State v. Vayda S. Herrera

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.
May 9, 2023
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. 2021AP944-CR Cir. Ct. No. 2018CF3556

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VAYDA S. HERRERA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID A. FEISS, 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. 2021AP944-CR

¶1 PER CURIAM. Vayda S. Herrera appeals from a judgment for
physical abuse of a child, recklessly causing great bodily harm, and an order
denying postconviction relief. On appeal, Herrera contends that: (1) the circuit
court erred when it failed to hold a postconviction evidentiary hearing on her
newly discovered evidence claim; and (2) the circuit court erred when it granted
the State’s pretrial other-acts motion. For the reasons discussed below, we reject
Herrera’s arguments and affirm.

BACKGROUND

¶2 On the morning of July 3, 2018, Leah Altenburg, C.C.’s KinderCare
teacher, noticed swelling to four-year-old C.C.’s right hand. When C.C. was
asked what happened, he stated that his dad’s girlfriend, Herrera, cracks his
knuckles. C.C. was taken to Children’s Hospital, where he was diagnosed with
fractures at the base of his third and fourth fingers on his right hand. Herrera was
charged with physical abuse of a child, intentionally causing bodily harm.
Subsequently, an amended information was filed charging Herrera with physical
abuse of a child, recklessly causing great bodily harm.

¶3 Prior to trial, the State moved to admit other-acts evidence that two
or three months before July 3, 2018, Altenburg had noticed that C.C.’s hand was
swollen, and at that time, C.C. said that Herrera cracks his fingers when he had a
bad day at daycare. The State also sought to introduce evidence that in June 2018,
C.C. had a broken arm, and during a forensic interview, stated that Herrera had
broken his arm.

¶4 The defense contended that the other-acts evidence should not be
admitted. In regards to the hand injury evidence, the defense argued that there was
no independent evidence that the injury had occurred, such as a doctor’s report,

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police report, or Child Protective Services (CPS) report. In regards to the broken
arm evidence, the defense noted that the prosecutor who had filed the other-acts
motion had received an opinion from Dr. Judy Guinn that it was “inconclusive as
to whether that was caused by an injury[.]”

¶5 The circuit court granted the other-acts motion. The court found that
the evidence was admissible to show intent and absence of mistake, and was
relevant. The court further found that while the evidence was prejudicial, the
evidence was not unfairly prejudicial.

¶6 On the day of trial, trial counsel informed the court that he was not
going to call C.C.’s father, S.C., who was on the defense witness list. The
prosecutor responded that she intended to call S.C. Trial counsel stated that if S.C.
testified, counsel was “virtually certain” that S.C. would commit perjury.

¶7 During trial, the State called multiple witnesses, including
Altenburg. Altenburg testified that on July 3, 2018, she noticed that C.C.’s hand
was swollen at daycare. When she asked C.C. what happened, he said that Herrera
“will be mad if I say, if I tell.” Altenburg told C.C. that he could trust her and she
“will make sure that nothing happens to you.” C.C. then told her that Herrera was
cracking his fingers, and demonstrated how Herrera would bend his fingers all the
way back. Altenburg reported C.C.’s allegation to the KinderCare Director,
Theresa Castronovo.

¶8 Castronovo testified that on July 3, 2018, one of C.C.’s hands was
“round like a ball” and his fingers were swollen. When Castronovo asked C.C.
what happened to his hand, he did not respond. Castronovo then told C.C. that she
was going to call his father, S.C., to ask what happened. C.C. got upset and said,
“don’t call him, don’t call him.” After C.C. left her office, Castronovo called

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CPS. Castronovo also spoke to S.C. on the phone. S.C. claimed that he had not
seen C.C. all day and told Castronovo to speak with Herrera.

¶9 In addition, Castronovo testified that she had previously seen C.C.
with his arm in a cast, and when asked, C.C. stated that he fell off a slide at the
park. Castronovo did not suspect any abuse and did not contact CPS about C.C.’s
broken arm.

¶10 Shawneice Griffin, a CPS specialist, responded to the KinderCare
call regarding C.C. When she met with C.C., Griffin noted that C.C.’s fingers
were discolored and swollen, so she took him to Children’s Hospital. At the
hospital, Griffin was present when C.C. was asked how his hand got injured, and
C.C. responded that he was scared and he did not want Herrera to find out they
were looking at his hands. C.C. then stated that Herrera bends his hand backwards
when he gets in trouble at daycare.

