State v. Brian B. Grashel

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.
January 8, 2025
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. 2022AP986-CR Cir. Ct. No. 2019CF629

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN B. GRASHEL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Walworth County: PHILLIP A. KOSS, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, 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. 2022AP986-CR

¶1 PER CURIAM. Brian B. Grashel appeals from a judgment of
conviction for first-degree sexual assault of a child and incest with a child. He
also appeals from an order denying his postconviction motion, in which he
challenged the condition of extended supervision prohibiting him from possessing
an Internet-capable device without prior agent permission and without the
installation of monitoring software. We affirm.

I. BACKGROUND

¶2 Grashel was convicted following a jury trial, at which incriminating
recordings of phone calls and text messages between him and his brother were
admitted into evidence.1 Grashel had earlier sought to suppress the recordings and
text messages, asserting his brother was acting as an agent of law enforcement at
the time. The circuit court denied the motion, finding that although Grashel’s
brother was acting as an instrumentality of law enforcement, Grashel’s statements
were not obtained through impermissibly coercive tactics. Alternatively, the court
concluded that even if Grashel’s brother had committed some impropriety, the
totality of the circumstances demonstrated that Grashel’s statements were
nonetheless voluntary.

¶3 The jury convicted Grashel, and the circuit court ordered concurrent
sentences of thirteen years’ initial confinement and fifteen years’ extended
supervision. As a condition of supervision, the court ordered that Grashel had to
receive approval of his supervising agent before possessing an Internet-capable
device. Grashel filed a postconviction motion arguing that this condition violated

1
The victim was one of their relatives.

2
No. 2022AP986-CR

his First Amendment free-speech rights. The court denied the motion, finding the
requirement narrowly tailored to the offense given that Grashel was
technologically savvy and inappropriate touching occurred while the victim was
playing computer games with Grashel. Grashel now appeals.

II. DISCUSSION

¶4 First, Grashel argues the circuit court erred by denying his
suppression motion. For purposes of the voluntariness analysis, the presence or
absence of actual coercion or improper police practices is a threshold matter that
can be determinative of the issue. State v. Vice, 2021 WI 63, ¶31, 397 Wis. 2d
682, 961 N.W.2d 1. In reviewing a motion to suppress, we apply a mixed standard
of review, upholding any findings of fact unless they are clearly erroneous, but
independently considering whether those facts establish a constitutional violation.
Id., ¶21.

¶5 Here, Grashel ultimately fails to identify any improper or
impermissibly coercive conduct on the part of police or, by extension, his brother.
Grashel focuses on his brother’s denials that he was working with law
enforcement, as well as his brother’s threats during the calls to go to law
enforcement unless Grashel told him what had happened. Grashel frames these
statements as his brother using their “personal relationship” to trick Grashel into
making incriminating statements.

¶6 We agree with the State that Grashel’s brief contains insufficient
analysis on this point to establish a due process violation. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (observing that we may
decline to review issues that are inadequately briefed). Even overlooking that
failure, we perceive nothing coercive about the circumstances. Although Grashel

3
No. 2022AP986-CR

faults his brother for “impl[ying] that he was not working with the police, and
downright l[ying] that he was not recording his calls,” it is “settled law that police
may engage in active deception, including lying to a suspect, without rendering
that suspect’s statements involuntary,” Vice, 397 Wis. 2d 682, ¶45. Indeed, and
more broadly, “the law permits the police to pressure and cajole, conceal material
facts, and actively mislead.” United States v. Rutledge, 900 F.2d 1127, 1131 (7th
Cir. 1990).2

¶7 Second, Grashel argues the extended supervision condition
involving his Internet access violates his First Amendment rights as articulated in
State v. King, 2020 WI App 66, 394 Wis. 2d 431, 950 N.W.2d 891. King used a
two-part test to determine whether the condition of extended supervision was an
unconstitutional restraint of the defendant’s free-speech rights, first looking to
whether the condition was overly broad in protecting the community and victims,
and then analyzing whether the condition was reasonably related to the person’s
rehabilitation. Id., ¶21.

¶8 The King court upheld the Internet restrictions in the face of a First
Amendment challenge, and Grashel’s arguments fare no better here. A major
factor in the King decision was that the conditions of supervision did not
constitute a blanket ban on Internet access: “King’s DOC agent ha[d] court-
ordered authority to allow King access to the [I]nternet.” Id., ¶41; see also id.,
¶47. The same is true here. Grashel is not prohibited from accessing the Internet;

2
Alternatively, we agree with the circuit court’s conclusion that even if the methods
Grashel’s brother used were deemed constitutionally improper, any coercive element present did
not overcome Grashel’s ability to resist.

4
No. 2022AP986-CR

but if he does possess a device with Internet access, it must be equipped with
monitoring software and approved by his supervising agent.

¶9 In response, Grashel argues the restriction in his case is more
onerous than the restriction in King because Grashel’s crimes did not involve the
use of the Internet, and this is his first conviction for a sex crime. From this,
Grashel reasons there “is no reason to believe that he will use the [I]nternet to troll
for victims, like King repeatedly did.” We perceive this to be an argument that the
Internet restriction is not reasonably related to his rehabilitation.3

¶10 On that point, we disagree. A condition of supervision is reasonably
related to the defendant’s rehabilitation if the condition assists the defendant in
conforming his or her conduct to the law. Id., ¶22. At sentencing, the circuit
court identified a high need for “close rehabilitative control” given Grashel’s
continual denial of his criminal conduct, his combative approach to the
proceedings, and the specific nature of child sex offenses. The court’s
postconviction rationale added that Grashel’s technological competence and his
use of computer gaming to facilitate the assault warranted agent approval for
possession of Internet-capable devices. On the whole, the court’s explanations
adequately demonstrate that the Internet restrictions will aid Grashel in
conforming his conduct to the law.

¶11 Finally, Grashel makes a cursory argument that his convictions
should be reversed using our discretionary reversal authority under WIS. STAT.

3
This argument, like many of Grashel’s, suffers from a lack of precision and an
incomplete (or at least, insufficiently explained) analysis, and we could reject it as insufficiently
developed.

5
No. 2022AP986-CR

§ 752.35 (2021-22).4 His brief-in-chief’s argument on this point is wholly
conclusory; aside from quoting the statute, he offers just three sentences in support
of it. One of those sentences focuses on the “impermissible coercive tactics”
argument we rejected above.5 Grashel’s attempt to invoke our discretionary
reversal authority is insufficiently developed, and we decline to further address it.
See Pettit, 171 Wis. 2d at 646 (we may refuse to consider arguments that are
supported only by general statements).

By the Court.—Judgment and order affirmed.

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

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
5
Grashel’s reply brief offers no further elaboration. The entirety of his reply argument
is just thirty words: “Brian’s twenty-eight-year sentence for a single occurrence is unduly harsh.
The statements on which the jury based its verdict were wrongly admitted. This Court should
remand for a new trial.”

6