STATE OF NEW JERSEY v. L.B

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3507-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

L.B.,

     Defendant-Appellant.
_________________________

                   Submitted December 2, 2020 – Decided January 6, 2021

                   Before Judges Vernoia and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 15-03-0206.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Zachary G. Markarian, Assistant Deputy
                   Public Defender, of counsel and on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Daniel Finkelstein, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Defendant L.B.1 appeals from his conviction by a jury of second-degree

sexual assault. He contends the trial court violated his right to a fair trial and to

fully confront the witnesses against him by barring cross-examination of the

victim R.P.S. about her illegal entry into the United States fourteen years prior

to the sexual assault. Unpersuaded, we affirm.

                                         I.

       Because defendant's appeal presents a narrow issue for our consideration,

we limit our summary of the pertinent facts to those necessary to provide context

for our analysis of defendant's argument.

      A grand jury charged defendant in an indictment with second-degree

sexual assault,  N.J.S.A. 2C:14-2(c)(1), by committing one or more acts of sexual

penetration on R.P.S. by using physical force. At the commencement of the

trial, the court granted defendant's request for a Rule 104 hearing, see N.J.R.E.

104, to determine the allowable scope of R.P.S.'s testimony concerning her

immigration status.     Defendant sought to cross-examine R.P.S. about her

immigration status to establish she had a motive to falsely allege she had been

sexually assaulted.


1
  Defendant and the victim of the sexual assault for which he was convicted are
husband and wife. We use initials to identify defendant and the victim to ensure
the victim's identity is protected from public access. See R. 1:38-3(c)(12).
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      During the hearing, R.P.S. testified she is married to defendant, who is a

United States citizen, and that the couple's two children are also citizens. She

explained she entered the United States in 2000 without a visa, but she was

presently in the country legally because she had a work permit. R.P.S. testified

that prior to the December 8, 2014 sexual assault alleged in the indictment, she

began the process of applying for citizenship, and, at the time of trial, the process

was ongoing. She also testified her work permit was scheduled to expire in June

2017, three months following the trial.

      R.P.S. testified she is aware a person may gain United States citizenship

by being married to a citizen such as defendant, and she also understood that a

person may gain citizenship if he or she is the victim of a crime. R.P.S. denied

fabricating the allegation she was the victim of sexual assault to further her

efforts to obtain citizenship.

      Defense counsel argued she should be permitted to cross-examine R.P.S.

at trial about her immigration status, including her illegal entry into the country

without a visa in 2000, to establish she had a motive to fabricate the alleged

sexual assault. The State argued that information about R.P.S.'s immigration

status and entry into the country was not probative and was unduly prejudicial.




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      The court ruled that defense counsel could question R.P.S. at trial about

her immigration status at the time of the incident, her process of applying for

citizenship, and her knowledge about the effect being a crime victim might have

on her citizenship application. The court, however, denied defense counsel's

request to question R.P.S. at trial about how she entered the United States,

finding it was "tantamount to [N.J.R.E.] 404[(b)] evidence."

      At trial, R.P.S. testified she married defendant in 2005, their relationship

began to deteriorate in 2011, and, by the end of 2013, defendant no longer

resided with R.P.S. They remained in contact, however, to communicate about

their children.

      According to R.P.S., on December 6, 2014, defendant informed R.P.S. he

had fathered a child with another woman. Two days later, defendant went to

R.P.S.'s apartment to drop off items for one of the children. R.P.S. asked

defendant to leave the items and her apartment, but defendant locked the

apartment door and followed R.P.S. to the bedroom, where she had retreated

after asking defendant to leave.      Defendant attempted to show R.P.S. a

photograph of his new child, but R.P.S. did not want to see it and again as ked

defendant to leave.




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      R.P.S. testified defendant then pushed her onto the bed, pulled his and her

pants down, held R.P.S.'s hands over her head, and vaginally penetrated her with

his penis. During the assault, R.P.S. attempted to stop defendant and bit his lip,

leaving blood stains on her shirt. When defendant got up, he told R.P.S. that

she belonged to him, and he left the apartment. R.P.S. reported the incident to

the police.

