COURT OF APPEALS

DECISION

DATED AND FILED

March 1, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2180-CR Cir. Ct. No. 2016CF107

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUSTIN W. GRIFFIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: JEFFREY A. CONEN, Judge. Affirmed. 

Before Donald, P.J., Dugan and Graham, 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. Justin W. Griffis, pro se, appeals the judgment 

convicting him of first-degree sexual assault of a child. Griffis also appeals the 
No. 2019AP2180-CR

2

order denying his postconviction motion. We reject Griffis’s appellate challenges 

and affirm.

I. BACKGROUND

¶2 In 2016, a jury found Griffis guilty of one count of first-degree 

sexual assault of a child. The conviction was based on his half-sister’s delayed 

report of a 2001 assault. At that time, Griffis was nineteen and the victim was six 

or seven years old. 

¶3 The victim testified at trial that shortly after the assault, Griffis got 

into an argument with their father and stopped having contact with the family.

1

 

However, after the victim graduated high school, Griffis contacted her and the two 

met at a restaurant. In 2014, a couple of years after the restaurant meeting, the 

victim testified that Griffis began sending her text messages soliciting sex. In one 

of the messages, Griffis referenced that the victim “use[d] to want to play doctor.” 

The victim testified that this message prompted her to remember the 2001 assault. 

¶4 The victim stated that she deleted all but one string of text messages, 

“especially the one where [Griffis] sent me a picture of his penis because I didn’t 

want them in my phone.” She eventually showed the one text string she saved to 

an officer when she reported the 2001 assault. That string of text messages was 

admitted as evidence during the trial. The victim testified that she delayed 

reporting the 2001 assault to the police until 2016 when Griffis began reestablishing a relationship with the family. 

 

1

 Griffis and the victim have the same father. 
No. 2019AP2180-CR

3

¶5 Postconviction, Griffis argued that he received ineffective assistance 

of counsel. The circuit court held a Machner hearing and rejected Griffis’s 

claims.

2

¶6 Griffis’s appointed counsel subsequently filed a no-merit appeal, 

which this court rejected after concluding that a sentence credit issue had arguable 

merit. On remand, the circuit court allowed Griffis’s appointed counsel to 

withdraw based on Griffis’s desire to proceed pro se. 

¶7 Griffis filed a supplemental postconviction motion arguing that he 

was entitled to additional sentence credit and asserting that trial counsel was 

ineffective. The circuit court awarded Griffis the two additional days of sentence 

credit he sought, but denied the remainder of Griffis’s supplemental motion. This 

appeal follows.

II. ANALYSIS

¶8 We begin by reviewing what Griffis describes as “[t]he two main 

issues at hand[.]” Griffis argues that trial counsel was ineffective because the text 

messages should not have been admitted as evidence or, at the very least, a 

cautionary instruction should have been utilized. He additionally argues that trial 

counsel was ineffective for not calling his mother, Nancy Griffis, as a witness at 

trial.

3

 

 

2

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

3

 We will generally refer to Nancy by her first name to avoid confusion. 
No. 2019AP2180-CR

4

¶9 The test for ineffective assistance of counsel has two prongs: (1) a 

demonstration that counsel’s performance was deficient and (2) a demonstration 

that the deficient performance prejudiced the defendant. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a 

defendant must show specific acts or omissions of counsel that were “outside the 

wide range of professionally competent assistance.” Id. at 690. “A fair 

assessment of attorney performance requires that every effort be made to eliminate 

the distorting effects of hindsight ... and to evaluate the conduct from counsel’s 

perspective at the time.” Id. at 689. Thus, “counsel is strongly presumed to have 

rendered adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment.” Id. at 690. To satisfy the prejudice prong, the 

defendant must demonstrate that there is “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.” Id. at 694.

¶10 Whether counsel’s actions were deficient or prejudicial is a mixed 

question of law and fact. Id. at 698. The circuit court’s findings of fact will not 

be reversed unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 

634, 369 N.W.2d 711 (1985). However, whether counsel’s conduct violated the 

defendant’s right to effective assistance of counsel is a legal determination, which 

this court reviews de novo. Id. We need not address both prongs of the test if the 

defendant fails to make a sufficient showing on either one. Strickland, 466 U.S. at 

697.
No. 2019AP2180-CR

5

A. Trial counsel had a strategic reason for not objecting to the admission 

of Griffis’s text messages.

