State v. David Ray Graf

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.
May 5, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP2176-CR Cir. Ct. No. 2017CF4

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID RAY GRAF,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
St. Croix County: EDWARD F. VLACK III, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).

¶1 PER CURIAM. David Ray Graf appeals a judgment convicting
him of first-degree sexual assault of a child (sexual contact with a person under
No. 2024AP2176-CR

age 13). Graf also appeals an order denying his motion for postconviction relief,
which sought a new trial based on the alleged ineffective assistance of Graf’s trial
attorney. We conclude that with respect to each of Graf’s six ineffective
assistance claims, Graf has failed to show either that his trial attorney performed
deficiently or that counsel’s alleged errors prejudiced his defense. We therefore
affirm.

BACKGROUND

¶2 The charge against Graf arose from an allegation that, on a single
instance around Memorial Day in 2015, Graf brought his then-four-year-old
grandniece, Anne,1 into a camper; pulled down her pants; kissed her vaginal area;
and then gave her a dollar in exchange for keeping it a “secret.” Although the
complaint alleged that Anne told her parents—Alan and Hannah—about the
assault the next day, Alan and Hannah did not report the assault to the police until
August 2016.

¶3 The case proceeded to a four-day jury trial in October 2021. At trial,
Alan testified that although Graf was his uncle, Graf was actually more of a father
figure to him, and he lived with Graf for a time after his parents passed away when
he was 16. Alan and Graf were also co-owners of a property management
company.

¶4 Alan testified that shortly after Memorial Day in 2015, he and his
family were at Graf’s residence in Star Prairie, Wisconsin. Hannah was painting

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), we refer to
the victim and her parents using pseudonyms. All references to the Wisconsin Statutes are to the
2023-24 version.

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No. 2024AP2176-CR

at the property, but Anne became upset, so Alan left with Anne and Anne’s older
brother to allow Hannah to finish painting. On the way home, Anne was upset
about a dollar that she had received the day prior but then lost, and she used the
word “secret,” which “caused [Alan] to want to know” where she had gotten the
dollar. After additional questioning by Alan, Anne stated that Graf had kissed her,
and when Alan asked where, Anne pointed to her vaginal area.

¶5 Alan testified that he became enraged and immediately drove back
to Graf’s residence, where he screamed at Hannah that she needed to leave
immediately. When Graf asked what was the matter, Alan responded, “You know
what the ‘F’ you did, stay the ‘F’ away from my family.” Alan explained that
after that day, he “cut off all contact” with Graf “unless absolutely necessary,” but
“it wasn’t possible to completely separate” from Graf because he and Hannah
were both employed by the property management company that he and Graf
co-owned. Alan further testified that he delayed reporting the assault to the police
because Graf was like a father to him and because his livelihood depended on the
company that they owned together.

¶6 Alan testified that he told Anne not to talk about the assault.
However, Anne eventually disclosed the assault to a teacher or teacher’s assistant
and to Alan’s mother-in-law. Alan further testified that his business relationship
with Graf had become unsustainable because he “couldn’t stand seeing or hearing
[Graf] anymore.” As a result, Alan ultimately reported the assault to the police in
August 2016. Alan testified that reporting the assault damaged his relationships
with several family members.

¶7 On cross-examination, Alan conceded that he had only a 48%
ownership interest in the property management company that he and Graf

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co-owned. He admitted that, during 2015 and 2016, he had wanted to purchase
100% ownership of the company. In July 2016, Alan and Graf reached an
agreement for Alan to buy the company for $1.5 million. However, on August 5,
2016, Alan sent Graf a letter canceling the purchase agreement, and “[a] couple of
days later,” he reported Graf’s sexual assault of Anne to the police. Alan
conceded that, at that time, he knew that “if somebody was charged with a felony
it would be grounds for the denial of their [brokerage] license,” but he denied that
he reported the assault because he had “an interest in getting [Graf] charged with a
serious crime that would take away his license.” Alan further testified that he
canceled the purchase agreement because of “other concerns about the business.”

¶8 Alan admitted that after he canceled the purchase agreement and
reported the assault to the police, both he and Hannah continued to work at the
property management company. However, he testified that Graf fired them both
on around September 9, 2016. On the day they were fired, Hannah screamed at
Graf, and the police were called. Alan denied telling Graf that day, “You can’t run
the company from prison.”