      During cross-examination, defense counsel questioned R.P.S. about her

current immigration status, but, consistent with the court's determination at the

Rule 104 hearing, counsel did not inquire about whether R.P.S. entered the

United States illegally in 2000. Similar to her testimony at the Rule 104 hearing,

R.P.S. testified she is married to defendant, who is a United States citizen, and

that she is not a United States citizen. She denied she applied for United States

citizenship and explained she applied "at least [for] the [g]reen [c]ard." When

asked if she was "trying to get a legal status in the United States," R.P.S.

explained she "ha[d] a working permit." R.P.S. testified she is aware a person

can gain citizenship by being married to a United States citizen or by being a




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victim of domestic violence. She further testified she wanted to stay in the

United States with her children, who are citizens. 2

       The court held a charge conference on the proposed jury instructions.

Defendant argued the court should charge the jury in accordance with Model

Jury   Charge     (Criminal),    "Credibility—Immigration       Consequences        of

Testimony" (rev. June 6, 2016). The court determined the immigration charge

was not appropriate because the charge applies where the witness is in the United

States illegally, and R.P.S.'s testimony established she was in the United States

legally. The court did not give the requested charge, but it permitted defense

counsel to argue R.P.S.'s immigration status provided a motive to falsely claim

she was the victim of a crime.

       During closing arguments, defense counsel offered numerous reasons

R.P.S.'s testimony about the sexual assault was not credible. Counsel argued

R.P.S. provided inconsistent versions about what occurred to the police and at

trial, she failed to report important alleged facts to the police, and her version of

the sexual assault was illogical and did not make sense. Defendant also asserted

R.P.S. had multiple motives to fabricate the sexual assault, including defendant's


2
  The State called other witnesses at trial, but their testimony is irrelevant to a
determination of the issue presented on appeal. Defendant did not present any
witnesses at trial.
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history of being unfaithful to her, his fathering of a child with another woman,

and her desire to obtain citizenship so she could stay in the United States with

her children.

      The jury found defendant guilty of second-degree sexual assault. The

court determined defendant should be sentenced within the third-degree range,

see  N.J.S.A. 2C:44-1(f)(2), and imposed a four-year prison term subject to the

requirements of the No Early Release Act,  N.J.S.A. 2C:43-7.2, parole

supervision for life,  N.J.S.A. 2C:43-6.4, and compliance with the requirements

of Megan's Law,  N.J.S.A. 2C:7-1 to -23. This appeal followed.

                                      II.

      Defendant presents the following argument for our consideration.

            POINT I

            THE TRIAL COURT DEPRIVED [DEFENDANT] OF
            HIS RIGHT TO PRESENT A COMPLETE DEFENSE
            AND HIS RIGHT TO CONFRONT THE WITNESSES
            AGAINST HIM BY PROHIBITING CROSS-
            EXAMINATION OF [R.P.S.] REGARDING THE
            FULL CONTEXT OF HER IMMIGRATION
            STATUS.

      We review a trial court's decision to admit or exclude evidence using the

abuse of discretion standard. State v. Brown,  463 N.J. Super. 33, 51 (App. Div.

2020). "[W]e will reverse an evidentiary ruling only if it 'was so wide [of] the


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mark that a manifest denial of justice resulted.'" Ibid. (alteration in original)

(citation omitted).    "Although a trial court retains broad discretion in

determining the admissibility of evidence, that discretion is abused when

relevant evidence offered by the defense and necessary for a fair trial is kept

from the jury." State v. Cope,  224 N.J. 530, 554-55 (2016).

      Our federal and state constitutions "guarantee a criminal defendant the

right to confront 'the witnesses against him' and 'to have compulsory process for

obtaining witnesses in his favor.'" State v. Guenther,  181 N.J. 129, 147 (2004)

(quoting U.S. Const. amend. VI and N.J. Const. art. I, ¶ 10). These rights are

"essential for a fair trial." Ibid.; see also State v. Garron,  177 N.J. 147, 169

(2003). "Confrontation means more than being allowed to confront the witness

physically." Davis v. Alaska,  415 U.S. 308, 315 (1974). It means the defendant

is guaranteed the right to cross-examine the witness, id. at 315-16, because

cross-examination is "the most effective means of testing the State's evidence

and ensuring its reliability," Guenther,  181 N.J. at 147; see also State v. Medina,