¶11 Griffin determined that C.C. was not safe living with Herrera, so he
was placed with his paternal grandmother, R.C. However, C.C. was subsequently
removed from his grandmother’s home, and placed with his biological mother,
S.A.-G.1

¶12 Jennifer Garcia, a forensic interviewer, also testified. Garcia
conducted two forensic interviews of C.C., both of which were video recorded and
played for the jury. In the first interview, which took place when C.C. was living

1
According to Griffin, C.C. was removed from R.C.’s home for several reasons,
including that R.C. had violated the agreed upon protection plan by allowing R.C.’s boyfriend
and Herrera to be present around C.C. without supervision and Griffin had concerns about C.C.
changing his story while placed in R.C.’s home.

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No. 2021AP944-CR

with R.C., C.C. stated that he fell at school and had lied about the allegation
regarding Herrera. In the second interview, which took place when C.C. was
living with S.A.-G., C.C. stated that Herrera had cracked his fingers and broke his
arm.

¶13 C.C. testified that he used to live with S.C. and Herrera. C.C. stated
that Herrera would drop him off and pick him up from KinderCare. While C.C.
was in the car coming home from daycare, Herrera cracked his fingers by bending
them backwards because he was being “naughty.” C.C. identified a photo
depicting his swollen hand.

¶14 During a break in the testimony, the prosecutor indicated that S.C.
would be the State’s next witness. Once on the stand, S.C. asserted his Fifth
Amendment rights. Based upon S.C.’s invocation of his Fifth Amendment rights,
the prosecutor decided not to call him as a witness. Trial counsel also confirmed
that he would not be calling S.C. as a witness.

¶15 Next, Officer Tim Patterson testified that he spoke with Herrera at
Children’s Hospital about C.C.’s hand. Herrera told him that she cracks her own
knuckles and that C.C. would mimic her doing that but his would not crack. In
regards to C.C.’s broken arm, Herrera stated that he broke it while going down a
slide in a “Superman position.”

¶16 Officer Patterson also spoke with C.C. When Officer Patterson
asked C.C. what happened to his hand, C.C. said that when he has a bad day,
Herrera cracks his knuckles. C.C. then showed Officer Patterson how his
knuckles were cracked.

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No. 2021AP944-CR

¶17 Dr. Lynn Sheets, the Medical Director of the Child Abuse Program
at Children’s Hospital, testified that C.C.’s hand injuries were “highly concerning
for child physical abuse or an inflicted injury.” On cross-examination, when she
was asked if she attributed C.C.’s broken arm to child abuse, she testified, “no,
I’m not attributing that to child abuse.”

¶18 After the State rested, the defense called R.C. R.C. testified that she
went camping with C.C. four days before July 3, 2018, and did not see any injuries
on C.C. R.C. also brought C.C. home from Children’s Hospital on July 3. R.C.
testified that on the drive home, C.C. was “happy” and when they got home, he
was “strutting up the driveway,” and he goes “ha, ha, I tricked all of them.” R.C.
responded that “It’s not nice to trick adults. You need to tell them the truth.” R.C.
did not ask any questions about his comment.

¶19 The jury found Herrera guilty of physical abuse of a child, recklessly
causing great bodily harm as charged in the amended information. The circuit
court imposed and stayed a sentence of three years of initial confinement and two
years of extended supervision, and placed Herrera on probation for three years
with twelve months of condition time at the House of Correction.

¶20 Herrera filed a postconviction motion seeking a new trial based upon
newly discovered evidence. In support, the motion included an affidavit from S.C.
Herrera admitted that S.C. was present at her trial; however, she argued that S.C.’s
affidavit constituted newly discovered evidence because S.C. invoked his Fifth
Amendment right and did not testify at trial.

¶21 In S.C.’s affidavit, he stated that, “I am the boyfriend of [Herrera]
and we lived together back in July of 2018.” He further stated that on June 30,
2018, through July 1, 2018, he went camping with Herrera and C.C. and did not

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No. 2021AP944-CR

see any injuries on C.C. Additionally, on the morning of July 3, 2018, he did not
see any injuries while C.C. was getting ready to go to KinderCare. Herrera then
took C.C. to school.2 S.C. asserted that he had never witnessed Herrera “harm and
[sic] of our children.”