¶9 Alan also denied on cross-examination that his grandmother, Ethel
Graf, told him to call the police and report the assault. On redirect examination,
Alan testified that Ethel’s “specific words” to him were, “No good will come of
it.”

¶10 Hannah testified that on the day of the assault, she arrived at Graf’s
home in the afternoon with Anne and Anne’s younger brother, who was an infant.
She testified that both Graf and his wife Judy were at the property when she
arrived. Hannah was painting inside the house, which Graf and Judy had recently
purchased, and Judy was inside helping Hannah with the baby. Hannah testified

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No. 2024AP2176-CR

that while she was painting, Anne and Graf “were in and out of the house, and in
the [camper], and outside in the backyard.” She remembered Graf cutting the
grass, and she testified that Anne was riding with Graf on the lawnmower. She
also testified that Graf and Anne were “emptying … out” the camper following a
trip the Grafs had taken to Arizona. Hannah and the children left Graf’s residence
sometime in the evening. As they were leaving, Graf told Hannah that he had
given Anne a dollar “because she was helping him move things and build things,”
and he also stated that he told Anne the money was a “secret” so that Anne’s older
brother “wouldn’t get mad.”

¶11 Hannah testified that she returned to Graf’s house the following day
with the baby to continue painting. Graf repeatedly asked her if Anne had told her
what the secret was, and she responded, “No. You already told me what the secret
was.” At some point, Alan came to the house with Anne and Anne’s older brother
to pick up the baby so that Hannah could finish painting. About five minutes after
Alan and the children left, they returned to the house, and Alan was “very upset”
and demanded that Hannah leave the residence. Hannah confirmed that Alan
yelled at Graf and said something to the effect of, “Stay away from my family.”
After they left Graf’s home, Anne told Hannah that Graf had pulled down her
pants and kissed her vaginal area. The next day, Hannah texted Graf that he was a
“piece of shit” and “knows what he did.”

¶12 Hannah testified that she wanted to report the assault to the police
right away, but Alan “was confused” and “didn’t want to believe it” because Graf
was “like a father-figure to him.” Hannah further testified that Alan discussed the
matter with his grandmother, Ethel, who “said it would just make things worse,
don’t go to the police.”

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No. 2024AP2176-CR

¶13 On cross-examination, Hannah reiterated that on the day of the
assault, Graf told her about giving Anne a dollar and stated it was for helping him
build shelves. Hannah testified that she saw Anne helping Graf build shelves in a
detached garage on the property. Hannah acknowledged that Graf sometimes built
stands for remote-controlled airplanes, but she denied that any such stands were in
the detached garage on the day of the assault. Hannah also testified that Judy was
inside the house with Hannah “[f]or the most part” that day, and she denied that
Judy was going “back-and-forth” to check on Anne and Graf.

¶14 Hannah further testified on cross-examination that she was hired to
work for Alan and Graf’s property management company in either the summer of
2015 or the prior summer. She confirmed that both she and Alan continued
working for the company after they reported the assault to the police in
August 2016, but they did not tell Graf that they had reported the assault. In
September 2016, Graf changed the locks on the company’s office and
communicated his intent to fire Hannah and Alan. Hannah conceded that on the
day she learned of the firing in September 2016, she became upset with Graf, she
screamed at him, and the police were called. When asked whether she yelled at
Graf, “You can’t run the company from prison,” Hannah responded, “I don’t know
what I yelled, so I can’t agree if I said that or not. I know I said things.” She
acknowledged, however, that she knew Graf would not be able to run the business
if he were in prison.

¶15 A video recording of Anne’s forensic interview with Lieutenant
Brandie Hart of the St. Croix County Sheriff’s Office was played for the jury.
During the interview, Anne was shown a body diagram and asked whether anyone
had ever touched her on parts shown on the diagram in a way that made her feel
“scared or sad or uncomfortable.” Anne responded that she did not want to “tell

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No. 2024AP2176-CR

the story” because “a long time ago” her dad told her not to do so and that, if she
did, she “might be grounded.” Hart then brought Alan into the room to reassure
Anne that she would not get in trouble for speaking with Hart.

