COURT OF APPEALS

DECISION

DATED AND FILED

June 8, 2023

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. 2022AP446-CR Cir. Ct. No. 2017CT180

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JULIE A. MINNEMA,

 DEFENDANT-APPELLANT.

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

Waupaca County: RAYMOND S. HUBER, Judge. Affirmed. 

¶1 BLANCHARD, J.

1

 Julie Minnema appeals a judgment of conviction, 

following a jury trial, for operating a motor vehicle while intoxicated (OWI) as a 

second offense, resisting arrest, and bail jumping, and appeals a circuit court order 

 

1

 This appeal is decided by a one judge pursuant to WIS. STAT. § 752.31(2) (2021-2022). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP446-CR

2

denying her motion for postconviction relief on the grounds that she received 

constitutionally ineffective assistance of trial counsel. Specifically, she argues that 

the court erred in rejecting multiple allegations of ineffective assistance after 

holding an evidentiary hearing. I conclude that, in each instance, Minnema fails to 

show either that counsel’s conduct constituted deficient performance or that it 

resulted in prejudice to her. In addition, as to those claims for which I assume 

deficient performance, Minnema fails to show cumulative prejudice sufficient to 

warrant a new trial. 

BACKGROUND

¶2 In December 2016, the State filed a criminal complaint charging 

Minnema with OWI and operating a motor vehicle with a prohibited alcohol 

concentration (PAC), each as a second offense. See WIS. STAT. § 346.63(1)(a) and 

(b). An amended complaint was filed in April 2019, which added one count each 

for resisting arrest and bail jumping. See WIS. STAT. §§ 946.41(1) and 

946.49(1)(a). 

¶3 At trial, the prosecution called the arresting officer, a deputy with the 

Waupaca County Sheriff’s office, a phlebotomist, and an analyst with the State 

Crime Laboratory. 

¶4 The deputy testified in pertinent part as follows. In December 2016, 

the deputy lived in a single-family residence that occupied property adjoining the 

apartment building property where Minnema resided with her then husband, David 

Noffke. The deputy was at his house eating lunch one day when he observed 

Minnema drive a pickup truck into the driveway of her apartment building and 

park. The deputy observed Noffke approach the truck, talk with Minnema, and 

then turn and walk away. Minnema got out of her vehicle, approached Noffke 
No. 2022AP446-CR

3

with her “arms flailing,” and “at some point” Minnema and Noffke engaged “in a 

physical altercation,” “end[ing] up on the ground.” The deputy got into his 

marked squad car, while wearing his uniform, and drove the short distance to 

Minnema’s residence. Once at the residence, the deputy directed Minnema to 

come with him. Minnema’s demeanor and failure to comply with instructions led 

the deputy to restrain her, eventually leading to her arrest as the alleged primary 

aggressor in an act of domestic-abuse disorderly conduct. While transporting 

Minnema to jail, the deputy smelled alcohol coming from her and noticed that her 

eyes appeared glassy and “blood shottish.” The deputy asked Minnema if she 

would consent to field sobriety tests and she agreed. Minnema told the deputy that 

she had injuries that affected her balance and therefore the deputy performed only 

the horizontal gaze nystagmus test. The test indicated that Minnema was under 

the influence. The deputy asked Minnema if she would consent to a blood draw 

and she consented. 

¶5 The phlebotomist who conducted the blood draw testified that she 

drew Minnema’s blood less than one hour after the arrest. She also testified that 

Minnema was “a little bit more belligerent than most people” she drew blood 

from. 

¶6 The State Crime Laboratory analyst testified that an analysis of the 

blood sample, conducted five days after collection, showed that Minnema’s blood 

alcohol content was 0.282 grams per millimeter at the time of collection. Defense 

counsel asked the analyst about a potential “expiration date” that would have 

appeared on the vial used to draw and hold the blood. The analyst testified that 

each blood vial has a “guaranty date,” which the analyst testified “refers to the 

date until which the manufacturer guaranties that [the vial] will pull sufficient 

volume to fill that specimen tube.” She also testified that she did not know what 
No. 2022AP446-CR

4

the “guaranty date” was on the vial used to draw Minnema’s blood because the 

date label was covered by another label. 

¶7 Minnema’s defense was that she started drinking alcohol for the first 

time on the day of her arrest only after she arrived at her residence in the truck, 

before her encounter with the deputy. Therefore, she argued, she could not have 

been under the influence when she drove up to her apartment building. This 

defense depended on the following more specific testimony by Minnema and 

Noffke, both of whom testified to the following account. 

