State v. John C. Wendt

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.
July 24, 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. 2023AP1807-CR Cir. Ct. No. 2020CF508

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN C. WENDT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Wood County: TODD P. WOLF, Judge. Affirmed and cause remanded with
directions.

Before Kloppenburg, P.J., Graham, 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).
No. 2023AP1807-CR

¶1 PER CURIAM. A jury found John Wendt guilty of possession of
methamphetamine and carrying a concealed weapon. Wendt moved for
postconviction relief, arguing that he was entitled to a new trial because his trial
counsel was constitutionally ineffective. The circuit court denied Wendt’s
postconviction motion after a hearing, and Wendt appeals. Specifically, Wendt
argues that counsel was ineffective for failing to seek to exclude, and for
highlighting, evidence at trial regarding guns and methamphetamine that Wendt
contends was irrelevant and prejudicial. For the reasons stated below, we affirm
the court’s denial of Wendt’s motion.1

BACKGROUND

¶2 The following facts are derived from the testimony at trial and are
undisputed unless otherwise noted. In July 2020, police were dispatched to the
home of Shelly Schmidt. With Schmidt’s consent, police searched the home.
Police observed an “open-faced” gun cabinet in the living room with several long
guns displayed in it. In the bedroom, police found a clear plastic baggy on top of a
dresser that contained a residue of white crystalline material, which later tested
positive for methamphetamine. Schmidt told police that the guns belonged to
Wendt, who stored property at Schmidt’s home.

1
Wendt was also found guilty of possession of drug paraphernalia, but he moved to
vacate his conviction and for the entry of a judgment of acquittal on that charge. The circuit court
granted that motion, and ordered that “[t]he Clerk shall enter an amended judgment of conviction
and a judgment of acquittal in accordance with this order.” Although an amended judgment of
conviction was entered, due to what Wendt characterizes as a “postconviction oversight,” no
judgment of acquittal was entered, and Wendt asks that we remand so that the judgment of
acquittal may be entered. The State does not dispute that this was an oversight or that remand for
the entry of a judgment of acquittal is appropriate. Therefore, although we affirm with respect to
all other issues raised on appeal, we remand with instructions to enter a judgment of acquittal on
the possession of drug paraphernalia charge.

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No. 2023AP1807-CR

¶3 While police were at Schmidt’s house, Wendt arrived in his pickup
truck. Wendt told police that he was there to retrieve his guns. After a K-9 unit
performed a “free air sniff” of the exterior of Wendt’s truck and alerted on the
driver’s side door to the presence of drugs, police searched the truck. Police found
a pistol wedged between the driver’s seat and the seat adjacent to it and a rifle
behind the driver’s seat. Police also found, on the floor of the truck,2 a small,
cylindrical container with white crystalline powder inside that later tested positive
for methamphetamine. In the center console, police also found a small piece of
bendable straw, the end of which had a residue of white crystalline powder that
later tested positive for methamphetamine.

¶4 The State filed a single complaint that charged both Wendt and
Schmidt with crimes. Pertinent here, Wendt was charged with possession of
methamphetamine and carrying a concealed weapon as to the pistol, and Schmidt
was charged with possession of methamphetamine and possession of drug
paraphernalia. The charges against Schmidt were resolved pursuant to a plea
agreement.

¶5 At Wendt’s trial, the State argued that the pistol that was found in
Wendt’s truck was concealed, and that Wendt knowingly possessed the container
of methamphetamine that was found in his truck. The State presented the
evidence set forth above through the testimony of two police officers and a
controlled substance analyst from the Wisconsin State Crime Laboratory. One of

2
Both police officers testified that the methamphetamine was on a raised area of the
floor of the truck in front of the center console. However, Wendt’s counsel argued, based on
body camera video of the search that was shown to the jury, that the container was in fact found
under the passenger seat. Where exactly the methamphetamine was found is not significant for
purposes of our analysis.

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No. 2023AP1807-CR

the officers also testified that straws are commonly used to ingest
methamphetamine. In addition, an officer testified that he saw Wendt’s truck at
Schmidt’s home “a majority” of the days that he worked, “sometimes during the
day, most often at night, every night.”

¶6 Wendt’s defense theory was that the pistol found in his truck was not
concealed and that he was unaware of the methamphetamine found in his truck,
which did not belong to him and was left there by Schmidt. Pertinent here, Wendt
called as a witness his friend, August Hogan. Hogan testified that Wendt lived on
Hogan’s property, and that either the day that police were dispatched to Schmidt’s
house or the day before, Wendt and Hogan had arranged to meet at Schmidt’s
house, where Wendt stored property. Hogan testified that when he arrived at
Schmidt’s house, Wendt’s truck was in the driveway, and that Hogan watched as
Schmidt came out of the house “muttering” and got into the passenger side of
Wendt’s truck. Hogan testified that he left after he saw Schmidt get into Wendt’s
truck because he did not see Wendt anywhere and because Hogan figured that
Wendt and Schmidt would wind up arguing.

