COURT OF APPEALS

DECISION

DATED AND FILED

May 9, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1036-CR Cir. Ct. No. 2018CF5434

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUAN ANDRES BALDERAS, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: MICHELLE ACKERMAN HAVAS, Judge. Affirmed. 

Before Brash, C.J., Donald, P.J., and Dugan, J.

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. 2021AP1036-CR

2

¶1 PER CURIAM. Juan Andres Balderas, Jr., appeals a judgment of 

conviction entered following a jury trial for one count of first-degree recklessly 

endangering safety, and one count of second-degree recklessly endangering safety, 

both with the use of a dangerous weapon. He also appeals the denial of his 

postconviction motion.

1

 On appeal, Balderas contends that: (1) the discovery of a 

new witness entitles him to a new trial; (2) the circuit court erred when it failed to 

provide a castle doctrine jury instruction; and (3) his trial was unconstitutional. 

Upon review, we reject Balderas’s arguments and affirm. 

BACKGROUND

¶2 Balderas was charged with one count of first-degree recklessly 

endangering safety and one count of second-degree recklessly endangering safety, 

both with the use of a dangerous weapon. According to the criminal complaint, 

Balderas shot his brother, E.B., in the neck. As E.B. ran away, additional shots 

were fired. 

¶3 Relevant to this appeal, at trial, E.B. testified that Balderas was his 

older brother, and that prior to the shooting there was a family argument on social 

media. On November 12, 2018, E.B. decided to go to Balderas’s house to talk to 

him. 

 

1

 We note that Balderas’s notice of appeal also seeks to appeal an order denying a 

motion for release on bond pending appeal, and an order denying a motion to reconsider this 

request. Balderas, however, does not develop an argument or cite any legal authority related to 

the denial for release on bond pending appeal. We do not address undeveloped and conclusory 

arguments. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). 

Therefore, we do not discuss this request further. 
No. 2021AP1036-CR

3

¶4 E.B. parked across the street from Balderas’s house, and saw 

Balderas outside in his yard. E.B. and Balderas made eye contact, and then 

Balderas began walking to his van. E.B. then got out of his car. As E.B. 

approached the van, Balderas was sitting in the driver’s seat. E.B. made eye 

contact with Balderas and “kind of said hey.” Balderas produced a gun and shot 

E.B. in the neck. E.B. said, “what the hell, you shoot your own brother.” Balderas 

responded, “hell yeah,” raised his gun, and started firing again. E.B. ran away and 

told some road workers to call the police. According to E.B., he did not crouch or 

tiptoe to the van, he did not have anything covering his face, his sweatshirt hood 

was not up, and he was not armed with a weapon. 

¶5 In support of E.B.’s testimony, the State introduced a photo showing 

the bullet wound to E.B.’s neck. The State also introduced a photo of E.B.’s 

sweatshirt showing a bullet hole at the top of the hood. Based on the location of 

the bullet hole at the top of the hood, the State argued that if E.B.’s hood had in 

fact been up, the bullet wound would have been on E.B.’s head, not his neck. 

Thus, the State contended that Balderas was not telling the truth about E.B. having 

his hood up. 

¶6 Balderas testified that on the day of the shooting, he went outside to

his van to go to work. As he left the house, he did not see anyone. Once Balderas 

was in his van, he saw someone in his side mirror “with their hoody on creeping 

up” on the side of his van. Balderas testified that when he saw a person 

approaching his van, he felt scared for his life. Balderas testified that the person 

opened the door and swung at him. In response, Balderas grabbed his gun and 

fired a warning shot. After firing a warning shot, Balderas recognized E.B. 

