State v. Edward L. Woodberry

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.
June 10, 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. 2023AP1978-CR Cir. Ct. No. 2018CF185

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EDWARD L. WOODBERRY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dunn County: JAMES M. PETERSON, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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. Edward L. Woodberry was convicted, following a
bench trial, of two counts of second-degree sexual assault. On appeal, he argues
No. 2023AP1978-CR

that the circuit court erroneously exercised its discretion by admitting other-acts
evidence in the form of testimony from another alleged sexual assault victim.
Woodberry also argues that his defense counsel rendered constitutionally
ineffective assistance by failing to adequately advise him of his right against
self-incrimination and to protect that right when Woodberry testified in his own
defense. We affirm.

BACKGROUND

¶2 The State charged Woodberry with two counts of second-degree
sexual assault, done by sexual intercourse with an intoxicated person incapable of
giving consent, in violation of WIS. STAT. § 940.225(2)(cm) (2023-24).1 The State
alleged that on October 6, 2017, an intoxicated Helen2 was sitting outside of a bar
around closing time when Woodberry pulled up in a taxicab he was driving.
Helen entered the taxi, and Woodberry drove her to a park, where he sexually
assaulted her as she went in and out of consciousness. The State also claimed that
Helen was throwing up and having difficulty walking prior to the sexual assault.
Woodberry eventually drove Helen to his apartment and sexually assaulted her a
second time that evening, and again the next morning.

¶3 According to the State, Woodberry was the major male contributor
to DNA recovered from Helen’s body during a sexual assault examination at a
hospital. The Wisconsin State Crime Laboratory submitted Woodberry’s collected
DNA to the Combined DNA Index System (CODIS). Using CODIS, law

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use a pseudonym to
refer to the victim in this case and the alleged victim in the other-acts case.

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No. 2023AP1978-CR

enforcement was able to match Woodberry’s DNA to the DNA that was collected
in three other unsolved sexual assault investigations dating back to 1999.

¶4 The State filed a motion to admit evidence from one of those prior
sexual assaults that occurred in Green Bay in 2011.3 The State alleged in its
motion that the victim in that case, Laurie, reported being sexually assaulted after
attempting to walk home alone late at night. Laurie stated that she was “very
intoxicated,” having a difficult time walking, and thought she was going to pass
out in the street. While Laurie was walking, a “vehicle pulled up” and a man
offered to give her a ride home, which she accepted. At some point during the
drive, the man had to stop the vehicle so that Laurie could throw up. Eventually,
the man parked the vehicle and sexually assaulted Laurie. During the assault,
Laurie yelled, and the man stated, “Shut up or else I’m gonna hurt you.” For his
alleged assault of Laurie, the State charged Woodberry in a separate case in Brown
County with second-degree sexual assault in violation of WIS. STAT.
§ 940.225(2)(a) (sexual intercourse without consent by use or threat of force or
violence).

¶5 The State argued that the 2011 assault was relevant to Woodberry’s
intent and motivation to assault intoxicated women and his knowledge that Helen
was too intoxicated to consent. Woodberry’s defense counsel argued that because
a trial had not yet occurred for the 2011 assault, admitting evidence of the assault
would “create a trial within a trial.” Woodberry’s counsel further argued that any

3
Initially, the State also moved to admit evidence relating to other sexual assaults
allegedly committed by Woodberry, including the facts underlying two 1999 assaults. The circuit
court expressed skepticism over the admissibility of these instances as other acts, and the State
ultimately did not attempt to admit them.

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No. 2023AP1978-CR

probative value in admitting the 2011 assault would be substantially outweighed
by the danger of unfair prejudice because it would unduly erode Woodberry’s
presumption of innocence and frame him as a “serial rapist.”

¶6 The circuit court granted the State’s other-acts motion following a
nonevidentiary hearing. The court found that the State was offering the evidence
for a permissible purpose under WIS. STAT. § 904.04(2)(a); that the evidence was
relevant, given the similarities between the cases, to prove Woodberry’s
knowledge that Helen was incapable of giving consent and that he intended to
have sexual intercourse with Helen while she was incapable of giving consent; and
that the evidence was not substantially outweighed by the danger of unfair
prejudice, particularly because the matter was being tried to the court, not a jury. 4
See State v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998). Both
Helen and Laurie later testified at the bench trial.

