from an order of the circuit court for Racine County No.
1995CF510: JOHN S. JUDE, Judge. Affirmed.
Reilly, P.J., Gundrum and Hagedorn, JJ.
This appeal addresses the ramifications of the discovery of
"newly discovered evidence" that had it been known
at the time of trial would have resulted in a different legal
analysis than that applied by the circuit court. On October
11, 1995, Daniel G. Scheidell was convicted following a
"he said, she said" jury trial of attempted
first-degree sexual assault and armed burglary against J.D.
Nineteen years later, Scheidell brought a motion for a new
trial under W . S . § 974.06 (2015-16) with the
assistance of the Wisconsin IS TAT  Innocence Project (WIP). The
circuit court granted Scheidell's motion for a new trial
based on newly discovered third-party perpetrator DNA
evidence in the first-degree sexual assault of K.C., and the
State appealed. We affirm the decision of the circuit court
vacating Scheidell's judgment of conviction.
On May 20, 1995, at 4:45 a.m., J.D. was asleep when she heard
the sound of a window blind falling onto her bathroom floor.
State v. Scheidell, 227 Wis.2d 285, 289, 595 N.W.2d
661 (1999). J.D. investigated and found that the window,
which she had left ajar for air, was now open approximately
one foot. Id. She shut the window and went back to
sleep. Id. Some thirty minutes later, J.D. awoke to
a man, wearing a black knit ski mask and a jacket over his
head and hair, straddling her waist. Id.
J.D. fought the knife-wielding man and "believed"
she recognized the man as her upstairs neighbor, Scheidell.
Id. at 289-90. A struggle continued, during which
time J.D. would call out Scheidell's nickname,
"Danno, " which caused the man to hesitate each
time she said his name. Id. J.D. managed to expose
the left side of the man's face from the bottom of the
eye to the top of the lip and based on the man's
"distinctive body and walk, " J.D. was certain the
man was Scheidell. Id. at 290.
J.D. was able to kick the man away and retrieve a pistol from
her nightstand. Id. J.D. told the man that she would
shoot him if he did not leave, and the man left "having
never uttered a word." Id.
J.D. promptly called the police. Id. Upon arrival,
police found Scheidell coming down the stairs from his upper
floor apartment, "and [he] appeared to have just woken
up." Id. Scheidell gave a voluntary statement
and allowed police to search his apartment, which turned up
no evidence. Id. Police also searched the outside
alley, finding no evidence. Police returned later with a
search warrant and likewise found no evidence implicating
Scheidell was charged with one count of attempted
first-degree sexual assault and one count of armed burglary,
both while masked. Id. at 290. On the morning of
trial, the circuit court heard arguments on Scheidell's
intent to offer evidence of a similar crime that occurred
five weeks after the attack on J.D. that Scheidell could not
have committed as he was in jail. Id. The other
crime took place approximately four blocks from J.D.'s
residence and the offender was described by K.C., the victim,
as a white male, thirty-five to forty, with a thin build, who
had entered K.C.'s residence through a window at
approximately 5:00 a.m. and was possibly wearing a mask,
holding a knife, and had some type of hood on his head.
Id. at 291. K.C. awoke to the man on top of her, who
then sexually assaulted her. Id.
Scheidell brought a Denny motion to the circuit court
seeking admission of the similar crime that occurred to K.C.,
just weeks after and within blocks of J.D.'s apartment,
perpetrated by one who wore a mask, was hooded, utilized a
knife, entered through a window in early morning hours, and
was of a similar appearance to Scheidell. Scheidell,
227 Wis.2d at 291. In Denny, we held that "as
long as motive and opportunity have been shown and as long as
there is also some evidence to directly connect a third
person to the crime charged which is not remote in time,
place or circumstances, the evidence should be
admissible." State v. Denny, 120 Wis.2d 614,
624, 357 N.W.2d 12');">357 N.W.2d 12 (1984). Denny established a
"bright line standard" that required three factors
to be present: motive, opportunity, and direct connection.
Id. at 625.
The circuit court denied the Denny evidence, finding
that there was no showing of any direct connection between
the crimes. Scheidell, 227 Wis.2d at 291-92.
Scheidell was found guilty by a jury on both charges and
sentenced to twenty-five years in prison. Id. at
Scheidell appealed the denial of the Denny/other
acts evidence of K.C.'s attack, and our supreme court
ultimately accepted review to address the appropriate test
for the admissibility of other acts evidence committed by an
unknown third party when offered by a defendant to prove
identity. Scheidell, 227 Wis.2d at 293. The court
summarized what Scheidell was attempting to do:
"Scheidell attempted to admit evidence of a similar
crime that was committed by an unknown third party while he
was in jail awaiting trial on the pending matter to prove
mistaken identity." Id. at 294.