¶22 In addition, Herrera’s motion included an affidavit from her mother,
E.H. In E.H.’s affidavit, she asserted that on July 2, 2018, Herrera brought C.C. to
E.H.’s house and they spent the day visiting. C.C. was “happy” and did not
complain about any injuries or pain. E.H. had never seen Herrera do anything
wrong to C.C. In her motion, Herrera did not argue that E.H.’s affidavit was
newly discovered evidence, but argued that E.H.’s affidavit corroborated S.C.’s
affidavit.

¶23 The circuit court denied Herrera’s motion without a hearing. The
court began by noting that Herrera’s witness list included both S.C. and E.H.
Thus, the court concluded that their affidavits were not newly discovered evidence
because Herrera was aware prior to trial that the witnesses “might have relevant
evidence.” Moreover, the court found that even if the affidavits did qualify as
newly discovered evidence, “there is no reasonable probability of a different trial
outcome.” The court noted that neither S.C. nor E.H. “claim to have been present
at the time [C.C.] sustained his injuries: they can only state that he was uninjured
when they last saw him, and that they did not observe any previous mistreatment
of [C.C.] by [Herrera].” This appeal follows.

2
S.C.’s affidavit noted that it was approximately a five-minute drive to school.

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No. 2021AP944-CR

DISCUSSION

¶24 On appeal, Herrera contends that the circuit court erred when it
failed to hold a postconviction evidentiary hearing on her newly discovered
evidence claim. Herrera also contends that the circuit court erred when it granted
the State’s other-acts motion. We address each of Herrera’s arguments below.

I. Newly Discovered Evidence

¶25 When a circuit court denies a postconviction motion without an
evidentiary hearing, we review de novo “whether the motion on its face alleges
sufficient material and non-conclusory facts that, if true, would entitle the
defendant to relief” and “whether the record conclusively demonstrates that the
defendant is not entitled to relief.” State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d
458, 983 N.W.2d 608. “[I]f the motion does not raise facts sufficient to entitle the
movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106,
¶9, 274 Wis. 2d 568, 682 N.W.2d 433.

¶26 To set aside a judgment based on newly discovered evidence, 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

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No. 2021AP944-CR

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). “A reasonable probability of a
different result exists if there is a reasonable probability that a jury, looking at both
the old and the new evidence, would have a reasonable doubt as to the defendant’s
guilt.” Id.

¶27 Herrera contends that S.C.’s affidavit meets the newly discovered
evidence test, and that she is entitled to an evidentiary hearing.3 We disagree. The
record conclusively demonstrates that Herrera is not entitled to relief.

¶28 To start, we are not persuaded that the evidence at issue is in fact
newly discovered. Before the jury was sworn in, trial counsel specifically stated
that “the defense does not intend to call [S.C.] as a witness[.]” Trial counsel
explained that he was concerned that S.C. would commit perjury if he testified.
Thus, S.C.’s testimony was not “discovered after conviction.” See Love, 284
Wis. 2d 111, ¶43 (citation omitted).

¶29 Moreover, the record reflects that Herrera herself also knew of
S.C.’s assertions before her conviction. According to S.C.’s affidavit, Herrera was
on the camping trip with S.C. the weekend before the allegations. Herrera was
also present the morning of July 3, 2018, as S.C.’s affidavit notes that Herrera
drove C.C. to school that day. Accordingly, Herrera would have known of S.C.’s
presence. See Sheehan v. State, 65 Wis. 2d 757, 768-69, 223 N.W.2d 600 (1974)
(holding that there was not newly discovered evidence where the defendant knew
that his co-defendant was involved in the offense and had knowledge of the facts

3
Herrera does not contend that E.H.’s affidavit meets the newly discovered evidence
test. Thus, we do not address it.

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No. 2021AP944-CR

of the case). Nothing in Herrera’s motion alleges that she did not know the facts
set forth in S.C.’s affidavit until after the trial. See Love, 284 Wis. 2d 111, ¶43.

