State of Minnesota, Respondent,

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This opinion is nonprecedential except as provided by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
A21-1578

State of Minnesota,
Respondent,

vs.

Christopher Lee Konakowitz,
Appellant.

Filed August 29, 2022
Affirmed
Reyes, Judge

Brown County District Court
File No. 08-CR-20-335

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

Charles W. Hanson, Brown County Attorney, Jill M. Jensen, Assistant County Attorney,
New Ulm, Minnesota (for respondent)

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, L.L.C., Mankato,
Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues on direct appeal for reversal of his criminal-sexual-cond uct
convictions because (1) the statute of limitations had expired; (2) the state delayed charging
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him in violation of his due -process rights; and (3) he received ineffective assistance of
counsel. We affirm.
FACTS
In 2003, appellant Christopher Lee Konakowitz pleaded guilty to fourth- degree
criminal sexual conduct for an offense involving J.M., a minor. As part of his probation
for that offense, he participated in sex -offender treatment, including a polygraph
examination in June 2008. During that polygraph examination, appellant admitted to the
fourth-degree criminal-sexual-conduct offense. He also identified fifteen additional minor
victims of sexual abuse, including “[C.], a four or five year -old sister of [M.].” Appell ant
admitted that “when [he] was 19, he fondled her bare vagina and performed oral sex on her
one time.” Appellant’s probation officer reviewed the polygraph results and wrote a short
report, which noted the victims’ ages and the sexual conduct appellant admitted to but di d
not include the victims’ names. The probation officer did not disclose the polygraph results
or his report to the district court or to police.
In November 2019, respondent S tate of Minnesota charged appellant with sexual
abuse of ot her minors. C.R. learned that appellant had been charged and posted on
Facebook that appellant had done the same thing to her.
In January 2020, Brown County Human Services received a child -protection report
that included the probation officer’s 2008 polygraph report. The county then disclosed
both reports to Brown County police.
On April 21 and April 24, 2020, a Brown County Sheriff’s Office investigator
interviewed C.R. regarding her Facebook post about appellant. C.R. told the investigator
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that appellant sexually assaulted her when she was about five years old, which would have
been around 2001 or 2002. C.R. stated that appellant had been babysitting her and they
watched a movie. C.R. remembered falling asleep on an air mattress and waking up to
appellant’s hand in her pants, touching her genitals. C.R. told the investigator that she had
not told anyone about appellant’s sexual abuse until she was ten years old, when she told
her mother, and that she never reported it to law enforcement.
During the April 24 interview, the investigator and C.R. also discussed the 2001
investigation regarding J.M. As part of that investigation, police had investigated an
incident when appellant gave J.M. and C.R. a bath and used a butter knife to lock the door
while he bathed them. C.R. vaguely remembered the bathroom incident but could not recall
anyone talking to her about it at the time . She also stated that she did not remember
anything sexual happening during the bathroom incident. The investigator explained to
C.R. that s ocial workers had spoken to her about the bathroom incident , but she had not
disclosed any abuse. C.R. told the investigator that she had not told anyone about the air -
mattress incident except her mother, who had assumed she was referring to the bathroom
incident until 2020 when C.R. told her the details of the air -mattress incident. The
investigator contacted C.R.’s mother, who confirmed that she learned abou t the air -
mattress incident only a few weeks earlier. The investigator obtained a search warrant for
and then reviewed a copy of appellant’s 2008 polygraph results. The investigator also
received and reviewed police records of the 2001 investigation that led to appellant’s 2003
conviction.
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On May 1, 2020, the state charged appellant with first -degree criminal sexual
conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2000), and second -degree
criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 2 (2000), based on
C.R.’s allegations regarding the air-mattress incident.
On May 7, 2020, C .R. contacted the investigator to report a second incident of
sexual abuse by appellant, which C.R. had just recalled. C.R. recalled that appella nt had
