State v. Gratz
| Decision Date | 13 October 2022 |
| Docket Number | 2021AP1281-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Raymond M. Gratz, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Dane County No. 2017CF157: 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).
¶1 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.
¶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.
¶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 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.
¶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.
¶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."
¶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 "unreliable]," 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.
¶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, 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...
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