¶30 Further, even if we assume that the evidence is newly discovered,
there is not a reasonable probability that a jury, looking at both the old and the
new evidence, would have a reasonable doubt as to Herrera’s guilt. See Avery,
345 Wis. 2d 407, ¶25. At trial, the jury heard C.C. testify that while he was in the
car coming home from KinderCare, Herrera cracked his fingers by bending them
backwards because he was being “naughty” at school. The jury also heard
testimony from multiple other witnesses, including Altenburg, Officer Patterson,
and Griffin, that C.C. said that Herrera cracked his fingers or bent his hand. In
addition, the jury heard from Dr. Sheets, who opined that C.C.’s hand injuries
were “highly concerning for child physical abuse or an inflicted injury.”

¶31 Thus, given the evidence presented at trial and S.C.’s personal
relationship with Herrera, there is not a reasonable probability that if S.C. had
testified a jury would have a reasonable doubt as to Herrera’s guilt. See id., ¶25.

II. Other-Acts Evidence

¶32 Herrera next contends that the circuit court improperly admitted
evidence that in June of 2018, she broke C.C.’s arm.

¶33 When determining the admissibility of other-acts evidence, courts
apply a three-pronged test. Other-acts evidence is properly admitted if: (1) it is
offered for a permissible purpose under WIS. STAT. § 904.04(2) (2021-22);4 (2) it

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP944-CR

is relevant under WIS. STAT. § 904.01; and (3) its probative value is not
substantially outweighed by the risk of unfair prejudice under WIS. STAT.
§ 904.03. See State v. Sullivan, 216 Wis. 2d 768, 783-89, 576 N.W.2d 30 (1998).

¶34 Even if we assume that the broken arm evidence was impermissible
other-acts evidence, the error was harmless. See State v. Thoms, 228 Wis. 2d 868,
873, 599 N.W.2d 84 (Ct. App. 1999) (“Error in admitting other[-]acts evidence is
subject to harmless error analysis.”). An error is harmless if the party who
benefited from the error “shows ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” State v. Monahan,
2018 WI 80, ¶33, 383 Wis. 2d 100, 913 N.W.2d 894 (citation omitted). Whether
an error is harmless presents a question of law that we review de novo. State v.
Echols, 2013 WI App 58, ¶15, 348 Wis. 2d 81, 831 N.W.2d 768.

¶35 As the circuit court observed in its postconviction decision, the
strength of the evidence against Herrera was “strong.” See Monahan, 383 Wis. 2d
100, ¶35 (stating that when applying the harmless error rule, it is permissible to
consider “the overall strength of the State’s case”). As stated above, the jury heard
testimony from C.C. that Herrera cracked his fingers by bending them backwards
for punishment. Multiple witnesses also said that C.C. told them that Herrera
cracked his fingers or bent his hand, and Dr. Sheets opined that C.C.’s hand
injuries were “highly concerning for child physical abuse or an inflicted injury.”

¶36 Moreover, at trial, the testimony that Herrera had broken C.C.’s arm
was limited. Garcia testified that during C.C.’s second interview, C.C. stated that
Herrera broke his arm. In contrast, there was significant testimony contradicting
that evidence. See State v. Hunt, 2014 WI 102, ¶27, 360 Wis. 2d 576, 851
N.W.2d 434 (stating that “the presence or absence of evidence … contradicting the

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No. 2021AP944-CR

erroneously admitted or excluded evidence” may aid in the application of the
harmless error rule).

¶37 Castronovo testified that when she asked C.C. about his arm, C.C.
said he fell off a slide at the park and Castronovo did not suspect abuse at that
time. Likewise, Officer Peterson, who spoke to Herrera, testified that she said
C.C. broke his arm at Pleasant View Elementary while going down a slide in a
“Superman position.” In addition, and most significantly, when Dr. Sheets was
asked if she attributed C.C.’s broken arm to child abuse, Dr. Sheets testified, “no,
I’m not attributing that to child abuse.” Thus, it is clear beyond a reasonable
doubt that Herrera would have been convicted, absent the testimony that C.C.
stated that Herrera broke his arm. Monahan, 383 Wis. 2d 100, ¶33.

¶38 Therefore, for the reasons stated above, we affirm.

By the Court.—Judgment and order affirmed.

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

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