ALVAREZ v. STATE (2026)

A jury found Jose Alvarez guilty of rape, false imprisonment, and simple battery as a lesser-included offense to battery stemming from crimes he committed against a teenaged victim in the presence of her young children. He appeals from the denial of his motion for new trial, as amended. He argues that the trial court erred in granting the State's pretrial motion to exclude testimony and evidence of the victim's application for a particular type of visa, and by applying OCGA § 24-4-412, Georgia's Rape Shield Statute, to exclude testimony and evidence of alleged prior sexual conduct between Alvarez and the victim.¹ For the reasons that follow, we affirm.

On appeal, an appellate court views the evidence in the light most favorable to the the jury's verdict, neither weighing the evidence nor determining the credibility of witnesses. Grier v. State, 276 Ga. App. 655, 656, 624 S.E.2d 149 (2005). So viewed, the record evidence shows that the victim was living with her two young children in an apartment she shared with a female roommate who allowed her to pay reduced rent in exchange for caring for the roommate's four young children. One evening in May 2017, the roommate's boyfriend, Alvarez, came to the apartment for the first time. The victim had never met him before. At about 8:00 p.m., Alvarez drove the roommate to work. The roommate's children went to sleep in their bedroom, but the victim stayed in the living room with her own children, who were five months old and one year old. She answered a knock at the door at about 11:00 p.m., thinking this might be her children's father, who often visited around this time after he got off work. When she opened the door, however, Alvarez was standing there. He asked for her phone number, but she told him to leave. He stuck his foot in the doorway, preventing her from closing the door, and entered the apartment, telling her, “I'm going to make you mine.”

Frightened, the victim sat on her mattress, which was on the floor of the living room, holding her one-year-old son. Alvarez sat next to her, but when she tried to get up to run away, he pulled her back down, threw her on the mattress, and took her phone away. The victim struggled to get away and begged him “to please not do anything” to her, but he held her arms and put his legs on top of her to prevent her from moving. When she tried to scream, he shoved a diaper in her mouth. He then removed her clothing and inserted his penis into her vagina while her son cried on the bed nearby. After he was finished, the victim dressed herself quickly. Her baby daughter was crying, and Alvarez picked the child up. The victim pleaded with him not to hurt her baby, and he said, “I'm not going to hurt her because I love your children the way I love you.” The victim testified that she was scared and crying, and when Alvarez again asked for her phone number, she gave it to him because she was afraid. When the roommate's children started making noise in the next room, Alvarez threw a $100 bill at her, told her he only wanted to help, and left, stating that he would come back. He later called to tell her not to talk to the police because this would make it “worse” for her.

The victim called a friend and said she had been raped. She was hysterical. The friend told her to lock the door and call the police. The friend went to the victim's apartment “immediately” to help, and the victim was shaking and crying when she arrived. The police responded to a 911 call for a sexual assault and found the victim crying, disheveled, and distraught. The victim told police her roommate's boyfriend had raped her. The victim also called her roommate, who returned home and provided police with Alvarez's phone number. Using that phone number, police found Alvarez's Facebook account, and the roommate identified him from photographs on that account.

Police interaction with the victim at the scene was recorded on an officer's body camera, and the video was played for the jury. Police described the apartment as being in disarray; the sheets were crumpled, bloody, and partway off the bed, and clothing and other items were strewn about. The victim testified that the items were scattered during her struggle with Alvarez, and that the sheets had not been bloody prior to the rape, but because she was on her period, “when he did that to me, they got stained.” Police found the bloody sheets, the $100 bill, and a pendant necklace belonging to Alvarez at the scene, and these items were taken into evidence.

The victim traveled by ambulance to Northside Hospital, where she told a nurse that she had been sexually assaulted and that Alvarez had penetrated her vagina with his finger and his penis, had ejaculated, and had not used a condom. She reported pelvic pain and scratches and bruises on her arms. Medical staff administered a rape kit, and testing showed the presence of Alvarez's sperm and DNA on the victim's vaginal swab.

