State v. Daniel J. Tate

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.
March 3, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP1742-CR Cir. Ct. No. 2017CF807

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL J. TATE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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).
No. 2019AP1742-CR

¶1 PER CURIAM. Daniel J. Tate appeals from a judgment of
conviction entered after a jury trial for first-degree intentional homicide, hiding a
corpse, and operating a motor vehicle without the owner’s consent. Tate claims that
the circuit court improperly admitted other-acts evidence. We reject Tate’s
challenge, as the circuit court properly applied WIS. STAT. § 904.04(2)(a) (2017-
18)1 when it admitted this evidence. We affirm.

¶2 The State charged Tate with first-degree intentional homicide,
contrary to WIS. STAT. § 940.01(1)(a), hiding a corpse as a party to a crime, contrary
to WIS. STAT. § 940.11(2), and operating a motor vehicle without owner’s consent
as a party to a crime, contrary to WIS. STAT. § 943.23(2).

¶3 According to the criminal complaint, codefendant Jamari Cook stated
that, on July 23, 2017, the victim, Olivia, 2 after meeting Tate online, picked up Tate
and Cook and drove them to a Kenosha park by the lake. After Cook initially gave
Tate and Olivia “space” when he saw them hugging, he looked over and saw Tate
choking Oliva from behind, lifting her off the ground. Tate had Olivia in “a sort of
a sleeper hold,” and Olivia became motionless. Cook then saw Tate hold Olivia’s
head in the water with his hands with his knee on her back. Tate then tied an apron-
like object around her neck and pulled. Cook and Tate placed Olivia’s body into
the trunk of her car, drove to Racine and disposed of her body in some bushes.

¶4 Prior to trial, Tate moved to admit evidence that Cook killed Olivia,
which was unopposed by the State. The State moved to admit evidence from three

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
In accordance with WIS. STAT. RULE 809.86, we protect the privacy of crime victims by
avoiding use of their full names. We afford the same privacy protections to the witnesses in this
case, as do both parties.

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No. 2019AP1742-CR

of Tate’s former girlfriends, S.W., S.R., and M.H., related to his interest in choking.
Consistent with this manner of death, the motion referenced Cook’s statement that
he saw Tate choking Olivia before she became motionless. The State proffered the
following testimony from S.W., S.R., and M.H.:

 S.W. told the police that when she dated Tate for approximately two
months in the summer of 2015, Tate would place his hand around her
neck and squeeze it when they had sex.

 S.R. told police that she dated Tate for approximately two weeks in
January 2017. Tate told S.R. that “he like[d] to choke, bite, or scratch a
woman while having sex with her.” S.R. denied that Tate ever choked
her during sex. S.R. said that when she teased Tate, he would become
angry and tell her, “I want to choke the shit out of you.”

 M.H. said that she dated Tate between 2013 and 2016. M.H. said that
Tate discussed wanting to choke, pull hair, and ass-slap during sex but
she did not allow him to choke her when he asked her to try it.

¶5 The State argued that the proffered evidence was “probative of intent,
absence of mistake or accident and modus operandi.” It further asserted that this
evidence would be relevant to counter two potential defenses: (1) Olivia’s death
was an accident and done without Tate’s intent or (2) Cook, not Tate, caused
Olivia’s death.

¶6 The circuit court determined that the evidence was relevant and
admissible. The court reasoned that this evidence related to Tate’s interest in
choking “suggest[s] the possibility of a modus operandi, which in itself can tend to
prove identity.” This was “particularly true” given that Tate sought to show Cook

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No. 2019AP1742-CR

was responsible for the choking. The circuit court determined that Tate’s “history
of engaging in asphyxiating behavior makes it more probable that he would be the
likely actor than someone who has no demonstrated interest in that.” The court also
determined that the prejudice from this evidence did not outweigh its probative
value.

¶7 The evidence at trial was consistent with, and expounded upon, the
information provided in the complaint and the motion to admit the proffered
testimony of Tate’s three former girlfriends.

¶8 A forensic pathologist offered detailed testimony supporting his
conclusion that Olivia died from manual strangulation. Cook testified that Tate told
Cook that he was going to hang out with a girl who he had met and been messaging
with online. Olivia picked up Tate and Cook and drove them to a Kenosha park by
the lake.