¶11 Griffis argues that trial counsel was ineffective for not challenging 

the admissibility of text messages attributed to him.4 He denies sending the text 

messages that were used as evidence and faults trial counsel for not objecting or 

otherwise seeking to limit the effect of the messages. 

¶12 At the Machner hearing, trial counsel testified that he believed the 

text messages were admissible and that strategically, he could use them “to show a 

motive [for the victim] to make a claim of sexual assault against Mr. Griffis.” 

Trial counsel explained that the theory of defense going into trial was that the 

victim “made it up. She was offended by the statements ... that Mr. Griffis made 

in the texts and other contacts he had with her in efforts to reunite with the family 

and was making it up or was mistaken about it.” The circuit court found that trial 

counsel provided his reasons for not objecting to the text messages and that the 

messages did not amount to inadmissible other acts evidence but rather were “part 

and parcel of everything that was going on here.”

¶13 We give great deference to trial counsel’s decisions in choosing a 

trial strategy. See State v. Balliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805 

N.W.2d 334. We will sustain counsel’s strategic decisions as long as they were 

reasonable under the circumstances. Id. Here, trial counsel’s strategy was to 

argue that the victim made up the 2001 assault because she was upset about 

 

4

 In his briefing, Griffis, at times, asserts that the circuit court erred in admitting the text 

message evidence. Because there was no objection to the admission of the text messages at trial, 

we review this claim within the rubric of ineffective assistance of counsel. See State v. Delgado, 

2002 WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490 (holding that under the forfeiture rule, a 

specific, contemporaneous objection is required to preserve a claim of error for appeal). 
No. 2019AP2180-CR

6

Griffis’s text messages in 2014 asking her to have sex with him. Trial counsel’s 

strategy was not objectively unreasonable; accordingly, we conclude that trial 

counsel did not perform deficiently by allowing the text messages to be admitted 

as evidence.

5

 See State v. Oswald, 2000 WI App 2, ¶63, 232 Wis. 2d 62, 606 

N.W.2d 207 (1999) (to prevail on establishing deficient performance, defendant

must show that acts or omissions of trial counsel were objectively unreasonable).

B. Trial counsel did not perform deficiently by not calling Griffis’s 

mother as a witness at trial.

¶14 Next, Griffis contends that his trial counsel was ineffective for not 

calling his mother, Nancy Griffis, as a witness. Griffis contends that Nancy was 

the only witness who could show a timeline establishing that he was not present at 

the household in question at the time of the assault, and yet, trial counsel never 

interviewed her. He faults trial counsel for deciding that the jury would not 

believe Nancy. 

¶15 At the Machner hearing, Nancy testified that trial counsel ultimately 

decided not to call her as a witness because “he was afraid the prosecutor was 

going to trip me up on questions.” Trial counsel testified that he was prepared to 

call Nancy to testify, but ultimately decided not to because the victim’s testimony 

“was all over the board and inconsistent enough that [he] thought [he] could ride 

 

5

 Griffis raises a slew of other issues related to the text messages. Namely, he questions 

whether the text messages constituted impermissible other acts evidence, whether the chain of 

custody was broken, whether the text messages were properly authenticated, whether the text 

messages should have been allowed without the digital files, and whether the jury was properly 

instructed regarding the text messages. In light of our determination that trial counsel had a 

strategic reason for allowing the text messages to be admitted, we will not address whether he 

should have objected to their admission on the other bases Griffis lists. See Turner v. Taylor, 

2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (explaining that we need not 

address all issues raised by the parties if one is dispositive). 
No. 2019AP2180-CR

7

that and win[.]” Trial counsel additionally explained that some of Nancy’s 

anticipated testimony was inconsistent with Griffis’s statements to law 

enforcement, and trial counsel had concerns that the jury would not find Nancy 

credible, but would instead view her as “an enabler.” 

¶16 During the hearing, the circuit court noted that it “recall[ed] this case 

very clearly and I recall [trial counsel] going back and forth as to whether [Nancy] 

was going to testify or not and eventually a decision was made.” The court found 

that trial counsel was prepared to call Nancy as a witness, but after a “whole lot of 

thought” chose not to call her. We conclude that trial counsel’s strategic decision 

not to call Nancy as a witness because her testimony might have been detrimental 

to Griffis’s defense was not objectively unreasonable. See Oswald, 232 Wis. 2d 

62, ¶63.

