State v. Scott C. Kieson

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.
October 26, 2022
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. 2021AP1903-CR Cir. Ct. No. 2001CF202

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT C. KIESON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Washington County:
JAMES K. MUEHLBAUER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2021AP1903-CR

¶1 PER CURIAM. Scott C. Kieson appeals from an order denying his
postconviction motion for DNA testing under WIS. STAT. § 974.07(2) (2019-20).1
After pleading guilty to first-degree sexual assault with use of a dangerous
weapon, Kieson was convicted in 2002. He asserts the circuit court2 erroneously
exercised its discretion in denying his 2021 motion for DNA testing of samples
collected from the victim. Kieson has not met his burden to sufficiently claim that
he is innocent of the offense at issue, nor has he shown a reasonable probability
that he would not have been prosecuted for this offense even with DNA evidence
favorable to him. Accordingly, we affirm.

¶2 The two samples that Kieson seeks to have tested consist of human
semen taken from the seventeen-year-old victim of a sexual assault that occurred
in June, 2001. According to the amended complaint, the victim was in her home
sleeping when she heard a knock at the door shortly after noon. After another
knock, a man entered the house. He told her to lie on her stomach, pointed a
crossbow at her, and proceeded to wrap duct tape around her arms. The man then
demanded to be taken to the room of a person who was living with the victim and
her parents. After briefly looking around that room and putting duct tape over her
mouth, the man ordered the victim to lie on her back and raped her, threatening to
shoot her with the crossbow. The man left and drove away in a gray minivan.

¶3 The victim ran to her mother’s room, and her mother called the
police. There is only one man mentioned in the amended complaint who was

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The Honorable James K. Muehlbauer.

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present during the assault. The victim positively identified Kieson as the man who
sexually assaulted her in her home.

¶4 Police traced the gray minivan to the estranged wife of the person
living with the victim and her family. This woman said that she had lent the
vehicle to Kieson around noon on the day in question. Looking in the windows of
the van, the police saw a roll of duct tape and a crossbow consistent with the tape
and weapon used to commit the crime. The crime lab determined that Kieson’s
fingerprints were present on the duct tape and at the crime scene. Kieson was
charged with both sexual assault and burglary.

¶5 Kieson pled guilty to the sexual-assault charge, as a repeater, and the
burglary charge was dismissed, but read in. Citing “the gravity of this offense,
[Kieson’s] character and miserable criminal history,” and the “need to protect the
public,” the circuit court3 sentenced Kieson to fifty years of initial confinement
followed by twenty years of extended supervision, consecutive to any other
sentences.

¶6 This appeal arises from Kieson’s 2021 motion for DNA testing
pursuant to WIS. STAT. § 974.07(2). For the first time, Kieson suggested in that
motion—twenty years after the crime occurred—that he was not alone in illegally
entering the victim’s house in an “attempt to recover money from a person who
turned out not to be there” and that there was a “second male individual” with him.
He further asserted that he had “no memory of actually committing” the sexual
assault. “As such,” Kieson claimed he was innocent of sexual assault, suggesting

3
The Honorable Annette K. Ziegler sentenced Kieson.

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that the other male with him could have committed the sexual assault. Kieson did
not claim to be innocent of other potential offenses and did not deny being present
in the victim’s home at the time she was assaulted. He stated that at the time he
was in the victim’s home he “had been using cocaine and was altered or
intoxicated thereon to the point where it is possible, if not probable, that it could
have substantially affected his ability to maintain awareness and memory of what
was happening.”

¶7 The circuit court denied Kieson’s motion for DNA testing without a
hearing. The court made findings with respect to the four requirements of WIS.
STAT. § 974.07(7)(a) that, if met, require a court to order testing. Relevant to our
decision here, the court found that Kieson failed to meet the following two of four
statutory requirements for court-ordered testing:

1. The movant claims that he or she is innocent of the offense at
issue ….

2. It is reasonably probable that the movant would not have been
prosecuted, convicted, found not guilty by reason of mental disease
or defect, or adjudicated delinquent for the offense at issue … if
exculpatory deoxyribonucleic acid testing results had been available
before the prosecution, conviction, finding of not guilty, or
adjudication for the offense.

Sec. 974.07(7)(a)1.-2.4 With respect to the first requirement, the court found that
“Kieson’s claim of no memory is not a claim of innocence. A claim of actual

4
The circuit court also found that the samples were no longer in possession of law
enforcement, another requirement for court-ordered testing. See WIS. STAT. § 974.07(7)(a)4.
Kieson argues that this finding is not supported by anything in the record other than the district
attorney’s argument in opposition to Kieson’s motion. Because we conclude that other
requirements for court-ordered testing are not met, we need not reach this issue. See Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one issue is dispositive of an
appeal, we need not reach other issues).

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No. 2021AP1903-CR

innocence, rather than speculation, is required” under the statute. With respect to
the second requirement, the court found “no reasonable probability” that the
outcome of Kieson’s case would be different with exculpatory DNA evidence,
noting the “other substantial evidence of Kieson’s guilt, i.e. the duct tape,
crossbow, finger prints, and Kieson’s verified use of the borrowed gray Plymouth
minivan (where the cross bow and duct tape were found), during the exact time
period the sexual assault occurred.”

¶8 We review the circuit court’s determination as to whether the
requirements of WIS. STAT. § 974.07(7) are met under the erroneous-exercise-of-
discretion standard. See State v. Hudson, 2004 WI App 99, ¶16, 273 Wis. 2d 707,
681 N.W.2d 316. We affirm if the circuit court “rel[ied] on facts of record and the
applicable law to reach a reasonable decision.” Id. To the extent we must
interpret § 974.07(7), we do so independently. State v. Denny, 2017 WI 17, ¶46,
373 Wis. 2d 390, 891 N.W.2d 144.