¶9 Cook testified that he gave Tate and Olivia space after they all exited
her car, explaining that he walked more than ten feet away from them and listened
to music on his phone. After several minutes, Cook looked back at them and saw
Tate holding Olivia in a headlock, choking her from behind with his right arm under
her chin. Tate then held Olivia in water using his hands and knees to press her head
into the water, and then wrapped a piece of cloth around Olivia’s neck and pulled
on it. Cook helped Tate place Olivia into the trunk of her car, and they disposed of
her body together after Tate placed plastic bags over her feet and her head.

¶10 Tate’s primary defense at trial was that Cook was responsible for
Olivia’s death.

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No. 2019AP1742-CR

¶11 S.W. testified that she dated Tate in 2015 when she was fifteen years
old. She said that Tate strangled or choked her when they had sex by placing his
hand on her neck and squeezing it. S.W. said that Tate put his hand on her neck that
way approximately ten times, and that at times, she had trouble breathing. Tate did
not ask her beforehand whether he could choke her to that extent.

¶12 The circuit court provided a cautionary instruction during S.W.’s
testimony:

Folks, you are hearing evidence about something that is not
an incident for which the defendant is now on trial. He is
not accused of any wrongdoing arising out of this, but it is
being admitted for a limited purpose, and that is to show
whether the defendant had a modus operandi in dealing with
others of strangulation, and it is not to be taken as evidence
that he’s got a character trait or a bad character and that he
acted in conformity with that trait on this occasion. It is
merely to allow you to use the evidence to determine
whether or not the defendant would customarily employ this
technique with another, and it’s limited to that use. Any
question about this at all?

¶13 M.H. testified that she began having sex with Tate in 2013. When
they had sex, Tate placed his hand or hands on her neck which restricted her
breathing. This happened less than ten times. M.H. acknowledged that she told the
police that she did not allow “Tate to choke [her] during sex even though he had
asked [her] if he could try it.” She testified that she was nervous and afraid to tell
anyone that Tate had choked her when she gave her statement to the police.

¶14 The circuit court also provided a cautionary instruction during M.H.’s
testimony: “[T]his is evidence admitted for the same purpose, and once again, I
caution you it is not to be used to conclude that the defendant is, nor has a bad
character or trait of character and for that reason is guilty of the charge now made
against him.”

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No. 2019AP1742-CR

¶15 S.R. testified that she and Tate had a girlfriend-boyfriend relationship
in January 2017. S.R. said that Tate never choked her. S.R. stated that Tate talked
about “how he would like to choke, bite and scratch a woman while he was having
sex.” Tate threatened to “choke the shit out of [S.R.]” when he became angry with
her.

¶16 On appeal, Tate argues that evidence involving these other women
served only to prove Tate’s bad character and that he acted in conformity with that
character in this case. Tate also argues that the evidence was irrelevant because, he
contends, whether he previously choked other women sheds no light on the incident
involving Olivia. Tate contends that any minimal probative value of the other-acts
evidence was substantially outweighed by the danger of the unfair prejudice arising
from the jury speculating that Tate killed Olivia; and by the possibility that the
evidence might provoke the jury’s instinct to punish Tate for his past acts. We are
not persuaded.

¶17 “The applicable standard for reviewing a circuit court’s admission of
other-acts evidence is whether the court exercised appropriate discretion.” State v.
Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998). We will uphold its
evidentiary ruling if the court “examined the relevant facts, applied a proper
standard of law, used a demonstrated rational process, and reached a conclusion that
a reasonable judge could reach.” State v. Hunt, 2003 WI 81, ¶34, 263 Wis. 2d 1,
666 N.W.2d 771. When the record contains a reasonable basis for the circuit court’s
ruling, we will not find an erroneous exercise of discretion. State v. Hammer, 2000
WI 92, ¶21, 236 Wis. 2d 686, 613 N.W.2d 629; Sullivan, 216 Wis. 2d at 780-81.