¶16 Anne subsequently told Lieutenant Hart that Graf had pulled down
her pants and underwear and kissed her “private area” while she and Graf were
“[i]n his camper where nobody was.” After the assault, Anne told Graf that she
was going to tell her dad, and she may also have slapped Graf in the face and told
him that she hated him. Graf then “rushed outside and went in his house.” Anne
stated, “I think he got a gun or something,” but she then stated she could not
remember. Anne denied that Graf gave her candy, money, or anything else after
the assault. She stated that she told her dad about the assault “the same day,” and
her dad “yelled at [Graf]” and said “you know what you did.”

¶17 Lieutenant Hart testified that she interviewed Graf in
September 2016, and he denied being in the camper with Anne on the day of the
assault. Graf confirmed that he had given Anne money, but he stated it was for
helping him build stands for remote-controlled airplanes. He also stated that it
was Anne’s idea to keep the money a secret because she did not want her older
brother to know that Graf had given her money for helping him. On
cross-examination, Hart acknowledged that during her 2.5-hour interview with
Graf, he repeatedly and consistently denied sexually assaulting Anne.

¶18 Lieutenant Hart also acknowledged on cross-examination that Anne
made some statements during her forensic interview that appeared to be incorrect.
For instance, Anne incorrectly stated that her mother was not present at Graf’s
residence during the assault but that her father and older brother were.
Additionally, Anne stated during the forensic interview that she had been pecked

7
No. 2024AP2176-CR

by Graf’s bird on the day of the assault, but Hannah had testified that did not
happen.

¶19 Graf chose not to testify in his own defense, and the defense rested
without presenting any evidence. In closing, the defense argued that Anne’s
“story” regarding the sexual assault “doesn’t make sense” and “doesn’t ring true”;
that Alan and Hannah had “coached” Anne; and that Alan “had a motive to make
everyone believe” that Graf had sexually assaulted Anne. The defense also
emphasized both the significant delay in reporting the sexual assault and
Lieutenant Hart’s “admitted failed duty to investigate certain matters.” 2 The
defense argued that all of these factors, taken together, combined to create a
reasonable doubt as to Graf’s guilt. The jury rejected this argument, however, and
found Graf guilty of the single charge of first-degree sexual assault of a child.

¶20 Graf moved for postconviction relief, arguing that his trial attorney
was constitutionally ineffective by: (1) failing to adequately review records from a
civil lawsuit between Alan and Graf; (2) failing to present certain evidence
regarding Alan’s bias and motive to lie; (3) “[p]romising substantial facts” in his
opening statement that were ultimately not presented at trial; (4) failing to call
Judy as a witness; (5) failing “to investigate and present corroborating physical
evidence and witnesses to dispel various false claims by the State’s witnesses”;
and (6) failing to seek admission of Ethel Graf’s prior statements under WIS.

2
For instance, Lieutenant Hart had admitted during her trial testimony that she never
“did any investigation of the … camper”; that she did not perform any follow-up investigation
after speaking with Ethel Graf on October 3, 2016; that she did not investigate Anne’s statement
that Anne would be punished if she talked about the assault; and that she did not ask Judy about
Anne’s claim that Anne had been pecked by Graf’s bird on the day of the assault.

8
No. 2024AP2176-CR

STAT. § 908.06 in order to refute Alan’s and Hannah’s testimony that Ethel told
Alan not to call the police.

¶21 The circuit court held a two-day Machner3 hearing, during which
the defense presented testimony from Graf; Judy; Graf’s neighbor, Robert Tauber;
and Graf’s trial attorneys, Aaron Nelson and Paul Rogosheske.4 Following the
Machner hearing, the court issued a 123-page written order denying Graf’s
postconviction motion in its entirety.

¶22 Graf now appeals. Additional facts will be provided below as
relevant to our discussion of Graf’s ineffective assistance claims.

DISCUSSION

¶23 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a
defendant fails to make a sufficient showing on one prong of the Strickland test,
we need not address the other. Id. at 697.

¶24 To prove deficient performance, a defendant must point to specific
acts or omissions by counsel that are “outside the wide range of professionally
competent assistance.” Id. at 690. We strongly presume that “counsel’s conduct
falls within the wide range of reasonable professional assistance,” id. at 689, and

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
4
Graf was initially represented by Attorney Rogosheske. Graf retained Attorney Nelson
to represent him in October 2019, but Attorney Rogosheske continued on as co-counsel.
Attorney Nelson acted as lead counsel at Graf’s trial, and Graf’s ineffective assistance claims
pertain only to Attorney Nelson’s conduct.

