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This opinion will be unpublished and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
A18-1567

State of Minnesota,
Respondent,

vs.

Adolfo Gutierrez Avila, Jr.,
Appellant.

Filed August 5, 2019
Affirmed
Schellhas, Judge

Lyon County District Court
File No. 42-CR-14-600

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

Rick Maes, Lyon County Attorney, Abby Wikelius, Assistant County Attorney, Marshall,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Schellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his convictions of, and sentences for, two counts of first -
degree criminal sexual conduct, arguing that (1) the charges are barred by the statute of

2
limitations and (2) the district court erred by imposing two consecut ive 144 -month
sentences on remand after his successful appeal. Appellant also raises several issues in his
pro se supplemental brief. We affirm.
FACTS
Respondent State of Minnesota charged appellant Adolfo Avila with two counts of
first-degree criminal se xual conduct on July 3, 2014 . The complaint alleged that in July
2011, Lyon County Sheriff’s Office Investigator Tony Rolling received a report indicating
that M.H. named Avila, her step-father, as the father of her nine-year-old child. Investigator
Rolling interviewed M.H., who stated that Avila had sexually assaulted her between 15
and 18 times before she became pregnant. The complaint alleged that based on the birth
date of M.H.’s child, the likely date of conception was sometime during June 2001, when
M.H. was 15 years old.
Avila moved to dismiss the charges under Minn. Stat. § 628.26(e) (2018), which
requires the state to bring a criminal -sexual-conduct charge within the later of nine years
of the commission of the offense , or three years after the offense was reported to law
enforcement.1 The district court denied the motion, finding that nothing in the record
indicated that the 2001 offenses “had been previously reported to law enforcement,” and
that the complaint was fil ed “within three years of the incident being reported” to law

1 We cite the current version of the statute because, although renumbered, the substance of
the current statute for purposes of this case is the same as the statute in effect at the time of
the commission of the offense. Compare Minn. Stat. § 628.26(e) (201 8) with Minn. Stat.
§ 628.26(d) (2000).

3
enforcement. Avila requested reconsideration based on allegedly new evidence relevant to
the statute of limitations. The court denied the motion.
Avila continued to pursue his statute -of-limitations defense but eventually pleaded
guilty to one count of first-degree criminal sexual conduct in September 2015. One month
later, he moved to withdraw his plea. The district court denied his motion and sentenced
him to 144 months in prison. Avila appealed, claiming that his guilty plea was invalid and
that his counsel provided him ineffective assistance. This court concluded that the plea was
unintelligently entered, and reversed and remanded to allow Avila to withdraw his guilty
plea. State v. Avila, No. A16-0516 (Minn. App. May 22, 2017).
On remand, Avila waived his right to counsel and proceeded pro se. He continued
to pursue his statute -of-limitations defense, claiming that because Investigator Rolling
heard about the alleged sexual misconduct in 2003 , when Rolling was employed with the
Tracy Police Department, the statute of limitations expired three years later in 2006. Avila
also claimed that even if the statute of limitations did not expire in 2006, it expired in 2010,
three years after a paternity action was filed against him alleging that he was the father of
M.H.’s child.
The district court re-opened Avila’s omnibus hearing on March 14, 2018 .
Investigator Rolling testified that while he was a police officer in Tracy in 2003, he “heard”
a “rumor” from R.H., the town baker , that “Avila had gotten his daughters pregnant.”
Investigator Rolling testified that “[i]t was just a rumor,” with no “facts, dates, . . . anything
to substantiate that rumor,” and that he therefore did not investigate the rumor. The court
denied Avila’s motion, concluding that an “unsubstantiated rumor is not a report to law

4
enforcement that would trigger the statute of limitations ,” that “[n]either the paternity
testimony nor the affidavit clearly identif[ied] all nece ssary elements” of the alleged first-
degree criminal-sexual-conduct offense, and that the filing of the paternity action by Lyon
County in 2007 therefore did not constitute “a report to law enforcement.”
A jury found Avila guilty of two counts of first-degree criminal sexual conduct. The
district court imposed 144-month sentences on both counts, to be serve d consecutively.
This appeal follows.
D E C I S I O N
I. Statute of limitations
Avila challenges the district court’s denial of his motion to dismiss o n the grounds
that the charges against him were time-barred under the applicable statute of limitations.
We review the construction and application of a statute of limitations de novo. State v.
Carlson, 845 N.W.2d 827, 832 (Minn. App. 2014), review denied (Minn. June 17, 2014).
The applicable statute of limitations provides:
Indictments or complaints for violation of sections
609.322 and 609.342 to 609.345, if the victim was under the
age of 18 years at the time the offense was committed, shall be
found or made and filed in the proper court within the later of
nine years after the commission of the offense or three years
after the offense was reported to law enforcement authorities.