Balderas testified that E.B. said that “I can’t believe I’m shot” and then started 

running. 
No. 2021AP1036-CR

4

¶7 According to Balderas, E.B. stopped by some garbage cans and bent 

down, and it looked like he was raising something in his hand. Balderas then 

discharged his weapon two more times into his neighbor’s lawn saying, “I’m not 

fucking playing.” Later, Balderas testified that “now that I think about it, maybe 

he was putting a gun down” so the police would not find it. Balderas continued 

that “[n]ow, that I’m thinking about it, why would he go over there and bend 

down? He’s either putting the gun down or picking the gun up.” Balderas 

admitted, however, that he never mentioned his suspicions to the police. When 

asked to explain how E.B.’s hood could have been up, given that the bullet hole 

was in the top of the hood and E.B. was not shot in the head, Balderas said that 

“he was crouched down and the bullet was bouncing around in there.” 

¶8 The circuit court provided a self-defense instruction to the jury on 

both counts. See WIS JI—CRIMINAL 805. Subsequently, during deliberations, the 

jury inquired as to whether bodily harm has to occur before force can be used in 

self-defense or whether a person can use force if they merely fear that they will be 

harmed. Balderas’s trial attorney argued that the proper response would be to

instruct the jury to read the jury instructions. The circuit court agreed, and 

instructed the jurors to refer to the jury instructions. 

¶9 The jury found Balderas guilty as charged. Postconviction, Balderas 

moved for a new trial based on newly-discovered evidence, or in the interest of 

justice. The motion argued that the police failed to take a statement from Amanda 

Bailey, who asserted in a post-trial affidavit that she witnessed the incident 

between Balderas and E.B. Balderas also claimed that his due process rights were 

implicated because police failed to take Bailey’s testimony. Balderas did not raise 

any claims regarding the jury instructions. 
No. 2021AP1036-CR

5

¶10 On April 7, 2021, the circuit court held an evidentiary hearing. At 

the hearing, Bailey testified that she is friends with Balderas’s domestic partner, 

Delvina Harris. Bailey testified that on November 12, 2018, she was in the alley 

in view of Balderas’s residence because she was going to use the garage to work 

on her car. Bailey saw a man with darker clothing and a hood on walking towards 

Balderas’s van. As the person walked, “their pace picked up.” The person then

went between Balderas’s van and a garage. Bailey testified that the van obscured 

her view of the man at that point. Bailey heard a pop. A few seconds later, she 

heard a second pop and a scream. Due to safety concerns, she left the scene. As 

she left, she saw the man run away. 

¶11 After Bailey returned to the scene, an officer told her that “You can’t 

come in here.” She responded, “Why can’t I come in here? I was here when it 

happened.” Bailey then left the scene because the police were not listening to her. 

After Bailey spoke to Harris, she returned to the scene a second time. Bailey

again tried to give her eyewitness account to the same officer, who refused her 

again. 

¶12 Detective Anna Ojdana testified that she reviewed her body camera 

footage and Bailey only approached her at the scene on a single occasion and did 

not try to give her information about the shooting. Detective Ojdana testified that 

Bailey approached her and said, “I lived around the corner I seen the cops here, 

I’m here to check on my friend.” Detective Ojdana responded that Bailey’s friend 

was not involved and the shooting did not take place in the house. The State 

moved into evidence Detective Ojdana’s body camera footage and footage from a 

squad car. 
No. 2021AP1036-CR

6

¶13 On April 26, 2021, after hearing argument from both parties, the 

circuit court issued an oral ruling concluding that Bailey’s testimony did not 

justify a new trial because it was merely cumulative, not material, and most likely 

would not change the result. 

¶14 Balderas moved for reconsideration to present further testimony 

from another individual, Delvina Harris, who would corroborate that Bailey was 

present at the scene. Balderas complained that the hearing limited the testimony to

“only” Bailey’s testimony, but the State was permitted to call Detective Ojdana. 

¶15 The circuit court denied the motion for reconsideration. The circuit 

court faulted Balderas for failing to timely object or seek to present Harris’s 

testimony. In addition, the court noted that Harris was not an eyewitness to the 

shooting, and could not “offer any useful testimony about what happened.” Even 

if Harris placed Bailey at the scene of the shooting, the court found that Bailey’s 

testimony about what she actually saw was “not enough ... to give rise to a 

reasonable probability of a different outcome at a new trial[.]” This appeal 

follows. Additional relevant facts are referenced below. 