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No. 2024AP2176-CR

we are highly deferential to counsel’s strategic decisions, as long as they are
objectively reasonable, State v. Mull, 2023 WI 26, ¶35, 406 Wis. 2d 491, 987
N.W.2d 707. “We will not ‘second-guess a reasonable trial strategy, [unless] it
was based on an irrational trial tactic or based upon caprice rather than upon
judgment.’” Id. (alteration in original; citation omitted).

¶25 To demonstrate prejudice, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
The defendant “need not prove the outcome would ‘more likely than not’ be
different in order to establish prejudice.” State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89 (citation omitted). Nevertheless, while a defendant
“need not prove the jury would have acquitted him, … he must prove there is a
reasonable probability it would have, absent the error.” Id., ¶46 (formatting
altered).

¶26 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. Id., ¶35. We will uphold the circuit court’s findings of
fact unless they are clearly erroneous, but “[t]he ultimate conclusion as to whether
there was ineffective assistance of counsel is a question of law.” Id. (alteration in
original; citation omitted).

I. Failure to conduct an adequate review of records related to the business
dispute

¶27 Graf first asserts that Attorney Nelson was ineffective by failing to
review certain records related to the business dispute between Alan and Graf.
Specifically, Graf asserts that Attorney Nelson should have reviewed the transcript

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No. 2024AP2176-CR

of Graf’s deposition in a civil lawsuit between Alan and Graf, during which Graf
testified about Alan’s alleged embezzlement of approximately $20,000 from the
property management company in July 2016. Graf also asserts that Attorney
Nelson should have reviewed an email that Graf sent to Attorney Rogosheske
“providing a narrative account of a July 2015 incident where [Alan] threatened to
report the sexual abuse allegations against [Graf] to police if [Graf] refused to
allow [Hannah] to work at” the property management company.

¶28 We conclude Graf has failed to show that Attorney Nelson
performed deficiently by failing to review the deposition transcript and email. As
the State aptly notes, those two documents “are nothing more than Graf’s own
version of events. In other words, they are just the same story counsel would have
learned by simply speaking to Graf.” At the Machner hearing, Attorney Nelson
testified that he met with Graf “on a pretty regular basis” prior to trial. Attorney
Nelson also testified that he was aware of Graf’s claims regarding Alan’s
embezzlement from the property management company and Alan’s attempt to
blackmail Graf. On appeal, Graf does not dispute that Attorney Nelson was aware
of that information prior to trial, despite his failure to review the deposition
transcript and email.

¶29 Accordingly, we agree with the State that “while [Attorney Nelson]
may not have happened to learn this information from the two specific documents
Graf references, he was nevertheless aware that this was Graf’s version of events.”
Under these circumstances, Graf has failed to show that Attorney Nelson’s failure
to review the deposition transcript and email fell outside the wide range of
professionally competent assistance. See Strickland, 466 U.S. at 690.

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No. 2024AP2176-CR

II. Failure to present certain evidence regarding Alan’s bias and motive to lie

¶30 Graf next argues that Attorney Nelson was ineffective by failing to
introduce three categories of evidence at trial related to Alan’s alleged bias and
motive to lie.

¶31 First, Graf argues that Attorney Nelson should have introduced
evidence that Alan’s alleged threats to take over the property management
company predated the sexual assault and included threats to destroy Graf if he
reported Alan’s alleged embezzlement. More specifically, Graf asserts that
Attorney Nelson should have presented evidence that Alan had been “expressing a
desire to take over the company” since March 2014; that Graf became aware that
Alan was “embezzling large amounts of money” from the company in late 2014 or
early 2015, and when he confronted Alan about the embezzlement, Alan
threatened to destroy him and take the company; and that during a phone call, after
Graf confronted Alan about using company money to pay for hockey tickets, Alan
“asserted he would take [Graf’s] company someday.” Graf argues, “Without any
of this evidence, the jury was left with a false belief that the business disputes only
arose after the alleged sexual abuse.”