been helping her get ready for bed and had jabbed his finger into her vagina repeatedly.
C.R. stated that she had not previously reported this second incident to law enforcement.
Shortly after, on June 4, the state amended its complaint to add a second charge of
first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b), based
on C.R.’s additional recollection . During a subsequent interview with the investigator,
C.R. stated that the second incident may have been on t he same day as the bathroom
incident. The investigator noted that police interviewed C.R.’s mother about the bathroom
incident in 2001 but had found that nothing happened . C.R. confirmed again that nothing
happened during the bathroom incident.
Appellant moved to dismiss the charges, arguing that the statute of limitations had
expired because appellant reported the offense to law enforcement authorities during his
2008 polygraph examination by identifying “[C.], a four or five year-old sister of [M.],” as
a prior victim. At a contested omnibus hearing, the state presented testimony from the
investigator and the probation officer who wrote the 2008 polygraph report. The parties
also stipulated to the admission of appellant’s polygraph results and the probation officer’s
2008 report. The district court denied appellant’s motion to dismiss after determining that
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the probation officer was not a “law enforcement authority” and that the state filed charges
within three years after C.R. reported the offense to the investigator in 2019, as required
by the statute of limitations.
The parties agreed to a court trial under Minn. R. Crim. P. 26.01, subd. 3, based on
stipulated evidence consisting of audio recordings of the investigator’s interviews with
C.R. and his investigation reports . The district court found appellant guilty of all three
charges and sentenced him to 158 months in prison. This appeal follows.
DECISION
I. The state charged appellant within the statute of limitations.
Appellant first argues that the state charged him after the statute of limitations
expired. We agree with t he state that appellant forfeited this argument.
Appellate courts “generally consider only those issues that the record shows were
presented and considered by the [ district] court.” Steward v. State, 950 N.W.2d 750, 756
(Minn. 2020) (quotation omitted). Issues not raised in the district court and raised for the
first time on appeal are considered forfeited. State v. Balandin, 944 N.W.2d 204, 220
(Minn. 2020). A statute of limitations defense may be forfeited if a defendant fails to raise
it in the district court. See State v. Johnson, 422 N.W.2d 14, 16- 17 (Minn. App. 1988) ,
rev. denied (Minn. May 16, 1988).
Appellant argues for the first time on appeal that the statute of limitations expired
because law enforcement became “aware of allegations” against appellant in 2001.
Appellant did not make this argument in the district court. Rather, h e argued only that the
statute of limitations expired because he reporte d the offense during his 2008 polygraph
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examination. The district court rejected that argument after determining that the probation
officer was not a “law enforcement authority,” and appellant does not challenge that
decision on appeal. See State v. Morrow, 834 N.W.2d 715, 724 n.4 (Minn. 2013) (declining
to consider issues not briefed on appeal). We therefore conclude that appellant forfeited
his argument that the statute of limitations expired. However, appellant also argues that he
received ineffective assistance of counsel because his trial counsel failed to argue that the
2001 investigation triggered the statute of limitations . Because that claim requires us to
address the merits of his argument , we will address them here.
“We review de novo the construction and application of a statute of limitations. ”
State v. Carlson, 845 N.W.2d 827, 832 (Minn. App. 2014) (quotation omitted). At the time
of appellant’s offenses, the applicable statute of limitations required the state to f ile the
indictment or complaint “within nine years after the commission of the offense or, if the
victim failed to report the offense within this limitation period, within three years after the
offense was reported to law enforcement authorities .” Minn. S tat. § 628.26(d) (2000)
(emphasis added). The parties agree that the state did not charge appellant within nine
years of the offense. At issue here is whether the state charged appellant “within three
years after the offense was reported to law enforceme nt authorities.” Id.
Appellant contends that the offense was reported to law enforcement in 2001, when
“Brown County Family Services along with a police officer interviewed [C.R’s] mother
