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State v. Falk6/29/2000
relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger 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?
The proponent of the evidence bears the burden of persuading the circuit court that the three-step inquiry is satisfied. See Sullivan, 216 Wis. 2d at 774. We review a circuit court's decision on admissibility under Wis. Stat. § 904.04(2) to determine whether that court properly exercised its discretion, and we affirm if the court examined the relevant facts, applied a proper standard of law and, using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. See Sullivan, 216 Wis. 2d at 780.
. Under step one of the Sullivan analysis, absence of mistake or accident is an acceptable purpose under Wis. Stat. § 904.04(2). Whether this purpose is relevant under step two is disputed by the parties. The State argues that since intent is an element of the crime, showing whether Richard acted with the required state of mind is relevant, while Richard argues that whether Laura's injuries were caused by mistake or accident was not an issue at trial and is therefore not relevant. We conclude that, because Richard did not stipulate to a concession of the element of intent following the procedure set forth in State v. Wallerman, 203 Wis. 2d 158, 167-68, 552 N.W.2d 128 (Ct. App. 1996), the State was obligated to prove intent; therefore, evidence of absence of mistake is relevant. See also State v. Benoit, 229 Wis. 2d 630, 638-39, 600 N.W.2d 193 (Ct. App. 1999); State v. DeKeyser, 221 Wis. 2d 435, 443-44, 585 N.W.2d 668 (Ct. App. 1998).
. We further conclude the trial court did not erroneously exercise its discretion in determining that evidence that Richard had squeezed and fractured Cody's ribs in a "similar fashion" to that in which, he told Detective Schrank, he squeezed Laura's ribs, was relevant to absence of mistake or accident. Both acts involved squeezing the ribs of a child less than one year old and resulted in fractured ribs. The stronger the similarity between the other acts and the charged offense, the greater the probability that the similar result was not repeated by mere chance or coincidence. See Sullivan, 216 Wis. 2d at 786-87.
. Finally, we consider step three of the Sullivan analysis. After concluding the evidence had probative value, the trial court considered the prejudicial effect and stated that it "pales in comparison to the evidence with regard to Laura." To minimize potential unfair prejudice, the trial court instructed the jury it could "not consider this evidence to conclude that the defendant has a certain character or certain character trait and that the defendant acted in conformity with that trait with respect to the offenses charged in this case," and the other acts evidence could not be used to determine Richard is a "bad person and for that reason is guilty of the offense charged." Such a cautionary instruction reduces the risk that a jury will find an accused guilty simply because he or she is a bad person. See id. at 791. We conclude the trial court did not err
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