 242 N.J. 397, 412-13 (2020).

      Although the rights to confront witnesses and present a complete defense

are guaranteed, they are "not unqualified," State v. Kane,  449 N.J. Super. 119,

136 (App. Div. 2017), and they are "not intended to sweep aside all evidence


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rules regulating the manner in which a witness is impeached," Guenther,  181 N.J. at 150 (citing Davis,  415 U.S.  at 321 (Stewart, J., concurring)). As our

Supreme Court explained in State v. Scott, Rule 607 allows the use of extrinsic

evidence "for the purpose of impairing or supporting" a witness's credibility,

 229 N.J. 469, 481 (2017) (quoting N.J.R.E. 607 (1992) (amended 2019)), "unless

an exception within that rule applies or either Rule 405 or 608 renders the

evidence inadmissible," ibid. Rules 405 and 608 "preclude the use of specific

instances of conduct to attack the credibility of a witness." Ibid. Evidence of

"[s]pecific instances of conduct not the subject of a conviction of a crime [is]

inadmissible" under Rule 405.       Ibid. (first alteration in original) (quoting

N.J.R.E. 405 (1992) (amended 2019)). Under Rule 608, "'a trait of character

cannot be proved by specific instances of conduct' unless the prior act was a

'false accusation against any person of a crime similar to the crime with which

[the] defendant is charged.'" Ibid. (quoting N.J.R.E. 608 (2006) (amended

2019)). Even "relevant evidence may also be excluded on the ground that 'its

probative value is substantially outweighed by the risk of . . . undue prejudice.'"

Ibid. (alteration in original) (quoting N.J.R.E. 403 (1992) (amended 2019)).

      In State v. Sanchez-Medina, the Court considered the prejudicial effect of

evidence concerning a person's immigration status, explaining that, "[a]s a


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general rule, that type of evidence should not be presented to a jury."  231 N.J.
 452, 462 (2018). The Court found that "[i]n most cases, the immigration status

of a witness or party is simply irrelevant, and a jury should not learn about it,"

id. at 463, because disclosure of a person's "illegal status in this country is very

likely to trigger negative sentiments in the minds of some jurors," id. at 464

(quoting Serrano v. Underground Utils. Corp.,  407 N.J. Super. 253, 274 (App.

Div. 2009)).    The Court, however, explained that evidence concerning a

witness's or party's immigration status is admissible in "limited" and "rare"

circumstances, such as where a witness is "promised . . . favorable immigration

treatment in exchange for truthful testimony" or where a "defendant . . . lied

about his immigration status to obtain government benefits as part of scheme to

defraud, [and] his true status [is] relevant to the crime charged." Id. at 463.

      Here, we discern no abuse of the court's discretion in allowing evidence

concerning R.P.S.'s immigration status, and limiting the evidence to only that

which was necessary to establish she had a motive—her understanding a

citizenship application would be aided if she was the victim of a crime—to

falsely allege defendant sexually assaulted her. Defense counsel elicited the

pertinent testimony and created a record supporting her argument to the jury that




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R.P.S. had a motive related to her immigration status to falsely accuse defendant

and the jury should not believe R.P.S.'s testimony for that reason.

      We reject defendant's claim the court erred by preventing him from also

eliciting testimony concerning R.P.S.'s illegal entry into the United Sta tes in

2000. That information is wholly irrelevant to defendant's claim R.P.S. had a

motive in 2014 to falsely accuse him of sexual assault, and there is no evidence

that any issues related to her entry into the United States might affect her quest

for either citizenship or a green card. At the Rule 104 hearing, defense counsel

claimed evidence concerning R.P.S.'s illegal entry was "extremely probative"

because it showed she knew she was going to later need assistance to gain

citizenship. We disagree. What R.P.S. understood when she entered the country

in 2000 was not an issue at trial, and evidence concerning her entry did not have

"a tendency in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401; see Verdicchio v. Ricca,  179 N.J. 1,

33-34 (2004) ("To say that 'evidence is irrelevant in the sense that it lacks

probative value' means that it 'does not justify any reasonable inference as to the

fact in question.'" (quoting State v. Allison,  208 N.J. Super. 9, 17 (App. Div.

1985))). She accused defendant of sexual assault in 2014, and it was the

knowledge she possessed at that time and at trial about obtaining citizenship or


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a green card that is probative of her motives for accusing defendant of sexual

assault. Moreover, there is no evidence R.P.S.'s desire for citizenship or pending

application for a green card would be affected by the circumstances related to

her entry to the country.