¶8 Minnema pulled into the driveway at her apartment building and 

parked. Immediately, Noffke approached her and invited her up to their 

apartment. Minnema refused. Noffke took the keys to the truck that were resting 

on the center console and went up to their apartment. Minnema sat in the truck 

and opened a bottle of alcohol, which she had purchased on the way home. She 

“chugged” the alcohol quickly, hoping to “see stars,” which was an attempt to 

cope with the stressful interaction she had just had with Noffke. Meanwhile, 

Noffke waited inside, watching Minnema through the window; he saw her open 

the bottle of alcohol and drink from it. After some time, Noffke went back down 

to see why Minnema had not joined him. He first noticed the smell of alcohol on 

Minnema’s breath. He attempted to take Minnema’s cell phone to see who she 

had been talking to while she was gone. Minnema got out of the truck to try to get 

her phone back from Noffke. A struggle ensued. Noffke tried to lock Minnema’s 

keys in his truck. As they struggled, Noffke lost his footing and they fell to the 

ground. Minnema heard the deputy call for her to come over to talk to him. The 

next thing she knew the deputy grabbed her, slammed her into the hood of his 

squad car, and placed her under arrest. 
No. 2022AP446-CR

5

¶9 The jury found Minnema guilty on all four counts. The circuit court 

entered a judgment of conviction on the counts of OWI, resisting arrest, and bail 

jumping. 

¶10 Minnema filed a postconviction motion for a new trial on the ground 

that her trial counsel rendered ineffective assistance based on multiple allegations 

of deficiencies that Minnema renews on appeal. After holding multiple Machner

hearings, the circuit court denied Minnema’s motion for a new trial.2 I include 

details regarding the court’s reasoning on each issue in the discussion below. 

Minnema appeals.3

DISCUSSION

¶11 Minnema contends that her trial counsel was constitutionally 

ineffective in four separate ways: (1) failure to demand, or in the alterative to 

review, discovery from the prosecution; (2) failure to object to the untimely filing 

of the prosecution’s witness list and amendment of the criminal complaint; 

(3) failure to investigate the deputy’s account of events, and the reliability of the 

blood vial; and (4) failure to object to the admission of purported “other acts” 

 

2

 See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

3

 The charged conduct occurred in December 2016 but this appeal was not fully briefed 

until November 2022. Reasons for this extraordinary cumulative delay include the following. 

The initial criminal complaint was not filed until July 2017. Before trial, Minnema dismissed 

three defense attorneys, and trial did not occur until September 2019. Following trial, Minnema 

was appointed postconviction counsel by the State Public Defender’s office but she chose to 

proceed pro se. After two Machner hearings were held in February and April 2021, the circuit 

court denied several of Minnema’s motions, and Minnema initiated a pro se appeal from those 

rulings. Minnema then hired postconviction counsel, the appeal was dismissed without prejudice, 

and the case was returned to the circuit court. Another Machner hearing was held in December 

2021, at which the court again denied Minnema’s motion for a new trial, which is the basis for 

this appeal. 
No. 2022AP446-CR

6

testimony. Minnema also argues that, even if trial counsel was not constitutionally 

ineffective based on any one alleged failure, the cumulative effect of deficient 

performance in multiple respects prejudiced the defense. After providing pertinent 

legal standards, I address Minnema’s arguments in turn. 

¶12 Whether counsel provided ineffective assistance is a mixed issue of 

law and fact. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 

305. “The factual circumstances of the case and trial counsel’s conduct and 

strategy are findings of fact, which will not be overturned unless clearly 

erroneous; whether counsel’s conduct constitutes ineffective assistance is a 

question of law, which we review de novo.” State v. Breitzman, 2017 WI 100, 

¶37, 378 Wis. 2d 431, 904 N.W.2d 93. 

¶13 To prevail on a claim of ineffective assistance of counsel, Minnema 

must prove that defense counsel was both deficient and that the deficient 

performance prejudiced her defense. See Strickland v. Washington, 466 U.S. 

668, 687 (1984). If the defendant fails on either prong, the court need not address 

the other. Id. at 697. 

¶14 Counsel’s performance is deficient if it falls “below ‘an objective 

standard of reasonableness.’” Breitzman, 378 Wis. 2d 431, ¶38 (quoted source 

omitted); see also Strickland, 466 U.S. at 690. The burden is on the defendant to 

overcome the “strong presumption that trial counsel’s conduct ‘falls within the 

wide range of reasonable professional assistance.’” Breitzman, 378 Wis. 2d 431, 

¶38 (quoted source omitted). 

¶15 Moving to the prejudice prong, prejudice occurs when there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 

the trial would have been different. Strickland, 466 U.S. at 694. “A reasonable 
No. 2022AP446-CR

7

probability is a probability sufficient to undermine confidence in the outcome.” 

Id. A lack of confidence arises when “counsel’s errors were so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 

This court may consider the cumulative effect of several deficient acts or 

omissions which together undermine confidence in the outcome. See Thiel, 264 

Wis. 2d 571, ¶60. 

