State v. Raymond M. Gratz

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 13, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1281-CR Cir. Ct. No. 2017CF157

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RAYMOND M. GRATZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JILL KAROFSKY and CHRIS TAYLOR, Judges. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1281-CR

¶1 PER CURIAM. A jury found Raymond Gratz guilty of two counts
of second degree sexual assault of a child under the age of 16, involving the same
victim. The trial court made a series of rulings before and during trial, which are
challenged by Gratz in the circuit court and now on appeal, allowing the State to
introduce “other acts” evidence under WIS. STAT. § 904.04 (2019-20).1 The other
acts evidence consisted of search inquiries on the internet for incest-related
content that were allegedly intentionally generated by Gratz on his personal
computer. Gratz moved the postconviction court to vacate the judgment of
conviction and to order a new trial on multiple grounds, including alleged
ineffective assistance by trial counsel. After conducting an evidentiary hearing
and considering the arguments of the parties, the postconviction court denied the
motion. Gratz appeals. For the reasons explained below, we affirm.

BACKGROUND

¶2 In a criminal complaint filed on January 19, 2017, the State alleged
that on January 7, 2017, Gratz had sexual contact with A.B., who was then under
the age of 16, in violation of WIS. STAT. § 948.02(2).2 The complaint included the
following factual allegations.

1
After the case was reassigned from the originally assigned circuit court branch, the
Hon. Jill Karofsky (“the trial court”) presided over all pertinent pretrial and trial issues. The
Hon. Chris Taylor (“the postconviction court”) presided over all postconviction issues.

Separately, all references to the Wisconsin Statutes are to the 2019-20 version unless
otherwise noted.
2
We identify the victim in this case by a set of initials different from her own in the
interest of her privacy.

2
No. 2021AP1281-CR

¶3 Gratz is A.B.’s father. During a forensic interview conducted at a
child advocacy center, A.B. made statements that included the following. The two
were watching television in their shared residence. Gratz put one hand underneath
her shirt and bra and then ran a thumb across one of her breasts. Gratz said to her,
“SHHH [it] is OK,” then put one of his hands “down the back of,” and underneath,
her pants. She said “stop,” and he pulled his hand out of her pants.

¶4 In the operative criminal information, the State charged Gratz with
two violations of WIS. STAT. § 948.02(2) for the alleged touching of A.B.’s breast
and buttocks.

¶5 Before trial, the State moved the trial court for an order permitting
the State to introduce evidence of Gratz’s “historical internet searches”—based on
data extracted by law enforcement from Gratz’s laptop and summarized in law
enforcement reports—as other acts evidence under WIS. STAT. § 904.04. As
summarized in detail in the Discussion section below, the State’s other acts motion
and related events provide the context for the primary disputes in this appeal.

¶6 During a two-day trial in April 2018, A.B. testified extensively about
the alleged assaults and how she reported the incident to a school counselor and
then others. Kyle Hill, a criminal analyst with the Division of Criminal
Investigation in the state Department of Justice, testified about how he generated a
report purportedly reflecting some content on Gratz’s laptop computer, which
constituted the other acts evidence admitted by the trial court. Gratz did not
testify. The jury returned verdicts of guilty on both counts. The trial court
sentenced Gratz in September 2018.

¶7 In August 2019, represented by new counsel, Gratz filed a post-
conviction motion, containing multiple claims that largely track the issues now

3
No. 2021AP1281-CR

raised on appeal. The postconviction court held an evidentiary hearing in
January 2021 and issued a detailed written decision denying the postconviction
motion in its entirety in April 2021. Gratz appeals.

DISCUSSION

¶8 Gratz raises four sets of issues. The first three involve a shared
topic: other acts evidence that the trial court permitted the State to introduce under
WIS. STAT. § 904.04 consisting of historical internet data drawn from his laptop
computer containing incest-related terms that the State alleged were intentional
searches for such content by Gratz. Gratz argues that: (1) the trial court
erroneously exercised its discretion in allowing the prosecution to offer the
internet searches evidence; (2) the postconviction court erroneously exercised its
discretion in determining that the prosecutor at trial did not commit prosecutorial
misconduct by “sandbagging the defense” in connection with the internet searches
evidence; and (3) the postconviction court erred in determining that the trial court
did not violate Gratz’s due process rights in ruling that the defense would “open
the door” to additional internet searches evidence that the State would be allowed
to offer if the defense attempted to argue to the jury that Gratz did not
intentionally generate the internet searches at issue.

¶9 In the fourth set of issues, Gratz argues that the postconviction court
should have determined that trial counsel was constitutionally ineffective in three
respects (one involving the internet searches evidence), which we summarize in
respective subsections below.

¶10 Given its central role in all four issues, we now summarize
additional background regarding the internet searches evidence.

4
No. 2021AP1281-CR

I. ADDITIONAL BACKGROUND REGARDING INTERNET SEARCHES
EVIDENCE

A. Other Acts Motion And Defense Response

¶11 The State filed a pretrial motion in April 2017 for an order to
“permit evidence of the defendant’s historical internet searches,” based on law
enforcement searches of Gratz’s “electronic devices.”3 The State contended that
this evidence would “prove [Gratz’s] motive and intent to obtain sexual arousal
and gratification from early teen girls,” “rebut [Gratz’s] statement that any
inappropriate contact was accidental,” and “corroborate the victim’s credibility at
trial.”

¶12 The State relied on two exhibits in pursuing this motion when it was
addressed by the trial court before trial:4

 “Parsed Search Queries.” This exhibit purported to list 53 occasions,
with specified dates and times in 2013, and 2016, and 2017, on which a
particular URL was allegedly used to search with a specified term or
phrase, many of which appear related to incest or sexual activity
involving under age persons.

3
Gratz does not raise any Fourth Amendment issue in this appeal. Evidence was
presented at trial that Gratz provided written consent for police to seize a laptop computer, a
smart phone, and a flip phone, all of which Gratz acknowledged owning, for the purpose of
examining the devices to determine whether they contained child pornography.
4
The prosecutor explicitly abandoned an initial attempt to offer a third exhibit, called
“Pornography URLs,” which purported to list 45 occasions on which Uniform Resource Locators
(URLs) with incest-related terms were used in 2013, 2016, and 2017. (A URL, sometimes
referred to as a web address, is a unique network designation used to locate a website on the
World Wide Web.) We observe that some text on the right-hand side of the electronic record
item purporting to reflect “Pornography URLs” is obscured, to a greater or lesser degree, on each
page, blocking out what one would normally assume to be complete date and time information.
But neither party raises any issue about this omitted information and we discuss it no further.

5
No. 2021AP1281-CR

 “Internet Explorer 10-11 Main History” (hereinafter referred to as
“Internet Explorer History”). This purported to list 28 occasions on
specified dates and times in 2013, 2016, and 2017 when Gratz allegedly
entered a URL that included the term “incest,” some which included the
phrase “father-daughter-incest.”

¶13 Gratz objected that the internet searches evidence was inadmissible
under the three-step analysis used to determine the admissibility of other acts
evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and its
progeny.5 Gratz argued that the evidence had “little to no probative value,” would
be “of great prejudice to the Defendant,” and would “create a sideshow” and
confusion for the jury. Gratz’s confusion argument rested in part on the
contention that the internet searches evidence was “unreliab[le],” in that it could
suggest that Gratz performed searches that he could not in fact have performed.
On this topic, Gratz contended that a close review of the evidence revealed that
there were many “simultaneously” generated searches, which a single human user
of the laptop could not have generated, and that at least some searches might have
been the result of “malicious web-programming” or generated by other members
of Gratz’s household.

¶14 The trial court conducted an evidentiary hearing in September 2017.

B. Pretrial Evidentiary Hearing

¶15 Kyle Hill testified in part as follows. Hill is a digital forensics
examiner. His training has included the use of computer forensics programs that
are designed to copy data stored on electronic devices, such as laptop computers,

5
Gratz also initially objected to the timing of the State’s motion and its production of
discovery to date, but the trial court then postponed the trial date several times, apparently
resolving that objection. He does not raise this as an issue on appeal.