DISCUSSION

¶16 On appeal, Balderas contends: (1) the discovery of Bailey, a new 

witness, entitles him to a new trial as newly-discovered evidence, in the interest of 

justice, or a Brady violation;

2

(2) the circuit court erred when it failed to provide a 

 

2

 See Brady v. Maryland, 373 U.S. 83 (1963). 
No. 2021AP1036-CR

7

“castle doctrine” jury instruction; and (3) his trial was unconstitutional. We 

address each of these arguments in turn.3 

I. Bailey’s testimony

A. Newly-Discovered Evidence

¶17 Balderas first contends that Bailey’s testimony constitutes newlydiscovered evidence. 

¶18 To prevail on a newly-discovered evidence claim, a defendant must 

show by clear and convincing evidence that: “(1) the evidence was discovered 

after conviction; (2) the defendant was not negligent in seeking evidence; (3) the 

evidence is material to an issue in the case; and (4) the evidence is not merely 

cumulative.” State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62 

(citation omitted). If a defendant satisfies his burden on all four of these elements, 

the circuit court must then determine “whether a reasonable probability exists that 

a different result would be reached in a trial.” State v. Avery, 2013 WI 13, ¶25, 

345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). 

¶19 “The decision to grant or deny a motion for a new trial based on 

newly-discovered evidence is committed to the circuit court’s discretion.” Id., 

¶22. “A court properly exercises its discretion if it relies on the relevant facts in 

 

3

 We note that in his briefs to this court, Balderas references several other claims in 

passing, including that: the circuit court improperly prevented Delvina Harris from testifying at 

the evidentiary hearing; the circuit court failed to apply the proper sentencing factors; and his 

sentence was excessive. These arguments, however, are conclusory and undeveloped. As a 

result, we decline to address them. See Pettit, 171 Wis. 2d at 646. 
No. 2021AP1036-CR

8

the record and applies the proper legal standard to reach a reasonable decision.” 

State v. Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d 374, 746 N.W.2d 590.4 

¶20 Here, Bailey’s testimony is not material to an issue in the case. At 

the evidentiary hearing, Bailey in essence testified that she saw a person with 

darker clothing and a hood on walking to Balderas’s van. Bailey then heard a 

“pop” followed by a second “pop” and a scream. Bailey then saw the man run 

away. 

¶21 Bailey, however, testified that she did not observe any interaction 

between E.B. and Balderas because her view was obscured by the van. In 

addition, given that she was “far away,” she could not hear if any discussion took 

place. As a result, as the State observes, Bailey could not testify to whether E.B. 

startled Balderas, whether Balderas intended to shoot E.B. or simply fire warning 

shots, or whether he was aiming at E.B. when he fired the second and third shots. 

Bailey did not observe any interaction between E.B. and Balderas or witness the 

actual shooting.5 Therefore, Bailey’s testimony is not material, and we conclude 

 

4

 We observe that in some cases the reasonable probability determination of the newlydiscovered evidence test is reviewed for an erroneous exercise of discretion. See State v. Avery, 

2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60; State v. Edmunds, 2008 WI App 33, ¶16, 

308 Wis. 2d 374, 746 N.W.2d 590. In contrast, other cases state that this determination is a

question of law that we review de novo. See State v. Plude, 2008 WI 58, ¶33, 310 Wis. 2d 28, 

750 N.W.2d 42; State v. Watkins, 2021 WI App 37, ¶44, 398 Wis. 2d 558, 961 N.W.2d 884. 

Because Bailey’s testimony is not material, and thus, does not satisfy the criteria for newlydiscovered evidence, we do not reach the question of whether a reasonable probability exists that 

a different result would be reached in a trial and the accompanying standard of review. See State 

v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that “cases should be 

decided on the narrowest possible ground”). 

5

 Balderas states that Bailey “thought [E.B.] may have been involved in a carjacking[.]” 