The victim identified Alvarez as her rapist when police showed her a photographic lineup. He was arrested and read his Miranda rights. He consented to a police interview, and this custodial interview was played for the jury. In the interview, Alvarez told police that he had never met the victim before the night at issue and that they never had sex. He said that after he dropped the victim's roommate off at work, he returned to the apartment to check on the children. While there, he and the victim began talking about love. They got to the point where they were about to have sex, but he touched her with his finger and realized she was menstruating, so they stopped. He insisted that they never had intercourse, that he could never have sex with a woman who was on her period, that he never ejaculated anywhere, and that he never removed her underwear or any other clothing. He told police that “there was no sexual act.” He acknowledged that he gave the victim $100, saying she did not ask for the money; he just wanted to give her a gift. At the time, the victim was 19 and Alvarez was 48.

1. Alvarez argues that the trial court erred in granting the State's pretrial motion to exclude evidence related to the victim's immigration status in a way that prohibited the defense from cross-examining her regarding any application the victim may have made for a “U visa.”² Alvarez contends evidence regarding the victim's application for a U visa was relevant to show her motivation to lie about being raped. We find no error.

Like most questions about the admissibility of evidence, the scope of cross-examination is committed in the first instance to the sound discretion of the trial court, and we review a limitation of cross-examination only for an abuse of that discretion. That discretion is circumscribed, of course, by our Evidence Code, which provides that the accused is entitled to a “thorough and sifting cross-examination” of witnesses for the prosecution. OCGA § 24-6-611(b). It also is circumscribed by the confrontation clauses of the United States and Georgia constitutions, which secure, among other things, the right of the accused to cross-examine the witnesses against him. And it is settled that this right of cross-examination includes a right to inquire into the partiality and bias of witnesses.

(Citations and punctuation omitted.) Lucas v. State, 303 Ga. 134, 136-137 (2), 810 S.E.2d 490 (2018).

It is also settled, however, that the right to inquire into motivation and bias is not limitless. See Howard v. State, 286 Ga. 222, 225 (2), 686 S.E.2d 764 (2009) (“[T]he right of cross-examination ․ is not an absolute right that mandates unlimited questioning by the defense․”) (citation and punctuation omitted).

As we have explained before, the accused is entitled to a reasonable cross-examination on the relevant issue of whether a witness entertained any belief of personal benefit․ Trial courts retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, interrogation that is only marginally relevant.

(Citations and punctuation omitted.) Lucas, 303 Ga. at 137 (2), 810 S.E.2d 490.

At the pre-trial motion hearing, Alvarez argued that the victim had contacted the district attorney's office about a U visa, and that her pursuit of a U visa was relevant because it showed her motive to lie about being raped. The State countered that any pursuit of a U visa was not relevant to show motive to lie because the victim's report that Alvarez had raped her had been consistent for years before she made any inquiries about a U visa. The State proffered that although the rape occurred on May 22, 2017, the victim did not contact an advocate about a U visa until 2020, and the district attorney's office only received the victim's U visa application three or four days before trial in May 2023, at which point the office, which has no authority to grant visas, simply certified that the victim had been cooperative and had not recanted, and referred her to the Latin American Association.

The trial court, in denying Alvarez's motion for new trial on this point, found “no evidence of any pending immigration proceedings,” a finding Alvarez does not dispute on appeal. In denying Alvarez's motion for new trial, the trial court also noted that “no actual documentation was submitted” regarding whether the victim had applied for a U visa.³ The trial court indicated that testimony on this issue was neither relevant nor appropriate, and that even if it had allowed cross examination about the U visa, the evidence against Alvarez was so overwhelming that the outcome of trial likely would have been the same, rendering any error harmless. As the trial court specifically found, the evidence against Alvarez was overwhelming because, inter alia, he had impeached his own testimony by denying that he had sex with the victim even though evidence from the victim's rape kit showed his sperm and DNA were in her vagina.