6
No. 2021AP1281-CR

on a “bit-for-bit,” “exact copy” basis. This involves the extraction of internet
search queries and internet history terms. In the investigation of the allegations
against Gratz, Hill created such an exact “forensic copy” from the hard drive of a
laptop computer obtained from Gratz and then executed extractions. Hill testified
that this process generated reports reflecting the data copied from the hard drive.

¶16 Hill testified to the following regarding the State’s exhibit entitled
“Parsed Search Queries.” The Parsed Search Queries is a compilation of URLs
reflecting “the probable search query” that was used. The result was “user-
friendly” information, from which “the rest of the URL” was stripped away. This
exhibit is an accurate, partial list of reports that Hill generated from the laptop
data. Hill further testified that the search queries entered into the search engine
Bing, as reflected in Parsed Search Queries, had been “user generated,” as
opposed to being generated by Bing as automatic searches or pop-ups, and as
opposed to being ads generated from any source.

¶17 Hill testified to the following regarding the exhibit entitled “Internet
Explorer History.” Internet Explorer History is an exhibit that reflects websites
that the laptop visited. It is an accurate, partial list of a report that Hill generated
from the laptop data. The entries were “generated by some sort of user action
versus automatically.”

¶18 Hill testified that he had “a high degree of certainty” that he could
differentiate between “user generated” versus “automatically generated” searches
in the two exhibits. It was “unlikely” that the purported user entries reflected on
Parsed Search Queries and Internet Explorer History were the results of
“malware” (a malicious program designed to do harm to a computer or its user).
This was because Hill’s review of the files on the laptop did not reveal any file

7
No. 2021AP1281-CR

“that seemed to be suspicious or indicative of a malware infection or anything that
would cause the computer to be browsing pornographic sites.” There might be
malware of some kinds on the computer, but none that “would repeatedly browse
the web.”

¶19 The defense called no witnesses at the evidentiary hearing. In cross
examining Hill, defense counsel questioned Hill’s position that entries on the two
exhibits were not likely produced by malware or automatically generated, either
by the search engine Bing or by a visit to a website that did not itself involve
searches for incest-related content.

¶20 At the close of the evidentiary hearing, the trial court rejected
Gratz’s position that there was not an adequate factual basis for admission of the
internet search evidence. It ruled that the State had provided an adequate basis to
offer the Parsed Search Queries as having allegedly been generated by Gratz and
further ruled that this evidence was admissible under WIS. STAT. § 904.04 and
Sullivan. As part of this ruling, however, the court directed that only those entries
allegedly made on or after December 21, 2016—and therefore close in time to the
alleged assaults—could be admitted. The court said that this evidence, as limited
by the court’s direction, was admissible for the jury to consider on the issue of
whether Gratz touched A.B.’s breast or buttocks not “for the purposes of sexual
gratification but just accidentally … for some other reason.”

¶21 For reasons not evident from the record, the trial court did not
address the admissibility of the Internet Explorer History exhibit, and neither side
called the court’s attention to this omission either during the hearing or at any time
before trial.

8
No. 2021AP1281-CR

C. First Day Of Trial

¶22 After jury selection but before opening statements, the prosecutor
emailed to defense counsel three Excel spreadsheets. The nature of these files
generally aligned with the nature of the three exhibits that the State had presented
at the pretrial hearing, but with some differences. Defense counsel expressed
concern to the trial court, out of the presence of the jury, that it appeared that some
of the data on these spreadsheets purported to reflect search entries made before
the December 21, 2016 cut-off date established by the court’s pretrial ruling.
Counsel also raised concern that “the formatting or expression” of the data in the
spreadsheets did “not match the previous formatting or expression of them that we
were provided in discovery.” In response, the prosecutor told the court that his
understanding was that the only alterations from the information that the State had
previously produced and addressed at the pretrial hearing was to change times that
had been listed in the initial production according to the Universal Time
Coordinate (the same as Greenwich Mean Time) to now show the equivalent time
under Central Standard Time, a difference of six hours.

¶23 One of the three spreadsheets that the prosecutor emailed to defense
counsel ended up becoming Trial Exhibit 6, which as discussed below the circuit
court would eventually allow the prosecutor to offer as other acts evidence at trial.
The content of Trial Exhibit 6 generally matched the content of the Parsed Search

9
No. 2021AP1281-CR

Queries that was the focus of the trial court’s pretrial ruling, as discussed above.6
We will continue to refer to the pretrial exhibit as Parsed Search Queries and to
the version offered at trial as Trial Exhibit 6.

¶24 Defense counsel said that he was not taking a position that none of
the information contained on the three spreadsheets produced by the prosecutor on
the first day of trial was admissible under the court’s order; some might be
admissible. However, counsel sought to limit the prosecution’s opening statement
on this topic until counsel could study the three spread sheets. The prosecutor
agreed to limit his opening statement on this topic and defense counsel said that he
had no objection to this.7

¶25 At the end of the first day of trial, out of the presence of the jury,
defense counsel again generally questioned whether the three spreadsheets were

6
Although counsel for both sides apparently failed to assist the trial court by making this
clear when the issue first arose at trial, Gratz showed in the postconviction hearing that the
number of entries reflected on the Internet Explorer History exhibit at the time of the pretrial
hearing was smaller than the number of entries on the similar exhibit that the prosecutor provided
to the defense on the first day of trial. But Gratz concedes on appeal that there were no material
differences between the content of the eventually admitted Trial Exhibit 6 and the Parsed Search
Queries exhibit that was discussed at the pretrial hearing, once one takes into account that Trial
Exhibit 6 as admitted at trial did not include search entries purportedly made before
December 21, 2016, pursuant to the trial court’s pretrial order, as the court reaffirmed at the time
of trial.
7
In his opening statement the prosecutor told the jury in pertinent part that a report
generated through data extraction from Gratz’s laptop would show

activity on the computer, Internet activity, where the person is
looking for daddy daughter incest. And you are going to hear
about that evidence to help you understand what the defendant’s
intent was when he touched his daughter’s breast, when he
touched her butt, to help you understand that this is not a mistake
or an accident or something like that.

10
No. 2021AP1281-CR

“fair game,” but he did not object to a proposal by the circuit court that the court
address the issue only after counsel submitted any objections in writing.

D. Second (And Final) Day Of Trial

¶26 On the morning of the second day of trial, defense counsel filed a
“Motion To Exclude State’s Proffered Other Acts.” It alleged the following.
Taking into account the date limitation from the trial court’s pretrial ruling, the 57
entries on the Parsed Search Queries exhibit that the State relied on at the pretrial
hearing was reduced to 23 entries. However, the three exhibits that the State
transmitted to the defense on the first day of trial consisted of: (1) 26 entries from
Trial Exhibit 6, generally matching those contained in the Parsed Search Queries;
(2) 108 entries from the Internet Explorer History exhibit, which the court had not
ruled were admissible; and (3) 94 entries from the exhibit called “Pornography
URLs,” which the prosecutor had previously told the trial court the State would
not be offering. See supra note 4. In addition, one or more of the newly produced
exhibits (the defense motion is not clear on this point) contain “a new field with its
own [time] calculations rather than the time stamp from the computer so that
additional entries ‘show’ within the date range” allowed by the trial court, and “the
Defendant’s name [appears] next to every single entry,” unlike with the previously
produced exhibits.

¶27 The defense motion also alleged that this evidence was unreliable as
proof of any intentional, relevant conduct by Gratz. The motion asserted that, if
called, computer experts retained by the defense would testify that: (1) “only 5”
of the “8 distinct ‘searches’” that produced all of the 23 searches deemed
admissible in the pretrial ruling “may have been typed at some point,” while the
others “were clicked”—presumably meaning, that the others had been generated

11
No. 2021AP1281-CR

by the user clicking on a link, as opposed to by the user typing the queries; and
(2) it was “exceedingly unlikely that these were ‘searches of the defendant’s own
devising’ and very likely that they were websites that were landed on due to often-
deceptive ads from e-mails or dating [s]ites.”

