                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0863-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

L.Z.,

     Defendant-Appellant.
________________________

                    Argued December 17, 2019 – Decided February 12, 2020

                    Before Judges Fisher, Gilson and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 15-07-2243.

                    Jennifer L. Gottschalk argued the cause for appellant
                    (Jennifer L. Gottschalk and Thomas J. DeMarco,
                    attorneys; Jennifer L. Gottschalk, of counsel and on the
                    brief; Thomas J. DeMarco, of counsel).

                    Lila Bagwell Leonard, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Lila Bagwell Leonard, of
                    counsel and on the brief).

PER CURIAM
      A jury convicted defendant of four crimes related to the sexual assault of

a minor: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c);

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); third-degree aggravated

criminal sexual contact, N.J.S.A. 2C:14-3(a), as a lesser-included offense; and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

Defendant was sentenced to an aggregate prison term of twenty-two years, with

a period of parole ineligibility, as well as parole supervision for life.

      He contends that his convictions should be reversed because he was not

allowed to cross-examine the child's mother on her immigration status, and he

was not accorded a Rule 104 hearing on that issue. He also argues that the trial

court erred in charging the jury on the lesser-included offense of aggravated

criminal sexual contact. We reject these arguments and affirm.

                                         I.

      The evidence at trial included testimony by the victim, the victim's

mother, and defendant's statement given to law enforcement personnel. That

evidence established that defendant had sexual relations with the daughter of his

girlfriend when the daughter was between the ages of twelve and fourteen and

defendant was approximately between the ages of twenty-two and twenty-four.




                                                                            A-0863-18T2
                                         2
       In 2010, at the age of ten, the victim came from El Salvador to live with

her mother and sister in New Jersey. Defendant, who was then approximately

twenty years old, was the live-in boyfriend of the victim's mother. Defendant

watched and cared for the victim and her sister when the mother was at work.

       When the victim was twelve years old, defendant began having sexual

intercourse with her. According to the victim, she and defendant had sex

multiple times over a period of years.

       In 2014, when the victim was fourteen years old, she disclosed the

relationship to her stepmother, who informed the victim's father.         When

confronted by the father, defendant acknowledged that he was having sex with

his fourteen-year-old daughter and he tried to justify the relationship by

claiming that he was in love with her and wanted to be with her.

       The father contacted the Division of Child Protection and Permanency

(Division), and the Division referred the matter to the police. Thereafter, both

the victim and defendant were interviewed by a detective from the prosecutor's

office. The victim disclosed that she and defendant had sexual intercourse

multiple times. After waiving his Miranda1 rights, defendant initially denied

any wrongdoing, but later admitted to "hav[ing] sex with" the victim "[t]hree or


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-0863-18T2
                                         3
four times." He also acknowledged that the sexual intercourse had taken place

both at the apartment where the family lived and at a hotel.

      After the mother testified on direct examination, defense counsel

requested a Rule 104 hearing to explore whether he could question her on her

immigration status. Defense counsel argued that if the mother was not a citizen

of the United States, it would be relevant in terms of her credibility to determine

whether she had sought favorable treatment as an immigrant in exchange for her

testimony at trial. The prosecutor represented that she was not aware of any

promise by her office to assist the mother with her immigration issues in

exchange for her testimony in this matter. The trial court denied the request for

a Rule 104 hearing and ruled that, to the extent the questioning about the

mother's immigration status had any relevance, it was outweighed by potential

prejudice and confusion. Accordingly, the court ruled that defendant could not

cross-examine the mother on her immigration status under Rule 403. The court

also ruled that no other witness could be questioned regarding his or her

immigration status.

      At the jury charge conference, the trial court proposed to charge the jury

with each crime in the indictment, and a lesser-included offense of third-degree

aggravated criminal sexual contact on the charges of second-degree sexual


                                                                           A-0863-18T2
                                        4
assault. Neither defense counsel nor the prosecutor objected. Thus, the jury

was charged with the lesser-included offense, which included the element that

defendant stood in loco parentis to the victim.

      As already noted, the jury convicted defendant of first-degree aggravated

sexual assault, second-degree sexual assault, third-degree aggravated criminal

sexual contact, as a lesser-included offense of one of the charges of sexual

assault, and second-degree endangering the welfare of a child. On the first-

degree conviction, defendant was sentenced to sixteen years in prison, subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by parole supervision

for life. He was required to register under Megan's Law, N.J.S.A. 2C:7-2, and

prohibited from having any contact with the victim or her family under Nicole's

Law, N.J.S.A. 2C:14-12; N.J.S.A. 2C:44-8. On the conviction for endangering,

defendant was sentenced to a consecutive prison term of six years.         T he

sentences for the other two convictions were merged with his sentence for his

first-degree conviction.

                                       II.