I. Discovery Demand and Review

¶16 Before the attorney who represented Minnema at trial was 

appointed, two attorneys who previously represented her in this case both made 

discovery demands of the State. Trial counsel did not make an additional 

discovery demand and instead relied on a file provided to him by Minnema. Trial

counsel testified at the Machner hearing that he discussed “the police reports”

with Minnema, reviewed with Minnema her account of the facts and potential

witnesses, interviewed Noffke, obtained medical records of injuries that Minnema

had prior to her arrest, and then at trial elicited testimony from Minnema and

Noffke regarding the preexisting injuries.4 When asked whether counsel noticed

missing information during his review of the file or during his preparation for trial,

counsel testified that information regarding the timing of the deputy’s arrival at his

residence for lunch “wasn’t clear,” but that otherwise “everything else seemed to

be there.” Minnema testified at the Machner hearing that she did not see before 

trial any of the exhibits presented by the prosecution at trial. The postconviction

 

4

 Explaining the preexisting injury evidence, at trial Minnema’s counsel made the 

following argument regarding the resisting arrest charge: what the prosecution characterized as 

resisting conduct was in fact merely a manifestation of Minnema’s inability to comply with police 

commands due to preexisting physical injuries. 
No. 2022AP446-CR

8

court said that it was hard for the court to identify which items of discovery trial

counsel actually possessed before and during trial due to the fact that trial counsel

turned over his entire file to appellate counsel without first copying it, with

Minnema (then pro se) returning to trial counsel only some documents in

preparation for the postconviction testimony of trial counsel. However, the

postconviction court determined that, despite the lack of definitive clarity about

the discovery in the possession of trial counsel, trial counsel was reasonably well

prepared for trial based on all of the relevant evidence.

¶17 With this as background, Minnema argues that trial counsel failed in 

his duties to demand discovery and to read all portions of discovery that had a 

potential benefit to the defense. According to Minnema, counsel’s failure to 

demand discovery and his alleged failure to review all discovery is what she calls 

“prima facie” deficient performance. See Thiel, 264 Wis. 2d 571, ¶37 (it was 

“deficient performance as a matter of law” for trial counsel “[i]n a felony case 

where the client potentially faces significant prison time” “to fail to read all 

portions of discovery that may have the potential to [provide] information that is 

either beneficial or damaging to the client’s cause.”). Although unclear, Minnema 

apparently contends that she was prejudiced because trial counsel was not

prepared to address some of the State’s trial evidence, because according to

Minnema he first became aware of the evidence when it was presented at trial. 

Minnema bases this apparent argument on her postconviction testimony that she

herself had not seen the State’s trial exhibits before trial and the fact that trial

counsel had relied only on discovery materials provided by Minnema. Minnema

argues that, as a result, she was “uninformed about the case against her” and

unable to “determine the best course of action” to defend herself. The State argues 

that there was no unfair prejudice or surprise because trial counsel received the 
No. 2022AP446-CR

9

discovery file from the prosecution that had been maintained by Minnema and 

there is no assertion that trial counsel did not already have all materials 

discoverable under WIS. STAT. § 971.23. I assume without deciding that trial

counsel’s performance regarding discovery issues was deficient and conclude that

Minnema has not established that trial counsel’s failure to demand discovery and

alleged failure to review it sufficiently prejudiced her defense.

¶18 Upon receipt of a discovery demand by the defense, the prosecution 

is obligated to disclose certain materials and information, including a list of 

witnesses that it intends to call at trial as well as physical evidence intended to be 

offered at trial. See WIS. STAT. § 971.23(1)(d). The prosecution has a continuing 

obligation to disclose additional witnesses and additional discovery materials. 

Sec. 971.23(7). 

¶19 Minnema’s discovery argument fails because she identifies no

discovery materials which trial counsel would have had but for his failure to make

a discovery request, nor does she point to specific evidence that counsel did have

but failed to review. It is true that it is unclear what discovery trial counsel

obtained in advance of trial. Yet the burden is on the defendant to show how trial

counsel’s deficient performance prejudiced the defense. 

¶20 Illustrating the problem with Minnema’s argument, she does not tie

her specific point about trial counsel being unclear from discovery materials when

the deputy arrived at his residence for lunch to a discoverable piece of evidence

that would have told counsel when that occurred. Nor has she explained what trial

counsel would have done differently at trial with that information. Minnema

appears to imply that, had counsel made a discovery demand or reviewed the

discovery materials, this would have revealed evidence that would have
No. 2022AP446-CR

10

undermined the officer’s testimony about the amount of time that passed between

Minnema parking her vehicle and getting into an altercation with Noffke that

caused the deputy to appear on the scene. But, so far as Minnema develops the

argument, it amounts to unsupported speculation. 

II. Additional Charges and Untimely Disclosure of Witness List

¶21 Minnema also argues that trial counsel was ineffective for failing to 

object to the amended criminal complaint and the late filing of the prosecution’s 

witness list. Again I assume without deciding that counsel’s performance was 

deficient and conclude that Minnema was not prejudiced by trial counsel’s failure 

to make these objections.