Minn. Stat. § 628.26(e). The purpose of a statute of limitation is: (1) to protect defendants
from defending themselves against crimes when the facts “may have become obscured”;
(2) to minimize the danger of official punishment for acts in the distant past; and (3) to
encourage law enforcement to pro mptly investigate suspected c riminal activity. State v.

5
Danielski, 348 N.W.2d 352, 355 (Minn. App. 1984) (quotation and emphasis omitted) ,
review denied (Minn. July 26, 1984).
The district court denied Avila’s motion to dismiss under the second part of Minn.
Stat. § 628.26(e) , finding that M.H. first reported the offense to law enforcement in July
2011, and that the state filed its complaint within three years of M.H.’s report. Avila argues
that the court erred because R.H. first reported the offense to law enforcement in 2003, that
the statute of limitations therefore expired in 2006, 2 and that the court should have
dismissed the complaint as time-barred.
Avila’s argument requires the construction of Minn. Stat. § 628.26(e). “The
objective of statutory interpretation is to ascertain and effectuate the Legislature’s intent.”
State v. Struzyk, 869 N.W.2d 280, 284 (Minn. 2015). “When interpreting a statute, the first
question is whether the language of a statute is ambiguous.” State v. Pakhnyuk, 926 N.W.2d
914, 920 (Minn. 2019). “The pl ain language of the statute controls when the meaning of
the statute is unambiguous.” State v. Boecker , 893 N.W.2d 348, 351 (Minn. 2017). If a
statute does not define a phrase, that phrase is given “its plain and ordinary meaning.” State
v. Defatte, 928 N.W.2d 338, 340 (Minn. 2019) (quotation omitted). And “[s]tatutory words
and phrases must be construed according to the rules of grammar and common usage.” Id.
(quotation omitted).

2 We note that even if R.H.’s statement constituted a report to law enforcement authorities,
the statute of limitations would not have expired under Minn. Stat. § 628.26(e) in 2006, it
would have expired in 2010, nine years after the commission of the offense.

6
Minn. Stat. § 628.26(e) unambiguously states that the three -year charging deadline
is triggered when the offense is “reported to law enforcement authorities.” In State v.
Soukup, this court stated that “by ‘reporting,’ the statute means notifying law enforcement
authorities.” 746 N.W.2d 918, 922 (Minn. App. 2008), review denied (Minn. June 18,
2008). Because the term “reported” is not defined by the statute , we look to dictionary
definitions to ascertain the common and ordinary meaning of this term. See State v.
Thonesavanh, 904 N.W.2d 432, 436–37 (Minn. 2017) (looking to dictionary definitions to
determine common and ordinary meaning of undefined terms in statute).
One dictionary defines “reported” as “[t]o make or present an official or formal
account of,” or “[t]o tell about the presence or occu rrence of,” or “[t]o relate or tell,
especially from personal experience.” The American Heritage Dictionary of the English
Language 1490 (5th ed. 2018). Similarly, another dictionary defines “reported” as to “make
a formal statement or complaint about (someone or something) to the necessary authority.”
New Oxford American Dictionary 1481 (3rd ed. 2010). Based on the common and ordinary
meaning of “reported,” we conclude that an offense is “reported” to law enforcement if the
report provides law enforcement with actual notice of sufficient facts that form the basis of
notice to law enforcement that a specific criminal offense may have occurred.
Moreover, while “[w]e recognize that we are not bound to follow precedent from
other states or federal courts, these authorities can be persuasive.” State v. McClenton, 781
N.W.2d 181, 191 (Minn. App. 2010), review denied (Minn. Jun. 29, 2010). And we note
that our interpretation of “reported” is consistent with foreign caselaw. See People v.
Quinto, 964 N.E.2d 379, 384–85 (N.Y. 2012) (concluding that “the phrase ‘the offense is

7
reported’ as used in [the statute of limitations] would mean a communication that, at a
minimum, describes the offender’ s criminal conduct and the particular harm th at was
inflicted on the victim” because “[i]nformation of this nature provides the police with
actual notice that a specific criminal offense has occurred, allowing them to conduct a
prompt investigation”); State v. Harberts , 108 P.3d 1201, 1209 (Or. Ct. App. 2005)
(explaining that offense is “reported” under Oregon statute of limitations when “there has
been actual communication of the facts that form the basis for the particular offense
reported” (quotation omitted)); State v. Green, 108 P.3d 710, 721 (Utah 2005) (stating that
something qualifies as “report of the offense” under Utah statute of limitations when there
is (1) a discrete and identifiable ora l or written communication; (2) that is “intended to
notify a law enforcement agency that a crime has been committed ”; and (3) that “actually
communicates information bearing on the elements of a crime as would place the law
enforcement agency on actual notice that a crime has been committed”).
Here, the rumor that R.H. relayed to Investigator Rolling in 2003 was insufficient
to put Rolling on actual notice that a specific criminal offense may have occurred. R.H.’s
statement described general conduct rather than conduct that would constitute a specific
criminal offense. For example, the actual charged offense involved Avila’s step-daughter,
M.H. In contrast, R.H. relayed a rumor that Avila got his “daughters pregnant.” Moreover,
R.H.’s relayed rumor contained no information about the age of Avila’s daughters when
Avila was rumored to have impregnated them. The age of Avila’s daughters at the time of
the rumored conduct would dictate the specific offense for which Avila could be charged.
Moreover, R.H.’s statement was vague and made with no formality , and Investigator