¶7 Woodberry also testified at trial following two separate colloquies
with the circuit court. During the first colloquy, which was conducted at the end
of the first day of trial, the court asked Woodberry several questions, including
whether he understood that if he chose to testify, the State could cross-examine
him and that anything he testified to could be used against him. Woodberry stated
that he understood. On the second day of trial, the court asked Woodberry
whether he had a chance to talk with his defense counsel about testifying, to which
Woodberry responded that he had.

4
Prior to the other-acts motion hearing, Woodberry waived his right to a jury trial and
requested a bench trial.

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No. 2023AP1978-CR

¶8 On cross-examination, the State asked Woodberry about the 2011
assault, at which point defense counsel objected, arguing that he did not “open[]
the door to” that issue on direct examination. The circuit court overruled the
objection, noting that “Woodberry can be cross-examined on any relevant issue in
the case.” Woodberry stated that he did not “recall” seeing “a woman passed out
on the side of the road” in 2011 in Green Bay, he did not “recall” being in Green
Bay at any point in 2011, he was “not sure” whether he lived in Green Bay during
that period, and he did not remember having “sexual intercourse” with Laurie at
any point in time. Woodberry testified that he had been diagnosed with
“dementia” “several years ago.”

¶9 The circuit court found Woodberry guilty of the crimes charged and
imposed aggregate sentences of 16 years of initial confinement followed by 10
years of extended supervision.

¶10 In issuing the guilty verdicts, the circuit court made several findings
of fact. Pertinent to this appeal, the court found aspects of Helen’s testimony to be
“honest,” “more credible,” and “believable.” Conversely, the court stated that it
“was frankly struck by the inconsistency” of Woodberry’s testimony, and it found
him “not credible.” Furthermore, the court found that there was probative value in
Laurie’s testimony, particularly given the DNA evidence introduced. The court
stated that because Laurie’s testimony showed that Woodberry had sexual
“intercourse with an intoxicated person who … indicated [a] lack of consent”
through her words and actions, it was more likely Woodberry would “have
intercourse with an intoxicated person unable to give consent,” i.e., Helen.

¶11 Woodberry filed a motion for postconviction relief. He argued,
among other things, that his defense counsel was constitutionally ineffective by

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No. 2023AP1978-CR

failing to advise him of his Fifth Amendment right not to incriminate himself with
respect to the 2011 assault. More specifically, Woodberry asserted that his trial
counsel failed to (1) advise Woodberry that he could be compelled to answer
questions relating to the 2011 assault should the circuit court find that the matter
was “reasonably related to the subject matter of his direct examination”; (2) file a
motion in limine in order to obtain a court ruling on whether the 2011 assault was
reasonably related to this case; and (3) object to the State’s cross-examination
related to the 2011 assault on the ground that the incident was not reasonably
related to this case for purposes of the Fifth Amendment. See Neely v. State, 97
Wis. 2d 38, 45, 292 N.W.2d 859 (1980); U.S. CONST. amend. V.

¶12 Following a Machner5 hearing, the circuit court denied Woodberry’s
motion for postconviction relief. The court found that it was Woodberry’s
decision to testify and that defense counsel did not perform deficiently. Even if
defense counsel did perform deficiently, the court determined that any deficient
performance was not prejudicial because Woodberry did not incriminate himself
when responding to questions about the 2011 assault.

¶13 Woodberry now appeals, challenging the circuit court’s decisions
granting the State’s other-acts motion and denying his postconviction motion on
the ineffective assistance of counsel issue.

5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP1978-CR

DISCUSSION

I. Other-acts evidence

¶14 Generally, “[e]vidence of a person’s character or a trait of the
person’s character is not admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion” and “evidence 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(1), (2)(a). Thus, § 904.04 “precludes the admission of character”
evidence to show “an accused’s propensity to commit the act charged.” Sullivan,
216 Wis. 2d at 783.

