RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4250-16T4

 A-5060-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAQUEL RAMIREZ,

Defendant-Appellant.

____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE OROZCO,

Defendant-Appellant.

____________________________

Argued October 29, 2019 – Decided

Before Judges Messano, Vernoia and Susswein.

On appeal from the Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 14-07-

0599.

Alyssa A. Aiello, Assistant Deputy Public Defender, 

argued the cause for appellant Raquel Ramirez 

December 12, 2019

APPROVED FOR PUBLICATION

December 12, 2019

APPELLATE DIVISION
A-4250-16T4 2

(Joseph E. Krakora, Public Defender, attorney; Alyssa 

A. Aiello, of counsel and on the brief).

Amira R. Scurato, Designated Counsel, argued the 

cause for appellant Jorge Orozco (Joseph E. Krakora, 

Public Defender, attorney; Amira R. Scurato, on the 

brief).

Sarah C. Hunt, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Sarah Lichter, Deputy Attorney 

General, of counsel and on the briefs).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Defendants Raquel Ramirez and Jorge Orozco were the parents of twoyear-old, D.O. (Danielle), who died as a result of blunt force trauma to her 

head.1 Both defendants were charged with Danielle's murder and seconddegree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and were 

tried together by a jury. The jurors acquitted both defendants of murder, but 

found Orozco guilty of the lesser-included offense of first-degree aggravated 

manslaughter, N.J.S.A. 2C:11-4(a)(1) and (c), Ramirez guilty of the lesserincluded offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-

4(b)(1) and (c), and both defendants guilty of endangering.

1

 We choose to utilize initials and a pseudonym for the minor victim and other 

family members and lay witnesses. R. 1:38-3(c)(9), (d)(12).
A-4250-16T4 3

The judge sentenced Orozco to a twenty-eight-year term of 

imprisonment subject to an eighty-five percent period of parole ineligibility 

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the 

aggravated manslaughter conviction, and a consecutive nine-year term with a 

fifty-four-month parole disqualifier on the endangering conviction. He 

sentenced Ramirez to an eight-year term of imprisonment on the manslaughter 

conviction, subject to NERA, and a consecutive eight-year term with a fortyeight-month parole disqualifier on the endangering conviction. These appeals, 

which we consolidated for purposes of issuing a single opinion, ensued.

Ramirez raises the following points for our consideration:

POINT I

THE ACCOMPLICE CHARGE FAILED TO 

INSTRUCT THE JURY THAT RAMIREZ WAS NOT 

GUILTY OF RECKLESS MANSLAUGHTER BY 

OMISSION UNLESS IT WAS HER CONSCIOUS 

OBJECT TO FACILITATE OR PROMOTE THE 

ABUSE THAT RESULTED IN DEATH AND, 

INSTEAD, ERRONEOUSLY PERMITTED THE 

JURY TO CONVICT RAMIREZ IF SHE WAS (sic) 

MERELY "AWARE" OF THE ABUSE AND DID 

NOTHING TO STOP IT.

POINT II

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S APPLICATION FOR MERGER. IN 

THE ALTERNATIVE, THE TRIAL COURT ERRED 

IN IMPOSING CONSECUTIVE SENTENCES.
A-4250-16T4 4

Orozco raises these points on appeal:

POINT I

THE TRIAL COURT ERRED IN FINDING 

DEFENDANT'S STATEMENTS GIVEN TO POLICE 

WERE NOT IN VIOLATION OF HIS MIRANDA[2]

RIGHTS.

POINT II

THE TRIAL JUDGE ERRED IN FAILING TO 

EXCLUDE THE DISCREDITED SCIENCE OF BITE 

MARK EVIDENCE. (Not Raised Below)

POINT III

THE TRIAL COURT ERRED IN FAILING TO 

SEVER THE TRIALS OF THE CO-DEFENDANTS 

DUE TO THE ANTAGONISTIC DEFENSES THAT 

DEVELOPED BETWEEN THEM DURING TRIAL. 

(Not Raised Below)

POINT IV

THE CONCEPTS OF PRINCIPAL VERSUS 

ACCOMPLICE LIABILITY WERE FLAWED BOTH 

IN THE JURY INSTRUCTIONS AND IN THE 

FAILURE TO SEVER, RESULTING IN 

COMPROMISING FACTS.

POINT V

SENTENCING ABNORMALITIES EXISTED 

INCLUDING THE FINDING OF AGGRAVATING 

FACTOR [TWO] AS WELL AS THE IMPOSITION 

OF A CONSECUTIVE SENTENCE.