A. Added Charges

¶22 Minnema argues that trial counsel was ineffective for failing to 

object to the amendment of the criminal complaint to add charges, which she 

contends left her with insufficient time to prepare a defense to the additional 

charges and resulted in two additional convictions. According to Minnema, she 

was prejudiced because this left her unable to challenge the deputy’s narrative and 

impeach his credibility based on accounts from witnesses “from the 

neighborhood” who might have provided exculpatory evidence.5 

¶23 Summarizing background above, 21 months after the initial charge 

and five months before trial the prosecution amended the complaint to add one 

 

5

 The State asserts that any appeal on the issue of the amended complaint was forfeited 

by trial counsel’s failure to timely object. However, the failure to raise the issue is raised as a 

claim of ineffective assistance of trial counsel and therefore forfeiture could not apply.
No. 2022AP446-CR

11

charge each of resisting arrest and bail jumping. Trial counsel testified at the 

Machner hearing that he did not receive additional discovery relating to the 

additional charges. Trial counsel obtained the medical records documenting 

Minnema’s injuries at the time she was arrested, but he did not directly employ the 

records at trial. Instead, he relied on Minnema’s testimony regarding her injuries 

as evidence to support a defense that the conduct that the prosecution 

characterized as resisting arrest was in fact a manifestation of her inability to 

comply with police commands due to preexisting physical injuries. The circuit 

court rejected Minnema’s claim on this point based on a lack of prejudice. The 

court noted that five months elapsed between the filing of the amended complaint 

and the trial. 

¶24 The prosecution may amend a criminal complaint at any time prior 

to arraignment, or after arraignment, with leave of court, so long as the defendant 

is not prejudiced. WIS. STAT. § 971.29(1); see also State v. Bonds, 2006 WI 83, 

¶17, 292 Wis. 2d 344, 717 N.W.2d 133. Rights of the defendant that may be 

prejudiced by an amendment are the rights to notice of the charges, a speedy trial,

and the opportunity to defend against charges. Bonds, 292 Wis. 2d 344, ¶17.

¶25 Minnema fails to meet her burden of showing that trial counsel’s 

performance prejudiced the defense for the following reasons. The timing of the 

amended charges did not prevent trial counsel from offering the defense to the 

resisting charge referenced above. Although counsel did not present Minnema’s 

medical records at trial, counsel still presented this theory after discussing with 

Minnema her health history and reviewing the medical records with her. During 

his opening statement, trial counsel spoke of Minnema’s alleged preexisting 

injuries and the deputy’s failure to account for those injuries and questioned the 

deputy on cross examination about his awareness of her alleged preexisting 
No. 2022AP446-CR

12

injuries. Counsel elicited testimony from Minnema and Noffke regarding 

Minnema’s alleged preexisting injuries and how her interaction with the deputy 

was inhibited by those injuries. 

¶26 Moreover, Minnema is not clear on what additional investigatory 

steps trial counsel should have taken to the advantage of the defense if he had 

received earlier notice that the prosecution would charge resisting arrest. Trial 

counsel testified that he met with Minnema in advance of trial and asked her if she 

was aware of potential witnesses, and Minnema named only Noffke. Based on the 

originally filed charges, Minnema was on notice from the start of this criminal 

prosecution of the importance of identifying witnesses to the only set of facts at 

issue—involving her conduct immediately leading up to her arrest—who might 

have exculpatory evidence regarding her activities and those of the deputy at that 

time. Without making reference to evidence in the record, Minnema now simply 

asserts that “no one from the neighborhood who may have witnessed the incident 

was available or could remember what they would have observed that day.” 

Whatever Minnema intends to argue along these lines, it is not supported by 

evidence and it does not come close to meeting her burden of showing that, but for 

trial counsel’s failure, the outcome of her trial would have been different.

¶27 Minnema takes the position that when the State added the new 

charges of resisting arrest and bail jumping this “widely broadened the evidence 

that would be permitted at trial,” including evidence that would otherwise be 

irrelevant in “a simple OWI trial.” Assuming this to be true to some degree, she 

does not elaborate on this general point in a way that advances her argument. For 

example, she does not identify specific evidence or explain how such evidence 

would have been excluded, as opposed to being introduced at a trial, that might 

have been conducted after a continuance.
No. 2022AP446-CR

13

¶28 In sum, Minnema does not establish that, but for counsel’s failure to

object to the amended complaint, the outcome of the trial would have been

different.

B. Prosecution Witness List

¶29 Minnema argues that trial counsel was ineffective for failing to 

object to the prosecution’s untimely disclosure of its witness list. The day before 

trial the prosecution provided a list of the four witnesses whom it intended to call. 

She contends that the postconviction court erred in determining that trial counsel 

was not deficient on this issue because the court ignored pertinent context, namely, 

counsel’s lack of experience and personal issues that he was allegedly having at 

the time. According to Minnema, failure to object to the untimely disclosure, in 

the context of counsel’s lack of experience and personal issues, left Minnema

unable to meaningfully participate in her defense. The State, like the circuit court 

in its analysis, emphasizes that the prosecution separately provided notice of its 

four trial witnesses through references contained in discovery materials and takes 

the position that none of the four trial witnesses listed on the late-filed list should 

have been a surprise to defense counsel. 

¶30 Upon demand and within a reasonable time before trial, the 

prosecution must disclose a list of all witnesses that the prosecution intends to call 

at trial. WIS. STAT. § 971.23(1)(d). Unless the prosecution shows good cause for 

failure to comply with its disclosure obligations, the circuit court may consider 

excluding a witness or granting a recess or a continuance to the opposing party. 