¶18 The parties agree that the proper analysis related to the admissibility
of the other-acts evidence is under Sullivan. Sullivan holds that in considering the

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No. 2019AP1742-CR

admissibility of other-acts evidence, a court considers whether (1) the evidence is
offered for a permissible purpose under WIS. STAT. § 904.04(2), such as establishing
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident; (2) the evidence is relevant under WIS. STAT. § 904.01; and
(3) the probative value of the evidence is substantially outweighed by the danger of
unfair prejudice, confusion of the jury, or needless delay under WIS. STAT. § 904.03.
Sullivan, 216 Wis. 2d at 772-73.

¶19 The proponent of the evidence bears the burden of showing by a
preponderance of the evidence that it is relevant and admissible for a proper purpose.
State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. If the
proponent satisfies this burden, the burden shifts to the opponent of the evidence to
demonstrate that any unfair prejudice substantially outweighs its probative value.
Id.

¶20 WISCONSIN STAT. § 904.04(2)(a) provides that

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. This subsection does
not exclude the evidence when offered for other purposes,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.

¶21 The circuit court concluded that the other-acts evidence would be
admissible in the trial related to Olivia’s death. The court determined that the
evidence demonstrated a modus operandi by Tate which can aid in establishing
identity and explicitly instructed the jury before closing arguments that it could
consider the evidence only as it related to the issues of motive, identity, and intent.
This ruling was one that a reasonable judge could make.

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No. 2019AP1742-CR

¶22 First, the other-acts evidence was properly admitted to show that Tate
intended to kill Olivia and that he did not cause her death by mistake or accident.
The State had to prove that Tate caused Olivia’s death with intent to kill her. See
WIS. STAT. § 940.01. Although Tate’s defense was that Cook killed Olivia, the
State not only had to prove that Tate was responsible, but that he either had the
mental purpose to take Olivia’s life or acted with the awareness that his conduct was
practically certain to cause her death. See WIS. STAT. § 939.23(4).

¶23 Tate’s acts of choking S.W.’s and M.H.’s necks in a manner that
prevented them from breathing was admissible to show his intent, undermining any
claim that it was an accident. Namely, the jury could infer from Tate’s past acts of
choking S.W. and M.H. on numerous occasions until their breathing was restricted
that he knew how to restrict another’s breath and what the impact is, depending on
how hard and long the chokehold lasts. The jury could infer that in this instance,
when, as described by Cook, he had her in a chokehold from behind until she went
limp, he knew what he was doing, such that it was not an accident: he was aware
that placing his arm across Olivia’s neck for an extended time period was practically
certain to cause her death.

¶24 The identity of who killed Olivia was also an element the State had to
prove at trial. The State sought to admit the other-acts evidence to establish Tate’s
identity as the person responsible for Olivia’s death and undermine Tate’s defense
that Cook was responsible for her strangulation.

¶25 Where, as here, there is significant similarity between the incident at
issue in the case before the court and the other-acts incidents, evidence is admissible
to prove mode or method of operation through which the identity of an assailant
may be proved, modus operandi. See Hammer, 236 Wis. 2d 686, ¶¶24, 26. Whether

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No. 2019AP1742-CR

there is a concurrence of common features is generally left to the sound discretion
of the circuit court.

¶26 Here, the circumstances related to Tate’s history of choking and
strangulation and his interactions with Olivia and his former girlfriends have
sufficient common features to evidence a modus operandi. The circuit court
determined that Tate’s interest in strangulation was “uncommon enough” and
suggested “the possibility of modus operandi, which in itself can tend to prove
identity.” The court recognized that the interest in choking during sexual encounters
is engaged in by a limited number of people. We agree.

¶27 The circuit court also appropriately observed that the other-acts
evidence was probative of identity when there was no evidence that Cook, the target
of Tate’s defense, had engaged in strangulation.

¶28 The circuit court properly exercised its discretion when it determined
the other-acts evidence was admissible for proper purposes, including proof of
Tate’s intent to take Olivia’s life and proof of Tate’s identity as the person who
killed her.

