotel room to go to work. At trial, A.K. testified to these events in the
hotel room.
C.M. began packing her items to leav e the hotel. Ray followed her into the
bathroom, grabbed her neck, “slamm[ed]” her against the wall, and told her he that hoped
she became sick and died. Ray held her against the wall for approximately thirty seconds
using one hand, making it diffi cult for her to breathe. Afte r Ray released her, C.M. sat
down and tried to talk to him. He slapped her. C.M. again tried to pack her clothing, while
Ray was watching her. During this time, C.M. made at least five phone calls, trying to
reach someone. She connected with her mother and her sister. She told her mother that Ray
“hit” and “strangl[ed]” her; her mother told her to get out of there. Her mother testified that
C.M. called her, hysterical and crying, and sa id that Ray was hitting and choking her and
that she (C.M.) thought she was going to die. C. M.’s sister testified that C.M. called her,
said she needed help, and then hung up the phone.
C.M. tried to call one of Ray’s friends. Ray took her phone, brought it into the
bathroom, and threatened to submerge it in the already-filled bathtub. In the bathroom, Ray

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told C.M. to perform oral sex on him, but C.M. refused. Ray told C.M. to take off her shirt,
but she refused. Ray lowered her phone toward the water, so she took off her shirt. Ray
told her to get on her knees, and she did. Sh e started performing oral sex. C.M. believed
that Ray would continue to hurt her or would destroy her phone if she did not comply with
his demand to perform oral sex.
C.M. told Ray that her kne es hurt, and Ray took C.M’s arm and moved her to the
couch. C.M. again told Ray that she did not wa nt to engage in oral sex, but Ray told her
that “if [she was] going to act like a slut” he was “going to treat [her] like [one].” She began
performing oral sex. When she tried to stop, Ray grabbed the back of her head and forced
her head down to continue. C.M. stopped again, and Ray became “really angry” and pushed
her to the ground. He put his ha nd around C.M.’s neck and to ld her that he was going to
kill her. Ray then got on top of C.M., squeezing her neck and yelling at her. C.M. testified
that her eyes became blurry, she had trouble breathing, and she believed that Ray was going
to kill her.
Ray then wanted C.M. to go to the bed, where they then went and where C.M.
continued to perform oral sex on him. Without C.M.’s knowledge, Ray used her phone,
which he had previously taken from her, to re cord C.M. performing oral sex on him. Ray
ended this encounter, telling C.M. she “suck[ed ] at” oral sex. He took her phone into the
bathroom. He then returned, laughing, and gave the phone back to C.M., telling her that he
had recorded her and that he was going to send the videos to her parents and upload them
to a porn site.

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C.M. left the hotel room and told the front-desk employee that Ray had “trashed”
the room, and the employee responded that he would have to call the police. C.M. asked
the employee not to, because Ray would “kill” her. C.M. learned that her sister had called
the police, so, because she did not want Ray to get in trouble, she returned to the room and
helped Ray pack.
When C.M. was leaving the hotel, she encountered the police. C.M. told the officers
what had happened. Responding Officer Timot hy Erickson testified that C.M. was “very
upset” and looked like she ha d been crying. He observed redness around C.M.’s neck.
Officers took photos of C.M., which depicted red marks on her neck, as well as photos of
the room. Later that day, C.M. noticed a cut above her eye and photographed it. C.M. later
found the videos that Ray had taken on her phone, and she provided them to the police.
Respondent State of Minnesota charged Ray with one count each of first- and third-
degree criminal sexual conduct, in violation of Minn. Stat. §§ 609.342, subd. 1(e)(i), .344,
subd. 1(c) (2018). Following a jury trial, Ray was found guilty, and the district court
convicted and sentenced him for the first-degr ee offense, imposing an executed sentence
of 90 months, which was a downward durational departure, and to 10 years of conditional
release.1
This appeal follows.

1 Ray was also found guilty of domestic assault by strangulation, in violation of Minn. Stat.
§ 609.2247, subd. 2 (2018), and threats of violence, in violation of Minn. Stat. § 609.713,
subd. 1 (2018). Those crimes are not at issue in this appeal.