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
A-4250-16T4 5

We begin consideration of these arguments by summarizing the trial evidence.

I.

On the day of her death, Sunday, February 2, 2014, Danielle was living 

with Orozco in an apartment near his mother, E.N. (Eva). Eva cared for 

Danielle on Mondays, Wednesdays and Fridays, from 6 a.m. to noon or 1 p.m., 

while Orozco was at work.3 Eva testified that she last saw Danielle alive on 

the previous Friday, when she babysat, and that Danielle was fine, except for a 

faint bruise near her eye. Another witness, T.G., saw Danielle one week 

earlier, on January 24 and 25, and testified the child was healthy and appeared 

normal in every way.

At about 8 p.m. on February 2, police were dispatched to Orozco's 

apartment in response to a 9-1-1 call made by Orozco's sister, who had been 

summoned to Eva's home and learned of Danielle's death. Both defendants 

were present in Orozco's apartment when police arrived. Danielle lay lifeless 

on the bed, with evidence that she had recently vomited. The child had 

numerous bruises and bite marks on her body, gashes on her lips, and other 

3

 Although not shared with the jury, the Division of Child Protection and 

Permanency (DCPP) was involved with the family, and Orozco had temporary 

custody of the child. Ramirez had given birth to another child two weeks 

earlier, who was in Eva's temporary custody. Orozco's brief claims that DCPP 

limited Ramirez to supervised visitation with Danielle, although we cannot 

confirm that from the appellate record.
A-4250-16T4 6

signs of injury. EMTs who responded were unable to revive Danielle, 

observed she was cold to the touch with signs of lividity, and concluded she 

was dead. The medical examiner (ME) arrived shortly before 11 p.m. He 

determined from the description of Danielle's body when EMTs arrived that 

she died at least four-to-six hours earlier, around 3 p.m.

The autopsy revealed Danielle had suffered six cracked ribs, bruised 

lungs, tears to her kidney and spleen, diffuse bruising beneath her scalp, and 

hemorrhages on both sides of her brain. The ME found a total of four bite 

marks on her face, lower abdomen, back, and right arm; one mark was as fresh 

at four hours prior to death, and another was likely inflicted "when [Danielle] 

almost was dead or had just died." A forensic odontologist testified that the 

bite marks matched Orozco's dentition.

The ME opined at trial that Danielle's head injury was not caused by a 

fall or from being shaken, and that it occurred "less than [twelve] hours" 

before she died. He explained that a person could suffer severe head trauma 

that was not instantly fatal, but rather could die after suffering a "re-bleed" 

because of the brain's compromised condition. During this time, vomiting, 

lethargy and trouble breathing are common.

Police interviewed each defendant several times, and the redacted, 

video-recorded statements were played for the jury. Throughout, both 
A-4250-16T4 7

attributed Danielle's injuries to falls, rough play, or uncorroborated physical 

defects in her feet and legs. Both also claimed that Danielle's stomach would 

swell when she ate, and that she had a history of vomiting after a meal. 

However, neither ever took Danielle to get medical treatment.

As to the events of February 2, defendants' statements regarding the first 

half of the day were generally consistent. Both said they spent the morning 

together with Danielle at Orozco's apartment and that at mid-morning, Ramirez 

left Orozco alone with Danielle while she went to a laundromat. They gave 

shifting and confusing accounts about what occurred when Ramirez returned.

Ramirez gave police statements on February 3 at 4:26 a.m., 9:37 a.m. 

and 7:19 p.m. During the first, she said that when she returned to Orozco's 

apartment, she bathed Danielle, and defendants took turns feeding the child. 

Soon thereafter, Orozco left the apartment to buy food. Ramirez noticed that 

Danielle appeared drowsy, and so she laid the child down to sleep on the sofa 

in the living room. Danielle was having difficulty breathing, began "snoring," 

and suddenly vomited profusely. The child abruptly stopped breathing and 

became "stiff."

Because the sofa was covered in vomit, Ramirez took Danielle into the 

bedroom and changed her clothes. When police later asked about Danielle's 

soiled clothes, Ramirez said that Danielle was still undressed because she had 
A-4250-16T4 8

just finished her bath. Once she realized that Danielle was dead, Ramirez 

became distraught, and, instead of calling police, she called Eva and Orozco at 

around 6:30 or 7 p.m. When she eventually got in touch with Orozco, he 

returned home, and they called for medical assistance.