8
Rolling characterized R.H.’s statement as more of a “rumor” or town gossip, than a report.
A “rumor” or “town gossip” is inconsistent with the dictionary definitions of “reported.”
We therefore conclude that the district court properly determined that R.H.’s statement to
Investigator Rolling in 2003 did not constitute a report to law enforcement authorities for
purposes of Minn. Stat. § 628.26(e).
In his pro se supplemental brief, Avila contends that M.H.’s report to a social worker
in 2006, which precipitated the filing of Lyon County’s p aternity action, constituted a
report to law-enforcement authorities for purposes of Minn. Stat. § 628.26(e). We disagree.
Minn. Stat. § 628.26(e) specifically requires the offense to have been “reported to law
enforcement authorities.” (Emphasis added.); see Soukup, 746 N.W.2d at 922 (stating that
“by ‘reporting’ [Minn. Stat. § 628.26(e)] means notifying law enforcement authorities”).
Neither the Lyon County Attorney nor the county human services constitute law
enforcement. This conclusion is supported by statute. See Minn. Stat. § 388.051 (2018)
(defining duties of county attorney, which do not include investigation ); Minn. Stat.
§ 626.556, subd. 10 a(a) (2018) ( distinguishing between local welfare agenc ies and law-
enforcement agenc ies for purposes of investigating allegations of sexual abuse ). We
conclude therefore that the district court properly determined that the filing of a paternity
action did not constitute a report to law enforcement.
In sum, neither Lyon County’s filing of the paternity action nor R.H.’s statement to
Investigator Rolling in 2003 constituted a report to law enforcement for purposes of Minn.
Stat. § 628.26(e). Instead, based on the record, M.H. first reported Avila’s offense to law
enforcement on July 20, 2011 , and the state filed its complaint against Avila on July 3,

9
2014, within three years after the offense was first reported to law enforcement.
Accordingly, the district court properly concluded that the statute of limitations under
Minn. Stat. § 628.26(e) had not expired and the charges against Avila therefore were not
time-barred.
II. Consecutive sentences
Avila challenges the district court’s imposition of consecutive sentences following
his convictions of two counts of first-degree criminal sexual conduct on the bases that the
sentence penalized him for a successful appeal and is excessive. We disagree.
Consecutive sentences are permissible punishment for criminal sexual conduct
committed in violation of Minn. Stat. § 609.342, subd. 1. Minn. Sent. Guidelines II.F.
(2000). “We review a district court’s decision to impose consecutive sentences for an abuse
of discretion.” State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017). We will not interfere with
a district court’s discretion unless the sentence is disproportionate to the crime or unfairly
exaggerates the criminality of the defendant’s conduct. Id.
The supreme court has held that it was improper for a district court “to impose on a
defendant who has secured a new trial a sentence more onerous than the one he initially
received.” State v. Holmes, 161 N.W.2d 650, 652 (Minn. 1968). In concluding that this
decision was based on public policy, and not on constitutional grounds, the court explained
that “as a matter of law . . . any increase in penalty upon a retrial inevitably discourages a
convicted defendant from exercising his legal rights.” Id. at 653. The supreme court later
expanded on Holmes and held that “procedural fairness and principles of public policy”
prohibit a district court from imposing a more severe sentence for the same crime after a

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case has been remanded for resentencing. State v. Prudhomme , 228 N.W.2d 243, 246
(Minn. 1975).
After remand, the district court’s sentence of Avila on count I is the same sentence
that followed Avila’s guilty plea. Although the aggregate total of Avila’s sentence is longer
after remand, the sentence includes a sentence for first-degree criminal-sexual conduct, a
conviction Avila avoided by pleading guilty. Because Avila’s sentence on count I is the
same after remand as was imposed following his guilty plea, his sentence for count I is not
more onerous, and Avila therefore cannot demonstrate that his sentence violated his due -
process rights.
Avila also contends that his total aggregate sentence of 288 months is “exc essive”
and “a product of the charging decision to create two counts.” But “a prosecutor has broad
discretion in the exercise of the charging function and ordinarily, under the separation -of-
powers doctrine, a court should no t interfere with the prosecutor ’s exercise of that
discretion” absent special circumstances. State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996).
Avila cannot show that special circumstances exist here. Moreover, consecutive sentences
are permissible under the sentencing guidelines, even wh en the offenses involve a single
victim. See Minn. Sent. Guidelines II.F.; see also State v. Perleberg, 736 N.W.2d 703, 706
(Minn. App. 2007), review denied (Minn. Oct. 16, 2007). The record reflects that Avila
sexually assaulted his step -daughter several times over a seven -month period, which
ultimately resulted in her pregnancy . Under the circumstances, Avila’s sentence is not
excessive, particularly when compared to sentences imposed in similar cases. See State v.
Suhon, 742 N.W.2d 16, 23 (Minn. App. 200 7), review denied (Minn. Feb. 19, 2008)