¶7 The State then called as a rebuttal witness one of the police officers
who had already testified. The officer testified that Schmidt had not, during the
course of the investigation, told police that Wendt had methamphetamine in his
truck.

¶8 The jury found Wendt guilty of possession of methamphetamine and
carrying a concealed weapon. Wendt moved for postconviction relief, arguing
that his trial counsel was constitutionally ineffective and that he was therefore
entitled to a new trial. Specifically, Wendt argued that the evidence regarding the
guns and methamphetamine found in Schmidt’s home was irrelevant and

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No. 2023AP1807-CR

prejudicial, and that trial counsel’s performance was constitutionally deficient
because counsel did not seek to exclude this evidence, by either bringing a motion
in limine before trial or objecting at trial, and in fact highlighted the evidence in
various ways at trial. After a Machner3 hearing at which Wendt’s trial counsel
testified, the circuit court denied Wendt’s postconviction motion.

¶9 Wendt appeals.

DISCUSSION

¶10 “A claim of ineffective assistance of counsel has two prongs:
deficient performance and prejudice.” State v. Jackson, 2023 WI 3, ¶10, 405
Wis. 2d 458, 983 N.W.2d 608. The burden is on the defendant to prove both
prongs. State v. Moats, 156 Wis. 2d 74, 100, 457 N.W.2d 299 (1990). “If the
defendant fails to make a sufficient showing on one prong, it is unnecessary to
address the other.” State v. Bucki, 2020 WI App 43, ¶81, 393 Wis. 2d 434, 947
N.W.2d 152.

¶11 To demonstrate deficient performance, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness.
Jackson, 405 Wis. 2d 458, ¶10. To do so, a defendant must show “that counsel
took an approach that no competent lawyer would have chosen.” Dunn v. Reeves,
594 U.S. 731, 739 (2021). To demonstrate prejudice, a defendant must show a
reasonable probability that the result would have been different were it not for
counsel’s error. Jackson, 405 Wis. 2d 458, ¶10. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” State v.

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP1807-CR

Guerard, 2004 WI 85, ¶43, 273 Wis. 2d 250, 682 N.W.2d 12 (quoting Strickland
v. Washington, 466 U.S. 668, 694 (1984)).

¶12 “‘An ineffective assistance of counsel claim presents a mixed
question of fact and law.’” State v. Mull, 2023 WI 26, ¶31, 406 Wis. 2d 491, 987
N.W.2d 707 (quoting State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95). We uphold a circuit court’s findings of fact unless they are clearly
erroneous. Mull, 406 Wis. 2d 491, ¶31. However, “whether counsel’s conduct
violated the defendant’s right to effective assistance of counsel is a question of
law” that we review independently. State v. O’Brien, 223 Wis. 2d 303, 325, 588
N.W.2d 8 (1999).

¶13 As he did in his postconviction motion, Wendt argues on appeal that
the evidence regarding the guns and methamphetamine found in Schmidt’s home
was irrelevant and prejudicial, and that trial counsel was ineffective for not
seeking to exclude this evidence and for highlighting it in various ways.
Addressing separately the evidence regarding the guns found in Schmidt’s home
and the evidence regarding the methamphetamine found in Schmidt’s home, we
conclude that counsel’s performance did not constitute ineffective assistance
because Wendt has not shown prejudice.

I. Guns

¶14 Wendt argues that counsel should have sought to exclude the
following testimony. One of the police officers testified that when he entered
Schmidt’s house, “I noticed that there was a[n] open-faced gun cabinet” that had
“several long guns standing upright displayed” and that was “not secured.” The
officer testified that Schmidt told him that the guns belonged to Wendt, which
Wendt subsequently confirmed.

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No. 2023AP1807-CR

¶15 Wendt further argues that counsel also “highlighted” the evidence
regarding the guns in Schmidt’s home in two ways. First, during his cross-
examination of one of the police officers, counsel elicited testimony that Schmidt
stated that Wendt used Schmidt’s home as a storage unit, that Wendt came and
went from Schmidt’s home, and that Wendt’s truck was at Schmidt’s home “more
often than not.” Second, during his closing argument, counsel challenged the
premise that Wendt lived at Schmidt’s home, which Wendt contends prompted the
prosecutor to note in rebuttal that Wendt had his guns in a display cabinet in
Schmidt’s home.