      We are convinced the court properly excluded evidence R.P.S. entered the

country illegally because it was not relevant. N.J.R.E. 401. Additionally, even

if such evidence had some probative value—and defendant points to none

supported by the trial record—its value would have been '"so significantly

outweighed by [its] inherently inflammatory potential as to have a probable

capacity to divert the minds of the jurors from a reasonable and fair evaluation

of the basic issue[s].'"    Serrano,  407 N.J. Super. at 274-75 (alterations in

original) (quoting Green v. N.J. Mfrs. Ins. Co.,  160 N.J. 480, 491 (1999)); see

also Morales-Hurtado v. Reinoso,  457 N.J. Super. 170, 192 (App. Div. 2018),

aff'd  241 N.J. 590 (2020). The evidence was therefore inadmissible under Rule

403 and was properly excluded by the trial court.

      We next consider defendant's claim the court incorrectly found N.J.R.E.

404(b) barred the admission of evidence concerning R.P.S.'s entry into the

United States. Where, as here, a defendant seeks to use other-crime evidence

defensively, the court must determine if the evidence is relevant under Rule 401,


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State v. Williams,  240 N.J. 225, 234-35 (2019), and, if so, whether it should be

excluded under Rule 403, id. at 237-38. For the reasons we have explained,

evidence concerning R.P.S.'s entry into the country is not relevant under Rule

401 and is otherwise inadmissible under Rule 403.

      We reject defendant's claim the court's determination should be reversed

because it did not conduct its analysis under the applicable evidentiary rules.

We review a trial court's orders, not its reasoning, Do-Wop Corp. v. City of

Rahway,  168 N.J. 191, 199 (2001); see also Scott,  229 N.J. at 479, and "we may

'affirm the trial court's decision on grounds different from those relied upon by

the trial court,'" State v. Armour,  446 N.J. Super. 295, 310 (App. Div. 2016)

(quoting State v. Heisler,  422 N.J. Super. 399, 416 (App. Div. 2011)). Although

our reasoning differs from the trial court's, the court correctly barred admission

of the evidence concerning R.P.S.'s entry into the United States.

      Defendant also contends the court erred by denying his request to charge

the jury pursuant to Model Jury Charge (Criminal), "Credibility—Immigration

Consequences of Testimony" (rev. June 6, 2016). Where the trial court does not

give a jury a charge requested by defendant, we review the court's decision for

harmless error. See Hedgpeth v. Pulido,  555 U.S. 57, 60-61 (2008); see also

State v. Camacho,  218 N.J. 533, 550-52 (2014) (holding a trial court's failure to


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                                       13
instruct the jury regarding a defendant's election not to testify upon the

defendant's request is "subject to the . . . harmless-error analysis"). We must

determine "whether in all the circumstances there [is] a reasonable doubt as to

whether the error denied a fair trial and a fair decision on the merits." State v.

Macon,  57 N.J. 325, 338 (1971). "[W]hether an error is harmless depends upon

some degree of possibility that it led to an unjust verdict. The possibility must

be real, one sufficient to raise a reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached." State v. Burton,  309 N.J.

Super. 280, 289 (App. Div. 1998). "If the possibility of an unjust result is

sufficient to raise in our minds a reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached, a new trial is required."

State v. Walden,  370 N.J. Super. 549, 562 (App. Div. 2004).

      We are not convinced the court erred by denying defendant's request to

charge the jury in accordance with the model jury charge. By its plain terms,

the charge applies where a witness who testifies for the State is "not [a] legal

resident[] of the United States and, therefore, subject to removal from this

country."   Model     Jury   Charge     (Criminal),    "Credibility—Immigration

Consequences of Testimony" (rev. June 6, 2016) (first bracket in original).

There is no evidence that was the case here. R.P.S. testified she was in the


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United States legally under a work permit, and there was no evidence presented

she was subject to removal. At the Rule 104 hearing, she testified her work

permit expired three months later in June 2017, but at trial no similar testimony

was elicited. As a result, the record before the jury was devoid of evidence

R.P.S. was either in the country illegally or subject to the removal referred to in

the model jury charge.