¶28 During discussion in the trial court at the start of the second day of
trial, outside the presence of the jury, defense counsel represented that “our
experts have been working tirelessly focusing on [the] 23 entries” that the court
had ruled were admissible at the pretrial hearing. Defense counsel argued that
“the fact we get a list of over 200 of them after the trial starts[, which are not]
compliant with the court’s order, I think would justify exclusion of that evidence
period,” or that, in the alternative, the prosecution should be limited to offering the
23 entries.

¶29 The prosecutor confirmed that, as he had represented at the pretrial
hearing, the State would not pursue its initial attempt to offer the “Pornography
URLs.” The prosecutor acknowledged that the trial court at the pretrial hearing
had not been “specific about what was happening with” the Internet Explorer
History exhibit. But he said that he interpreted the trial court to have allowed the
entries from that exhibit purportedly entered on December 21, 2016, or later. The
prosecutor further argued that Trial Exhibit 6 (and the Parsed Search Queries)
consisted merely of “data drawn from” the Internet Explorer History exhibit, and
therefore not allowing the admission of the Internet Explorer History exhibit
would “omit[] context.” The prosecutor asked the trial court to “clarify” its other
acts orders.

¶30 The prosecutor also made the following “door opening” argument.
If Gratz were to argue to the jury that the data on Trial Exhibit 6 “were not user

12
No. 2021AP1281-CR

generated,” but instead had been “automatically generated or [that] some kind of
website oddity created these entries,” the circuit court should deem the defense to
have “opened the door” to the State’s admission of the Internet Explorer History
exhibit. This would be appropriate, the prosecutor argued, because the Internet
Explorer History exhibit reflects “the actual data itself,” which represents “a great
deal of data that supports the [State’s] expert’s finding that the Parsed Search
Queries,” generally matching the content of Trial Exhibit 6, “are user generated.”

¶31 The trial court asked defense counsel if the defense was objecting, in
particular, to the URLs that were shown as parsed search inquiries in the “second
column” of Trial Exhibit 6, which was the substantive evidence (e.g.,
“amateur+teen+incest+with+daddy”). Counsel responded no.

¶32 The trial court affirmed its prior ruling allowing admission of the
identified entries reflected on the Parsed Search Queries, now in the format of
Trial Exhibit 6, but only those entries allegedly made after December 21, 2016.
Although the trial court initially appeared to suggest that it would limit the State to
use of the format of the Parsed Search Queries as it had appeared in the exhibit
presented at the pretrial hearing, the court later said that it would “allow the state
to introduce [Trial Exhibit 6] as an exhibit.”

¶33 Addressing the “door opening” concept raised by the prosecutor, the
court said:

[I]f the defense is going to argue … that somehow these
search queries [i.e., the URLs on Trial Exhibit 6] were
either produced automatically or produced by some other
way other than [by] Mr. Gratz, I think [the defense will]
open the door to the prosecution explaining [to the jury]
how these queries were brought up on Mr. Gratz’s
computer.

13
No. 2021AP1281-CR

So if [the defense is] not going to go into that, then
[the court would admit] just [Trial Exhibit 6 containing] the
[limited] dates that I ordered in September. But if …[the]
defense is that … these appear by some other way other
than [Gratz] typing in something, then I do think [the
defense has] opened the door and I will allow the [S]tate to
introduce [evidence addressing] how [the prosecutor
contends that] those queries got on his computer.

Defense counsel posed a confusing set of questions to the trial about this “door
opening” concept.8 The court responded that it would not address “hypotheticals”
“on issues that aren’t yet in evidence.” The court repeated its position that, “[if]
Mr. Gratz’s defense is that these search queries ended up on his computer because
something happened other than him typing in these words[,] the [S]tate is going to
be allowed to rebut that.” The clear implication of the court’s statements was that
it was reserving a decision as to the scope of rebuttal evidence that it would allow,
waiting to see what relevant factors might exist at the time rebuttal was merited.

¶34 During the resumed trial, the State offered Trial Exhibit 6 during
Hill’s testimony and the trial court admitted it. This exhibit appears to reflect
either 14 or 15 (depending on how entries are interpreted) entries with specific

8
Defense counsel said:

So what I wanted to clarify in terms of opening the door
is that did—that may be opening up some other areas of this
main history in terms of explaining these search terms, but
yesterday when this was provided—the Internet Explorer main
history—it was provided in the sense of ‘here are independent,
standing alone,’ for instance, fatherrapesdaughter.com that did
not appear in parsed search queries.

And so I wanted to make sure that when we are talking
about opening the door, we are talking about explaining the stuff
in terms of what had been admitted. Does that make sense? Am
I explaining it?

14
No. 2021AP1281-CR

times and dates of either December 23, 2016, or January 4, 2017, which includes
the data reflected on Parsed Search Queries.

¶35 Hill testified to the following on direct examination by the
prosecution. Exhibit 6 reflected eight columns for each “artifact,” i.e., a datum
generated by an alleged instance of historical internet use: (1) the specific type of
artifact, which Hill described as reflecting occasions on which forensic software
used by Hill “pull[ed] the information from” out of a larger report generated by the
software (always “Internet Explorer 10-11” and either a “Main History,”
“Dependency Entries,” or “Content”); (2) record number (unique identification of
each artifact); (3) search term (e.g., “amateur teen incest with daddy”); (4) URL (a
string of symbols that includes search terms); (5) date/time; (6) search engine
(always Bing); (7) artifact identifier number; and (8) source (a description of
location within the computer at which the data was located).

¶36 Hill testified that one topic that was a “prevalent” topic for entries
made on Gratz’s laptop was what the prosecutor characterized as “daddy-daughter
incest-related searches.” Hill also testified that “[i]t appears” that the searches
reflected on Trial Exhibit 6 “are most likely generated by some sort of user
action.” Hill clarified on cross examination that this meant “it wasn’t something
that was automatically done as a function of the Windows operating system,” but,
instead, the searches occurred when “the particular user on the computer interacted
with [the computer] to obtain the result, most likely.” Also on cross examination
Hill testified that these could have been typed-in searches or instead the result of a
user clicking on a link or an ad.

¶37 In his initial closing argument, the prosecutor addressed this issue as
follows:

15
No. 2021AP1281-CR

So do we have any other evidence … of [sexual]
gratification [purposes]? We do. We have the parsed
search queries on [Gratz’s] laptop. Kyle Hill from DCI
talks about how [Hill] pulls … the data out, goes through
the data, tries to f[i]nd stuff relevant to the case, and
surprisingly he did. He did. He found daddy daughter
incest search queries on the laptop—the laptop that only
[Gratz] used. The laptop that [Gratz] had the password for.
No one else used that laptop according to [A.B.].

So that is important information, and … it helps us
to understand what his intent was when he is touching
[A.B.]. It shows [that the charged conduct] isn’t mistake in
tickling, this isn’t a wrestling accident. His intent was
gratification.

Defense counsel did not address the other acts topic generally, nor Trial Exhibit 6
specifically, in his closing argument. The prosecutor returned to these topics in
his rebuttal closing:

I will talk about lack of evidence. Is it reasonable to say
that [A.B.] is just bothered? She is just generally bothered,
something just bothered her. Wasn’t sexually assaulted,
something bothered her, and she ends up deciding in her
head or perceiving wrongly that her dad sexually assaulted
her, and then her poor dad—his computer somehow gets
these parsed search queries of daddy-daughter incest all in
a couple of weeks, and he isn’t actually into his daughter
that way and none of this is his fault. All of that again in a
span of two weeks. It’s not reality. It’s not the real world.
It’s not reasonable and that’s not real doubt.

E. Postconviction Hearing

¶38 At the evidentiary hearing held by the postconviction court, defense
counsel testified in pertinent part as follows. Defense counsel spent the entire
evening and all night following adjournment of trial on the first day, until the trial
resumed on the second day, on tasks that included the following: reviewing the
three exhibits of internet search evidence that the prosecutor emailed to him on the
first day of trial; reviewing the transcript of the trial court’s prior ruling on other

16
No. 2021AP1281-CR

acts evidence; and conferring with the experts on computer evidence that the
defense had retained. He spent “several hours” comparing the exhibits that the
prosecutor provided on the first day of trial with a large set of computer files that
the State had produced early on in the case. Counsel did not sleep that night; by
the time he delivered his closing argument on the second day of trial he had been
awake for 34 to 40 hours. He prepared the written objections summarized above,
which he filed electronically “shortly after 5:00 a.m.”