¶16 At the Machner hearing, counsel testified that he “didn’t think there
was an issue because the guns in the house [weren’t] concealed.” Counsel also
stated that the testimony regarding the guns “was a cursory discussion [and]
wasn’t a focus,” and that “people own guns in the State of Wisconsin, so it’s not
unusual to have guns in a house.”

¶17 We reject Wendt’s argument that counsel’s conduct regarding this
evidence constituted ineffective assistance because we conclude that Wendt has
not met his burden of demonstrating that he suffered prejudice as a result.
Specifically, Wendt fails to show that, had evidence regarding the guns in
Schmidt’s house not been admitted or “highlighted,” there is a reasonable
probability that the result would have been different.

¶18 In arguing that the evidence was prejudicial, Wendt relies on
Thompson v. State, 83 Wis. 2d 134, 265 N.W.2d 467 (1978). In Thompson, the
defendant was charged with armed robbery, and our supreme court concluded that
it was error to introduce evidence regarding a gun that the defendant had in his
possession at the time of his arrest but that was not involved in the armed robbery.

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No. 2023AP1807-CR

Thompson, 83 Wis. 2d at 137, 143-44, 146. The Thompson court stated that
“‘such evidence tends to show[] not that [the defendant] committed the crime, but
only that [the defendant] is the sort of person who carries deadly weapons.’” Id. at
144 (quoted source omitted).

¶19 Wendt’s reliance on Thompson is misplaced because Thompson is
easily distinguishable. Here, even if the testimony regarding the guns in
Schmidt’s home had not been admitted, the jury was aware that Wendt possessed
guns—namely, the two guns that police found in Wendt’s truck. To the extent that
the evidence regarding the guns in Schmidt’s home “tend[ed] to show … that
[Wendt] is the sort of person who carries deadly weapons,” see id., this was not
prejudicial because the evidence regarding the guns in Wendt’s truck did so in any
event.

¶20 Moreover, counsel’s strategy regarding the concealed-carry charge
was not to dispute that Wendt possessed the pistol that was wedged between the
seats, but rather to argue that the pistol was not in fact concealed—i.e., that
enough of the pistol was visible such that the State could not prove the required
element of concealment. See WIS JI—CRIMINAL 1335 (2025) (stating as an
element of the crime that “[t]he weapon was concealed,” and that “‘[c]oncealed’
means hidden from ordinary observation. The weapon does not have to be
completely hidden.”). For example, during counsel’s opening argument, counsel
stated:

With regard to the weapons, I believe that the
testimony will indicate, and the video if it’s shown, will
show that [the pistol] wasn’t concealed. Mr. Wendt was
transporting weapons. He had come over to the house in
fact to get some guns that were his in the house. He was
getting them all together. He was gonna take them and put
them in storage and put them away.

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No. 2023AP1807-CR

Given the nature of Wendt’s defense as to the concealed-carry charge, the
evidence that Wendt’s guns were openly displayed in Schmidt’s home was not
prejudicial because it did not “tend to show … that [Wendt] is the sort of person”
who conceals guns. See Thompson, 83 Wis. 2d at 144.

¶21 Wendt argues that “[w]hen, as here, it’s a close call whether a gun
was concealed, jurors may be more likely to credit testimony that it was because
they consider the defendant a generally dangerous person—the type of person who
would hide a weapon.” The Thompson court concluded that because the jury
knew that the defendant had a gun in his possession when he was arrested, the jury
was more likely to find that the defendant committed armed robbery. See id. at
146. This conclusion does not support Wendt’s argument here: the fact that an
individual owns additional guns does not make it more likely that the individual
would conceal one of those guns. And as noted, the guns in Schmidt’s house were
not concealed, but rather were displayed in what was described to the jury as an
“open-faced,” “decorative” gun cabinet. Thus, unlike in Thompson, in which the
evidence was prejudicial to the defense, here, rather than being prejudicial, the
weapons at issue could have assisted Wendt’s defense insofar as Wendt would be
less likely to conceal a weapon when he had weapons displayed openly in the
home. Accordingly, Wendt’s reliance on Thompson is unavailing.

¶22 In sum, we conclude that Wendt has not met his burden of
establishing prejudice because he has not shown a reasonable probability that the
result would have been different were it not for the introduction and “highlighting”
of the evidence regarding Wendt’s guns in Schmidt’s home. See Jackson, 405
Wis. 2d 458, ¶10. We therefore reject Wendt’s argument that counsel’s conduct
regarding this evidence constituted ineffective assistance.