      Defendant now appeals his convictions. He does not dispute that he had

sexual relations with the victim when she was between the ages of twelve and




                                                                       A-0863-18T2
                                        5
fourteen and he was more than ten years older than the victim. Instead, he

presents two arguments for our consideration, which he articulates as follows:

            POINT ONE – THE TRIAL COURT'S FAILURE TO
            CONDUCT A RULE 104 HEARING AT
            DEFENDANT'S    BEHEST    REGARDING     A
            WITNESS'   IMMIGRATION    STATUS    WAS
            UNCONSTITUTIONAL, AS IT DEPRIVED HIM OF
            HIS RIGHT TO CONFRONT AND CROSS-
            EXAMINE HER PROPERLY.

            POINT TWO – THE JURY'S VERDICT ON THE
            LESSER-INCLUDED OFFENSE OF AGGRAVATED
            CRIMINAL SEXUAL CONTACT ON COUNT FOUR
            WAS UNLAWFUL.

                                        A.

      Defendant argues that he was denied a fair trial and his constitutional right

to effective cross-examination because he was prohibited from asking the

victim's mother about her immigration status. He contends that that violation

was "compounded" when the trial court applied the same ruling to all witnesses.

Defendant asserts that a witness' immigration status can be admissible if the

State had promised the witness favorable immigration treatment in exchange for

testimony. Finally, defendant argues that the trial court should have conducted

a Rule 104 hearing before precluding all cross-examination regarding

immigration status.



                                                                           A-0863-18T2
                                        6
      We review the trial court's decision to admit or exclude evidence under an

abuse of discretion standard. State v. Torres, 183 N.J. 554, 567 (2005). "[W]e

will reverse an evidentiary ruling only if it 'was so wide [of] the mark that a

manifest denial of justice resulted.'" Griffin v. City of E. Orange, 225 N.J. 400,

413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). A

trial court can abuse its discretion "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).

      Both the United States and New Jersey Constitutions guarantee a

defendant in a criminal matter the right to confront adverse witnesses. U.S.

Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Guenther, 181 N.J. 129, 147

(2004).   "A defendant's right to confrontation is exercised through cross -

examination, which is recognized as the most effective means of testing the

State's evidence and ensuring its reliability." Guenther, 181 N.J. at 147.

      Generally, extrinsic evidence can be introduced if it is relevant to the issue

of credibility. N.J.R.E. 607. There are exceptions to that rule including (1) the

use of specific instances of conduct to attack the credibility of a witness ,

N.J.R.E. 405; (2) the use of a trait of character, which is usually disallowed,

unless the prior act was a "false accusation against any person of a crime similar


                                                                            A-0863-18T2
                                         7
to the crime with which defendant is charged," N.J.R.E. 608; and (3) if its

"probative value is substantially outweighed by the risk of . . . [u]ndue

prejudice" or confusion, N.J.R.E. 403.

      In State v. Sanchez-Medina, our Supreme Court addressed when a party's

immigration status may be relevant. 231 N.J. 452, 463 (2018). There, the Court

ruled that in most cases, the immigration status of a witness is irrelevant, and

the jury "should not learn about it." Ibid. The Court went on to point out that

immigration status can be admissible "[i]n limited circumstances," such as when

the prosecutor promises "a witness favorable immigration treatment in exchange

for truthful testimony," or if "a defendant had lied about his immigration status

to obtain government benefits as part of a scheme to defraud . . . ." Ibid. The

Court addressed the relevancy and prejudicial effect of immigration status and

explained:

             A defendant's immigration status is likewise not
             admissible under other rules of evidence. It is not proof
             of character or reputation that can be admitted under
             Rules 404 or 608 . . .. Nor is a person's immigration
             status admissible as a prior bad act under Rule 404(b).
             To be admissible, such evidence must be "relevant to a
             material issue," and its probative value "must not be
             outweighed by its apparent prejudice."

             [Id. at 464-65 (citation omitted).]



                                                                         A-0863-18T2
                                         8
      We conclude that the trial court did not abuse its discretion in denying

defendant the ability to question the mother and other witnesses concerning their

immigration status. Defendant produced no evidence indicating that the mother

or any other witness had been promised assistance in dealing with immigration

issues in exchange for truthful testimony. Indeed, when the issue arose, the

prosecutor represented that she was not aware of any such promise. Given the

highly prejudicial effect of allowing the jury to hear about the mother's

immigration status, it was appropriate for the trial court to exclude th at

information under Rule 403.

      Moreover, we reject defendant's argument that the trial court was required

to hold a Rule 104 hearing on the immigration issue. Rule 104(a) allows the

trial court to hear and determine matters relating to "the qualification of a person

to be a witness, or the admissibility of evidence" outside the presence of a jury .

The decision to conduct a Rule 104 hearing, however, rests within the sound

discretion of the trial court. Kemp ex rel. Wright v. State, 174 N.J. 412, 432

(2002).

      The trial court here considered defendant's request for a Rule 104 hearing

but found that immigration status had no bearing on the witness' credibility, and

the defendant was engaging in a "fishing expedition."         The trial court also


                                                                            A-0863-18T2
                                         9
appropriately recognized that even allowing a Rule 104 hearing could have a

chilling effect on a witness' willingness to testify. We agree.

