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State v. Falk6/29/2000
oneously exercise its discretion in determining the probative value of the evidence was not outweighed by the danger of unfair prejudice, and, therefore, did not err in admitting this evidence.
Admission of Photographs
. Richard contends the trial court erred in admitting twenty color photographs of Laura taken in the hospital after undergoing several surgeries. Most show her with various tubes, splints and pins in her limbs. Five were poster size and displayed in the courtroom during the trial. Several others were approximately eight-by-ten inches and showed close-up views of Laura's post-surgery wounds. In the hearing on Richard's motion in limine to exclude the photographs, the prosecutor argued that they showed the various injuries Laura had sustained, and one, in particular, showed the bruise on her leg. Defense counsel countered there was no dispute over Laura's injuries or whether they constituted great bodily harm, and the photographs, especially the large ones, presented a danger of unfair prejudice because they graphically showed a small baby with pins and tubes and severe injuries, and would make the jury "cringe." The trial court concluded the photographs were not "gory" and it was only the age of the child that "makes you cringe." The court warned the State not to point out the age of the child or otherwise use the photographs in an inflammatory way.
. The admission of photographs is a matter within the trial court's discretion. See Sage v. State, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979). The trial court should admit photographs if they will aid the jury in gaining a better understanding of material facts, and should exclude them if they are not substantially necessary to show material facts and tend to create sympathy or indignation or direct the jury's attention to improper considerations. See id. We do not reverse a trial court's decision to admit photographs if it has applied the appropriate discretionary standard unless it appears from a review of the record as a whole that the decision was wholly unreasonable, or if the circumstances indicate the only purpose of the photographs was to inflame or prejudice the jury. See id.
. The fact that Richard did not dispute the element of great bodily harm does not entitle him to exclusion of the photographs. Under State v. Lindvig, 205 Wis. 2d 100, 108, 555 N.W.2d 197 (Ct. App. 1996), photographs may be admissible to prove an element of the charged crime even if the defendant does not dispute it at trial. Although Wallerman established a procedure by which a defendant can stipulate to an element of the crime in order to keep out other acts evidence, that ruling does not apply to evidence of the crime charged, such as the photographs in this case. See State v. Cleveland, 2000 WI App ___, , No. 99-2682. See also Benoit, 229 Wis. 2d at 639 (recognizing the dramatic nature of other acts evidence).
. However, we are unable to understand from the record of the hearing and from viewing the photographs how any photograph, except the one showing the bruise on Laura's leg, helped the jury understand the material facts. The photographs are post-surgery, and show Laura's repaired broken bones and injuries but they do not convey any precise information about the nature and location of those injuries, all of which were testified to in detail by the physicians at trial.
. Nevertheless, even if we assume the trial court erroneously exercised its discretion in admitting all but one of the photographs, we are convinced there is no reasonable possibility their admission contributed to Richard's conviction. See State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985) (test for determining harm
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