regarding incidents between [appellant] and [C.R.].” Appellant’ s argument requires us to
interpret Minn. Stat. § 628.26(d). The first step of statutory interpretation is to determine
whether the language of a statute is ambiguous. State v. Pakhnyuk, 926 N.W.2d 914, 920
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(Minn. 2019). “The plain language of the statute controls when the meaning of the statute
is unambiguous.” Id. (quotation omitted). 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).
Minn. Stat. § 628.26( d) unambiguously states that the statute of limitations begins
to run when “the offense [is] reported to law enforcement authorities.” The plain language
of the statute focuses on “ the offense” that is reported to law enforcement. The term “ the
offense” refers to the conduct involving each particular offense charged by the state. See
State v. Hohenwald, 815 N.W.2d 823, 830 (Minn. 2012) (noting that definite article “the”
is “a word of limitation that indicates a reference to a specific object” (emphasis added) ).
It does not refer to general conduct.
Appellant argue s that the 2001 police investigation of allegations against him
regarding the bathroom incident triggered the statute of limitations for appellant’s 2020
charges because the 2001 allegations “put law enforcement on notice” that a crime
occurred. We disagree.
General allegations of appellant’s potential sexual misconduct towa rds J.M. and
C.R. do not constitute a report of “the offense” to law enforcement. To trigger the statute
of limitations, conduct underlying the particular offense for which the state charged
appellant must have been reported to law enforcement. And, here, nothing in the record
indicates that anyone reported the conduct underlying appellant’s current convictions to
police in 2001. At that time, police investigated allegations relating to the bathroom
incident. C.R. does not remember appellant sexually abusing her during that incident.
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This is consistent with the investigator’s statement that social workers talked to C.R. about
the bathroom incident in 2001 and she did not disclose any abuse. C.R. told the investigator
that she had not disclosed either of the two recently recalled incidents of sexual abuse to
anyone in 2001. C.R.’s mother confirmed that she had not known about those incidents
until the 2020 investigation. Finally, the investigator testified that police reports from 2001
did not include any reference to the offenses that C.R. described.
The record reflects that the conduct underlying appellant’s current convictions was
first reported to law enforcement in 2019 at the earliest , and the state charged appellant
within three years of that report, as required by Minn. Stat. § 628.26(d). The state therefore
charged appellant within the statute of limitations.
II. The state did not delay bringing charges in violation of appellant’s due-process
rights.
Appellant argues that the state’s delay in charging him violated his due -process
rights. We disagree.
Appellant’s argument is based on his assumption that the offense was reported in
2001 and the state delayed charging appellant until 2020. But we have already concluded
that the offense was not reported to law enforcement until 2019 at the earliest, and the state
charged appellant less than a year later, in May and June 2020. Appellant has therefore
failed to show that the state delayed charging appell ant.
Moreover, even assuming we accepted appellant’s argument that the state delayed
charging him, his claim still fails. To show that a precharge delay violates due process, the
defendant has the burden of establishing that (1) the precharge delay “caus ed substantial
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prejudice” to the defendant’s right to a fair trial and (2) the state “intentionally delayed”
bringing charges “to gain [a] tactical advantage.” State v. Jurgens, 424 N.W.2d 546, 550-
51 (Minn. App. 1988) (citing United States v. Marion, 404 U.S. 307, 324 (1971)) , rev.
denied (Minn. July 6, 1988) ; State v. F.C.R., 276 N.W.2d 636, 639 (Minn. 1979) (stating
that defendant must prove both prejudice and improper state purpose). We have carefully
reviewed the record and conclude that appellant fa iled to show that he was substantially
prejudiced by the alleged delay or that the state intentionally delayed charging him to gain
a tactical advantage. A ppellant’s due-process rights were therefore not violated.
III. Appellant did not receive ineffective assistance of counsel .
Appellant argues that his trial counsel provided ineffective assistance by (1) failing
to argue that the state had reports of allegations against him regarding C.R. in 2001 and
(2) stipulating to the submission of polygraph test results , which appellant argues are