The court found that the Denny "legitimate
tendency" test does not apply where a defendant seeks to
show that some unknown third party committed the
charged crime based on evidence of another allegedly similar
crime as "it would be virtually impossible for the
defendant to satisfy the motive or the opportunity prongs of
the legitimate tendency test of Denny."
Scheidell, 227 Wis.2d at 296. Stated succinctly, a
defendant cannot meet his or her burden under the legitimate
tendency test when the alleged third party is unknown.
Id. at 296-97. Denny "does not apply
to this type of other acts evidence." Id. at
In 2010, Scheidell applied to WIP, and in 2013 WIP obtained a
DNA profile on the sexual assault kit from K.C.'s
assault. The DNA profile returned as a match for Joseph R.
Stephen, who is currently serving a prison sentence for a
1998 sexual assault in Racine. Scheidell filed a motion for a
new trial under Wis.Stat. § 974.06 based on newly
discovered DNA evidence and in the interest of justice.
Scheidell now seeks to present evidence that a known
perpetrator of the sexual assault against K.C. also committed
the crimes that he was convicted of against J.D.
The circuit court held an evidentiary hearing on January 21,
2015. At the hearing, Laura Davis, a law student working with
WIP, testified that she interviewed Stephen after the DNA
results were returned. Davis stated that Stephen was living
in Racine during the time of the 1995 assaults on J.D. and
K.C. Stephen did not deny committing either attack, but
admitted that he was abusing a lot of drugs during that time
and noted that "DNA speaks for
itself." According to Davis, Stephen told her to
"tell [Scheidell] I'm sorry." Dr. Nick
Yackovich, an expert in sex-offender risk assessment, and Dr.
Jeffrey Neuschatz, an expert on eyewitness identification,
also testified. The late Judge John S. Jude issued an
insightful and thorough decision and order granting
Scheidell's motion for a new trial. The State appeals.
We begin with the understanding that a defendant has a
constitutional right to present a defense. U.S. Const. amend.
VI; Wis. Const. art. I, § 7; Chambers v.
Mississippi, 410 U.S. 284, 294, 302-03 (1973);
Scheidell, 227 Wis.2d at 293-94. Furthermore,
"it is unconstitutional to refuse to allow a defendant
to present a defense simply because the evidence against him
is overwhelming." State v. Wilson, 2015 WI 48,
¶61, 362 Wis.2d 193, 864 N.W.2d 52');">864 N.W.2d 52. We acknowledge,
however, that the right to present a defense is not absolute
as it is subject to "established rules of procedure and
evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence, " including
whether the evidence is relevant. Scheidell, 227
Wis.2d at 294 (citation omitted). As Judge Jude so aptly
quoted, our system of law has a "twofold aim …
that guilt shall not escape or innocence suffer" and
that "justice shall be done." Berger v. United
States, 295 U.S. 78, 88 (1935). The question before this
court is whether the circuit court properly granted
Scheidell's request for a new trial based on newly
discovered evidence. We conclude that it did.
A judgment of conviction is properly set aside and a new
trial granted based on newly discovered evidence where the
evidence is "sufficient to establish that the
defendant's conviction resulted in a 'manifest
injustice.'" State v. Avery, 2013
WI 13, ¶25, 345 Wis.2d 407, 826 N.W.2d 60');">826 N.W.2d 60 (citing
State v. Plude, 2008 WI 58, ¶32, 310 Wis.2d 28,
750 N.W.2d 42). The defendant must establish by clear and
convincing evidence that "(1) the evidence was
discovered after conviction; (2) the defendant was not
negligent in seeking the evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not
merely cumulative." Plude, 310 Wis.2d 28,
¶32 (citation omitted); State v. McCallum, 208
Wis.2d 463, 473, 561 N.W.2d 707 (1997). Whether to grant a
motion for a new trial under the newly discovered evidence
standard is a discretionary decision for the circuit
court. Plude, 310 Wis.2d 28, ¶31.
"A circuit court erroneously exercises its discretion
when it applies an incorrect legal standard to
newly-discovered evidence." Id.
If a defendant is able to prove all four criteria, then the
court must also determine "whether a reasonable
probability exists that had the jury heard the newly
discovered evidence, it would have had a reasonable doubt as
to the defendant's guilt." Id., ¶32.
"A reasonable probability of a different outcome exists
if 'there is a reasonable probability that a jury,
looking at both the [old evidence] and the [new evidence],
would have a reasonable doubt as to the defendant's
guilt.'" State v. Love, 2005 WI 116,
¶44, 284 Wis.2d 111, 700 N.W.2d 62 (alteration in
original; citation omitted). This determination is a question
of law that we review de novo. Plude, 310 Wis.2d 28,
¶33; State v. Vollbrecht, 2012 WI.App. 90,