Alvarez contends, however, that the prohibition on cross-examination regarding the U visa is an error of constitutional magnitude, asserting that a trial court may not “cut off all questioning ․ about a subject that might provide a motive, interest, or bias of a prosecution witness.” Alvarez points us to nothing in the record, however, indicating that the trial court barred other questions related to the victim's immigration status; her bias, partiality, or motivation to lie; or any benefit she may have hoped to receive by testifying. See Lucas, 303 Ga. at 139 (2), 810 S.E.2d 490 (finding no error in exclusion of testimony regarding witness's immigration status where trial court did not prohibit defendant from cross-examining the witness “generally about bias or partiality” or “from asking, for example, whether [the witness] hoped to receive any benefit” from testifying, where only the witness's “immigration status was off-limits”). Further, the timing of the instant victim's pursuit of a U visa ⁴ renders “[t]he notion that [she] was influenced in any way with respect to [her] testimony by [her] immigration status ․ simply speculative, and evidence of [her pursuit of a U visa] — if relevant at all to [her motivation,] bias and partiality—had very little probative value.” Lucas, 303 Ga. at 138 (2), 810 S.E.2d 490.

Further, even were we to conclude that the trial court erred, our Supreme Court has determined that even an error of constitutional magnitude may be deemed harmless “if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when ․ the evidence against the defendant is overwhelming.” (Citation and punctuation omitted.) Ensslin v. State, 308 Ga. 462, 471 (2)(d), 841 S.E.2d 676 (2020). As Alvarez asserts, when reviewing whether a trial court's error was harmless, “we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury's verdict.” (Citation and punctuation omitted.) Id.

First, as outlined above, the State undermined Alvarez's credibility before the jury by showing them the police interview in which Alvarez told police he never had sex with the victim — consensual or otherwise — and never ejaculated, in contrast to the evidence from the victim's rape kit, which showed Alvarez's sperm and DNA in the victim's vagina.⁵ See generally Burse v. State, 170 Ga. App. 775, 776 (2), 318 S.E.2d 511 (1984) (finding, in rape case, that any error in allowing prosecutor to cross-examine defendant about a defense witness's criminal record was harmless because by the time the testimony occurred, the defense witness “had already been discredited”). Second, as outlined above, the evidence against Alvarez was overwhelming. The victim made an immediate outcry; despite Alvarez's denials, his sperm and DNA were found in the victim's vagina; the victim had bruises and scratches on her arms; and the apartment was in disarray despite uncontroverted evidence that it had not been so prior to the rape. See Curry v. State, 243 Ga. App. 712, 714 (1), 717 (3), 534 S.E.2d 168 (2000) (finding in rape case where victim and defendant's testimony conflicted over whether she consented, that although trial court excluded impeachment evidence about victim's cocaine use because it could have been “relevant” given defendant's testimony that victim accepted money for sex and sought for drugs, that any error was harmless because evidence against defendant was overwhelming). We find no abuse of discretion in the trial court's exclusion of this evidence.⁶

2. Alvarez next contends that the trial court erred in excluding testimony and evidence regarding alleged prior sexual contact between him and the victim under the Rape Shield Statute, OCGA § 24-4-412. We find no error.

We review this exclusion of evidence for a clear abuse of discretion. Bryant v. State, 354 Ga. App. 603, 606 (2), 839 S.E.2d 680 (2020).

OCGA § 24-4-412(a) provides that, in rape prosecutions, “evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses,” specifically excluding, inter alia, evidence of the complaining witness's “general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.” OCGA § 24-4-412(b)(2), however, provides that:

the court may admit the following evidence relating to the past sexual behavior of the complaining witness[:] ․ [e]vidence of specific instances of a victim's or complaining witness's sexual behavior with respect to the defendant if it supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution[.]

(Emphasis added.)

Six years after the 2017 crimes and four days before the trial in 2023, Alvarez filed a notice of intent seeking to pierce the Rape Shield Statute by offering evidence of his past consensual sexual acts with the victim pursuant to OCGA § 24-4-412. The next day, he filed an amended notice alleging that he had paid the victim for some of the prior consensual sex. The State moved in limine, asking the trial court to “admonish the defense to strictly abide by the Rape Shield Statute[.]”