Ramirez admitted that while bathing Danielle, she noticed bruises on the 

child's body but claimed she did not know the cause. When police confronted 

Ramirez with pictures of the bite marks on Danielle's stomach, defendant said 

they resulted from her "kisses." In her second interview, Ramirez said the 

marks on Danielle's stomach were "suck marks," and the bruises were the 

results of falls. During her third interview, Ramirez claimed that she did not 

know the source of Danielle's injuries because she had just given birth to her 

new baby and was in the hospital.

Orozco provided statements to investigators on February 3, February 4, 

and February 27. According to his first account, Orozco said he left the 

apartment around 12:30 p.m., after Ramirez returned from the laundromat. He 

went to his friend's home, called Ramirez for reasons that are unclear, but she 

did not answer, and he went to store to pick up food, before returning around 

6:20 p.m. He found Danielle alone in the apartment. Her body appeared to 

have been "thrown" on the bed, and she had no pulse. Orozco tried 
A-4250-16T4 9

administering CPR, but he could not revive her and went to Eva's home where 

he found Ramirez. When his sister arrived, they called 9-1-1.

He told police that Danielle had bruises on her body and face because 

she frequently fell and suggested that the bruises on her stomach were from his 

attempts to administer CPR. During his second interview, Orozco admitted 

that he would sometimes "tap" Danielle on the back of her head to get her 

attention, and that he "sucked" on her cheek. He bathed Danielle daily, but 

never noticed any of the injuries on Danielle's body.

Orozco provided contradictory answers regarding his communications 

with Ramirez on the day Danielle died. For example, in one interview, he told 

police that he left at around 12:30 p.m. to get food, but in another he said that 

he left at around 2:30 p.m. Phone records showed that beginning at 2:57 p.m., 

Ramirez called Orozco multiple times within a five-to-six-minute span, 

culminating in a forty-minute conversation between the two beginning at 3:05 

p.m.

Neither defendant testified nor produced any witnesses.

In summation, Orozco's counsel argued that Danielle died while in 

Ramirez's custody alone, and that Ramirez failed to call 9-1-1. He noted that 

Ramirez was arrested shortly after providing a statement to police, but that 

Orozco voluntarily presented himself for police questioning the next day, 
A-4250-16T4 10

demonstrating he had nothing to do with the child's death. Counsel 

downplayed the presence of bite marks on Danielle's body, noting they were 

not fatal injuries. In short, Orozco blamed Ramirez for inflicting the injuries 

that killed Danielle.

Citing the ME's testimony regarding a later possible re-bleed after head 

trauma, and the forensic evidence regarding the bite marks, Ramirez's counsel 

argued in summation that Danielle's injuries were suffered prior to the 

weekend, while she was in Orozco's care. He noted that Eva saw a bruise near 

Danielle's eye on Friday, which Orozco told her was caused by a fall. Counsel 

noted that Ramirez's account of Danielle's final moments was consistent with 

the ME's testimony about symptoms of prior head trauma suffered days earlier. 

Defense counsel further argued that Orozco "inexplicably" departed from the 

apartment around 2:30 p.m., his failure to answer Ramirez's repeated phone 

calls around 3 p.m., and the forty-minute conversation that followed without 

Orozco's immediate return to the apartment, proved that Orozco knew Danielle 

was in extremis when he left and was trying to "distance himself" from the 

situation. In short, Ramirez's counsel contended Danielle's death was Orozco's 

fault, and the State failed to prove Ramirez did anything to cause her death or 

that she had "some role with the intent . . . to cause serious injury or . . . death 

to [Danielle]."
A-4250-16T4 11

The prosecution's theory was that both defendants participated in 

causing the plethora of injuries Danielle suffered during an approximately

forty-eight-hour period, between Friday afternoon, when the child left Eva's 

watch, and Sunday afternoon, before police were summoned. The prosecutor 

noted defendants' multiple phone conversations, and their failure to call 9-1-1 

or summon medical help for the child. In summation, he argued defendants 

knew Danielle was dead, and their communications and delay demonstrated a 

consciousness of guilt as they tried to coordinate their stories. However, the 

prosecutor argued defendants' attempts ultimately failed, as their stories 

diverged with each telling and as the forensic evidence and phone records 

emerged.

The prosecutor then attempted to display a slide for the jury that 

contained the "elements of accomplice liability." Defense counsel objected, 

arguing that instructing the jury on the applicable law was the judge's 

"province." The judge asked if the slide and others that were to follow were 

provided to defense counsel, and, when the prosecutor indicated they had not, 

the judge precluded their use. He immediately told the jury they must follow 

his instructions on the law, not what the attorneys said.
A-4250-16T4 12

Resuming his discussion without the benefit of visual aids, the 

prosecutor discussed a "special way . . . for parents" to be accomplices, 

explaining "the law imposes a duty to actually act, and it's only on parents[.]"