¶39 Counsel testified that he did not prepare a closing argument before
the start of the second day of trial because he thought that the trial would go into a
third day, giving him the night of the second day of trial to compose it. Then, on
the second day of trial, he “frantically tr[ied] to compose an outline for closing.”
It was only after he had finished giving his closing argument that he realized that
he had failed to address the other acts evidence, an omission that he attributed to
“disorientation.”

¶40 Regarding the “door opening” issue, counsel testified that he
understood the trial court to have ruled that if he “introduced evidence at all that
[the internet search evidence was] not the result of [Gratz] typing it in, then it
would throw open the door to [admission of] all of the evidence [that the court
had] excluded.” As a result, counsel testified, he “drastically curtailed my
examination of the State’s expert … Hill,” and decided not to call the defense
computer expert.

¶41 The postconviction court addressed some issues in oral rulings and
followed that up with a detailed written opinion addressing the balance. In the
oral rulings, the postconviction court determined that the trial court did not
erroneously exercise its discretion in admitting Trial Exhibit 6 as other acts

17
No. 2021AP1281-CR

evidence. The court also determined that Gratz failed to show prosecutorial
misconduct in connection with the other acts evidence. Among the court’s
rationales was the fact that Trial Exhibit 6 “is substantially similar” to the Parsed
Search Queries exhibit from the pretrial hearing and, further, that the defense had
seven months to prepare any challenge to the substance of the only other acts
evidence presented at trial. The court also observed that “there were so many
ways” that trial counsel could have “handle[d] this that perhaps would not have
necessitated this all-night marathon session” between the first and second day of
trial. We address additional aspects of the written opinion as necessary to
discussion below.

II. ADMISSION OF THE OTHER ACTS EVIDENCE

¶42 Gratz challenges the trial court’s ruling allowing the admission of
Trial Exhibit 6. We summarize applicable legal standards and then explain why
we conclude that the trial court did not erroneously exercise its discretion in
allowing the prosecution to offer this as other acts evidence.

A. Legal Standards

¶43 In an unpublished but authored opinion, this court has summarized
the applicable standards in the following terms:

“[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that the person acted in conformity therewith.” WIS.
STAT. § 904.04(2)(a). However, under some
circumstances, “evidence of other crimes, wrongs, or acts”
is admissible. To determine whether to admit evidence of
other acts, courts engage in the three-step analysis set forth
in [Sullivan, 216 Wis. 2d at 771-72, 783].

The first step in the Sullivan analysis asks whether
the party offers the evidence for a permissible purpose
under WIS. STAT. § 904.04(2)(a). Sullivan, 216 Wis. 2d at

18
No. 2021AP1281-CR

772. Permissible purposes include “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” Sec. 904.04(2)(a). The
second step in the Sullivan analysis asks whether the other-
acts evidence is relevant. Sullivan, 216 Wis. 2d at 772.
The party seeking the admission of the other-acts evidence
(in this case, the State) has the burden to establish the first
two steps of this analysis “by a preponderance of the
evidence.” State v. Marinez, 2011 WI 12, ¶19, 331
Wis. 2d 568, 797 N.W.2d 399.

If the first two steps of the Sullivan analysis are
satisfied, the burden then shifts to the opposing party … in
the third step to “show that the probative value of the
evidence is substantially outweighed by the risk” of
confusion of the issues for the jury or unfair prejudice. Id.,
¶¶19, 41; Sullivan, 216 Wis. 2d at 772-73; see WIS. STAT.
§ 904.03.

In addition to “this general framework, there also
exists in Wisconsin law the longstanding principle that in
sexual assault cases, particularly cases that involve sexual
assault of a child, courts permit a ‘greater latitude of proof
as to other like occurrences.’” State v. Davidson, 2000 WI
91, ¶36, 236 Wis. 2d 537, 613 N.W.2d 606 (quoted source
omitted). This common law evidentiary rule is now
partially codified in WIS. STAT. § 904.04(2)(b)1. See State
v. Dorsey, 2018 WI 10, ¶¶31-33, 379 Wis. 2d 386, 906
N.W.2d 158. The greater latitude rule applies to each step
of the Sullivan analysis. Marinez, 331 Wis. 2d 568, ¶20.

State v. Coria-Granados, No. 2019AP1989-CR, unpublished slip op. ¶¶11-14 (WI
App Feb. 11, 2021) (alteration in original; footnote omitted).

¶44 Further pertinent here are the following principles, also summarized
in Coria-Granados:

[A]s part of the relevancy analysis, there must be a
determination that, pursuant WIS. STAT. § 901.04(2), there
is sufficient evidence from which a jury could find by a
preponderance of the evidence that the other acts happened.
State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999).
“[I]mplicit in a decision that evidence of the other act is
relevant is a determination that a jury could reasonably find
by a preponderance of the evidence that the defendant
committed the other act.” State v. Gribble, 2001 WI App

19
No. 2021AP1281-CR

227, ¶40, 248 Wis. 2d 409, 636 N.W.2d 488. The question
is not whether the judge is convinced by a preponderance
of the evidence that the other act happened, and the judge
does not weigh the evidence. The question is whether a
reasonable jury could find by a preponderance of the
evidence that the act occurred. State v. Ringer, 2010 WI
69, ¶32, 326 Wis. 2d 351, 785 N.W.2d 448; see, e.g., Gray,
225 Wis. 2d 39, 59-60. This is a question of law that this
court reviews de novo. Gribble, 248 Wis. 2d 409, ¶40.

Coria-Granados, No. 2019AP1989-CR, ¶42.

B. Analysis

¶45 Gratz acknowledges that, if the other Sullivan requirements are met,
the internet searches evidence could be offered for the permissible purposes of
showing lack of mistake or accident and to show an intent to act for the purpose of
sexual gratification. He makes three arguments, which we identify and address in
turn.

1. Sufficiency Of The Evidence

¶46 Gratz argues that the circuit court erred in determining that a jury
could find by a preponderance of the evidence that he intentionally generated the
queries for incest-related content—in other words, evidence that he typed the
incest-related words into his laptop or intentionally clicked on a link that was
recognizably incest-related. However, we agree with the State that the trial court
could reasonably rely on Hill’s unrebutted testimony at the pretrial evidentiary
hearing that entries on Gratz’s laptop appear to have been user generated.

¶47 Gratz acknowledges that Hill’s testimony was generally relevant.
He also does not dispute either that the prosecutor showed that Gratz owned the
password-protected laptop at issue or that there was “user” data in evidence that
was shared with the defense that showed Gratz to be the user of the laptop. His

20
No. 2021AP1281-CR

argument is the following: “Hill’s explanation of how tools helped him form his
admittedly less-than-certain opinion that the entries were user-generated is
insufficient to meet the preponderance of the evidence bar.”

¶48 Starting with the “less-than-certain” reference, Gratz fails to provide
a viable explanation for why we should conclude that the circuit court could not
reasonably rely on Hill’s testimony on this issue because it was less than certain.
As his only support for the claim of insufficiency, Gratz cites to opinions offered
by one of the defense computer experts, who was not called to testify at either the
pretrial evidentiary hearing or at trial. The defense expert expressed these
opinions at the postconviction evidentiary hearing. Gratz fails to explain how the
trial court was supposed to have been aware of these opinions at the time it made
the challenged rulings before and during trial to admit a well-defined subset of the
other acts evidence that the State proposed to offer.