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No. 2023AP1807-CR

II. Methamphetamine

¶23 As stated, police testified that on top of a dresser in Schmidt’s
bedroom there “was a clear, plastic baggy that had a white crystalline material,
residual material in it,” and the State’s controlled substance analyst testified that
the residue in the baggy tested positive for methamphetamine. One of the officers
also testified that he saw Wendt’s truck at Schmidt’s home “a majority” of the
days that he worked, “sometimes during the day, most often at night, every night.”
Counsel did not seek to exclude any of this testimony, and did not object to the
State’s references to this evidence in its opening and closing arguments. Further,
counsel addressed this testimony by (1) seeking to distance Wendt from Schmidt’s
home through counsel’s cross-examination of one of the police officers, during
which testimony was elicited that actually connected Wendt to Schmidt’s home;
and (2) by arguing that, consistent with Hogan’s testimony, Wendt lived on
Hogan’s property, and that the State had not proven that Wendt had any
knowledge of the methamphetamine in Schmidt’s home.

¶24 Wendt argues that counsel’s conduct on this topic constituted
ineffective assistance. We reject Wendt’s argument because we conclude that
Wendt fails to show prejudice. Specifically, Wendt fails to show that were it not
for the conduct that Wendt argues constitutes deficient performance, there is a
reasonable probability that the outcome would have been different. As we now
explain, even had the jury not heard the evidence regarding the methamphetamine
that police found in Schmidt’s home or counsel’s questions on cross-examination
and in closing argument regarding this evidence, there is no reasonable probability
that Wendt would have been acquitted, given the strength of the State’s case and
the nature of Wendt’s defense.

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No. 2023AP1807-CR

¶25 The evidence at trial showed the following. While police were at
Schmidt’s home, Wendt arrived in his truck. He was the only person in the truck.
When police searched the truck, they found the container of methamphetamine on
the floor of the truck, and the small piece of straw with methamphetamine residue
in the center console.

¶26 Rather than disputing any of this, Wendt’s defense regarding the
possession of methamphetamine charge was to argue that Wendt had no
knowledge of the methamphetamine in his truck. Specifically, by presenting
Hogan’s testimony about Hogan having seen Schmidt get into Wendt’s parked
truck while “muttering,” Wendt’s defense was to suggest that Schmidt had planted
the methamphetamine there for officers to find, or at the very least, that the
methamphetamine in the truck had been left there by Schmidt, and Wendt argued
that he was unaware of its presence because the truck was messy.

¶27 Given the strength of the evidence presented by the State and
Wendt’s defense theory, the evidence of the methamphetamine in Schmidt’s home
did not prejudice Wendt—indeed, it supported his theory of the case because the
fact that there was methamphetamine in Schmidt’s bedroom made it more likely
that the methamphetamine in the truck was left there by Schmidt.

¶28 In arguing that he was prejudiced, Wendt relies on questions relating
to Hogan’s testimony that the jury submitted during its deliberations, which Wendt
argues “reveal that the jury gave Hogan’s testimony, and thus Wendt’s defense to
the drug charge, serious consideration.” However, as stated, that there was
methamphetamine in Schmidt’s bedroom supported the inference invited from
Hogan’s testimony that Schmidt left the methamphetamine in Wendt’s truck, and
the jury’s questions about Hogan’s testimony thus do not support Wendt’s

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No. 2023AP1807-CR

argument that he was prejudiced by the evidence of the methamphetamine in
Schmidt’s home.

¶29 Wendt also argues that he was prejudiced because the “other acts”
evidence of the methamphetamine in Schmidt’s home “made Wendt look like a …
person who tends to possess drugs.” In support of this argument, Wendt cites
WIS. STAT. § 904.04(2)(a) (2023-24), which governs the admissibility of other acts
evidence.4 However, Wendt does not develop an argument that the evidence of
the methamphetamine in Schmidt’s home was inadmissible other acts evidence
under the relevant framework set forth in State v. Sullivan, 216 Wis. 2d 768, 773,
576 N.W.2d 30 (1998). This failure is significant because other acts evidence is
not necessarily inadmissible. Although, consistent with Wendt’s argument,
Sullivan recognizes that other acts evidence “magnifies the risk that jurors will
punish the accused for being a bad person regardless of his or her guilt of the
crime charged,” id. at 783, under Sullivan, other acts evidence is nonetheless
admissible if it is offered for a permissible purpose, if it is relevant, and if its
probative value is not substantially outweighed by, as pertinent here, the danger of
unfair prejudice or confusion of the issues, id. at 772-73; see also State v.
Johnson, 184 Wis. 2d 324, 340, 516 N.W.2d 463 (Ct. App. 1994) (“In most
instances, as the probative value of relevant evidence increases, so will the
fairness of its prejudicial effect.”). In the absence of a developed argument under
the Sullivan framework that the testimony regarding the methamphetamine found
in Schmidt’s home was impermissible other acts evidence, we decline to address
Wendt’s argument that he was prejudiced by this evidence as a result of it being