So when the parent sees someone beating their child to 

death, that parent has an obligation to try to stop it. 

And by knowingly doing nothing, you are now sharing 

the same intent as the person who's killing and trying 

to cause serious bodily injury resulting in death. By 

you doing nothing, you're helping him commit 

murder. . . . The important part is that this happened 

when . . . defendants were together. The beating 

happened in front of one of them and the person who 

was not beating [Danielle] did nothing to stop the 

beating. And if you do nothing as a parent to stop 

your child from being beat to death, you are guilty of 

murder as well. That's the accomplice liability theory 

in this case. As a parent[,] even if you believe that 

[Ramirez] had nothing to do with it, didn't lay a hand 

on . . . [Danielle], but if you believe that she was 

present during the beatings that occurred that weekend 

— they're all together and she knowingly did nothing 

to stop it, she's guilty as well of murder.

[(Emphasis added).]

He completed his summation shortly thereafter.

In addition to instructing the jury on the elements of endangering, the 

judge provided substantive instructions on murder, aggravated manslaughter, 

reckless manslaughter, aggravated assault (serious and significant bodily 

injury), and simple assault, along with instructions on accomplice liability as 
A-4250-16T4 13

to each of those offenses. Jurors were dismissed for the day following the 

charge.

The jury began deliberations the next morning with two written copies of 

the voluminous instructions for their use. Jurors posed a single question 

during deliberations, which is insignificant to the issues presented, and 

returned the verdicts we referenced above late in the afternoon.

II.

Both defendants argue the jury instructions on accomplice liability were 

erroneous and require reversal. Before turning to the context in which the 

issue arose at trial, we discuss our decision in State v. Bass, 221 N.J. Super. 

466 (App. Div. 1987), which became a critical focal point in the proceedings.

In Bass, the defendants were charged with murdering their three-yearold son, Shawn, who died from a brutal beating. Id. at 471. At their joint trial, 

another child testified to a specific prior assault of Shawn by the defendantfather, Bass. However, much of the evidence showed he was not cruel or 

abusive, whereas the child's mother, the defendant Nicely, regularly abused the 

child. Id. at 471–72. Bass was acquitted of murder, but convicted of 

aggravated manslaughter. Id. at 470.4

4

 Nicely was convicted of murder and other charges. Bass, 221 N.J. Super. at 

471 n.3.
A-4250-16T4 14

Among other issues raised on appeal, Bass challenged the trial judge's 

instructions on accomplice liability, contending the judge "failed to charge that 

[a] defendant must share a community of purpose for accomplice liability[.]" 

Id. at 486. In rejecting the argument, we began by noting that "[a] shared 

intent is a prerequisite to accomplice liability under N.J.S.A. 2C:2-6(b)(3)." 

Ibid. (citing State v. White, 98 N.J. 122, 129 (1984); State v. Fair, 45 N.J. 77, 

95 (1965)). We then cited with approval the trial judge's charge on 

accomplice liability when the actor aids or agrees or attempts to aid another in 

the planning or commission of a crime. Id. at 487; see N.J.S.A. 2C:2-

6(c)(1)(b).

We next addressed defendant's argument 

that the trial judge instructed the jury that if a 

defendant purposely did nothing to stop the other from 

beating the decedent, his inaction alone was sufficient 

to constitute culpability for murder or aggravated 

manslaughter. He contends the court never addressed 

the jury regarding the requirement of shared intent 

with the actual perpetrator. According to defendant, 

the judge informed the jury that purposely "doing 

nothing," without more, was sufficient for a finding of 

guilt of murder or aggravated manslaughter.

[Id. at 488.]

We quoted extensively from the judge's charge.

As to omission to act, the trial judge charged the jury 

as follows:
A-4250-16T4 15

Ladies and gentlemen, I also instruct you 

that if only one person committed the acts 

causing Shawn's death, the other can be 

deemed an accomplice to murder if you 

find that he or she was a natural parent or 

person having custody or control of the 

child or who otherwise assumed 

responsibility for him and that he or she 

purposely did nothing to stop the beating 

and did nothing with purpose or 

knowledge that the beatings by the other 

would result in Shawn's death or in 

serious bodily injury resulting in death.

[Ibid.]

Without much further discussion or analysis of these instructions, and based on 

a review of the charge in its entirety, we said the defendant's argument as to 

the inadequacy of the charge lacked any merit. Id. at 490.