C. Griffis’s other claims about trial counsel’s alleged deficiencies are 

undeveloped. 

¶17 Griffis additionally argues that trial counsel was ineffective for a 

number of other reasons. Namely, he asserts trial counsel was ineffective “for not 

recognizing and fighting the illegality of the arrest and the statement made 

there[]in.”6 He also asserts that trial counsel failed to object to testimony about a 

picture of his penis, failed to object to the admissibility of photographs of the 

 

6

 The heading of Griffis’s argument reads: “Was the arrest without a warrant a legal 

arrest?” However, in the opening sentence that follows, Griffis focuses on whether he received 

ineffective assistance of counsel for not challenging the arrest and his statement. To the extent 

Griffis intended to generally challenge probable cause, the legality of his arrest, or the timeliness 

of his initial appearance, those issues were not preserved below. Therefore, we do not consider 

them further. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (“It is a 

fundamental principle of appellate review that issues must be preserved at the circuit court.

Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will 

not be considered on appeal.”).
No. 2019AP2180-CR

8

victim at age seven, and failed to object to the reading of portions of a letter that 

the victim wrote to her mother. Beyond highlighting these perceived deficiencies, 

Griffis does not otherwise develop an argument explaining how they constituted 

ineffective assistance. Consequently, this court will not consider these claims

further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 

1992) (explaining that we need not address undeveloped arguments).

D. Griffis’s remaining claims also fail.

¶18 In what amounts to a one-paragraph argument, Griffis also 

challenges the sufficiency of the evidence to support his conviction. He argues

that beyond the text messages, there was no corroborating evidence or further 

statements from additional witnesses. 

¶19 The State had to prove beyond a reasonable doubt that Griffis had 

sexual contact with the victim and that the victim was under the age of thirteen at 

the time of the alleged sexual contact. See WIS JI—CRIMINAL 2102E. The victim 

testified at trial that during the summer of 2001, when she was six turning seven 

years old, Griffis tried to put his penis in her vagina. Neither were wearing pants 

or underwear at the time, and the victim said Griffis “kept trying to push [his 

penis] in, but I kept saying it was hurting me[.]” The victim testified that when 

she got up to go to the bathroom, “that’s when it stopped.” The State additionally 

presented text messages the victim said Griffis sent to her referencing that she 

“used to want to play doctor” with him and portions of a letter the victim wrote to 

her mother, stating that Griffis had molested her when she was a child. The 

investigating detective testified that he asked Griffis if he “maybe” touched the 

victim when she was naked when they were younger, and Griffis said he might 

have. 
No. 2019AP2180-CR

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¶20 We will not substitute our judgment for the trier of fact “unless the 

evidence, viewed most favorably to the State and the conviction, is so lacking in 

probative value and force that no trier of fact, acting reasonably, could have found 

guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 507, 451 

N.W.2d 752 (1990). We will uphold the verdict if any reasonable inferences 

support it. State v. Steffes, 2013 WI 53, ¶23, 347 Wis. 2d 683, 832 N.W.2d 101.

The trier of fact is also the sole arbiter of credibility and the weight of the 

evidence. Poellinger, 153 Wis. 2d at 506. In the present case, the evidence was 

more than ample for the jury to find beyond a reasonable doubt that Griffis 

sexually assaulted the victim. 

¶21 Lastly, Griffis argues that the circuit court was biased against him 

based on a comment made during the Machner hearing that Nancy appeared to be 

“driving the bus” during Griffis’s trial. In his reply brief, Griffis additionally 

speculates that during trial, the court influenced trial counsel’s decision not to call 

Nancy. Griffis does not develop an argument as to how this constitutes objective 

or subjective bias, and we will not do so for him. See State v. Gudgeon, 2006 WI 

App 143, ¶20, 295 Wis. 2d 189, 720 N.W.2d 114 (explaining that there are two 

types of judicial bias claims: subjective and objective); see also Pettit, 171 

Wis. 2d at 646-47. Like the ones before it, this argument fails.7

 

7

 To the extent that we have not addressed a specific contention in Griffis’s briefs, we 

have determined it was not sufficiently developed to warrant an individualized response and the 

argument is rejected. See Libertarian Party of Wis. v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 

424 (1996) (noting that we need not discuss arguments that lack “sufficient merit to warrant 

individual attention”).
No. 2019AP2180-CR

10

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2019-20).