¶49 Gratz emphasizes the concept of “busy seconds,” a phrase used to
describe data reflecting multiple search entries occurring during the same second,
which could suggest that some of the entries were not generated by a user. He
points out that Trial Exhibit 6 purports to reflect multiple queries of the same
terms being made at the same second. But at the pretrial evidentiary hearing, the
prosecutor, defense counsel, and the trial court all posed questions to Hill related
to the danger that the evidence the State sought to introduce included entries that
were not generated by a user of the laptop. This included Hill’s testimony that he
made specific attempts in his reports to identify and eliminate entries that were
“automatically generated,” as opposed to user generated, and also that he
“manually” reviewed the particular entries at issue. It also included testimony by
Hill that a single search by a user could be reflected in a report as if it represented
multiple results at the same time, depending on how the forensic software pulled

21
No. 2021AP1281-CR

data from different locations on the computer. The circuit court could have
reasonably relied on this testimony as establishing that a user’s single intentional
internet navigating act can generate multiple artifacts appearing on reports.

2. Relevancy

¶50 Gratz challenges the premise that, if he had intentionally typed in
queries such as “daddy daughter incest” within days before the alleged assaults,
this could reasonably support the inference that he intended to have sexual contact
for purposes of gratification, that the touching was not an innocent mistake. But
he fails to support a challenge to this premise. His current argument might have
been a potential argument to the jury, but it has no merit as a relevancy argument.

¶51 The relevancy part of the Sullivan analysis turns in part on the
“‘similarity between the charged offense and the other act.’” See State v. Hurley,
2015 WI 35, ¶79, 361 Wis. 2d 529, 861 N.W.2d 174 (quoted source omitted).
Similarity in this context “is demonstrated by showing the ‘nearness of time,
place, and circumstance’ between the other-act and the charged crime.” Id.
(quoted source omitted). “The greater the similarity, complexity and
distinctiveness of the events, the stronger is the case for admission of the other
acts evidence.” Sullivan, 216 Wis. 2d at 787. Gratz fails to show how these
standards do not readily apply here on the relevancy issue to show motive and lack
of mistake based on alleged multiple acts of seeking out incest-related content
involving fathers and daughters in the days just before charged acts of incest on
his own daughter.

¶52 Gratz emphasizes that the literal act of seeking out incest
pornography on the internet is not the same thing as a literal act of incest. But it is
not true, as Gratz argues, that evidence that a person sought out incest

22
No. 2021AP1281-CR

pornography could not shed light on that person’s intent and lack of mistake
regarding an allegation of close-in-time incestuous conduct. Gratz argues that the
act of searching for incest-related content on the internet is “completely legal,” but
the issue here is not whether the “other acts” alleged here were illegal acts. An
alleged other act need not involve illegal or even wrongful conduct. State v.
Johnson, 74 Wis. 2d 26, 41, 245 N.W.2d 687 (1976) (“It was evidence of prior
‘acts’ of the defendant, not necessarily wrongful and not necessarily criminal,
which were relevant to the issue of willfulness.”). Gratz asserts that “pornography
use is widespread in the United States, including taboo pornography,” and for
support cites to an internet posting by “Pornhub” that was referenced in a circuit
court filing by trial counsel opposing the other acts evidence, for what trial counsel
characterized as purportedly commonly made, “arguably incestual,” search terms.
The circuit court was not obligated to credit this as support for a relevancy
argument based on the specifics of this case.

¶53 Gratz also argues that the internet searches evidence was not
relevant as other acts evidence because his credibility was not at issue in light of
the fact that he elected not to testify at trial. This is beside the point. Whether he
testified or not, the State could not prevail without proving beyond a reasonable
doubt his intent and the lack of mistake. The other acts evidence was relevant to
the jury’s consideration of all the relevant evidence, including A.B.’s testimony
that she experienced the touchings as sexual in nature.

3. Probative Value Versus Substantial Prejudice

¶54 Gratz briefly argues that any probative value of this other acts
evidence was “by far outweighed” by “the substantial prejudice associated with”
such search terms as “amateur teen daddy don’t fuck me” and “deep throat with

23
No. 2021AP1281-CR

daddy.” This argument is underdeveloped. In any case, we conclude that Gratz
fails to show that he carried his burden on this Sullivan step, particularly in light
of the “greater latitude” rule. See Hurley, 361 Wis. 2d 529, ¶59.

¶55 Gratz asks us to conclude that the internet searches evidence had
“minimal probative value.” But we conclude that this evidence could have
reasonably provided strong proof of intent and lack of mistake, given the content
of the alleged searches and how close in time they were to the alleged offenses.

¶56 Gratz suggests that the incestuous acts alleged in this case, if
believed, while “repulsive,” do not carry the same “shock value” as the internet
searches evidence. There is no doubt some “shock value” in the internet searches
evidence, as the trial court recognized in limiting the scope of the evidence
allowed in the State’s case-in-chief. But Gratz’s argument is not persuasive that
this evidence carries a “shock value” that likely overwhelmed the ability of the
jury to fairly decide the issues in this incest case. This is so in part because the
“greater latitude” rule applies here. Gratz’s argument that this rule does not
apply—because the internet searches evidence is not relevant to, because it is not
“similar” to, the charged conduct—falls away because we have rejected his
relevancy argument. That is, yet another shortcoming of Gratz’s underdeveloped
argument on the unfair prejudice issue is that it does not take into account the
“greater latitude” rule based on the lack-of-relevancy argument that we reject.

III. ALLEGED PROSECUTOR MISCONDUCT REGARDING THE
INTERNET SEARCHES EVIDENCE

¶57 Gratz’s prosecutorial misconduct argument is based on the fact that,
as summarized in detail above, the prosecutor sent an email to defense counsel on
the first day of trial attaching three potential exhibits, the contents of which

24
No. 2021AP1281-CR

generally matched, but in some respects differed from, the evidence submitted and
approved for admission at the pretrial hearing. Gratz argues that the
postconviction court should have determined that this conduct “‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’”
See State v. Bell, 2018 WI 28, ¶15, 380 Wis. 2d 616, 909 N.W.2d 750 (quoted
source omitted). Gratz argues that this was misconduct and that it warrants
reversal of his convictions. He argues that it was “sandbagging” that allegedly had
the following effects: preventing defense counsel, on the night of the first day of
trial, from sleeping or doing “any” “preparation” other than addressing the
exhibits, “causing him to be sleep-deprived on” the second day, “to the point of
inadvertently omitting a key argument entirely from his closing argument due to
exhaustion.” We provide pertinent legal standards and then explain why we reject
Gratz’s argument.

A. Legal Standards

¶58 We now quote the standards for our review of the postconviction
court’s denial of Gratz’s prosecutorial misconduct argument. As the following
summary explains, his argument rests on a claim that his right to due process was
violated.

Our review of the trial court’s decision to grant a
new trial is deferential. The determination of whether
prosecutorial misconduct occurred and whether such
conduct requires a new trial is within the trial court’s
discretion. “An appellate court will sustain a discretionary
act if the trial court examined the relevant facts, applied a
proper standard of law, and used a rational process to reach
a conclusion that a reasonable judge could reach.”

Prosecutorial misconduct “can rise to such a level
that the defendant is denied his or her due process right to a
fair trial.” If the misconduct “poisons the entire
atmosphere of the trial,” it violates due process.… “When

25
No. 2021AP1281-CR

the seriousness of prosecutorial misconduct and the
weakness of evidence of guilt cause us to question a trial’s
fairness, we will not hesitate to reverse the resulting
conviction and order a new trial.” Unless the government
can demonstrate beyond a reasonable doubt that the error
was harmless, reversal is warranted.

State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996) (quoted
sources omitted).