      On its face, the charge also applies where a witness is aware of a program

that could prevent her removal if the State informed federal immigration

authorities she was a victim of a crime. R.P.S. was never asked at trial whether

she faced removal from the country or if she understood the State could inform

federal immigration authorities that she was a victim of a crime as a means of

preventing her removal. 3 During trial, R.P.S. said nothing about being removed

from the country. She explained only that she understood being a victim of a


3
  We note R.P.S. testified at the Rule 104 hearing that her work permit expired
in June 2017, three months after the hearing and trial. Although that evidence
alone did not establish R.P.S. would either be removed when the permit expired,
or believed she would be removed at that time, it might have supported an
inference her removal was imminent if presented at trial. At trial, however,
R.P.S. did not testify that her work permit was to expire in three months, nor did
she testify as to any other facts supporting a reasonable inference she faced
removal by federal immigration authorities. Any inference at trial that she was
subject to removal, might be removed, or believed the State could assist her in
avoiding some putative removal would have necessarily been based on pure
speculation.
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crime might assist her in qualifying for citizenship, but the jury was not

presented with any evidence R.P.S. had applied for citizenship. R.P.S. testified

only about applying for a green card. In other words, there is no evidence

supporting defendant's request for the charge. See Lesniak v. Cnty. of Bergen,

 117 N.J. 12, 20 (1989) ("A jury instruction that has no basis in the evidence is

insupportable, as it tends to mislead the jury."). The court did not err by not

giving the charge; it is not supported by the trial record.

      Even assuming the court erred by failing to give the model jury charge,

we do not have "a reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached." Burton,  309 N.J. Super. at 289. Under

the circumstances of this case, the charge would have actually inured to the

State's benefit because its primary message is that a jury cannot make a

determination about a witness's credibility based in whole or in part on the

person's immigration status.     If the charge had been given, it would have

instructed that the jury could not consider R.P.S.'s immigration status to

conclude that she did not "comply with our society's rules and, therefore, [was]

more likely to ignore the oath requiring truthfulness on the witness stand."

Model Jury Charge (Criminal), "Credibility—Immigration Consequences of

Testimony" (rev. June 6, 2016). The charge further instructs the jury that a


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witness's "violation of federal immigration laws does not, in and of itself, affect

[his or her] credibility." Ibid. The failure to provide the charge deprived the

State of instructions ameliorating any "negative sentiments in the minds of some

jurors," Serrano,  407 N.J. Super. at 274, about R.P.S. that may have been

"trigger[ed]," ibid., by the testimony about her immigration status. As a result,

the State lost the benefit of the instruction that R.P.S.'s immigration status alone

could not be considered in assessing her credibility.

      The charge benefits a defendant to the extent it instructs a jury that in

assessing a witness's credibility, "the focus must be on whether the possibility

that the State can help [the witness] delay or avoid removal from the United

States improperly influenced [the witness's] testimony." Model Jury Charge

(Criminal), "Credibility—Immigration Consequences of Testimony" (rev. June

6, 2016). That instruction, however, has no application here because R.P.S. did

not testify at trial there was any possibility the State would assist her in delaying

any purported removal. Giving the instruction to the jury would not have aided

the jury in its determination of R.P.S.'s credibility because there is no evidence

supporting its application.

      Although the charge directs that the jury consider whether a witness's

testimony "was influenced by the hope or expectation for any favorable


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treatment or reward such as delaying or avoiding removal from the United States

by federal immigration authorities," we do not have a reasonable doubt the

failure to give that portion of the charge led the jury to a result it otherwise might

not have reached. The court's general instruction on the credibility of witnesses

addressed the jury's consideration of witness bias and interest in the outcome of

the trial as factors to be considered in assessing R.P.S.'s, and all the witnesses',

credibility. In addition, defense counsel's primary theme during her summation

focused on R.P.S.'s lack of credibility due to what were characterized as R.P.S.'s

numerous motives for allegedly falsely accusing defendant of sexual assault.

We are convinced that based on the court's general charge on credibility, and

defense counsel's summation, the jury was fully capable of considering the

evidence concerning R.P.S.'s immigration status and fairly deciding whether it

supported defendant's claim R.P.S. falsely accused him of sexual assault. See,

e.g., State v. Walker,  322 N.J. Super. 535, 547 (App. Div. 1999) (explaining that

"determining whether a . . . failure to give a special credibility instruction

constitutes reversible error" requires consideration of "the entire trial record,

including" the general instructions on witness credibility, and the prosecutor's

and defense counsel's summations).




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                                         18
      Any of defendant's arguments we have not expressly addressed are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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