See § 971.23(7m); Kutchera v. State, 69 Wis. 2d 534, 542-43, 230 N.W.2d 750 

(1975) (explaining benefits in some cases of granting a continuance). 
No. 2022AP446-CR

14

¶31 Minnema fails to show that trial counsel was or should have been 

surprised by seeing on the list the names of any of the four prosecution witnesses.

At the first Machner hearing, trial counsel testified that, before trial, he had the 

State Crime Laboratory results, which contained the names of both the 

phlebotomist and State Crime Laboratory analyst, and counsel also had the 

criminal complaint, which named the deputy. The only other witnesses on the 

State’s witness list was Noffke, and Minnema was aware from the start that he was 

a witness to relevant events and that he was known to the State. 

¶32 At the Machner hearing, trial counsel testified that “there was a lot 

of opportunity that we missed by having such a late ... witness list.” Minnema 

emphasizes this testimony as evidence that she was prejudiced by trial counsel’s 

failure to object. But Minnema fails to fully develop what this meant and what 

effect it had on the trial. For example, had trial counsel objected and been granted 

a continuance, see Kutchera, 69 Wis. 2d at 543, Minnema does not explain what 

benefit this might have been to trial counsel or how interviewing the witnesses 

might have affected the outcome of the trial. Minnema does not establish that, but

for counsel’s failure to object to the late filing of the witness list, the outcome of

the trial would have been different. Similarly, Minnema fails to explain how

counsel’s alleged inexperience and personal issues tend to establish that she was

prejudiced by his failure to object to the untimely witness list, or for that matter

that these alleged issues compounded any of the failures of trial counsel that she

now claims.

III. Failure to Investigate

¶33 Minnema also argues that trial counsel was ineffective for failing to 

investigate (1) evidence including the deputy’s account of events and (2) the 
No. 2022AP446-CR

15

reliability of the vial that was used to collect and hold the blood that was analyzed 

to establish blood alcohol content. I conclude that trial counsel’s failure to 

investigate the deputy’s timeline and observations was not deficient. I further 

conclude that counsel’s failure to investigate the reliability of the blood vial, 

assuming that it was deficient performance, was not prejudicial. 

¶34 Counsel must make reasonable investigations and reasonable 

decisions that potential investigations are unnecessary. See Thiel, 264 Wis. 2d 

571, ¶40 (citing Strickland, 466 U.S. at 691). A “‘decision not to investigate must 

be directly assessed for reasonableness in all the circumstances, applying a heavy 

measure of deference to the counsel’s judgments.’” State v. Leighton, 2000 WI 

App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126 (quoted source omitted). A 

defendant who alleges a failure to investigate “must allege with specificity what 

the investigation would have revealed and how it would have altered the outcome 

of the case.” Id. 

A. The deputy’s observations and timeline

¶35 Minnema argues that trial counsel was ineffective for failing to 

investigate the account that the deputy gave, including its timing aspects. Her 

argument boils down to the specific contention that trial counsel performed 

deficiently in failing to investigate how the deputy’s viewpoint from his residence 

could have allowed him to see activity on the driveway at Minnema’s apartment 

building. As support for this argument, Minnema directs us to trial counsel’s 

postconviction testimony that he did not visit the area himself before trial and that 

a satellite image of the area obtained after trial shows what appear to be some 

sight-line obstructions between the deputy’s residence and the area next to 

Minnema’s apartment building where her altercation with Noffke took place. 
No. 2022AP446-CR

16

According to Minnema, the introduction of such evidence at trial would have 

called into question the deputy’s observations and therefore could have been used 

to impeach the deputy to raise a reasonable doubt. The State argues that 

Minnema’s assertions regarding potential obstructions are speculative. 

¶36 As additional background, the deputy testified at trial that there were 

some visual obstructions between his residence and Minnema’s apartment 

building, but that enough of a line of sight remained for him to view the driveway 

area where Minnema drove and the altercation with Noffke took place. In 

addition, Minnema herself testified at trial that the deputy watched their residence

from his residence “all the time.” At the Machner hearing, Minnema’s counsel

noted that the altercation occurred in December, when obstructions due to foliage

would have been at a low point. Counsel further explained that, because the

deputy drove over to Minnema’s residence on his lunch break, it only stood to

reason that he had seen something of sufficient interest to merit the trip.

¶37 Based on the evidence presented at the postconviction hearing, the 

circuit court found that there were some obstructions to the sight line of the deputy 

but that none would have prevented the deputy from seeing what he testified to 

seeing. 

¶38 Minnema provides no alternative theory to explain the deputy’s trip

to Minnema’s residence, nor does she explain how the map would be used to

impeach the deputy’s testimony. Given the deputy’s and Minnema’s testimony at 

trial, and the circuit court’s finding that the sight lines were only somewhat limited 

between the two residences, Minnema fails to show that it was unreasonable for 

counsel to instead investigate other issues consistent with the chosen trial defense. 