Alvarez took the stand at the motion hearing immediately before trial and proffered, contrary to the statements in his videotaped police interview, that he had met the victim before, about three months prior to the rape, when he beeped his horn at “a young girl” who was standing at a bus stop. He averred that she asked for a ride and offered to have sex with him for $40 and he agreed, though he only paid her $36. The pair exchanged phone numbers. According to Alvarez, they continued to meet for sex, and he paid her $70 or $100. He proffered that he had sex with the victim a day or two before the rape at issue. Asked whether he lied to the police in his interview — during which he stated multiple times that he never had sex with the victim — he explained that he “hid” things from the police because he was “afraid” that if he told police about the sex and prostitution, the victim's children might be taken away.

On appeal, Alvarez argues that the trial court's denial of his motion was error because he was “prohibited” from offering “testimony and evidence ․ concerning past or previous sexual conduct between [the victim] and [Alvarez].” Although the trial court denied his motion to the extent of prohibiting testimony and evidence indicating that the victim was a prostitute or that Alvarez had previously paid her for sex, pertinently, the trial court ruled that the defense could offer testimony and evidence that Alvarez and the victim had sex in the days prior to the May 22, 2017 rape, a ruling Alvarez's counsel indicated would enable him to cross-examine the victim regarding whether any sex was consensual.⁷

The question before us, then, is narrower than the question Alvarez attempts to pose. The question is whether the trial court erred in excluding testimony and evidence that the victim was a prostitute and that Alvarez had previously paid her for sex. We find no reversible error.

As an initial matter, even if evidence that the victim was a prostitute and Alvarez had previously paid her for sex had been admitted, the jury still could have concluded that Alvarez was guilty of false imprisonment and simple battery based upon the evidence outlined above. See Grier, 276 Ga. App. at 658 (1), 624 S.E.2d 149 (finding that even if the trial court had admitted evidence that the victim “voluntarily came to and remained at [the] home for the purpose of prostitution[,]” the jury could “simultaneously [have] found [defendant] guilty of false imprisonment as well as assault and battery”).

As to the rape conviction, we note again that the trial court's ruling permitted Alvarez to introduce evidence of prior consensual sex with the victim in the days just before the rape. He points us to nothing in the record, however, indicating that he did so. In the police interview that was played for the jury, Alvarez denied that he and the victim had ever had sex, and said he would never have sex with a woman who was menstruating. This means the jury was aware that his statements were inconsistent with the evidence that his sperm and DNA were in the victim's vagina and the uncontroverted evidence from the victim and the nurse who administered the rape kit that the victim was on her period at the time of the rape and had been for two or three days previously — which would have included the time when Alvarez proffered that he had consensual sex with the victim.

Although Alvarez cites Ivey v. State, 264 Ga. App. 377, 590 S.E.2d 781 (2003) to argue that exclusion of a victim and defendant's prior pay-for-sex relationship was error, Ivey is distinguishable. In Ivey, the trial court “totally prohibited [Ivey] from conveying to the jury anything at all about [his] relationship” with the victim; further, at the motion in limine hearing, the victim “freely admitted” to a prior, five-year, pay-for-sex relationship with Ivey. Id. at 378 (2), 381 (2), 590 S.E.2d 781. In these circumstances, the Ivey court found that “the trial court overextended the protection of the Rape Shield Statute” in excluding all evidence of the prior relationship. Id. at 381 (2), 590 S.E.2d 781. Here, by contrast, the victim denied any prior sexual relationship with Alvarez and denied having met him before the night in question; further, the trial court ruled that Alvarez could present testimony and evidence regarding a prior consensual relationship with the victim, but he apparently chose not to do so.