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(affirming imposition of consecutive sentences totaling 278 months in prison for three
counts of criminal sexual conduct based on 832 acts of abuse over 11 years); see also
Perleberg, 736 N.W.2d at 707 (affirming imposition of three consecutive sentences of 144
months, which totaled 432 months in prison whe n defendant was convicted of six counts
of first-degree criminal sexual conduct involving one victim). We conclude that the district
court did not abuse its discret ion by sentencing Avila consecutively on the two counts of
first-degree criminal sexual conduct.
III. Pro se arguments
In addition to the statute-of-limitations arguments addressed above, Avila argues in
his supplemental brief that (A) a Brady violation occurred; and (B) the prosecutor
committed misconduct.
A. Brady violation
The state has an affirmative duty in criminal cases to disclose evidence that is
favorable and material to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196–97 (1963); State v. Williams , 593 N.W.2d 227, 234 (Minn. 1999) . To constitute a
Brady violation, the following three requirements must be established:
(1) the evidence must be favorable to the defendant because it
would have been either exculpatory or impeaching;

(2) the evidence must have been suppressed by the prosecution,
intentionally or otherwise; and

(3) the evidence must be material—in other words, the absence
of the evidence must have caused prejudice to the defendant.

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Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017) (quotation omitted). “Because a Brady
materiality analysis involves a mixed question of law and fact, [appellate courts] review a
district court’s materiality determination de novo.” Id. (quotation omitted).
Avila asserts th at in the redacted portion of an affidavit signed by M.H. in May
2006, M.H. stated that she believed she got pregnant in July 2001, which is inconsistent
with the charges brought by the state that alleged in count I that Avila committed first -
degree criminal sexual conduct in June 2001, and in count II that the sexual abuse occurred
in January-April 2001. Avila contends that because M.H. was unable to read the redacted
portion of the affidavit, he was unable to impeach her with the May 2006 affidavit. Avila
argues that the redaction of the affidavit constitutes a Brady violation.
Assuming, without deciding, that Avila’s construction of the affidavit is correct, the
first two Brady requirements are satisfied because the evidence could have been used to
impeach M.H.’s testimony on the elements of count I, and the redaction of the affidavit
appears to indicate intent by the state. As a result, Avila’s arguments turn on the third
element, materiality.
Evidence is considered material for purposes of a Brady violation “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Id. at 418 (quotations omitted). A “reasonable
probability” is defined as one that is sufficient to undermine confidence in the verdict. Id.
Here, no reasonable probability exists that, had the affidavit not been redacted, the
result of the proceeding would have been different. As Avila acknowledges in his main
brief, M.H. testified at trial that (1 ) Avila sexually assaulted her more than ten times and

13
that these assaults occurred between January and April 2001, and in the summer of 2001;
(2) she became aware that she was pregnant around July 2001, which is not completely
inconsistent with her May 2006 affidavit; (3) the baby was born on March 6, 2002; (4) she
had no other sexual partners; and (5) Avila was adjudicated the father of her daughter based
on DNA testing. Avila’s claim that a Brady violation occurred therefore fails.
B. Prosecutorial misconduct
Avila contends that the Lyon County Attorney committed prosecutorial misconduct
by “not authorizing the release” to the Lyon County Sheriff the 2006 report M.H. made to
human services regarding the sexual abuse. To support his claim, Avila cites Mi nn. Stat.
§ 626.556, subd. 3(b) (2018), which provides that a person “ may voluntarily report to the
local welfare agency, agency responsible for assessing or investigating the report, police
department, [or] county sheriff . . . if the person knows, has re ason to believe, or suspects
a child is being or has been . . . subjected to . . . sexual abuse.” (Emphasis added .) But
“may” is “permissive.” Minn. Stat. § 645.44, subd. 15 (2018). And Avila cites no legal
authority to support his prosecutorial -misconduct claim. We need “not consider pro se
claims on appeal that are unsupported by either arguments or citations to legal authority.”
State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008). Moreover, Avila was not prejudiced by
the alleged prosecutorial misconduct. He therefore is unable to demonstrate that he is
entitled to relief from the claims raised in his pro se supplemental brief.
Affirmed.