See State v. Carter, 2010 WI 40, ¶35, 324 Wis. 2d 640, 782 N.W.2d 695
No. 2022AP446-CR

17

(concluding it was not deficient performance for counsel to not investigate facts

underlying a potential defense given that counsel had chosen to pursue a different

defense based on distinct facts). Trial counsel’s decision not to investigate or 

probe the deputy’s account of events in some manner beyond what counsel did 

was reasonable and therefore not deficient. 

B. Reliability of the vial

¶39 Minnema argues that trial counsel was ineffective for failing to 

consult an expert to evaluate the reliability of the blood test. Minnema asserts 

that, putting to the side the blood alcohol content analysis, there is no evidence to 

support a conviction for impaired driving, whether an OWI or a PAC conviction. 

Thus, according to Minnema, trial counsel should have challenged the test’s 

reliability and the potential that the vial was past its “guaranty date,” which, to 

repeat, the State Crime Laboratory analyst testified “refers to the date until which 

the manufacturer guaranties that [the vial] will pull sufficient volume to fill that 

specimen tube.” Minnema purports to rely on an article, not in the record, to argue 

that the “guaranty date” of a vial effects its vacuum pressure, as testified to by the 

analyst, as well as the vial’s seal which, if compromised, may result in bacterial 

growth that would falsely elevate the blood alcohol results. The State argues that 

these concerns are speculative. Further, the State contends that Minnema could 

not have been prejudiced, because the defense conceded at trial that she had a 

blood alcohol content above the legal limit under the theory that, by her own 

account, she had “chugged” alcohol quickly, trying to get to the point at which she 

would see “stars.” 

¶40 The analyst testified at trial that she did not know what the guaranty 

date was for the vial used to draw Minnema’s blood. She also did not testify at 
No. 2022AP446-CR

18

trial on the topic of the potential for bacterial contamination that would affect the 

results when the guaranty date has passed. She was not called as a witness at the 

postconviction hearing. The postconviction court determined that the following 

issues were not developed: whether the blood vial had a label suggesting 

expiration when it was used to draw blood and, if so, whether that could have 

skewed the test results. 

¶41 I reject Minnema’s argument for the following reasons. First, she 

falls short of her burden in establishing that the significance of the potentially 

expired vial amounts to more than speculation. Minnema’s argument is based on 

an incompletely sourced article that is, in any case, not a part of the record. The 

article-based part of Minnema’s argument is an improper reference to extra-record 

evidence and I reject the entire argument as overly speculative. See Pettit, 171 

Wis. 2d 627, 646 (confining an appellate court’s review to the parts of the record 

provided to it). 

¶42 Second, Minnema disregards the other trial evidence that supports an 

OWI conviction, based on evidence that she drove a vehicle on a highway and was 

under the influence of an intoxicant at the time she drove. See WIS. STAT. 

§ 346.63(1)(a). Trial evidence to support an inference that Minnema drove while 

impaired by alcohol included: Minnema’s own testimony that she bought alcohol 

on her way home; the timeline testified to by the deputy—that little time passed 

between Minnema’s arrival in the truck at her residence and the deputy’s 

interactions with her there; the deputy’s perceptions of alcohol on her breath and 

at least somewhat blood shot eyes; and the deputy’s testimony about her conduct. 

Even assuming that the test results based on the drawn blood could have been 

excluded based on a defect in the vial, the jury could reasonably determine that 

she drank before or while driving and thus drove under the influence of an 
No. 2022AP446-CR

19

intoxicant as required for a conviction. Minnema does not establish that, but for

counsel’s failure to investigate the blood vial, the outcome of the trial would have

been different. 

IV. “Other Acts” Testimony

¶43 Minnema argues that “other acts” evidence was submitted to the jury 

in violation of WIS. STAT. § 904.04(2) and that her trial counsel was ineffective for 

not objecting on that basis. See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 

N.W.2d 30 (1998) (setting out analysis for introduction of “other acts” evidence 

under Wisconsin law). Minnema argues that this alleged failure was not based on 

a strategic decision and was therefore deficient performance. I conclude that 

Minnema fails to establish that her counsel performed deficiently by failing to 

object. 

¶44 The evidence at issue involved testimony that the jury heard 

regarding the following: incidents of domestic violence between Minnema and 

Noffke; a domestic abuse restraining order against Minnema; their divorce; Noffke 

paying for one of Minnema’s previous defense attorneys in this case; and 

Minnema’s history of drinking alcohol even when prohibited by court order from 

doing so. 

¶45 The State argues that the lack of defense objections to any of this 

evidence could be justified as a strategic choice by trial counsel to present 

Minnema to the jury as someone driven to drink to excess as a victim of domestic 

violence at the hands of Noffke, providing context for her defense that she drank 

heavily only after pulling into her driveway. In addition, the State argues that 

Noffke’s testimony about the prior domestic abuse incidents was not responsive to 

the questions put to him by the prosecution on cross examination, exceeded the 
No. 2022AP446-CR

20

scope of the question asked, and opened the door to further exploration of 

evidence regarding domestic violence between Minnema and Noffke. 