¶15 However, evidence of other crimes, wrongs, or acts may be admitted
“when offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” WIS.
STAT. § 904.04(2)(a). Other-acts evidence is admissible if (1) it is offered for a
permissible purpose under § 904.04(2)(a); (2) it is relevant under WIS. STAT.
§ 904.01; and (3) its probative value is not substantially outweighed by the risk of
unfair prejudice, confusion of the issues or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence under WIS. STAT. § 904.03.6 Sullivan, 216 Wis. 2d at
771-73.

6
The circuit court did not apply the greater latitude rule to its analysis because it
questioned whether that rule would apply to the facts of this case. See WIS. STAT.
§§ 904.04(2)(b)1., 939.615(1)(b). Neither party raises this decision on appeal, and we will not
consider it further.

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No. 2023AP1978-CR

¶16 We review a circuit court’s decision to admit other-acts evidence for
an erroneous exercise of discretion. State v. Seaton, 2024 WI App 68, ¶14, 414
Wis. 2d 415, 16 N.W.3d 20. “A circuit court erroneously exercises its discretion if
it applies an improper legal standard or makes a decision not reasonably supported
by the facts of record.” Id. (citation omitted).

¶17 Woodberry contends that evidence of the 2011 assault should not
have been admitted at his bench trial because the assault was too remote in time
from the charges in this case and there were “dissimilarities” between Helen’s
assault and Laurie’s assault—namely, that Woodberry did not threaten to use force
against Helen like he did against Laurie and that the State charged Woodberry in
Laurie’s assault with violating WIS. STAT. § 940.225(2)(a), not (2)(cm).
Woodberry maintains that “[t]hese were two very different crimes” requiring the
State to prove “different elements.” As a result, Woodberry asserts that any
probative value of the evidence from Laurie’s assault was outweighed by unfair
prejudice and confusion of the issues caused by her testimony. More particularly,
Woodberry argues that the probative value of Laurie’s testimony was “outweighed
by the sympathies it would elicit for what happened to her” and “by the arousal in
the trier of fact’s sense of honor [sic].” He further argues that Laurie’s testimony
provoked the trier of fact’s “instincts to punish Woodberry for what happened to
Laurie … rather than … adjudicating what happened … to Helen.”

¶18 Unfair prejudice occurs when the proffered other-acts “evidence has
a tendency to influence the outcome by improper means or if it appeals to the
jury’s sympathies, arouses its sense of horror, provokes its instinct to punish or
otherwise causes a jury to base its decision on something other than the
established propositions in the case.” Sullivan, 216 Wis. 2d at 789-90. In other
words, we consider “the potential harm in a jury’s concluding that because an

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No. 2023AP1978-CR

actor committed one bad act, he [or she] necessarily committed the crime with
which he [or she] is now charged.” Id. at 790 n.19 (citation omitted). “The
evidence’s probative value largely turns on the relevancy analysis from step two
under Sullivan.” State v. Dorsey, 2018 WI 10, ¶54, 379 Wis. 2d 386, 906 N.W.2d
158 (citation omitted). “If the probative value is close to or equal to its unfair
prejudicial effect, the evidence must be admitted.” Id. (citation omitted).
Moreover, when other-acts evidence is relevant and offered for a proper purpose,
it is the opponent of the proffered evidence who has the burden to demonstrate that
its probative value is substantially outweighed by the other considerations under
the third prong of the Sullivan analysis. State v. Payano, 2009 WI 86, ¶80 &
n.18, 320 Wis. 2d 348, 768 N.W.2d 832.

¶19 We disagree with Woodberry that the circuit court erroneously
exercised its discretion by concluding that evidence of the 2011 assault was
admissible. The circuit court acknowledged that there were “obviously” “some
differences” between the assaults. But it also reasonably found that the assaults
were similar. The assaults involved Woodberry picking up young women up in a
vehicle after offering them a ride, taking the women to separate locations, and
sexually assaulting the women after witnessing them vomit and demonstrate other
signs of intoxication.