inadmissible in criminal trials. We are not persuaded.
First, appellant argues, and we agree, that his ineffective -assistance-of-counsel
claim can be decided based on the trial record. See Torres v. State, 688 N.W.2d 569, 572
(Minn. 2004). When an ineffective-assistance-of-counsel claim is raised in a direct appeal,
we examine the claim under the two -prong test set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984). State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017).
The “performance” prong of the Strickland test requires appellant to show that his
trial counsel’s representation “fell below an objective standard of reasonableness.” State
v. Mouelle, 922 N.W.2d 706, 715 (Minn. 2019) (quoting State v. Lahue, 585 N.W.2d 785,
789 (Minn. 1998) ). There is a strong presumption that counsel’s performance was
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reasonable. Zornes v. State, 880 N.W.2d 363, 370 (Minn. 2016) . The “prejudice” prong
requires appellant to show that “but for [trial] counsel’s errors, there [is] a reasonable
probability the result would have been different .” Id. If appellant’s claim fails to satisfy
one of the Strickland prongs, we need not consider the other. See id.
Appellant first argues that his trial counsel provided ineffective assistance by failing
to investigate fully the 2001 allegations and failing to argue that the state had reports of
allegations against appellant regarding C.R. in 2001. But these are matters of trial strategy,
which we do not review. See Sanchez-Diaz v. State , 758 N.W.2d 843, 848 (Minn. 2008)
(stating that appellate courts “will not review ineffective -assistance-of-counsel claims
based on trial strategy ); Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (stating that
trial strategy includes extent of counsel’s investigation); State v. Vang, 847 N.W.2d 248,
267 (Minn. 2014) (“The determination of which defenses to raise represents an attorney’s
trial strategy.”). In addi tion, we already concluded that the record shows that C.R. did not
report any sexual abuse in 2001 and told no one about the two offenses for which the state
charged appellant until many years later . A motion to dismiss appellant’s charges based
on the 2001 police investigation would therefore have failed, see Schleicher v. State , 718
N.W.2d 440, 448 (Minn. 2006) (rejecting ineffective -assistance-of-counsel claim when
asserted defense would have failed on merits) , and thus a ppellant cannot meet the
“performance” prong of the Strickland test.
Appellant also argues that his trial counsel provided ineffective assistance by
stipulating to the submission of his 2008 polygraph test results, which are inadmissible in
criminal trials , because that stipulation “opened appellant up to further prosecution. ”
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Although appellant is correct that polygraph results are not admissible in criminal trials to
prove guilt or innocence, State v. Dressel , 765 N.W.2d 419, 425 (Minn. App. 2009) 1,
appellant’s trial counsel stipulated to the admission of the 2008 polygraph results and the
probation officer’s report to support a colorable, but ultimately unsuccessful, defense that
they constituted a report to law enforcement that triggered the statu te of limitations. Trial
counsel’s decision to use the polygraph-examination disclosures was therefore a matter of
strategy, which we do not review. See State v. Doppler , 590 N.W.2d 627, 633 (Minn.
1999) ( concluding that counsel’s choice of defense was trial strategy and stating that
“[a]ppellate courts, which have the benefit of hindsight, do not review for competency
matters of trial strategy”). Because appellant fails to show that his trial counsel’s decision
to stipulate to the admission of the polygraph results was objectively unreasonable, his
claim of ineffective assistance of counsel fails. See Sanchez-Diaz, 758 N.W.2d at 848
(stating that if ineffective -assistance-of-counsel claim fails on one Strickland prong,
appellate courts need not consider other prong).
Affirmed.

1 We note that, while the results of a polygraph examination and any reference to a
defendant’s willingness or refusal to submit to a polygraph are not admissible in a trial,
evidence obtained in connection with a polygraph is not inadmissible just because it is
obtained during a polygraph examination. Dressel, 765 N.W.2d at 425. Confessions made
during a polygraph examination are therefore generally admissible as long as they were
voluntary. See State v. Erickson , 403 N.W.2d 281, 283- 84 (Minn. App. 1987); see also
State v. Schaeffer, 457 N.W.2d 194, 197 (Minn. 1990) (establishing lone exception to
polygraph-exclusion rule that defendant may present polygraph information as part of
circumstances surrounding confession).