¶9 We begin with the statute’s first requirement for court-ordered
testing: the person seeking the testing must “claim[] that he ... is innocent of the
offense at issue.” WIS. STAT. § 974.07(7)(a)1. Here, the offense is first-degree
sexual assault. Kieson asserts that he has no memory of committing it, and the
assault could have been committed by the other male that he says was present in
the victim’s house on that day. Kieson has not cited any authority, nor has he
developed a statutory-interpretation argument that suggests that a lack of memory
or a speculative statement that one might not have committed the crime, rather
than an affirmative assertion that one did not commit the crime, is sufficient to
satisfy this requirement of § 974.07(7)(a)1.

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No. 2021AP1903-CR

¶10 We need not conduct our own statutory interpretation to decide that
issue, however, because Kieson’s statement that another male might have directly
assaulted the victim is not equivalent to a claim of his innocence in view of the
facts of this particular case. Kieson admits that, at the very least, “he was one of
two male individuals who illegally entered the victim’s home” to commit burglary.
He has acknowledged on the record that “[f]ingerprint analysis confirmed that he
was present in the home and that his fingerprints were found on tape taken from a
role [sic] of duct tape that had been in his possession previously.” These
admissions, along with the circuit court’s review of other “substantial” evidence5
including the fact that Kieson “verified” borrowing the minivan to drive to and
from the crime scene and that he kept the crossbow and duct tape that were used to
commit the crime, both of which were discovered in that minivan—none of which
Kieson disputes in his briefing to this court6—show that Kieson’s new theory does
nothing to undermine his criminal liability for “the offense at issue,” WIS. STAT.
§ 974.07(7)(a)1, albeit as party to the crime under § 939.05, if Kieson’s new
version is accepted.

¶11 Wisconsin’s party-to-a-crime statute provides that anyone
“concerned in the commission of a crime is a principal and may be charged with
and convicted of the commission of the crime although the person did not directly
commit it and although the person who directly committed it has not been
convicted.” WIS. STAT. § 939.05(1). The statute abolishes any distinction in
criminal liability between the person who directly commits a crime and one who

5
The victim personally identified Kieson as her assailant.
6
Kieson admits that he “and the second male had driven to the scene” and that the duct
tape recovered from that vehicle “had been used during the sexual assault.”

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No. 2021AP1903-CR

aids and abets in the commission of the crime (or conspires to commit the crime).
Sec. 939.05(2)(a)-(c); see also United States v. Rogers, 179 F. Supp. 3d 881, 892
(E.D. Wis. 2016) (“[W]hether a defendant is alleged to be liable as a direct actor,
an aider and abetter, and/or a conspirator is of no legal significance because each
of these actors is equally liable for their commission of the offense in question.”).
Aiding and abetting includes taking an overt action to assist the person who
commits a crime, with knowledge or belief that the person is committing a crime.
See State v. Asfoor, 75 Wis. 2d 411, 427, 249 N.W.2d 529 (1977); see also WIS
JI—CRIMINAL 400. “[O]ne who intentionally aids and abets the commission of a
crime is responsible … for other crimes which are committed as a natural and
probable consequence of the intended criminal acts.” Asfoor, 75 Wis. 2d at 430.

¶12 It is Kieson’s burden to claim innocence in order to obtain DNA
testing under this statute. The circuit court did not erroneously exercise its
discretion by concluding that his failure to disclaim anything other than—
possibly—direct sexual assault was insufficient. Its conclusion was based on facts
Kieson admits, which indicate, at a minimum, that Kieson assisted the alleged
direct perpetrator with the overt acts of borrowing a minivan to drive to the house
intending to burglarize it, providing the duct tape used to bind the victim, and
fleeing with both the duct tape and the crossbow used in the assault in the
borrowed minivan after the crime was committed.

¶13 For similar reasons, Kieson’s theory that there was a second male in
the house who could have directly assaulted the victim does not help him meet his
burden to show, as required by WIS. STAT. § 974.07(7)(a)2., a reasonable
probability that Kieson would not have been prosecuted for first-degree sexual
assault had the favorable DNA evidence been available before prosecution. As the
circuit court found (without specifying that a party-to-a-crime modifier could be

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No. 2021AP1903-CR

appropriate under Kieson’s theory), there is “substantial evidence of Kieson’s
guilt, i.e. the duct tape, crossbow, fingerprints, and Kieson’s verified use of the
borrowed gray Plymouth minivan (where the cross bow and duct tape were
found),” none of which are contested by Kieson—and all of this is in addition to
the admission in his brief that he illegally entered and was present in the victim’s
home with the intent to burglarize it when the sexual assault occurred.

¶14 Thus, the circuit court’s determination of “no reasonable
probability” of a different outcome for Kieson regardless of DNA testing is
supported by the facts in the record. The court’s conclusion—essentially, that the
DNA evidence Kieson seeks would not be exculpatory, even if it pointed to
someone other than himself—was not an erroneous exercise of discretion.

¶15 Because Kieson’s admissions negate his claim of innocence and
leave no reasonable probability that he would not be prosecuted for sexual assault
even if DNA collected from the victim showed that another individual directly
assaulted her, he has failed to meet his statutory burden of proof. We affirm the
circuit court’s denial of Kieson’s motion for DNA testing under WIS. STAT.
§ 974.07(2).

By the Court.—Order affirmed.

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

8