¶20 In addition, as the circuit court reasonably determined when it
granted the State’s motion, the evidence was introduced to show Woodberry’s
knowledge that Helen was incapable of giving consent—given her similar
intoxication level to Laurie as evidenced by vomiting and other signs of
intoxication—and that Woodberry intended to have sexual intercourse with Helen
while she was incapable of giving consent. Likewise, the other-acts evidence was
also clearly relevant to Woodberry’s motive to offer Helen a ride and have sexual

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No. 2023AP1978-CR

intercourse with her regardless of her intoxication level. See State v. Hurley, 2015
WI 35, ¶¶71-74, 361 Wis. 2d 529, 861 N.W.2d 174.7 Accordingly, the striking
similarities between the alleged 2011 assault and the assault against Helen “make
the other-acts evidence highly probative” as to Woodberry’s motive, intent,
knowledge, and credibility. See Seaton, 414 Wis. 2d 415, ¶37.

¶21 The fact that Woodberry allegedly threatened Laurie does little to
change the significance of the notable similarities between the 2011 assault and
those perpetrated against Helen. The circuit court could reasonably determine that
the assaults, and the circumstances surrounding them, were extremely similar
despite the fact that the State charged one case as sexual assault by use or threat of
force or violence. Moreover, as the circuit court noted, the matter was tried to the
court and not to a jury and, therefore, the evidence’s ability to improperly
influence or confuse the factfinder was limited.8 A circuit court judge “is
presumed to know what testimony is competent and will disregard extraneous
matter,” State v. Cathey, 32 Wis. 2d 79, 90, 145 N.W.2d 100 (1966), and
Woodberry has failed to rebut that presumption on appeal. See also State v.
Mullis, 81 Wis. 2d 454, 461, 260 N.W.2d 696 (1978) (concluding that the effect of

7
Although the circuit court did not so expressly state, the evidence was further relevant
to assessing Helen’s and Woodberry’s credibility, which was consequential in the case given the
issues of consent and impairment. See State v. Gutierrez, 2020 WI 52, ¶33, 391 Wis. 2d 799, 943
N.W.2d 870.
8
In reaching our conclusion that the circuit court did not erroneously exercise its
discretion by admitting the other-acts evidence, we do not hold as a blanket rule that a bench trial
renders the third step of the Sullivan analysis obsolete, as Woodberry argues that the State posits.
See State v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998). We agree with
Woodberry that the other-acts evidence was prejudicial. However, for reasons explained in this
opinion, Woodberry has failed to meet his burden to show that the evidence was unfairly
prejudicial or that it confused the court during the trial. See id.

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No. 2023AP1978-CR

a possible evidentiary error was harmless because the trial was to the court, not a
jury).

¶22 In short, the State proffered relevant evidence of the 2011 assault for
several permissive purposes. This evidence was not unfairly prejudicial, and it did
not confuse the issues for the circuit court at the bench trial.

II. Ineffective assistance of counsel

¶23 To demonstrate that counsel was constitutionally ineffective, a
defendant must prove both that counsel’s performance was deficient and that the
deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,
687 (1984). “If the defendant fails to satisfy either prong, we need not consider
the other.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d
93.

¶24 “To establish that deficient performance was prejudicial, the
defendant must show 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., ¶39 (citation omitted). “Whether a defendant was denied
effective assistance of counsel is a mixed question of law and fact.” Id., ¶37.
“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.” Id.

¶25 “It is well-established that a defendant who takes the stand in his [or
her] own behalf cannot then claim the privilege against cross-examination on

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No. 2023AP1978-CR

matters reasonably related to the subject matter of his [or her] direct
examination.” Neely, 97 Wis. 2d at 45 (emphasis added). Here, Woodberry
argues that his defense counsel performed deficiently by failing to file a motion in
limine to address whether the State’s questions on cross-examination were
“reasonably related to the subject matter of his direct examination.” See id.

