STATE v. GROSS, 03-1203-CR (Wis.Ct.App. 6-24-2004)

Court of Appeals of Wisconsin.
No. 03-1203-CR.
Opinion Filed: June 24, 2004.

APPEAL from a judgment of the circuit court for Juneau County: JOHN W. BRADY, Judge. Affirmed.

Before Dykman, Lundsten and Higginbotham, JJ.

¶ 1. PER CURIAM.

John Gross appeals a judgment of conviction. The issue relates to other-acts evidence. We affirm.

¶ 2. Gross was convicted of one count of first-degree intentional homicide as a party to the crime. The victim was a three-year-old child. On appeal, Gross argues that the circuit court erred by admitting certain evidence that he had committed violent acts against other children. He first argues that the court erred by rejecting his proposed Wallerman
stipulation that would have made the evidence unnecessary. See State v.Wallerman, 203 Wis.2d 158, 167-68, 552 N.W.2d 128 (Ct.App. 1996). However, as the State correctly points out, the State may reject stipulations that otherwise comply with the test presented in Wallerman, except as to stipulations about the defendant’s “status,” such as prior convictions. See State v. Veach, 2002 WI 110, ¶¶ 123-24, 255 Wis.2d 390, 648 N.W.2d 447. The evidence in this case did not concern Gross’s status. At the hearing on the issue, the prosecutor argued against the stipulation and the circuit court rejected the stipulation. Accordingly, we conclude that the circuit court properly rejected Gross’s Wallerman
stipulation.

¶ 3. Gross may also be arguing that, even without the Wallerman
stipulation, the other-acts evidence was not properly admissible because there was no purpose for the evidence other than to suggest that he acted in conformity with his character shown by the earlier events. The test for admitting other-acts evidence is described in Veach, 255 Wis.2d 390. Under Wis. Stat. § 904.04(2) (2001-02),[1] other-acts evidence is admissible to show, among other things, intent and absence of mistake or accident. See Veach, 255 Wis.2d 390, ¶ 50. We conclude that these were proper purposes in this case. Injuries to small children commonly occur as a result of accident, and the evidence of Gross’s previous incidents tends to make the possibility of accident less probable in this case.

By the Court. — Judgment affirmed.