B. Analysis

¶59 As context for the legal analysis that follows, we observe that we
share the puzzlement expressed by the postconviction court about the apparent
lack of productive communications before and during trial between counsel for the
parties regarding the identification of other acts evidence. The postconviction
court stated that it was “perplex[ed] that there was never a conversation between
the attorneys about what was going on” regarding the details of the other acts
evidence. That is, the record suggests unfortunate miscommunication and non-
communication on both sides, but not “sandbagging.” Notably, as summarized
above, at the end of the first day of trial, defense counsel questioned whether the
three spreadsheets provided by the prosecutor were “fair game,” but he did not
pursue these concerns immediately. Instead, he accepted a proposal by the circuit
court that the court address the issue only after counsel submitted any objections
in writing. Working on these written objections is (by trial counsel’s own
account) partly how he spent a sleepless night. It appears, at a minimum, that the
prosecutor should have been more timely and precise in his communications

26
No. 2021AP1281-CR

regarding other acts evidence and also that trial counsel was not sufficiently
attentive to details or sufficiently prompt in articulating objections.9

¶60 Having made those contextual points, we now explain why Gratz
fails to persuade us that the postconviction court did not adequately support a
reasoned decision on the prosecutorial misconduct issue consistent with the
pertinent legal standards. Gratz does not show that the prosecutor’s conduct
“‘poison[ed] the entire atmosphere of the trial.’” See Lettice, 205 Wis. 2d at 252
(quoted source omitted). More specifically, we reject Gratz’s argument on the
grounds that it depends on at least two related premises, each of which the
postconviction court had a reasonable basis to reject.

¶61 The first inadequately supported premise is that the conduct of the
prosecutor completely surprised trial counsel regarding the contents of the other
acts evidence that the prosecution would offer at trial. It is unclear from the record
how the prosecutor described the three exhibits for trial counsel when he provided

9
We are troubled in particular that, on the second day of trial, the prosecutor told the
trial court that the exhibits he had presented to the court at the pretrial evidentiary hearing had
been

just generated … myself, and it was for a different purpose than
trial. It was just Other Acts to give the court a sense of what I
was seeking to admit. There isn’t much data in the ones I
submitted back at the Other Acts hearing. [What the prosecutor
was now offering has] a bit more data. But we also have the full
report from the analyst, which has all of the data in it.

The purpose of such a pretrial evidentiary hearing is not for the circuit court to merely get “a
sense” of the evidence that a party seeks to offer. It is for the court to rule on whether specific
evidence is or is not admissible. A great deal of confusion and effort by all concerned might have
been avoided before, during, and following trial if the prosecutor had undertaken more diligently
all of his responsibilities as the proponent of other acts evidence. It was the prosecutor’s
responsibility to provide the court and opposing counsel with the precise exhibit that he planned
to offer, pursuant to the court’s pretrial order, in a timely manner.

27
No. 2021AP1281-CR

them on the first day of trial. Assuming without deciding that the prosecutor
failed to make clear what the exhibits consisted of and how he intended to use
them, this would have been an inappropriate approach for the proponent of other
acts evidence, because this could have carried some unfair element of surprise.

¶62 Having made that observation, it remains that the three exhibits
resembled the exhibits that were the subject of the pretrial hearing. Further, as to
the “Pornography URLs” exhibit, as far as the arguments of the parties and the
record reveals, it appears that all trial counsel had to do on the first day of trial was
to confirm with the prosecutor that he was not going to offer that as an exhibit
(consistent with the prosecutor’s withdrawal of it at the pretrial hearing), or, if the
prosecutor was unclear or not communicative, take the issue up with the trial
court. In a similar mode, trial counsel could have demanded an explanation as to
the content of the “Internet Explorer History” exhibit on the first day of trial. As
to Trial Exhibit 6, as the postconviction court noted, it contained essentially the
same data as the Parsed Search Queries that the trial court addressed well in
advance of trial. Consistent with that, as noted above, trial counsel responded
“no” when the trial court specifically asked him whether he objected to the aspect
of the exhibit that contained the allegedly probative search inquiries. Gratz fails to
show that the prosecutor’s conduct was such a complete surprise that it
“‘poison[ed] the entire atmosphere of the trial.’” See Lettice, 205 Wis. 2d at 252
(quoted source omitted).

¶63 The second related, inadequately supported premise is that the
conduct of the prosecutor, whether intentionally or not, “forced” trial counsel to
stay up all night in a fruitless struggle to understand and counter the other acts
evidence, with the result that counsel poorly represented his client on the second
day of trial. As the postconviction court also noted, it is far from clear that

28
No. 2021AP1281-CR

anything the prosecutor did should have caused this. The defense had months to
prepare based on disclosed evidence and trial counsel did not indicate to the circuit
court on the first day of trial that he anticipated a need to spend the whole night
trying to verify the consistency of the proposed trial exhibits with what was
provided earlier. From all that we can see in the record and what Gratz argues on
appeal, the prosecutor had no reason to suspect that his conduct would cause trial
counsel to have the problems that he testified he had on the first night of trial,
particularly since trial counsel agreed not to resolve the issues in court at the end
of the first day of trial. To cite one illustrative example, trial counsel cannot
reasonably blame the prosecutor for trial counsel’s claimed failure to have
accounted for the possibility that events might turn a possible three-day trial into a
two-day trial, requiring him to prepare closing argument ideas before the end of
the second day.

IV. “DOOR OPENING” ISSUE

¶64 Gratz argues that the postconviction court erred in determining that
the circuit court did not violate his right to due process by ruling that, if he
contested at trial that he generated the queries reflected on Trial Exhibit 6, the trial
court would treat that as an “opening [of] the door” to additional evidence from
the prosecutor to support the position that Gratz generated the queries. The trial
court’s ruling violated due process, Gratz’s argument proceeds, because it
prevented trial counsel from offering a defense in the form of evidence and
corresponding argument to persuade the jury that Gratz did not generate the
queries reflected on Exhibit 6.

29
No. 2021AP1281-CR

A. Legal Standards

¶65 The confrontation and compulsory process clauses of the Sixth
Amendment to the U.S. Constitution and article I, section 7, of the Wisconsin
Constitution guarantee the right to present a defense. State v. Miller, 2002 WI
App 197, ¶45, 257 Wis. 2d 124, 650 N.W.2d 850. While the states have broad
latitude under the federal constitution to establish rules excluding evidence and the
defendant’s right to present evidence may be subjected to reasonable restrictions,
in some circumstances an application of such rules may abridge the defendant’s
right to present a defense. State v. St. George, 2002 WI 50, ¶¶50-51, 252 Wis. 2d
499, 643 N.W.2d 777. Evidentiary rules abridge this right when they are
“‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’” by
“infring[ing] upon a weighty interest of the accused.” United States v. Scheffer,
523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 58 (1987)).

¶66 Whether the postconviction court properly rejected this argument
presents an issue of “constitutional fact” that we determine without deference to its
determination. See St. George, 252 Wis. 2d 499, ¶16.

B. Analysis

¶67 Gratz fails to support an argument that the trial court improperly
exercised its discretion in any way in making its door opening ruling, much less
does he support an argument that the trial court’s ruling was “arbitrary” or
“disproportionate to the purposes” of the evidence rules such that it infringed on a
“weighty interest” of Gratz’s.

¶68 As summarized above, the trial court was careful not to address
“hypotheticals.” Instead, the court made the following clear, but limited, ruling:

30
No. 2021AP1281-CR

if the defense attempted to suggest to the jury that the queries were created “by
some other way…than [Gratz] typing” on his laptop, then the court predicted that
it would “allow the state to introduce [evidence addressing] how [the state
contends that] those queries got on his computer.” This did not prevent the
defense from presenting expert opinion or evidence that Gratz did not intentionally
create the queries. It also did not define the scope of additional evidence that the
prosecutor would be allowed to offer, beyond Trial Exhibit 6, which might well
have been limited to the specific evidence that the parties and the court discussed
at the pretrial hearing and on the first day of trial. Further, Gratz does not suggest
that the circuit court indicated that the defense would not have a reasonable
opportunity to contest the scope of any rebuttal evidence actually proposed by the
prosecutor. As summarized above, the prosecutor’s specific request in making the
door opening argument was that, if the door was opened, the prosecution should
be allowed to offer the Internet Explorer History exhibit. This was data that the
defense had access to well in advance of trial.

¶69 In making this clear, limited ruling, the trial court could rely on
settled law that “the standard for rebuttal evidence is quite broad: any evidence
otherwise admissible that ‘in any respect tends to contradict the witness, is
admissible’ for rebuttal.” See State v. Novy, 2013 WI 23, ¶44, 346 Wis. 2d 289,
827 N.W.2d 610 (quoting State v. Watson, 46 Wis. 2d 492, 500, 175 N.W.2d 244
(1970)). The circuit court may allow the State to offer rebuttal evidence that the
court deems “necessary and appropriate” in response to defense evidence or
argument. Novy, 346 Wis. 2d 289, ¶34.