A.

Here, at the close of the State's case, both defendants moved for a 

judgment of acquittal. Ramirez argued that the evidence was insufficient to 

demonstrate she inflicted any blows to Danielle, and, under Bass, that she had 

any "knowledge" Orozco inflicted "the head injury which was likely to cause 

serious bodily injury or death." Orozco's attorney joined in the argument as to 

his client. The prosecutor contended there was sufficient circumstantial 

evidence to convict both defendants. In denying the motion, the judge 

concluded,
A-4250-16T4 16

whether it's as a principal or accomplice, accomplice 

based on shared intent, or accomplice based upon 

Bass, the evidence with regard to guilt is more than 

sufficient for the defendants to be convicted of 

murder, and . . . all of the lesser[-]included offenses to 

murder are in play . . . as are any accomplice theories 

that are based on something other than shared intent.

At the charge conference later that day, the judge again requested 

argument regarding Bass and the proposed jury charge, including the State's 

contention that the jury should be permitted to return a "split verdict," i.e., a 

non-unanimous verdict with some jurors finding a particular defendant guilty 

as a principal and others as an accomplice.

Defendants objected to the charge by seeking to distinguish or limit the 

applicability of Bass. As counsel for Ramirez stated during the charge 

conference, the instruction "ha[d] the capacity of resulting in a murder 

conviction for someone who . . . does not have the same intent or purpose as 

the person who . . . is the principal." The prosecutor argued only that Bass

controlled.

However, the judge astutely recognized that N.J.S.A. 2C:2-6(c)(1)(c) 

(subsection 1(c)) was only one of three sub-sections of the Criminal Code that 

defined who could be an "accomplice," and that under the plain language of 

the statute, every type of accomplice was "required to have the purpose of 

promoting or facilitating the commission of the offense." (citing N.J.S.A. 
A-4250-16T4 17

2C:2-6(c)(1)). He asked for the prosecutor's "thoughts on the statutory 

construction argument[.]" Without directly addressing the judge's inquiry, the 

prosecutor responded, "[T]his third theory of liability [under subsection 1(c)] 

is different than the ordinary accomplice theory. It imposes in very limited 

circumstances under the law that someone must act, and failure to do so is in 

essence facilitating that act." (emphasis added).

In a considered oral decision, the judge concluded that despite "some 

issues and concerns that are legitimate with the Bass case[,]" it was still good 

law, and he would provide a charge in accordance with his understanding of its 

holding. But, he also decided "to deny the State's request to instruct the jury 

that they do not have to agree unanimously on guilt under Bass for a particular 

crime[.]" Noting Bass's recognition that a prerequisite of accomplice liability 

was shared intent, 221 N.J. Super. at 486, the judge stated that Bass did not 

"bless[] a jury returning a verdict for accomplice liability based on a parental 

duty theory without that result being unanimous."

As further justification, the judge referenced the model jury charge's 

instruction that the jury must find "this defendant's purpose was to promote or 

facilitate the commission of the offense[.]" Model Jury Charges (Criminal), 

"Liability for Another's Conduct (N.J.S.A. 2C:2-6)" (rev. June 18, 2011) (the 
A-4250-16T4 18

Model Charge). The judge noted that this provision and others in the Model 

Charge stood

in stark contrast to what needs to be shown for 

liability under Bass . . . . Bass liability appears to be 

available upon a much less significant showing. In 

particular, it's essentially two elements. With regard to 

the defendant, he or she is a natural parent . . . . And, 

[two], that he or she was aware of and purposely did 

nothing to stop the alleged abuse and did nothing with 

purpose or knowledge that the alleged abuse . . .

would result in death or serious bodily injury resulting 

in death.

That's different than the operative actions that would 

be necessary for a conviction of murder or accomplice 

liability based on shared intent. In Bass you have the 

real possibility that a defendant can be convicted as an 

accomplice of murder without striking a blow and 

without sharing the purposeful intent to kill.

[(Emphasis added).]

The judge provided the parties with a revised proposed charge that apparently 

required the jury to be unanimous if it found a defendant guilty as a principal 

or unanimous if it found a defendant guilty as an accomplice under subsection 

1(c).5

The State moved for a stay pending leave to file an interlocutory appeal. 

In considering the reasonable success on the merits of the State's position, the 

5

 We do not have a copy of the revised proposed charge.
A-4250-16T4 19

judge reiterated his view of our holding in Bass and why unanimity was 

required.