¶26 In support of his position on this issue, Woodberry cites the
following excerpt from Haskins v. State, 97 Wis. 2d 408, 415-16, 294 N.W.2d 25
(1980), as if it were settled law:

[A] criminal defendant who desires to testify but fears that
questions might be asked on cross-examination which
would incriminate him [or her] in a subsequent criminal
proceeding should make a motion in limine. At that point
the trial court could determine the extent of the defendant’s
waiver and the scope of cross-examination and advise both
the defendant and the state, in advance, of what would
happen if the defendant took the stand.

¶27 However, the Haskins court was merely identifying in this excerpt
what the court of appeals had concluded in its decision in Neely v. State, 86
Wis. 2d 304, 272 N.W.2d 381 (Ct. App. 1978), aff’d in part, disapproved in part,
97 Wis. 2d 38, 292 N.W.2d 859 (1980).9 Haskins, 97 Wis. 2d at 415-16. The
supreme court went on to state that the “opinion of the court of appeals pose[s]
difficulties” because “the issue of privilege and its possible waiver cannot be
determined with any certainty until cross-examination begins.” Id. at 416. The
court further stated that a more “informative method of raising” Fifth Amendment
issues in this context “would be for the defendant to take the stand and appeal a

9
The supreme court consolidated the Haskins case “for purposes of disposition with
Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980), which involved the same crime and raised
related issues.” Haskins v. State, 97 Wis. 2d 408, 409, 294 N.W.2d 25 (1980).

12
No. 2023AP1978-CR

subsequent conviction if following a claim of privilege he [or she] were ordered to
answer the prosecutor’s questions on cross-examination. Only in this way may the
defendant’s claim be presented to a reviewing court in a concrete, factual context.”
Id. at 417. Because the supreme court has clarified that there is not an affirmative
obligation to raise the issue in a motion in limine, defense counsel could not be
found to have performed deficiently by failing to file a motion in limine seeking to
limit Woodberry’s cross-examination.

¶28 Next, we assume without deciding that Woodberry’s defense counsel
performed deficiently by failing to advise Woodberry that he could be compelled
to answer questions relating to the 2011 assault should the circuit court find that
the State’s questions were reasonably related to the subject matter of his direct
examination. We further assume without deciding that counsel performed
deficiently by failing to object to the State’s questions regarding the 2011 assault
in order to obtain a ruling on whether those questions were reasonably related to
the subject matter of Woodberry’s direct examination.

¶29 Even with these assumptions, Woodberry has failed to establish that
his defense counsel’s assumed deficient performance was prejudicial. Woodberry
correctly notes that the circuit court would have been prohibited from drawing a
negative inference from Woodberry’s invocation of his Fifth Amendment right not
to answer questions regarding the 2011 assault. See WIS. STAT. § 905.13(1). He
further contends that, “[o]n the other hand, the circuit court could draw all manner
of negative inferences from Woodberry’s response[s] to questions about Laurie’s
testimony,” including from “his body language and demeanor,” to find that he was
lying about having no recollection.

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No. 2023AP1978-CR

¶30 However, as the circuit court stated in its ruling denying these
postconviction claims, Woodberry did not incriminate himself when responding to
questions about the 2011 assault, and Woodberry fails to explain how invoking the
Fifth Amendment would have benefited him at trial. Even if Woodberry had
invoked his Fifth Amendment privilege not to testify regarding the 2011 assault,
the court would have been in substantially the same position as it was when
Woodberry stated that he did not recall anything about Laurie or the assault. This
reasoning is particularly true given the uncontroverted DNA evidence showing
that Woodberry had sex with Helen, and the court’s explicit finding that it relied
on the DNA evidence to find that Woodberry likely sexually assaulted Helen.
Woodberry invoking the Fifth Amendment would not have changed this finding.
Thus, it is not reasonably probable that the court would have found Woodberry
credible, and Helen incredible, had he invoked the Fifth Amendment when
questioned about the 2011 assault, rather than answering those questions in the
manner he did at trial.

By the Court.—Judgment and order affirmed.

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

14