However, the carjacking theory was suggested by postconviction counsel at the evidentiary 

hearing. Postconviction counsel asked,” Maybe a carjacking?” Bailey responded, “It could have 

been, yes.” 
No. 2021AP1036-CR

9

that the circuit court did not erroneously exercise its discretion when it denied

Balderas’s newly-discovered evidence claim. 

¶22 Balderas seems to suggest that the circuit court erroneously denied 

his newly-discovered evidence claim based on an improper credibility 

determination at the April 26 hearing. See Avery, 345 Wis. 2d 407, ¶25 (stating 

that “the court is not to base its decision solely on the credibility of the newly 

discovered evidence, unless it finds the new evidence to be incredible”). The 

transcript of the evidentiary hearing reflects, however, that the circuit court’s 

comments relating to credibility were in regards to Bailey’s claims about 

attempting to speak to the officers twice and being rebuffed, not in regards to 

Bailey’s testimony about what she saw. Thus, we reject Balderas’s claim that the 

circuit court erroneously denied his newly-discovered evidence due to improper 

credibility determinations. See id., ¶22.

B. Interest of Justice

¶23 Balderas also contends that he is entitled to a new trial in the interest 

of justice based on Bailey’s testimony. Balderas states that he “amends” all of his 

prior references to WIS. STAT. §§ 805.15 (2021-22)6and 805.16 to WIS. STAT.

§ 974.02. 

¶24 Balderas, however, fails to sufficiently develop an argument on this 

point. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). 

Moreover, Balderas appears to rely on the same facts as his newly-discovered 

 

6

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2021AP1036-CR

10

evidence claim. As stated above, we reject Balderas’s claim that Bailey’s 

testimony constitutes newly-discovered evidence. Thus, we are not persuaded that 

this provides grounds for a new trial in the interest of justice. Reversals in the 

interest of justice are only granted in exceptional cases, and we are not convinced 

this is the type of exceptional case warranting an exercise of our discretionary 

powers. State v. Kucharski, 2015 WI 64, ¶41, 363 Wis. 2d 658, 866 N.W.2d 697. 

C. Brady Claim

¶25 In addition, Balderas argues that the failure to turn over Detective

Ojdana’s body camera, which showed Bailey, constitutes a Brady violation. See 

Brady v. Maryland, 373 U.S. 83 (1963). 

¶26 To establish a Brady violation, a defendant needs to show that: 

(1) the evidence was favorable to the defense, either because it is exculpatory or 

impeaching; (2) the evidence must have been suppressed by the State, either 

willfully or inadvertently; and (3) the evidence was material. State v. Wayerski, 

2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468. 

¶27 The State contends that Balderas failed to preserve his Brady claim 

because he did not raise it in his postconviction motion.7 Alternatively, the State 

contends that Balderas’s claim fails on the merits. 

¶28 Even if we assume that Balderas’s claim is not forfeited, we agree 

with the State that it fails on the merits. Detective Ojdana’s body camera footage 

 

7

 As the State observes, Balderas did not discuss his Brady claim in his postconviction 

motion. We note, however, that Balderas referenced Brady in his postconviction argument, and 

in his motion for reconsideration. 
No. 2021AP1036-CR

11

is neither exculpatory nor material as it does not contain the contents of Bailey’s 

post-trial statement or what she witnessed. Moreover, Bailey’s statement itself is 

not exculpatory. As discussed above, Bailey testified that she did not actually see 

Balderas shoot E.B. or hear any discussion between the two. Thus, Balderas 

cannot show that there is a Brady violation entitling him to a new trial. See 

Wayerski, 385 Wis. 2d 344, ¶35.

II. Castle Doctrine

¶29 Balderas argues that the circuit court erred in not instructing the jury 

as to the castle doctrine. Balderas also argues this instruction should have been 

given when the jury inquired about self-defense. 