¶29 On the second point of the Sullivan analysis—whether the evidence
is relevant—we conclude that it is. Evidence is relevant “if it relates to a fact or
proposition that is of consequence to the determination of the action and if it has
probative value.” Hammer, 236 Wis. 2d 686, ¶30. Courts assess probative value
in part based on the similarity of the charged offense to the other acts in terms of
nearness of time, place, and circumstance. Id., ¶31; State v. Gray, 225 Wis. 2d 39,
38, 590 N.W.2d 918 (1999) (“The measure of probative value in assessing relevance
is the similarity between the charged offense and the other act.”). As explained
above, the other-acts evidence is relevant for establishing Tate’s intent to kill Olivia

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No. 2019AP1742-CR

and his identity as the killer, two facts of consequence to the determination of the
charges against him, and, as suggested above, was probative of these two facts.

¶30 The nearness in time, place, and circumstance of the other-acts
evidence involving S.W., M.H., and S.R. made this evidence probative. See
Hammer, 236 Wis. 2d 686, ¶31. The other acts were near in time, occurring within
four years of Olivia’s death, between 2013 and 2017. The other acts were also near
in place. Olivia, like at least two of the women, S.R. and M.H., was from the
Kenosha area.

¶31 In terms of similarity of circumstances, Tate choked S.W. and M.H.
when having sex and he told S.R. about his interest in choking women while having
sex. Tate’s interest in choking women during sexual encounters made it more likely
that he intended to choke Olivia. Tate also made threats to choke when angry,
threatening to “choke the shit out of [S.R.]” when he became angry with her.

¶32 We find the probative value of the other-acts evidence to be
substantial. See Sullivan, 216 Wis. 2d at 786. As our supreme court has explained:

Since it is the improbability of a like result being repeated
by mere chance that carries probative weight, the probative
value lies in the similarity between the other act and the
charged offense. The stronger the similarity between the
other acts and the charged offense, the greater will be the
probability that the like result was not repeated by mere
chance or coincidence.

Id. at 786-87.

¶33 The circuit court properly determined that the other acts were relevant
and probative. The identity of who killed Olivia and whether the killer had the
requisite intent were facts of consequence to a determination of Tate’s case.

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No. 2019AP1742-CR

¶34 Tate argues that the differences were substantial, rendering them
irrelevant to an attempt to prove identity. Specifically, he points out that he did not
injure any of his former girlfriends, and he and Olivia did not have sex. As the
circuit court aptly noted, Tate, through his communication with Olivia online
referencing sex and spending the night together “made no bones that he was
interested in a sexual interlude with [Olivia] on the night in question.” Indeed,
before their meeting, Tate asked Olivia if they were going to have sex the night they
met and then told her that he would “be getting freaky, lol.” Tate’s attempt to
downplay the difference in outcome ignores that he did choke to the point of taking
his girlfriends’ breaths away, with no apparent advance request to do so.

¶35 Moreover, to the extent that there are differences, such as the evidence
indicating that Tate held Olivia’s head in the water and used a cloth to choke her,
and that Olivia’s death took place in a public space, these are proper subjects for
cross-examination—the central interest in strangulation during sexual encounters
bears commonality with the cause of Olivia’s death. Vigorous cross-examination
helps limit the danger of unfair prejudice, insofar as it gives a defendant the
opportunity to try and undermine the identity connection.3

¶36 On the third Sullivan point, Tate bore the burden before the circuit
court “to show that the probative value of the [other-acts] evidence is substantially

3
Tate argues that State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999) supports
his challenge. We disagree. In Scheidell, the supreme court denied admission of evidence that an
unknown person who wore a hood and white mask entered a woman’s apartment through a window
to sexually assault her using a knife; acts the defendant argued were close in time, place, and
circumstance to the sexual assault of the victim. Id. at 291. Here, unlike in Scheidell, the known
individual had engaged in the uncommon act of choking and professed an interest in doing so with
three former girlfriends. The other-acts evidence here was also relevant to Tate’s attempt to identify
Cook as the perpetrator. More importantly, the evidence here is relevant to intent, absence of
mistake, or accident, which were not at issue in Scheidell.

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No. 2019AP1742-CR

outweighed by the risk or danger of unfair prejudice.” See Marinez, 331 Wis. 2d
568, ¶19 (emphasis added). He failed to meet this burden.

