(dissenting). I respectfully dissent from the majority's conclusion that defense counsel was deficient and prejudicial. The question whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis. 2d 587, 609, 516 N.W.2d 362, 368-69 (1994). The circuit court's findings of fact will not be reversed unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711, 714 *455(1985). However, the ultimate conclusion whether counsel's conduct was deficient and prejudicial are questions of law decided independently by this court. State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845, 848 (1990).
It is important to note our standard of review when determining whether counsel's conduct was deficient or prejudicial. Only those defendants "who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be ... entitled to retrial...." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Note that it is the gross incompetence of the attorney that entitles the defendant to a retrial. To establish deficient performance, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Johnson, 153 Wis. 2d at 127, 449 N.W.2d at 847 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To demonstrate deficient performance, a defendant bears the burden to overcome a strong presumption that counsel acted reasonably and within professional norms. Id. at 127, 449 N.W.2d at 847-48. In making a determination whether counsel was deficient, we must keep in mind that counsel's function is to make the adversarial testing process work in that particular case. Pitsch, 124 Wis. 2d at 636-37, 369 N.W.2d at 716.
Prejudice occurs when counsel's deficient performance was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To demonstrate prejudice, a defendant must show a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Johnson, 153 Wis. 2d at 129, 449 N.W.2d at 848. A reasonable probability is one suffi*456cient to undermine confidence in the outcome of the trial. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Pitsch, 124 Wis. 2d at 642, 369 N.W.2d at 719.
I am not persuaded that counsel's failure to stipulate as the majority suggests constitutes gross incompetence or was so serious that the adversarial process did not function, resulting in an unfair trial. DeKeyser is not entitled to a perfect defense or even the best defense, but only to one which gives him reasonably effective representation. Although counsel was unaware of the Wallerman1 case, he strongly challenged the admissibility of the other acts evidence both before and during the trial. He also aggressively challenged the credibility of the State's witnesses through cross-examination and presented defense witnesses challenging the child's credibility.
The suggestion that counsel should have stipulated under the theory of Wallerman in order to avoid the admission of the other acts evidence is remarkable hindsight. One must keep in mind that Wallerman was not an ineffective assistance of counsel case. Rather, it dealt with whether the State may introduce other acts evidence even if the defendant does not dispute certain elements of the crime. Additionally, it dealt with the colloquy the trial court must engage in with the defendant in order to ensure his understanding of the concession. The majority in this case now takes that case one step further by concluding that counsel is ineffective for failing to stipulate to motive and intent in order to avoid the admission of the other acts evidence. While I agree with the majority that counsel erred by *457not stipulating or conceding these elements in order to prevent the admission of the other acts evidence, I do not agree that when viewing counsel's overall conduct in this case his error constituted gross incompetence or was so serious that he was not functioning as "counsel."
Nor do I conclude that counsel's error by not stipulating was prejudicial. Again, prejudice occurs when counsel's deficient performance deprived DeKeyser of a fair trial such that it undermines our confidence in the outcome of the trial. Here, the jury heard the evidence which was strongly contested on both sides. Although it heard evidence of the other act, the court also gave a cautionary instruction both immediately before the introduction of the other act evidence and immediately prior to jury deliberations.
The trial court gave the standard jury instruction cautioning the jury to consider the other conduct, if they found it did occur, only on the issue of intent, preparation or plan and absence of mistake or accident. As part of this instruction, it admonished the jury that the other acts evidence is not to be used to conclude the defendant is a bad person and for that reason is guilty of the offense charged. This cautionary instruction in effect resulted in the other acts evidence having the same effect as the stipulation. The majority's suggestion that the jury may have improperly used this other acts evidence is contrary to the long- established principle that we must presume the jury will follow the court's instructions.
Certainly, there was no breakdown in the adversarial process. Nor was there a fundamental unfairness in the proceeding. What we have is a hard fought, fair trial as to whether the sexual assault ever occurred. Contrary to the majority, I am not persuaded *458that DeKeyser's trial attorney was grossly incompetent or that DeKeyser was denied a fair trial.
Additionally, at the postconviction proceedings, counsel offered a proposed stipulation unsigned by DeKeyser. There is absolutely no proof that DeKeyser would have agreed to enter into such a stipulation. He did not testify at the postconviction hearing and did not offer any affidavit to the effect that he would have willingly and understanding^ entered into such a stipulation. In fact, the trial court commented at the postconviction hearing that it doubted whether DeKeyser would have accepted such a concession. Additionally, it observed that it would not have accepted such a stipulation in any event because of DeKeyser's position that there was no touching of his grandchild's intimate parts, let alone an intentional touching. Throughout these proceedings, DeKeyser vehemently denied ever touching the private parts of any of his grandchildren. To now suggest he would have stipulated is wonderful hindsight in light of the jury's verdict.
Finally, DeKeyser contends his trial counsel was deficient for failing to challenge certain jurors for cause when they initially expressed possible bias against him after being informed that there would be evidence about a similar prior sexual act involving him.2 However, the trial court instructed the jury that it was their duty to decide the case on the evidence and to be fair and impartial. Additionally, it admonished the jury that if they were unable to render a fair and impartial decision, they should not be on the jury. It then asked the jury whether, after hearing the court's instructions *459regarding their duty to follow its instructions and decide the case solely on the evidence, there was still anyone who believed they could not decide the case fairly and impartially. No juror responded in the affirmative. Trial counsel testified at the postconviction hearing that he was satisfied with the jurors' response to the court's questions and elected to use peremptory strikes against those jurors he felt were objectionable. I am not persuaded counsel's performance in selecting the jury was deficient.
Therefore, I would reject DeKeyser's arguments and affirm the conviction.
State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996).
I address this issue only because the majority found it unnecessary to reach this issue in light of its conclusion on the basis of DeKeyser's first argument.