¶30 WISCONSIN STAT. § 939.48 addresses self-defense. Wisconsin’s 

castle doctrine is codified in § 939.48(1m)(ar), which provides:

If an actor intentionally used force that was intended or 

likely to cause death or great bodily harm, the court may 

not consider whether the actor had an opportunity to flee or 

retreat before he or she used force and shall presume that 

the actor reasonably believed that the force was necessary 

to prevent imminent death or great bodily harm to himself 

or herself if the actor makes such a claim under sub. (1) and 

either of the following applies:

1. The person against whom the force was used was in the 

process of unlawfully and forcibly entering the actor’s 

dwelling, motor vehicle, or place of business, the actor was 

present in the dwelling, motor vehicle, or place of business, 

and the actor knew or reasonably believed that an unlawful 

and forcible entry was occurring.

2. The person against whom the force was used was in the 

actor’s dwelling, motor vehicle, or place of business after 

unlawfully and forcibly entering it, the actor was present in 

the dwelling, motor vehicle, or place of business, and the 

actor knew or reasonably believed that the person had 

unlawfully and forcibly entered the dwelling, motor 

vehicle, or place of business.
No. 2021AP1036-CR

12

¶31 Balderas acknowledges that the Wisconsin Judicial Conference 

Criminal Jury Instructions Committee’s note indicates that the presumption in 

WIS. STAT. § 939.48(1m)(ar) does not change the substance of the existing 

privilege of self-defense or create an alternative to the existing privilege. See WIS 

JI—CRIMINAL 805A. Rather, it only affects what a defendant must show to have 

the privilege of self-defense submitted to the jury. Id. Balderas nonetheless 

appears to contend that the Committee was wrong and the castle doctrine is 

available to be provided to the jury. 

¶32 Even if we were to assume that the Committee is wrong and a castle 

doctrine instruction was available to provide to the jury—and we empathize we 

are not drawing that conclusion here—Balderas’s arguments are forfeited. 

¶33 Balderas raises his castle doctrine claim for the first time in this 

court. “It is well-established law in Wisconsin that those issues not presented to 

the [circuit] court will not be considered for the first time at the appellate level.” 

Shadley v. Lloyds of London, 2009 WI App 165, ¶25, 322 Wis. 2d 189, 776 

N.W.2d 838. Balderas did not raise this issue in his postconviction motion, and 

there is no indication in the record that Balderas’s trial attorney requested a castle 

doctrine instruction or otherwise objected to the self-defense instruction provided. 

Nor does Balderas allege that any such objection was made off-the-record during 

the trial. The failure to object “constitutes a [forfeiture] of any error in the 

proposed instructions,” see WIS. STAT. § 805.13(3), and this court “has no power 

to reach an unobjected-to jury instruction,” see State v. Trammell, 2019 WI 59, 

¶25, 387 Wis. 2d 156, 928 N.W.2d 564. 

¶34 Moreover, during deliberations, when the jury asked about selfdefense, Balderas’s trial attorney specifically requested that the circuit court 
No. 2021AP1036-CR

13

instruct the jury to read the jury instructions, and the circuit court agreed. A party 

cannot request that a court take a specific action and then complain on appeal 

when the court adopted the party’s position. See Shawn B.N. v. State, 173 

Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992). 

¶35 Balderas suggests that he could not forfeit his challenge because the 

Committee note prevented an objection at trial. Balderas cites no legal authority 

in support of this argument, and it is unclear why a challenge to the Committee 

note could not be raised at the trial court level to preserve it for appellate review, 

or in his postconviction motion. Thus, we conclude that Balderas forfeited any 

challenge to the jury instructions. 

III. Constitutionality of the Trial

¶36 Lastly, Balderas contends that his trial was unconstitutional “for lack 

of fairness and due process.” As the State suggests, this appears to be nothing 

more than a rehash of his previous arguments. In his argument, Balderas states 

that Bailey’s testimony was material and was not cumulative, refers to the absence 

of the castle doctrine instruction, and contends that the failure to turn over 

Detective Ojdana’s body camera footage was a Brady violation. As discussed 

above, all of Balderas’s claims fail. Recasting these arguments as constitutional 

claims does not change our conclusion that Balderas is not entitled to relief.

¶37 Therefore, for all of the reasons above, we reject Balderas’s

arguments and affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.