¶37 Prejudice, in this context, is not defined by harm to the opposing
party’s case but, rather, whether the evidence tends to influence the outcome of the
case by “improper means.” State v. Payano, 2009 WI 86, ¶87, 320 Wis. 2d 348,
768 N.W.2d 832 (citation omitted). Because WIS. STAT. § 904.03 “provides for
exclusion only if the evidence’s probative value is substantially outweighed by the
danger of unfair prejudice, ‘[t]he bias, then, is squarely on the side of admissibility.
Close cases should be resolved in favor of admission.’” Marinez, 331 Wis. 2d 568,
¶41 (citing 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN
EVIDENCE § 403.1, at 139 (3d ed. 2008)).

¶38 Here, as discussed above, the nearness in time, place, and
circumstance rendered the other-acts evidence highly probative. While Tate
suggests that the other-acts evidence played upon the “jurors’ sensibilities” relating
to morality and that the other-acts evidence related to his “kinks and sexual
preferences,” which cast him in an unfavorable light, the jury was told that the other-
acts evidence was to be considered only in terms of Tate’s intent and modus
operandi, and not to show that he was guilty of Olivia’s death because he had a bad
character. The record does not evidence any attempt by the prosecution to exploit
the other-acts evidence to provoke the jurors’ instincts to punish or base their
decisions on something other than the established propositions in the case, including
guilt beyond a reasonable doubt. While the evidence is prejudicial because it is
probative, Tate has not met his burden to show that the probative value was
“substantially outweighed” by unfair or improper prejudice. See Hunt, 263 Wis. 2d
1, ¶53.

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No. 2019AP1742-CR

¶39 As detailed above, the court appropriately gave limiting instructions
during S.W.’s and M.H.’s testimony. Limiting or cautionary instructions may
“substantially mitigate” or even “eliminate the potential for unfair prejudice” that
might otherwise result from the admission of other-acts evidence. State v. Hurley,
2015 WI 35, ¶89, 361 Wis. 2d 529, 861 N.W.2d 174 (and cases cited therein). The
court instructed the jury that the evidence was being admitted for the “limited
purpose” of showing “whether the defendant had a modus operandi in dealing with
others of strangulation,” and cautioned the jury not to conclude that Tate had a
“character trait or bad character” or that he “acted in conformity with that trait.”

¶40 The circuit court also provided a detailed cautionary instruction before
the parties’ closing arguments. The court instructed the jurors they could only
consider evidence of Tate’s past employment of “strangulation techniques during
sexual interludes” on “the issues of motive, identity and intent,” and explained the
three concepts of motive, identity, and intent to the jury. The circuit court reiterated
that the jury could not use the other-acts evidence to conclude that Tate had a certain
character or character trait and that he acted in conformity with that trait or that Tate
was “a bad person and for that reason is guilty of the crime.” Juries are presumed
to comply with properly given cautionary instructions. Marinez, 331 Wis. 2d 568,
¶41.

¶41 Here, the significant similarity between the evidence related to
Olivia’s death and that related to Tate’s former girlfriends tended to show that Tate
had an interest in strangulation with females associated with sex or when he was
angry. The evidence tended to show that “the like result”—the strangulation of
Olivia—“was not repeated by mere chance or coincidence.” See Sullivan, 216
Wis. 2d at 786-87. The evidence supported the State’s theory that Olivia’s death
was not accidental and that Tate killed her intentionally.

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No. 2019AP1742-CR

¶42 In sum, the circuit court admitted the evidence for proper purposes,
including intent, absence of mistake or accident, and modus operandi leading to
identity. The evidence was relevant because it related to facts of consequence in
Tate’s trial and it had probative value. The evidence was not unduly prejudicial.
The other-acts ruling was a proper exercise of discretion. We reject Tate’s challenge
to the admission of the other-acts evidence and affirm the judgment of conviction.4

By the Court.—Judgment affirmed.

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

4
Given our decision that the other-acts evidence was properly admitted, we need not reach
the harmless error argument furthered by the State. See Lake Delavan Prop. Co. v. City of Delavan,
2014 WI App 35, ¶14, 353 Wis. 2d 173, 844 N.W.2d 632 (when one appellate issue is dispositive,
we need not address other issues).

14