As noted above, OCGA § 24-4-412(b)(2) provides that the trial court “may” admit evidence of the victim's prior sexual conduct with the defendant “if” this evidence supports an inference that the defendant “could have reasonably believed” that the victim consented. The trial court determined that Alvarez could not have had such a reasonable belief, and it is well settled that “we accept the factual findings and credibility determinations made by the court at pre-trial hearings on the admissibility of evidence unless they are clearly erroneous.” (Citation omitted.) Williams v. State, 257 Ga. App. 54, 55 (1), 570 S.E.2d 362 (2002). In our analysis of the trial court's determination that Alvarez lacked a reasonable belief that the victim consented, we find that the instant case is more akin to Davis v. State, 235 Ga. App. 362, 509 S.E.2d 655 (1998), in which the defendant sought to introduce evidence that the victim had agreed to consensual sex with him in exchange for money and drugs on prior occasions. The trial court excluded the evidence and this Court affirmed, holding, “[i]n light of the victim's testimony, the trail of clothing left near the crime scene, and the evidence of her injuries, we cannot say that [the defendant's] claim to prior consensual sex with [the victim] substantially supports the conclusion that he reasonably believed she consented on the night of the offense.” Id. at 363 (1), 509 S.E.2d 655; accord Williams v. State, 257 Ga. App. at 56 (1), 570 S.E.2d 362 (finding no error in exclusion of evidence of past consensual sexual contact between two victims and defendant where victims denied previously having sex with defendant and testified to injuries they received from him, because “the evidence of force and lack of consent supported the trial court's conclusion that [defendant] could not reasonably have believed that the victims willingly had sex with him”).

In the instant case, the victim testified that she had never met Alvarez before and that she tried to run and fight him off when he forced her to have sex, the uncontroverted evidence showed that her apartment was in disarray and that her sheets were stained with menstrual blood because of what Alvarez did to her, and the jury saw photographic evidence of her injuries and the diaper Alvarez shoved in her mouth. Given these facts, and to the extent that Alvarez has not waived this argument by failing to offer evidence admissible evidence of the alleged relationship, we — like the Davis Court — cannot say that Alvarez's claim to prior consensual sex with the victim in exchange for money substantially supports the inference that he reasonably believed she consented. As a result, given this specific scenario and facts, evidence that the victim was a prostitute or had previously accepted money from Alvarez in exchange for sex would reflect adversely on her character more than it would contribute to the issue of Alvarez's guilt or innocence. See Turner v. State, 312 Ga. App. 315, 317 (1), 718 S.E.2d 545 (2011) (“The Rape Shield Statute is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.”) (citation and punctuation omitted). “Nor does justice mandate the admission of such testimony. Accordingly, we decline to find that the trial court abused its discretion.” Davis, 235 Ga. App. at 363 (1), 509 S.E.2d 655.

Judgment affirmed.

FOOTNOTES

1.   On appeal, Alvarez does not contest the sufficiency of the evidence underlying his convictions.

2.   A U visa is “a nonimmigrant visa that is available to noncitizen victims of certain crimes to encourage noncitizens to come forward and help law enforcement investigate and prosecute criminal activity. To obtain a U visa, foreign nationals must establish that they have ‘suffered substantial physical or mental abuse,’ that they possess ‘information concerning criminal activity,’ and that they have been ‘helpful’ to law enforcement in ‘investigating or prosecuting criminal activity.’ 8 USC § 1101(a)(15)(U).” Meridor v. United States Att'y Gen., 891 F.3d 1302, 1304 (I) n.1 (11th Cir. 2018).

3.   No transcript of the hearing on the motion for new trial was included in the appellate court record.

4.   As noted above, the victim's first query about a U visa occurred three years after she alleged rape against Alvarez, and her allegations of rape had been consistent prior to that.

5.   As will be discussed in Division 2, infra, during a pretrial hearing, Alvarez proffered, by contrast, that he and the victim had previously engaged in consensual sex. However, he never contradicted his statement during the police interview, which the jury saw on video, that they did not have sex on the night of the rape. This evidence from the pretrial hearing was never presented to the jury.

6.   Although Alvarez cites to cases from other jurisdictions discussing an accused's right to confront and cross-examine victims and witnesses about U visa applications, these cases are not binding authority and the specific facts and circumstances presented in this appeal show that the trial court, in this instance, committed no reversible error.

7.   It does not appear, however, that Alvarez presented any such evidence at trial. In his proffer, as Alvarez's counsel recognized, Alvarez never contradicted his police interview statement in which he denied having sex with the victim on May 22, 2017, the date of the rape.

Hodges, Judge.

McFadden, P. J., and Pipkin, J., concur.