¶32 We conclude that Attorney Nelson did not perform deficiently by
failing to introduce the above evidence. This evidence consisted almost entirely of
Graf’s own statements about Alan’s alleged conduct. However, Graf elected not
to testify at trial, and, in the absence of his testimony, his own hearsay statements
about Alan’s alleged conduct would not have been admissible. See WIS. STAT.
§§ 908.01(3), 908.02. Thus, any attempt by Attorney Nelson to introduce Graf’s
hearsay statements about Alan’s alleged conduct would have been properly
rejected. See State v. Wheat, 2002 WI App 153, ¶23, 256 Wis. 2d 270, 647

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No. 2024AP2176-CR

N.W.2d 441 (explaining that trial counsel does not perform deficiently by failing
to make a meritless argument). While Graf suggests that Judy could have testified
as to what she overheard during the phone call about the hockey tickets, as
discussed below, Attorney Nelson made a reasonable strategic decision not to call
Judy to testify at trial. Graf also suggests that Attorney Nelson could have elicited
evidence about Alan’s alleged conduct during his cross-examination of Alan, but
Graf presents no evidence to suggest that Alan would have admitted committing
the alleged acts.

¶33 Second, Graf argues that Attorney Nelson should have introduced
evidence that Alan attempted to blackmail Graf by threatening to report the sexual
assault if Graf refused to allow Hannah to work at the property management
company. Once again, however, in support of this allegation, Graf cites only his
own hearsay statements about the alleged blackmail attempt, which would have
been inadmissible at trial. Furthermore, we agree with the State that while
Attorney Nelson “could perhaps have asked Alan whether he had tried to
blackmail Graf, … Alan would have simply said no.” Accordingly, Attorney
Nelson did not perform deficiently by failing to introduce evidence regarding the
alleged blackmail attempt.

¶34 Third, Graf asserts that Attorney Nelson should have introduced
evidence that Graf left Alan a voicemail threatening to report Alan’s alleged
embezzlement to the police shortly before Alan reported the sexual assault. Graf
contends that “the existence of that threatening voicemail dramatically increased
[Alan’s] motive to falsely accuse [Graf] of a crime.”

¶35 We conclude Graf has failed to show that he was prejudiced by
Attorney Nelson’s failure to introduce evidence regarding the voicemail. The jury

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No. 2024AP2176-CR

was well aware of Graf’s argument that Alan had coached Anne to fabricate the
sexual assault allegations so that Alan could take over the property management
company. While Graf asserts that evidence regarding the voicemail would have
“dramatically increased” Alan’s motive to falsely accuse Graf, as the State notes,
there is no evidence that either Alan or Hannah actually heard the voicemail
before they reported the assault to the police. Under these circumstances, we
agree with the State and the circuit court that Graf has failed to show a reasonable
probability that the outcome of his trial would have been different had Attorney
Nelson introduced evidence regarding the voicemail.

III. Discussing facts in the defense’s opening statement but presenting no
evidence to support them

¶36 Next, Graf asserts that Attorney Nelson was ineffective by
“[a]rguing important facts in opening statements and presenting no evidence in
support.” (Formatting altered.) Specifically, Graf argues that the “story of
innocence” that Attorney Nelson presented in his opening statement included
“three key supporting facts: (a) [Graf] arrived at the [Star Prairie] property late in
the afternoon; (b) upon arrival, [Graf] built airplane stands with [Anne] by the
garage; and (c) [Graf] never went into the camper with [Anne] that day.” Graf
asserts that at the time Attorney Nelson made his opening statement, he intended
to present evidence regarding these facts through Judy’s testimony. However,
Attorney Nelson subsequently decided not to call Judy to testify.

¶37 In support of his argument that Attorney Nelson performed
deficiently by “promising” that the jury would hear evidence regarding the facts
discussed above, Graf cites State v. Coleman, 2015 WI App 38, 362 Wis. 2d 447,
865 N.W.2d 190. In Coleman, the defendant’s trial attorney knew that the
defendant did not want to testify at trial. Id., ¶28. Nevertheless, in his opening

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No. 2024AP2176-CR

statement, counsel told the jury that the defendant “will testify because he has to
testify here from my point of view. It’s my call to make as a defense attorney.”
Id., ¶29. On appeal, we concluded that counsel performed deficiently in this
respect, explaining, “If counsel says something will happen that does not, without
explanation, counsel necessarily damages both his own, and potentially his
client’s, credibility. Such a cavalier regard for being truthful with the jury is not
how ‘an ordinarily prudent lawyer’ in Wisconsin would represent a client.” Id.,
¶30 (citation omitted).