4
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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No. 2023AP1807-CR

“other acts” evidence. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282
Wis. 2d 250, 700 N.W.2d 768 (“We will not address undeveloped arguments.”);
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)
(“Arguments unsupported by references to legal authority will not be
considered.”).5

¶30 Finally, Wendt argues that evidence of the methamphetamine in
Schmidt’s home was prejudicial because it confused the issues at trial.
Specifically, Wendt argues that “[r]easonable jurors would believe the State’s
introduction of evidence regarding methamphetamine in two places meant it could
consider both when determining whether Wendt possessed methamphetamine,”
and that the evidence of the methamphetamine in Schmidt’s home “distract[ed]”
the jury “with a sideshow dispute.” However, as Wendt concedes in his reply
brief, it was clear that the State was prosecuting Wendt for possession of
methamphetamine based on the methamphetamine that was in Wendt’s truck, and
not based on the methamphetamine that police found in Schmidt’s home.6 In light
of this concession, we reject Wendt’s argument. See Pettit, 171 Wis. 2d at 646.7

5
To be sure, Wendt, in his reply brief, does cite State v. Sullivan, 216 Wis. 2d 768, 789-
90, 576 N.W.2d 30 (1998), and argues that the probative value of the evidence of the
methamphetamine in Schmidt’s home was outweighed by its prejudicial effect. However, “[w]e
do not address issues raised for the first time in a reply brief.” See State v. Mata, 230 Wis. 2d
567, 576 n.4, 602 N.W.2d 158 (Ct. App. 1999). Here, we observe that the State explicitly argued
that Wendt failed to advance a developed argument under Sullivan in his appellant’s brief, and
that the State accordingly did not address the application of the Sullivan analysis in its response
brief.
6
For example, in the prosecutor’s opening argument, the prosecutor began by telling the
jury, “This case is about Mr. Wendt pulling up on scene in his truck, officers searching his truck,
finding a concealed pistol … in that truck, and then finding methamphetamine in that truck and
he says there’s nothing in there. That’s all there is to it.” Similarly, in closing, the prosecutor
argued:

(continued)

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No. 2023AP1807-CR

¶31 Accordingly, we conclude that Wendt has failed to show that he was
prejudiced because he has not demonstrated that there is a reasonable probability
that the outcome would have been different were it not for the conduct that Wendt
argues constitutes deficient performance.

CONCLUSION

¶32 For the reasons stated, we affirm the circuit court order denying
Wendt’s motion for a new trial based on his ineffective assistance of counsel

I told you at the beginning of the day, pretty
straightforward case. I figure there’s gonna be some disputing
about the facts, but really this case is about John Wendt pulling
up on scene in his truck, that’s registered to him, he’s the only
person who gets out of that vehicle. There’s a loaded gun right
next to him, pushed all the way down in there and about 2 to 3
inches of it is exposed.

And when officers are searching his truck, they also find
a container of methamphetamine somewhere down in between
the seats.… And [a detective] testified that that was twelve
doses of methamphetamine. You also heard that they found a
straw and that straw was found inside the center console that
tested positive for methamphetamine as well.

… Ladies and gentlemen, I think that kind of gives you
the whole gist of the case.
7
At one point in Wendt’s appellant’s brief, he argues that “[s]ome jurors may have
concluded that the methamphetamine in Schmidt’s home was Wendt’s, while others may have
concluded that the presence of methamphetamine in both the house and the truck made it all but
certain some of it belonged to Wendt.” However, Wendt does not otherwise develop this
argument and, as stated, Wendt concedes in his reply brief that the State was prosecuting Wendt
with possession of methamphetamine based on the methamphetamine that was in Wendt’s truck,
which was clear from the prosecutor’s argument at trial. Accordingly, we do not address this
argument further. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700
N.W.2d 768 (“We will not address undeveloped arguments.”); State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to legal authority
will not be considered.”).

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No. 2023AP1807-CR

claim. However, for the reasons stated in footnote 1, we remand for entry of a
judgment of acquittal on the possession of drug paraphernalia charge.

By the Court.—Judgment and order affirmed and cause remanded
with directions.

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

15