¶70 Gratz’s implied argument seems to be the following: If the trial
court was ever going to rule that the State might be or would be entitled to offer
rebuttal evidence on this topic, it was obligated to do so at the time of the pretrial

31
No. 2021AP1281-CR

hearing on the “other acts” topic. But he fails to provide any support for this view.
Further, case law such as Novy directly undermines it.

¶71 Gratz relies on a federal district court opinion as persuasive authority
that is completely distinguishable. See Pulinario v. Goord, 291 F. Supp. 2d 154,
156 (E.D.N.Y. 2003) (“fair” homicide trial “impossible” after district court
“allow[ed] the defense to rely on an earlier ruling” by the court that a well-
founded defense of post-traumatic stress disorder and rape trauma syndrome
would be permitted, but then “mid-trial,” the court “cut the legs off the defense’s
theory after petitioner had been committed to it irretrievably”). Gratz fails to
identify any statement or suggestion by the trial court at the time of the pretrial
hearing suggesting that the State might not, or would not, be entitled to present
rebuttal evidence, regardless of how events unfolded at trial.

¶72 Gratz argues that the circuit court’s ruling “forced” trial counsel to
abandon the defense, but this is not accurate. The court did not prevent this
defense. It merely predicted that it would allow the prosecutor to make a rebuttal
challenge, which the prosecutor proposed to make using additional evidence that
had long been in the hands of the defense. This was a decision regarding the
potential for rebuttal evidence that the trial court was free to make at any time.
The issue is not whether the trial court “had ample opportunity to make this ruling
prior to trial,” as Gratz now contends, but whether the court could properly
exercise its discretion to make the ruling it made when it made it. Further, the
postconviction court made a finding, which Gratz does not show is clearly
erroneous, that trial counsel “made a reasonable, strategic decision to forgo
challenging the State’s theory on the origin[s] of the parsed search terms and not
risk opening the door to additional evidence of user-generated, incest-related
computer searches.”

32
No. 2021AP1281-CR

V. INEFFECTIVE ASSISTANCE CLAIMS

¶73 Gratz argues that trial counsel was constitutionally ineffective by:
(1) failing “to rebut” the other acts evidence through argument to the jury;
(2) failing to object to testimony by three witnesses (a school counselor, a deputy,
and detective) that A.B. made statements to these witnesses that were consistent
with her incriminating testimony about the alleged assaults; and (3) failing to
object to testimony by the school counselor that “[t]here was never any time that
[A.B.] told me anything that I thought she was not being honest or forthright.”

¶74 The State does not argue that, in any of the three instances, trial
counsel’s performance was not deficient. Instead, it argues that none of the
alleged deficiencies prejudiced Gratz either individually or through a collective
effect. We reject each of Gratz’s ineffective assistance arguments.

A. Legal Standards

¶75 To demonstrate ineffective assistance of counsel that violates the
Sixth Amendment, a “defendant must show that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). To show deficiency, a defendant must
demonstrate that counsel’s performance fell below “‘an objective standard of
reasonableness.’” State v. Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904
N.W.2d 93 (quoting State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665
N.W.2d 305). To show prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.

33
No. 2021AP1281-CR

¶76 Prejudice is evaluated in the context of the overall defense strategy
and all of the evidence at trial. See State v. Maday, 2017 WI 28, ¶58, 374 Wis. 2d
164, 892 N.W.2d 611 (“When determining if counsel’s deficiency undermines
confidence in the outcome of the trial and amounts to prejudice, ‘a court hearing
an ineffectiveness claim must consider the totality of the evidence before the judge
or jury.’” (quoting Strickland, 466 U.S. at 695)); State v. Jenkins, 2014 WI 59,
¶50, 355 Wis. 2d 180, 848 N.W.2d 786 (“Our prejudice analysis is necessarily
fact-dependent. Whether counsel’s deficient performance satisfies the prejudice
prong of Strickland depends upon the totality of the circumstances at trial.”).

¶77 A claim of ineffective assistance of counsel presents a mixed
question of law and fact, under which we uphold the circuit court’s findings of fact
unless they are clearly erroneous but we review de novo whether counsel’s
performance was constitutionally ineffective. Thiel, 264 Wis. 2d 571, ¶21.

B. Failure Of Trial Counsel To Provide The Jury, In Argument, With
Reasons To Question The Internet Searches Evidence

¶78 Assuming without deciding that trial counsel was deficient in failing
to present arguments to the jury “rebutting” the other acts evidence, we conclude
that Gratz fails to persuade us that this was prejudicial, given the weak nature of
any potential arguments. Due to trial counsel’s strategic decision not to offer
evidence on this topic, including expert testimony, any argument questioning the
substance of Hill’s testimony would have had limited value.

¶79 Gratz briefly suggests two omitted argument topics, which we
conclude do not show prejudice.

¶80 First, Gratz asserts that trial counsel should have highlighted for the
jury aspects of Hill’s trial testimony that Gratz argues might have planted doubt in

34
No. 2021AP1281-CR

the minds of jurors about whether Gratz intentionally generated the queries. But
as support for this concept, Gratz cites little of substance that could have supported
a jury argument. Gratz now points out that Hill testified on cross examination that
the search queries were “most likely” user generated, but also testified, without
elaboration, that they “could be” generated by, in the words of trial counsel, “a
link or ad that someone clicked.” Hill also testified that, while internet advertising
generally does not contain spelling errors and some of the queries here contained
spelling errors, “it’s possible” that some advertisers intentionally use spelling
errors to generate traffic, “but … I can’t personally speak to” the topic. Similarly,
Hill testified:

It’s impossible to say whether anything is
absolutely positively generated by the user on the
computer. Many times that’s the most likely explanation,
but it’s impossible to rule out something else because we
can’t place somebody in front of the keyboard on the
computer, just based on … the evidence we see on the
computer.

So there’s always … the possibility of something
else happening. But the most likely explanation is these are
on the computer.

Trial counsel’s failure to remind the jury of these “anything is possible”
qualifications could not have been significant.

¶81 The second argument also lacks substance. Gratz contends that trial
counsel could have argued that, even if Gratz did intentionally generate the queries
for incest-related content close in time to the alleged assaults, this would not
“make it more likely that [he] would commit comparable acts, just like anyone
watching television or movies wouldn’t act out what they watched.” This
resembles Gratz’s argument, addressed above, that the other acts evidence was not
relevant because, he asserts, “pornography use is widespread in the United States,

35
No. 2021AP1281-CR

including taboo pornography.” Repurposed to this context, the argument carries
no more weight. It is sufficient to point out that an argument by trial counsel to
the jury along these lines would not have been based on any evidence about the
actual correlation or lack of actual correlation between persons who seek out
incest-related content and those same persons attempting to commit or actually
committing acts of incest—there is no such evidence in the record. This would
have been merely a highly speculative statement of a lawyer, to which jurors
would not be permitted to assign any weight. See WIS JI—CRIMINAL 157
(“Remarks of the attorneys are not evidence. If the remarks suggested certain
facts not in evidence, disregard the suggestion.”). Gratz fails to demonstrate that a
mere assertion by trial counsel to this effect would have mattered in the context of
the trial as a whole and therefore fails to establish any prejudice.10

10
To the extent that this argument is based on the concern that the jury would rely on
the other acts evidence to find that Gratz has “bad character,” this concern is mitigated by the fact
that the circuit court instructed the jury as follows:

Evidence has been presented regarding other conduct of
the defendant for which the defendant is not on trial.
Specifically, evidence has been presented about the defendant’s
searches of his laptop. If you find that this conduct did occur,
you should consider it only on the issues of intent and absence of
mistake or accident. You may not consider this evidence to
conclude that the defendant has a certain character or certain
character trait, and that the defendant acted in conformity with
that trait or character with respect to the offense charged in this
case.