¶38 Graf also cites United States ex rel. Hampton v. Leibach, 347 F.3d
219, 257-59 (7th Cir. 2003), where the court held that trial counsel performed
deficiently when he promised the jury during his opening statement that the
defendant would testify and that the evidence would show that the defendant was
not a gang member, but counsel then failed to “deliver on either promise.” The
court reasoned, “[W]hen the failure to present the promised testimony cannot be
chalked up to unforeseeable events, the attorney’s broken promise may be
unreasonable, for ‘little is more damaging than to fail to produce important
evidence that had been promised in an opening.’” Id. at 257 (citation omitted).

¶39 Both Coleman and Hampton are materially distinguishable from
this case because, here, Attorney Nelson did not promise or state unequivocally
that the jury would hear the evidence in question. Instead, beginning during voir
dire, Attorney Nelson emphasized that the jury “might just hear one side” of the
story. Later, during his opening statement, Attorney Nelson explained that the
jury was “going to hear from” Alan and Hannah and was “going to watch” Anne’s
forensic interview. In contrast to those definitive statements, however, Attorney
Nelson also stated, “Other names that are going to come up, you might hear from
them, would be” Alan’s grandmother, Ethel, and Judy. (Emphasis added.) Only

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No. 2024AP2176-CR

then did Attorney Nelson summarize what he believed the testimony of these
witnesses would show. Attorney Nelson did not, however, promise that the jury
would hear this evidence. We agree with the State that, “[w]hile it is true that in
hindsight [Attorney Nelson] was not successful in proving” every fact mentioned
in his opening statement, his “reasonable and qualified predictions of what the
evidence might show do not constitute deficient performance.”

IV. Failure to call Judy to testify

¶40 Graf also argues that Attorney Nelson was ineffective by failing to
call Judy to testify at trial. He contends that Judy would have provided
exculpatory testimony, including the following: (1) on the day of the assault, Graf
was mowing the lawn at a property in Minnesota and did not arrive at the
Star Prairie residence until late in the afternoon, such that Graf and Anne were
only together at the Star Prairie home for about one hour; (2) Graf and Anne were
not building shelves but were instead building stands for remote-controlled
airplanes in front of the garage; (3) Graf and Anne were never in the camper
together on the day of the assault; (4) Judy was cleaning out the camper that
afternoon and left it only briefly to make trips to the house; and (5) Graf paid
Anne for helping him build the airplane stands, and the idea to keep the money
secret was Anne’s, not Graf’s.

¶41 In addition, Graf asserts that Judy would have testified regarding
Alan’s alleged embezzlement from the property management company; Alan’s
threats to take the company away from Graf; and the fact that, on the day Alan and
Hannah were fired, Hannah yelled, “You can’t run the company from prison,
[Graf],” and Alan yelled, “I will have the company when you are in prison!” Graf

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No. 2024AP2176-CR

contends that Judy also would have disputed Alan’s and Hannah’s testimony that
they kept Anne away from Graf following the assault.

¶42 Based on Attorney Nelson’s testimony at the Machner hearing, the
circuit court determined that Attorney Nelson made a reasonable strategic decision
not to call Judy to testify at trial. We agree.

¶43 At the Machner hearing, Attorney Nelson explained that at the time
he made his opening statement, he intended to call Judy to testify. He
subsequently decided not to call Judy, however, because he “was worried that she
was going to be impeached.” In particular, Attorney Nelson cited the fact that,
when Judy initially spoke to law enforcement in 2016, she reported that Graf had
told her about a conversation in which he gave Anne a dollar for helping him, and
Anne said the dollar was a secret. Judy’s story later changed, however, and in a
2017 affidavit, she claimed that she was present for and personally heard that
conversation. Judy similarly asserted during a pretrial meeting with Attorney
Nelson that she had personally heard that conversation. During Graf’s trial,
Attorney Nelson became aware that the State knew about this inconsistency, and
his concern that the State would impeach Judy using her 2016 interview was the
primary reason for his decision not to call Judy to testify.

¶44 In addition to the above inconsistency as to whether Judy heard the
alleged conversation between Anne and Graf, there were other problems with
Judy’s proffered testimony. For instance, Judy originally told investigators that on
the day of the assault, she was “in and out of the house” with Anne’s baby brother.
At the Machner hearing, however, Judy testified that she was in the camper
“pretty much” all day and was not helping to care for Anne’s baby brother.
Additionally, Judy testified at the Machner hearing that between the alleged

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No. 2024AP2176-CR

assault in May 2015 and the date when Alan and Hannah were fired in
September 2016, Graf had contact with Anne “at least a dozen” times. But this
testimony contradicted Graf’s own statement to law enforcement in
September 2016 that he had “probably only seen [Anne] three times in [his] life.”
Furthermore, while Judy denied at the Machner hearing that there was a
lawnmower at the Star Prairie house on the day of the assault, Graf admitted to
law enforcement that he had unloaded a lawnmower in the garage at the
Star Prairie property that day.