¶46 After providing some additional background of the specific other 

acts evidence given at trial and pertinent legal standards, I explain below that trial 

counsel was not ineffective because his decision not to object was related to a 

reasonable trial strategy and is therefore not deficient performance. See

Breitzman, 378 Wis. 2d 431, ¶75. 

¶47 One piece of testimony at issue came from the prosecution’s cross 

examination of Noffke. The prosecutor asked him about Minnema being “in a lot 

of trouble” and about a domestic abuse restraining order against Minnema, for the 

protection of Noffke, leading to the following, somewhat unclear exchange: 

Q: And you wanted to do your best to keep 

[Minnema] out of trouble, didn’t you?

A: Yeah. I didn’t want a fight at that time.

Q: You had a ... domestic abuse restraining order 

against her, didn’t you?

A: Not restraining order, no.

....

Q: Okay. And she was [not] supposed to drink?

A: As far as I know, she wasn’t. I don’t think she 

was supposed to. I don’t remember dates of the orders. 

But I do know ... this, the restraining order was from the 

first domestic we had. 

Noffke also testified in response to questions from the prosecution that he filed the 

petition for divorce and that he had helped Minnema by hiring one of her previous 

attorneys in this case. 
No. 2022AP446-CR

21

¶48 Minnema also points to her testimony about her drinking that came

in response to the prosecution cross examination. She admitted to knowing that 

she was court-ordered not to possess or drink alcohol, that she did so anyway, and 

that she had done so many times “for relief.” 

¶49 Near the close of trial, the circuit court voiced concern about 

Noffke’s testimony summarized above. The court asked if “there’s any curative 

instruction that anyone’s asking for,” to which trial counsel responded, “No.” 

¶50 Separately, the circuit court and the parties discussed whether to 

provide admitted exhibits to the jury or to provide them upon request of the jury. 

The court expressed concern over providing Exhibit 3, which was a “domestic 

violence victim worksheet” completed by Noffke after Minnema’s arrest in this 

case, to which trial counsel responded, “I want the whole exhibit in ....” The 

prosecution disagreed that Exhibit 3 should go back to the jury. After reviewing 

the exhibit, the court noted concern about allegations that domestic violence had 

occurred on at least five other occasions and decided not to provide it to the jury 

up front but, if requested, to possibly provide a redacted version. 

¶51 During the postconviction Machner hearing, trial counsel gave the 

following explanation of his choice to not object to the evidence summarized 

above:

A: It was complicated. Because in a sense we 

wanted to portray ... Minnema as ... somebody who was 

afflicted by domestic violence.

And she ... was in a domestic violent situation 

where [Noffke] said he wasn’t going to be [at their 

residence]. But he was there.

So then part of what happened, in our mind, was 

that she was triggered into drinking specifically when he 

took the [truck] keys from her. So in a sense, [the other 
No. 2022AP446-CR

22

acts] established a historical background of their 

relationship which I felt like she wanted to tell .... 

The strategy to portray Minnema as someone driven to drink to excess as a victim 

of domestic violence also explains why counsel did not ask for a curative jury 

instruction. While the parties are not clear on the point, presumably this would

have involved asking the jury to weigh other acts evidence only for specified 

purposes and not to consider it to prove that Minnema “acted in conformity with” 

a character trait. See WIS JI—CRIMINAL 275. 

¶52 The postconviction court found that trial counsel’s theory of the case 

was the following: 

I think we have to look at [the failure to object] in 

light of the theory of the defense and the defense that 

[Minnema] wanted to present – that she was an individual 

who was abused, a victim of domestic abuse, and when she 

sees her [then] husband it causes her to feel a need to 

consume alcohol and to consume sufficient alcohol to see 

stars.

She indicated that she did that on multiple 

occasions ....

....

With someone who’s [seeking to prove] that she

was not driving while under the influence, [but instead that 

she] simply was intoxicated after consuming alcohol after 

seeing her husband, the fact that other bad acts, for lack of 

a better word, were introduced to show that her husband 

triggers it was a logical explanation for the actions of 

defense counsel. 

¶53 “[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); see also WIS. STAT. § 904.03 

(when relevant evidence may be excluded). Exclusion of other acts evidence “is 

based on the fear that an invitation to focus on an accused’s character magnifies 
No. 2022AP446-CR

23

the risk that jurors will punish the accused for being a bad person regardless of his 

or her guilt of the crime charged.” Sullivan, 216 Wis. 2d at 783. The 

admissibility of other acts evidence is addressed with a three-step analysis. Id. at 

771. First, the court considers whether the other acts evidence is offered for an 

acceptable purpose under § 904.04(2). Sullivan, 216 Wis. 2d at 772. Second, 

whether the other acts evidence is relevant. Id. Third, whether the probative 

value of the other acts evidence is substantially outweighed by the danger of unfair 

prejudice or other danger. Id. at 772-73; see also § 904.03. If the court 

determines that “the other acts testimony was admitted erroneously,” the court 

then considers “whether the error is harmless or prejudicial.” Sullivan, 216 

Wis. 2d at 773. When other acts evidence is introduced and it does not carry a 

danger of unfair prejudice the court may lessen the prejudicial effect by providing 

a limiting instruction to the jury. State v. Payano, 2009 WI 86, ¶99, 320 Wis. 2d 

348, 768 N.W.2d 832. 