[T]he State's position would mean that you would take 

an argument . . . you would see in accomplice liability 

based on shared intent and apply that to an offense 

centered around an omission. For liability as a 

princip[al], there must be . . . an affirmative act or 

intent to forward the endeavor, to advance the 

endeavor, to aid the endeavor.

Whereas in a Bass offense, there's a failure to 

act. . . . To put it bluntly, that's not apples to apples 

when you're comparing affirmative liability as a 

princip[al] [versus] vicarious liability based on a duty 

as in Bass.

I think because the actus reus, and, arguably, the 

mens rea is different between the affirmative acts of 

princip[al] and accomplice based on shared intent and 

liability based on duty[,] it necessitates and requires 

that . . . all the jurors find all the elements of the Bass

offense have been proven beyond a reasonable doubt 

by the State.

We granted the State's motion for leave to appeal on an emergent basis 

and reversed. Our first order simply required that the judge charge the jury in 

accordance with Bass and State v. Roach, 146 N.J. 208 (1996). The trial judge 

sought clarification, and we issued a second order specifically addressing the 

acceptability of a non-unanimous verdict, citing again Roach, id. at 223 ("A 

defendant, moreover, may be found guilty of murder even if jurors cannot 
A-4250-16T4 20

agree on whether the defendant is a principal, accomplice, or a coconspirator.") (citing State v. Brown, 138 N.J. 481, 520–522 (1994)).

As a result, after charging the jury as to the substantive elements of 

murder and the lesser-included offenses, the judge provided the jury with 

instruction as to "each defendant's liability under the theory of accomplice 

liability." The judge defined an "accomplice" as one who

for the purpose of promoting or facilitating the 

commission of the offense . . . aids or agrees or 

attempts to aid such other person in planning or 

committing it, or, having a legal duty to prevent the 

commission of the offense[,] he or she fails to make a 

proper effort to do so.

The judge then told the jurors there were "three theories of accomplice 

liability" to consider, the first being

a duty each defendant owed to [Danielle] as a parent. 

The second . . . based upon each defendant's alleged 

conduct . . . requiring shared intent; and the third . . . 

based upon each defendant's conduct . . . who did not 

share the same intent as the principal and is therefore 

responsible for a lesser[-]included offense.

Then, beginning with murder, the judge told the jury that if it found only 

one defendant committed the acts that caused Danielle's death, the other 

defendant could be guilty of murder as an accomplice if "he or she was aware 

of and purposely did nothing to stop the alleged abuse and did nothing with 

purpose or knowledge that the alleged abuse by the other would result in death 
A-4250-16T4 21

or serious bodily injury resulting in death." In charging on the lesser-included 

offenses, the judge essentially repeated this instruction, for example, telling 

the jury that to find a defendant guilty under subsection 1(c) as an accomplice 

to aggravated manslaughter, it must find "that he or she was aware of and 

recklessly did nothing to stop the alleged abuse and did nothing under 

circumstances manifesting extreme indifference to human life[,]" and as to 

reckless manslaughter, if it found a defendant "was aware of and recklessly did 

nothing to stop the alleged abuse and did nothing despite being aware of and 

consciously disregarding the risk of causing death." As to each offense, the 

judge did not tell the jury that a defendant could be liable as an accomplice 

under subsection 1(c) only if the failure to act was for the "purpose of 

promoting or facilitating the commission of the offense[.]" See N.J.S.A. 2C:2-

6(c)(1).

The judge then instructed the jury on accomplice liability "based on 

shared intent between the defendants." He essentially provided instructions 

that tracked the Model Charge, advising jurors that a defendant could be an 

accomplice if his or her "purpose was to promote or facilitate the commission 

of the crime," and if the "accomplice possessed the same criminal state of 

mind that is required to be proved against the person who actually committed 

the criminal act." Before concluding this portion of the instructions, the judge 
A-4250-16T4 22

reiterated that in order to find a defendant guilty as an accomplice under this 

portion of the Criminal Code, the jury

must find that the accomplice . . . had the purpose to 

participate in that particular crime. He or she must act 

with the purpose of promoting or facilitating the 

commission of the substantive crime with which he is 

charged.

It is not sufficient to prove only that the 

accomplice defendant had knowledge that another 

person was going to commit the crime charged. The 

State must prove that it was the accomplice 

defendant's conscious object that the specific conduct 

charged be committed.

 

Lastly, the judge charged the jury regarding the possibility of accomplice 

liability as to lesser-included offenses if the principal and accomplice did not 

have "the same shared intent[.]"

B.