¶45 Given these inconsistencies between Judy’s proffered testimony and
other evidence in the case, we cannot say that Attorney Nelson’s strategic decision
not to call Judy to testify was objectively unreasonable. See Mull, 406 Wis. 2d
491, ¶35. Attorney Nelson’s decision not to call Judy was not “based on an
irrational trial tactic or based upon caprice rather than upon judgment.” See id.
(citation omitted). Accordingly, we agree with the circuit court that Attorney
Nelson did not perform deficiently in this respect.

V. Failure to call other witnesses

¶46 Graf next argues that Attorney Nelson was ineffective by failing to
call three other witnesses to testify at trial. First, he contends that Attorney Nelson
should have called the Grafs’ neighbor, Robert Tauber, who would have testified
that he mowed the lawn at the Star Prairie residence for the entire summer of 2015
and that the Grafs did not have a lawnmower at the Star Prairie property. We
agree with the circuit court, however, that Attorney Nelson did not perform
deficiently by failing to call Tauber because there is no evidence that either Graf
or Judy told Attorney Nelson about Tauber’s existence or his potential testimony
prior to trial. As the court correctly noted, “Attorney Nelson cannot be held

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No. 2024AP2176-CR

deficient for not investigating and/or calling a witness if he is not given that
information.” See State v. Hubanks, 173 Wis. 2d 1, 26-27, 496 N.W.2d 96
(Ct. App. 1992) (concluding that trial counsel did not perform deficiently by
failing to investigate and call potential witnesses when the defendant did not
inform counsel of the existence of those witnesses).

¶47 On appeal, Graf claims that “[b]asic questioning of Judy would have
revealed that [the Grafs] didn’t have a mower at the Star Prairie property, and that
Tauber mowed that property for them.” At the Machner hearing, however,
Attorney Nelson testified that he spoke with Judy “numerous times about … what
she knew about the case, or what was going on with the case or lots of different
things.” Attorney Nelson also testified that he spoke with both Graf and Judy “on
a pretty regular basis” during the weeks leading up to Graf’s trial. Graf does not
dispute that, despite these frequent conversations, neither he nor Judy ever told
Attorney Nelson about Tauber or his potential testimony. Under these
circumstances, we reject Graf’s argument that Attorney Nelson’s “failure to
investigate this issue and learn this information was deficient.”

¶48 Second, Graf contends that Attorney Nelson should have called two
employees of the property management company, who would have testified that
on the day Alan and Hannah were fired, Hannah “was screaming at [Graf], calling
him a child molester” and saying that she and Alan “will own the company and it
will be taken away from [Graf].” Graf contends that Attorney Nelson should have
known that this issue would be contested at trial, given that Alan “denied any such
statements in his civil deposition.”

¶49 We conclude Graf has failed to show that he was prejudiced by
Attorney Nelson’s failure to call these witnesses. At trial, both Alan and Hannah

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No. 2024AP2176-CR

testified that on the day they were fired, Hannah was yelling and screaming at
Graf, and the police were called. While Alan denied that he told Graf, “You can’t
run the company from prison,” he did not deny that Hannah made such a
statement. Additionally, Hannah did not deny making that statement; she simply
testified that she could not remember whether she did so. While the employees’
proffered testimony included an additional detail about Hannah telling Graf that
she and Alan “will own the company and it will be taken away from [Graf],” we
cannot conclude it is reasonably probable that the result of Graf’s four-day jury
trial would have been different had the jury heard that additional detail. As such,
Graf has failed to demonstrate prejudice with respect to this alleged error.

VI. Failure to seek admission of Ethel’s prior statements under WIS. STAT.
§ 908.06

¶50 As noted above, at trial, both Alan and Hannah testified that Alan’s
grandmother, Ethel, told Alan not to report the assault to the police. Thereafter,
during Lieutenant Hart’s trial testimony, Attorney Nelson sought to admit Ethel’s
prior statements to Hart that Ethel did, in fact, tell Alan to report the assault.
However, the State objected on hearsay grounds, and the circuit court sustained
that objection. On appeal, Graf argues that Attorney Nelson was ineffective by
failing to “cite a provision that clearly would have supported admissibility” of
Ethel’s statements—namely, WIS. STAT. § 908.06.