¶54 A defendant claiming ineffective assistance of counsel for failure to 

object to “other acts” testimony must establish that trial counsel’s decision not to 

object was inconsistent with a reasonable trial strategy, that is, that it was 

irrational or based on caprice to establish that counsel’s performance was 

deficient. See Breitzman, 378 Wis. 2d 431, ¶75 (affirming denial of ineffective 

assistance of counsel claim for failure to object to “other acts” testimony because 

trial counsel’s actions were based on a reasonable trial strategy and a jury 

instruction limited the risk of unfair prejudice). When the circuit court 

“determines that counsel had a reasonable trial strategy, the strategy is virtually 

unassailable in an ineffective assistance of counsel analysis.” Id. (internal 

quotation removed). 
No. 2022AP446-CR

24

¶55 Minnema’s argument that the decision not to object to other acts 

evidence was not strategic is inconsistent with the findings of the postconviction 

court, which Minnema has not shown to be clearly erroneous. See Thiel, 264 

Wis. 2d 571, ¶21. Trial counsel provided a reasonable explanation for not 

objecting to the history of domestic violence with Noffke and Minnema’s admitted 

history of drinking when prohibited by court order. The court determined that this 

evidence provided a “logical explanation” for the defense theory that she was not 

driving while drunk but that instead she was compelled to chug liquor by her 

encounter with Noffke. 

¶56 Regarding Noffke hiring Minnema’s previous attorney, this does not 

constitute “other acts” evidence under WIS. STAT. § 904.04(2)(a). Evidence that 

Noffke assisted Minnema in this way goes to his credibility as a witness, not to 

Minnema’s character or propensity to act in a certain way. It is classic 

impeachment evidence, an attempt to show bias. See WIS. STAT. § 906.16 

(evidence of bias admissible to attack witness credibility). 

¶57 Minnema argues that trial counsel’s failure to ask for a curative 

instruction regarding other acts evidence, such as WIS JI—CRIMINAL 275, is 

further evidence of ineffective assistance of counsel. Trial counsel was given a 

direct opportunity to request a jury instruction, which he declined. A jury 

instruction may be preferred but it is not required and need only be given at the 

request of counsel. See Payano, 320 Wis. 2d 348, ¶100. As noted, trial counsel’s 

reason for not doing so was to portray Minnema as a victim of domestic violence. 

Trial counsel used the other acts evidence at various points to set up the defense 

during opening, as evidence through testimony by Minnema, and during its 

closing. 
No. 2022AP446-CR

25

¶58 I assume without deciding that declining a curative instruction was 

deficient performance because such an instruction would not necessarily have 

conflicted with what the defense presented at trial. However, Minnema fails to 

establish that counsel’s failure to request a jury instruction prejudiced her defense 

under the facts here. The prosecution did not rely on the other acts evidence, 

either for the impermissible purpose of propensity evidence or even for a proper 

purpose such as motive. The prosecution instead focused on the credibility issue 

presented to the jury—whether to credit Minnema and Noffke’s accounts or the 

deputy’s account regarding points on which they differed—emphasizing 

inconsistencies between Minnema and Noffke’s testimony and Noffke’s statement 

to the deputy. 

V. Cumulative Prejudice

¶59 In determining whether a defendant has been unfairly prejudiced, the 

court may consider the aggregate effects of “multiple incidents of deficient 

performance in determining whether the overall impact of the deficiencies 

satisfied the standard for a new trial under Strickland.” Thiel, 264 Wis. 2d 571, 

¶60. Each alleged error of counsel must be deficient in order to be included in the 

calculus for prejudice. See id., ¶¶60-61. As explained above, I conclude that two 

of the claimed errors by trial counsel were not deficient, namely the failure to 

further investigate partial sight obstructions and the failure to object to other acts 

testimony. As for instances in which I assume deficiency, I conclude that 

Minnema has failed to establish she was prejudiced by the accumulation of those 

errors because the errors do not undermine the reliability of the proceedings. See 

Strickland, 466 U.S. at 687; see also Thiel, 264 Wis. 2d 571, ¶61. 
No. 2022AP446-CR

26

¶60 More specifically, Minnema fails to show that any of the following 

assumed deficiencies resulted in prejudice, individually or cumulatively, because 

her arguments regarding prejudice were speculative or undeveloped for lack of 

record support: the failure to conduct more discovery or more completely review 

discovery; the failure to object to the amendment of the complaint or the late filing 

of the prosecution’s witness list; and the failure to investigate whether the blood 

vial had expired. Regarding the failure to request a cautionary instruction 

regarding other acts, I explain above why Minnema has not met her burden that 

this assumed deficiency was sufficiently prejudicial to warrant a new trial. 

CONCLUSION

¶61 For all these reasons, I reject Minnema’s arguments that she received 

ineffective assistance of counsel and accordingly affirm. 

By the Court.—Judgment and order affirmed. 

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

RULE 809.23(1)(b)4.