Ramirez argues these instructions require reversal because they 

permitted the jury to return a guilty verdict as to manslaughter even if she 

lacked the purpose of promoting or facilitating the offense. She contends that 

the State and the judge proceeded on the basis that Bass provided a separate 

theory of accomplice liability that did not require proof her conscious object 

was to promote or facilitate the crime. Orozco argues that Bass is "outdated," 

and its discussion and approval of the judge's charge in that case is "dicta."
A-4250-16T4 23

The State counters by arguing defendants failed to object to the charge, 

and there was no plain error because the instructions conveyed that accomplice 

liability under subsection 1(c) requires the State prove a defendant acted with 

the purpose to promote or facilitate an offense by failing to act. It claims that 

neither the prosecutor nor the judge viewed subsection 1(c) as a different 

species of accomplice liability that relieved the State of its obligation to prove 

either defendant's failure to act was with a purpose to promote or facilitate the 

crime.

Initially, the record is quite clear that defendants repeatedly objected to 

the charge, albeit not precisely on the grounds now enunciated. Ramirez's 

counsel in particular argued the charge was "confusing" and "ha[d] the 

capacity of resulting in a murder conviction for someone who . . . does not 

have the same intent or purpose as the person who . . . is the principal." We 

therefore reject the State's argument that plain error review is required and 

consider whether, viewing the charge in its entirety, State v. McKinney, 223 

N.J. 475, 494 (2015), any error was harmless, State v. Baum, 224 N.J. 147, 

159 (2016) (noting harmless error analysis is proper when defendant objects to 

the charge).

Under our Criminal Code, "[a] person is guilty of an offense if it is 

committed by his own conduct or by the conduct of another person for which 
A-4250-16T4 24

he is legally accountable, or both." N.J.S.A. 2C:2-6(a). A person may be 

legally accountable for another's conduct if "[h]e is an accomplice of such 

other person in the commission of an offense[.]" N.J.S.A. 2C:2-6(b)(3). The 

Code defines who is an accomplice:

A person is an accomplice of another person in the 

commission of an offense if:

(1) With the purpose of promoting or facilitating the 

commission of the offense; he

(a) Solicits such other person to commit 

it;

(b) Aids or agrees or attempts to aid such 

other person in planning or committing it; 

or

(c) Having a legal duty to prevent the 

commission of the offense, fails to make 

proper effort so to do; . . . [.]

[N.J.S.A. 2C:2-6(c)(1) (emphasis added).]6

As the Court has explained

A defendant is responsible as an accomplice for a 

crime committed by another if he or she, intending to 

facilitate the crime, either solicits the other person to 

commit it, aids the person committing it, or does not 

prevent the crime, notwithstanding the fact that he or 

she has an obligation to do so.

6

 A person may also be an accomplice if "[h]is conduct is expressly declared 

by law to establish his complicity." N.J.S.A. 2C:2-6(c)(2). This subsection is 

irrelevant to the issues posed on appeal.
A-4250-16T4 25

[In re State ex rel. A.D., 212 N.J. 200, 221 (2012) 

(citing N.J.S.A. 2C:2-6(b)(3); N.J.S.A. 2C:6(c)(1)) 

(emphasis added).]

"By definition an accomplice must be a person who acts with the purpose of 

promoting or facilitating the commission of the substantive offense for which 

he is charged as an accomplice." White, 98 N.J. at 129.

The use of the word [purpose] in the statute evidences 

a careful legislative judgment, concerning the degree 

of an accomplice liability, arrived at after extended 

debate. The drafters of the Model Penal Code (MPC) 

originally presented a tentative formulation of 

accomplice liability premised on the culpable mental 

state of knowledge as the sufficient predicate for 

establishing the liability of the accessory. This 

tentative formulation was rejected, and the MPC now 

specifically requires that the accomplice have the 

"purpose of promoting or facilitating the commission 

of the offense" of which the principal was convicted.

[State v. Weeks, 107 N.J. 396, 402 (1987) (citing 

Model Penal Code and Commentaries (Official Draft 

and Revised Comments) § 2.06(3)(a) (1985) (internal 

citations omitted)).]