¶51 Like the circuit court, we conclude that Attorney Nelson did not
perform deficiently in this regard because Ethel’s statements to Lieutenant Hart
were not admissible under WIS. STAT. § 908.06. That statute provides, in relevant
part, that “[w]hen a hearsay statement has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be supported by

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No. 2024AP2176-CR

any evidence which would be admissible for those purposes if declarant had
testified as a witness.” Id. (emphasis added).

¶52 Here, the hearsay statement that was admitted into evidence was
Ethel’s statement to Alan—as testified to by both Alan and Hannah—that Alan
should not report the assault to the police. The “declarant” with respect to that
statement was Ethel. See WIS. STAT. § 908.01(2) (“A ‘declarant’ is a person who
makes a statement.”). However, Graf was not seeking to introduce Ethel’s prior
statements to Lieutenant Hart to attack Ethel’s credibility. Instead, he was trying
to introduce those statements to attack Alan’s and Hannah’s credibility by
showing that they were lying about Ethel telling Alan not to report the assault.
Although Graf argues that he was actually attempting to attack the credibility of
“the falsified version of Ethel that [Alan and Hannah] invoked to support their
decision not to go to police,” we agree with the State that “this is just another way
of saying that he was trying to show [that] Alan and Hannah were lying, i.e.,
attack Alan’s and Hannah’s credibility.”

¶53 Under these circumstances, WIS. STAT. § 908.06 is plainly
inapplicable. As such, Attorney Nelson did not perform deficiently by failing to
seek admission of Ethel’s statements under that statute. See Wheat, 256 Wis. 2d
270, ¶23.

VII. Cumulative prejudice

¶54 When a defendant claims that his or her trial attorney was ineffective
in multiple respects, “prejudice should be assessed based on the cumulative effect
of counsel’s deficiencies.” State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571,
665 N.W.2d 305. “Just as a single mistake in an attorney’s otherwise
commendable representation may be so serious as to impugn the integrity of a

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No. 2024AP2176-CR

proceeding, the cumulative effect of several deficient acts or omissions may, in
certain instances, also undermine a reviewing court’s confidence in the outcome of
a proceeding.” Id., ¶60. However, “each alleged error must be deficient in law—
that is, each act or omission must fall below an objective standard of
reasonableness—in order to be included in the calculus for prejudice.” Id., ¶61.

¶55 We have rejected Graf’s claims that Attorney Nelson performed
deficiently by failing to review Graf’s deposition transcript and email to Attorney
Rogosheske prior to trial, by failing to present certain evidence regarding Alan’s
bias and motive to lie, by discussing facts in his opening statement but presenting
no evidence to support them, by failing to call Judy and Tauber to testify, and by
failing to seek admission of Ethel’s prior statements under WIS. STAT. § 908.06.
As such, we do not consider those alleged errors in our cumulative prejudice
analysis. Instead, we consider only whether Graf was prejudiced by the
cumulative effect of: (1) Attorney Nelson’s failure to introduce evidence of the
threatening voicemail that Graf left Alan shortly before Alan reported the sexual
assault; and (2) Attorney Nelson’s failure to call the two employees of the
property management company to testify.

¶56 We have already concluded that neither of these alleged errors,
individually, prejudiced Graf’s defense. Graf has failed to show that he was
prejudiced by Attorney Nelson’s failure to introduce the voicemail, as Graf cites
no evidence that either Hannah or Alan heard the voicemail before Alan reported
the assault. Furthermore, it is not reasonably probable that the result of Graf’s trial
would have been different had Attorney Nelson called the employees of the
property management company as witnesses, given that their testimony would
have largely duplicated Alan’s and Hannah’s testimony about Hannah yelling at
Graf on the day she and Alan were fired.

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No. 2024AP2176-CR

¶57 Combining the negligible prejudicial effect of these two alleged
errors does not undermine our confidence in the outcome of Graf’s trial.
Accordingly, Graf has failed to show that he was prejudiced by the cumulative
effect of these alleged errors.

By the Court.—Judgment and order affirmed.

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

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