The evidence was received on the issues of intent; that
is, whether the defendant acted with the state of mind that is
required for the offense charged, absent of mistake or accident.
That is, whether the defendant acted with a state of mind
required for the offense charged. You may consider this
evidence only for the purposes I have described, giving it the
weight you determine it deserves. It is not to be used to
conclude that the defendant is a bad person and for that reason is
guilty of the offense charged.

36
No. 2021AP1281-CR

¶82 These were not “key” arguments for the defense, as Gratz now
argues. They would have been of marginal value to the defense at best.

C. Failure Of Trial Counsel To Object To Testimony Regarding Out-
Of-Court Statements By A.B.

¶83 Gratz asserts that trial counsel was constitutionally ineffective in
failing to object to testimony by three witnesses that A.B. made statements to
these witnesses that were consistent with her testimony at trial incriminating
Gratz. We conclude that Gratz fails to develop a coherent, supported argument
disputing the view of the postconviction court, which is developed as an argument
by the State on appeal. The State’s argument is that Gratz cannot establish
prejudice because, even if there had been a defense objection, these statements
were likely admissible under the residual hearsay exception, WIS. STAT.
§ 908.03(24), as discussed in authority that includes State v. Sorenson, 143
Wis. 2d 226, 242-51, 421 N.W.2d 77 (1988) (statements of children who are the
alleged victims of sexual assaults may be admissible under the residual hearsay
exception based on a five-factor test). See also State v. Stevens, 171 Wis. 2d 106,
120-21, 490 N.W.2d 753 (Ct. App. 1992) (explaining that such statements, if
reliable, can fall into “an unanticipated category of hearsay” that is admissible
under the residual hearsay exception).

¶84 In his opening brief, Gratz merely asserts the following on this topic:

The defense … believes that [the residual hearsay]
exception would not apply to the statements of this
thirteen-year-old child based on State v. Gerald L.C., 194
Wis. 2d 548, 556-557, 535 N.W.2d 777 ([Ct. App.] 1995).
Regardless, that analysis pertains to admissibility, not
prejudice. The court provided no basis for why, if
erroneously admitted, that testimony was non-prejudicial.

37
No. 2021AP1281-CR

We make the following observations. First, this statement of “belief” contains no
analysis of either the discussion contained in Sorenson or that in Gerald L.C. as
those cases could apply here. Second, this contains an incorrect pinpoint citation
to Gerald L.C. In the section of Gerald L.C. that Gratz apparently intends to cite,
this court concluded that a circuit court erroneously exercised its discretion in
admitting the statement of a fourteen-year-old to a sheriff’s deputy, two weeks
after the alleged incident, under the residual hearsay exception. Gerald L.C., 194
Wis. 2d at 553, 559-64.

¶85 In its brief, the State provides reasons to conclude that, in response
to defense objections, the trial court here would likely have applied the test set
forth in Sorenson to determine that the statements were admissible, and therefore
it could not have prejudiced Gratz that trial counsel did not make objections. As
the State notes, this position is equivalent to the position that trial counsel was not
deficient for failing to pursue an objection that would have been overruled. But
the State elects to frame this as a “no prejudice” argument, as opposed to a “no
deficiency” argument, apparently out of deference to a finding of the
postconviction court that trial counsel in fact performed deficiently because he did
not understand pertinent rules of evidence.

¶86 In replying on this topic, Gratz states only the following:

As Gratz noted in his [opening] brief, the dubious
proposition that the residual hearsay exception would apply
goes to deficient performance (i.e. an objection would have
been overruled, so counsel could not be deficient), not to
prejudice—and the State does not contest whether counsel
performed deficiently. [A.B.]’s credibility was paramount
to the State’s case, and counsel’s failure to object to the
testimony bolstering this credibility by repeating her claims
was substantially prejudicial to Gratz.

38
No. 2021AP1281-CR

¶87 Gratz’s position on this topic is confusing. As best we can discern,
without developing an argument based on any statements contained in Sorenson,
or in the only authority that Gratz cites, Gerald L.C., Gratz’s position is that the
State concedes that trial counsel performed deficiently in failing to make
objections, which Gratz submits necessarily implies the concession that the
statements could not be admitted under the Sorenson analysis. We disagree that
the State’s briefing can reasonably be interpreted to include a concession that these
statements were not admissible. In sum, Gratz fails to develop a coherent,
supported argument on this issue, and as a result he fails to show how he has
carried his burden of establishing prejudice on this issue.

D. Failure Of Trial Counsel To Object To Opinion Evidence
Regarding A.B.’s Honesty

¶88 Gratz argues that trial counsel was constitutionally ineffective in
failing to object to testimony that the school counselor gave regarding A.B.’s
“character for truthfulness” during redirect examination by the prosecutor. The
following is the exchange at issue:

Q. And from your interactions with [A.B.] over those
three years—sixth, seventh, eighth grade—were you able to
form an opinion as to her character of her truthfulness?

A. I always found her … to be honest. There was
never any time that she told me anything that I thought she
was not being honest or forthright. I never heard any
comments from any teachers that they felt that she wasn’t
being honest.

The State does not dispute Gratz’s point that, because the defense did not
challenge A.B.’s character for truthfulness, WIS. STAT. § 906.08(1)(b) could not
render this an admissible opinion regarding the character for truthfulness of a
witness. Nor does the State dispute his further point that a response to a question

39
No. 2021AP1281-CR

regarding an opinion on this topic “may refer only to character for truthfulness or
untruthfulness.” See § 906.08(1)(a). The State’s argument is limited to the
position that Gratz fails to show prejudice.

¶89 Unlike with the two other ineffective assistance claims addressed
above, we conclude that Gratz shows the potential for prejudice that could have
been created by failure to object to this testimony. As Gratz points out, even if her
honesty was not directly attacked by the defense, A.B.’s credibility was central to
the case. In closing argument, trial counsel argued that her “recollection of things
is quite inconsistent in a number of regards,” which he argued should cause jurors
“to question the consistency or accuracy” of her “perceptions.”

¶90 However, assuming without deciding that it was deficient
performance for trial counsel not to object to this testimony, we conclude based on
the following factors that Gratz has not shown prejudice that merits reversal.

¶91 First, as the postconviction court noted, the facts here differ
significantly from such precedent as State v. Haseltine, 120 Wis. 2d 92, 352
N.W.2d 673 (Ct. App. 1984), in which this court stated that “[n]o witness, expert
or otherwise, should be permitted to give an opinion that another mentally and
physically competent witness is telling the truth.” Id. at 96. As here, Haseltine
involved an incest prosecution. But at issue there was the following testimony by
a psychiatrist: that he had performed a professional examination of the alleged
victim; that he could identify patterns of behavior exhibited by incest victims
generally; and that he had “no doubt whatsoever” that the alleged victim in that
case testified truthfully that she had been sexually assaulted. Id. at 95-96. In
contrast here, the school counselor did not present herself as an expert and her
comments were considerably more generic.

40
No. 2021AP1281-CR

¶92 Second, here the counselor’s testimony was brief altogether, the
portion at issue passed quickly, and it was not referenced in the prosecutor’s
closing argument. Considered as part of the totality of the circumstances, notably
including A.B.’s extensive testimony that gave the jury extended opportunities to
assess her credibility, this isolated testimony during the brief testimony of the
counselor should not have had a meaningful effect on the jury’s decisions.

V. Cumulative Effects

¶93 Gratz argues that a new trial is required due to the cumulative effects
of “the erroneous admission of the pornography search evidence and counsel’s
failure to rebut that in closing arguments,” together with trial counsel’s failures to
object to the testimony from the three witnesses regarding prior consistent
statements by A.B. and the “character for truthfulness” testimony by the
counselor. However, we have explained why we conclude that there was no error
in the admission of the other acts evidence. We have also explained our
conclusion that the only potential prejudice that Gratz purports to identify in a
developed argument—that which could have arisen from the “character for
truthfulness” testimony—was not sufficient to meet the legal standard for reversal
when considered in the context of the trial as a whole.

CONCLUSION

¶94 For all of these reasons, we affirm the postconviction court’s denial
of the postconviction motion in its entirety and affirm the judgment of conviction.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

41