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DECISION
Ray contends that the prosecutor enga ged in misconduct during closing arguments
by misstating the evidence and falsely attributing statements to Ray. Ray did not object to
the prosecutor’s statements at trial.
Because Ray failed to object during trial, his claim of prosecutorial misconduct is
reviewed under a modified plain-error standard. See State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006). Under that standard, Ray bears the burden of establishing an error that is
plain. See State v. Waiters , 929 N.W.2d 895, 901 (Minn. 20 19). If Ray establishes plain
error, the state then has the burden to show that Ray’s substantial rights were not affected,
meaning that there is “no reasonable likelihood” the misconduct significantly affected the
verdict. Ramey, 721 N.W.2d at 302 (quotation omitted). If the state fails to meet its burden,
we will order a new trial only if the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” State v. Peltier , 874 N.W.2d 792, 799 (Minn. 2016)
(quotation omitted).
Ray’s argument centers on the following portion of the state’s closing argument:
He’s threatening to throw this phone in the tub that’s still full
of water, and he tells her she’s not getting out of there unless
she takes her shirt off and gives him a blow job. . . . Through
violence and threats, he forced her to take his penis into her
mouth at the last time she would want to do that.

She complies because she told you she didn’t think she
would get out of that hotel room if she didn’t. He’s in a rage.
He’s already shown her what he’s willing to do to her. And he
says, you do this or you’re not leaving. And she took him
seriously. She took him at his word.

(Emphasis added.)

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Ray argues that the prosecut or’s statements constituted plain error because neither
C.M. nor any other witness testified that Ray said those words. The state argues that the
statements were not plain error because, while the prosecutor may have “slightly misstated”
the testimony, the statements fairly summari zed C.M.’s account of what happened and
were not intentionally misleading, particularly in light of the absence of a trial transcript at
the time of argument.
We need not determine whether the prosecutor’s statements constituted plain error
if the state has satisfied its burden of establishing that there is no reasonable likelihood that
those statements substantially affected the verdict. We turn to that question.
Ray argues that the prosecutor’s statements went to the critical issues of whether
C.M. consented to the sex act and whether Ray used force or coercion to accomplish sexual
penetration—an element of both ch arges of criminal sexual conduct. See Minn. Stat.
§§ 609.342, subd. 1(e)(i) (first-degree crimin al sexual conduct), .344 , subd. 1(c) (third-
degree criminal sexual conduct). See also Minn. Stat. § 609.341, subd. 12 (2018) (defining
“sexual penetration” as a ny of several acts “committed without the complainant’s
consent”). Ray acknowledges that lack of consent and force and coercion could have been
found based on other evidence, but he argues that the statements by the prosecutor “relieved
the jury of having to consider the other ev idence” because, accordi ng to the prosecutor,
Ray twice verbalized a direct threat to C.M. unless she submitted to his demands. Thus, he
contends, the state failed to carry its burden to show that Ray’s substantial rights were not
affected. We are not persuaded.

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To determine whether plain error affected a defendant’s substantial rights, appellate
courts consider the strength of the state’s evidence, the pervasiv eness of the alleged
misconduct, and whether the defendant had an opportunity to rebut any improper remarks.
See Peltier, 874 N.W.2d at 805-06. We evaluate each consideration.
First, the state presented ample evidence to support Ray’s conviction of both first-
and third-degree criminal sexual conduct. C.M. provided extensive testimony that Ray used
both force and coercion as means to make her perform oral sex. C.M. testified that he took
her phone away and thr eatened to throw it in the bathtub. He ignored her statements that
she did not want to perform oral sex. Wh en she complied with his demands and then
stopped, he physically forced her to continue. He slapped her, choked her, and threw her
to the floor. C.M. testified, and other witne sses confirmed, that C.M. called other people
for help, recounted Ray’s actions to them, and told them that she thought she was going to
die. Finally, Officer Erickson noted that C.M .’s neck was red when he spoke with her
immediately after the incident. In sum, the state presented strong evidence of C.M.’s lack
of consent and Ray’s use of force and coercion.
Second, the incident of alleged misc onduct was not pervasive. The statements
constitute a few phrases out of the state’s 21- page closing argument , and they were not
repeated in the state’s rebuttal.
2 The prosecutor’s closing ar gument described the history
of C.M. and Ray’s relationship, a detailed account of events in the hotel room, and an

2 In opening statements, the state did say: “He says, you’re not leaving here. . . . He says,
you are not leaving here until you give me a bl ow job. . . . [H]e says, you’re not leaving
here ‘til you give me a blow job. . . . She took him at his word.” This constitutes almost
four sentences out of the prosecutor’s 11½-page opening statement.

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element-by-element summary of the relevant evidence, focusing on the physical force that
Ray used.
Finally, Ray had the opportunity to rebut th e statements in his closing argument, but
he did not do so.
Considering all three factors, we conclude that the statements in the state’s closing
argument did not affect Ray’s substantial rights.
Affirmed.