      In short, defendant's request to question the mother or any other witness

about their immigration status was properly denied because the trial court

reasonably concluded that the inquiry had virtually no probative value to a

relevant issue and was unduly prejudicial.         Defendant also presented no

information that there was a reasonable basis for a Rule 104 hearing, and we

discern no abuse of discretion in the trial court's denial of such a hearing.

                                        B.

      Defendant argues that the trial court erred in charging the jury on third-

degree aggravated sexual contact, as a lesser-included offense of second-degree

sexual assault. In that regard, defendant points out that aggravated criminal

sexual assault includes the element of in loco parentis, but that element is not

included in the crime of second-degree sexual assault.

      Defendant did not object to the lesser-included charge. Accordingly, we

review this issue for plain error. R. 1:7-2; R. 2:10-2. A plain error is disregarded

unless it is "of such a nature as to have been clearly capable of producing an

unjust result." R. 2:10-2. "To warrant reversal," the error must be sufficient to

raise "reasonable doubt . . . as to whether the error led the jury to a result it


                                                                            A-0863-18T2
                                        10
otherwise might not have reached." State v. Funderburg, 225 N.J. 66, 79 (2016).

Moreover, the prejudicial effect of the alleged error is viewed "in light of the

totality of the circumstances," including the entire jury charge. State v. Adams,

194 N.J. 186, 207 (2008) (quoting State v. Marshall, 123 N.J. 1, 145 (1991)).

      Trial courts are required "to submit to the jury . . . those offenses charged

in the indictment," as well as "uncharged lesser-included offenses grounded in

the evidence." State v. Denofa, 187 N.J. 24, 41 (2006) (citations omitted).

Consequently, courts are required to instruct the jury on a lesser-included

offense if counsel requests such a charge and there is a "rational basis in the

record" for the charge or, in the absence of a request, if the record clearly

indicates a lesser charge is warranted. State v. Garron, 177 N.J. 147, 180 n.5

(2003) (citations omitted). An offense is included if:

            (1) [i]t is established by proof of the same or less than
            all the facts required to establish the commission of the
            offense charged; or

            (2) [i]t consists of an attempt or conspiracy to commit
            the offense charged or to commit an offense otherwise
            included therein; or

            (3) [i]t differs from the offense charged only in the
            respect that a less serious injury or risk of injury to the
            same person, property or public interest or a lesser kind
            of culpability suffices to establish its commission.

            [N.J.S.A. 2C:1-8(d).]

                                                                           A-0863-18T2
                                       11
See also State v. Thomas, 187 N.J. 119, 131-32 (2006).

      Defendant was charged with five crimes, including two counts of first -

degree aggravated sexual assault and two counts of second-degree sexual

assault. To convict defendant on first-degree aggravated sexual assault, a jury

must find that defendant committed (1) an act of penetration; (2) with a victim

who was at least thirteen but less than sixteen years old; and (3) the defendant

stood in loco parentis within the household. N.J.S.A. 2C:14-2(a)(2); Model Jury

Charges (Criminal), "Aggravated Sexual Assault Victim at Least 13 but Less

Than 16 (N.J.S.A. 2C:14-2a(2))" (rev. Mar. 10, 2008). To convict defendant of

second-degree sexual assault, the jury must find that defendant committed (1)

an act of penetration; (2) with a victim who was at least thirteen years but less

than sixteen years old; and (3) the defendant is at least four years older than the

victim. N.J.S.A. 2C:14-2(c)(4).        To convict defendant of third-degree

aggravated criminal sexual contact, the jury must find that defendant committed

(1) an act of sexual contact; (2) with a victim who was at least thirteen but less

than sixteen years old; and (3) the actor stood in loco parentis within the

household. N.J.S.A. 2C:14-2(a)(2), -3(a).

      We find no reversible error in the trial court's decision to charge the jury

with the lesser-included offense of aggravated criminal sexual contact. While

                                                                           A-0863-18T2
                                       12
that offense had the element of in loco parentis, which is not an element to

second-degree sexual assault, defendant clearly knew that he was being charged

with standing in loco parentis to the victim. In loco parentis was an element of

the first-degree aggravated assault charge. Moreover, defendant did not dispute

that he stood in loco parentis to the victim. Indeed, he admitted it in his

statement to the police and did not dispute this issue at trial. Thus, defendant

suffered no prejudice because the elements of the lesser-included charge were

"within the four corners" of the indictment. See State v. Tully, 94 N.J. 385, 393

(1983).

      Defendant was also not prejudiced because his sentence for aggravated

criminal sexual contact was merged with his sentence for aggravated sexual

assault. Accordingly, defendant was not prejudiced either in his ability to

prepare a defense or by the consequences of his conviction for the lesser-

included offense.

      Affirmed.




                                                                         A-0863-18T2
                                      13