Thus, to be guilty as an accomplice, the jury must "find that the defendant had 

the purpose to participate in the crime [as] defined in the Code[.]" Id. at 403; 

see also Cannel, N.J. Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:2-6 

(2019) (collecting cases and noting that "for accomplice liability to attach[,] 

the defendant must have a purpose that someone else engage in the conduct 

that constitutes the particular crime charged").
A-4250-16T4 26

To be guilty of the same crime as his or her principal, the accomplice 

must also share the same culpable mental state as that which is an element of 

the crime, although "an accomplice who does not share the same intent or 

purpose as the principal may be guilty of a lesser or different crime than the 

principal." A.D., 212 N.J. at 222 (quoting State v. Whitaker, 200 N.J. 444, 458 

(2009)); see also State v. Hill, 199 N.J. 545, 567 (2009) (citing White, 98 N.J. 

at 129) ("[A]ll participants in the crime may be guilty, but not necessarily of 

the same degree.").

Writing for our court in State v. Bridges, and addressing the Criminal 

Code's vicarious liability provisions for co-conspirators and accomplices, 

Judge Pressler considered the "apparent conundrum" as to whether an actor 

"can intend a reckless act[,]" 254 N.J. Super. 541, 563 (App. Div. 1992), 

affirmed in part and reversed in part, 133 N.J. 447 (1993). Judge Pressler 

explained:

If the actor is liable for a "reckless" crime, 

vicarious liability for that crime or a lesser-included 

"reckless" crime may attach to an accomplice or 

conspirator who purposely promoted or facilitated the 

actor's conduct; who was aware when he did so, 

considering the circumstances then known to him, that 

the criminal result was a substantial and justifiable 

risk of that conduct; and who nevertheless promoted 

that conduct in conscious disregard of that risk. . . . 

Vicarious liability for a "reckless" crime may also, 

however, attach when the actor commits an "intent" 

crime and the accomplice or conspirator did not intend 
A-4250-16T4 27

that that crime be committed but nevertheless intended 

that the actor take a specific action or actions which 

resulted in the crime. If criminal liability for the 

criminal result of that conduct can be predicated on a 

reckless state of mind, an accomplice or coconspirator can be vicariously liable for that 

"reckless" crime under the same principles which 

apply where the actor's culpability is also based on 

recklessness. This is so even if the actor himself is 

guilty of an "intent" crime.

[Id. at 566 (emphasis added).]

As Judge Skillman later recognized in State v. Bielkiewicz, "[a]lthough the 

Supreme Court disagreed with our conclusion [in Bridges] that the liability of 

an alleged co-conspirator is governed by these same principles, it did not 

disagree with our discussion of accomplice liability as applied to murder and 

the lesser[-]included offenses of aggravated manslaughter and manslaughter." 

267 N.J. Super. 520, 529–30 (App. Div. 1993) (citation omitted).

The Model Charge on accomplice liability expressly tells the jury that an 

accomplice may be guilty of a lesser crime than his principal. Model Charge

at 1, n.1 (citing Bielkiewicz, 267 N.J. Super. at 533). However, the Model 

Charge only addresses accomplice liability when the actor "solicits" or "aids or 

agrees or attempts to aid" in the crime's planning or commission. N.J.S.A. 

2C:2-6(c)(1)(a) and (b); see Model Charge at 1. The Model Charge does not 

provide instructions when a defendant is charged as, or the State contends he 

or she is, an accomplice under subsection 1(c), i.e., because he or she has "a 
A-4250-16T4 28

legal duty to prevent the commission of the offense, [and] fails to make proper 

effort so to do[.]" N.J.S.A. 2C:2-6(c)(1)(c).

Liability under the Criminal Code is generally premised upon a 

"voluntary act[,]"and "[l]iability for the commission of an offense may not be 

based on an omission unaccompanied by action unless: (1) [t]he omission is 

expressly made sufficient by the law defining the offense; or (2) [a] duty to 

perform the omitted act is otherwise imposed by law . . . ." N.J.S.A. 2C:2-

1(a), (b)(1), (2). Subsection 1(c) recognizes this latter exception.

The accomplice provisions of our Criminal Code, N.J.S.A. 2-6(c)(1)(a)-

(c), are identical to MPC § 206(3). Cannel, New Jersey Criminal Code 

Annotated, cmt. 1 on N.J.S.A. 2C:2-6 (2019). And, while many states have 

adopted the MPC in some form or another, very few have adopted the 

equivalent of subsection 1(c).7 In those states that have, our research reveals 

no published opinion that specifically addresses accomplice liability based on 

7

 Our research reveals that nine other states have adopted provisions for 

accomplice liability similar to subsection 1(c). In each instance, for vicarious 

criminal liability to attach, the actor's failure to perform a legal duty must be 

accompanied by a purpose or intent to commit, promote or facilitate the 

commission of the offense. See Ala. Code § 13A-2-23(3) (1975); Ark. Code 

Ann. § 5-2-403 (1975); Del. Code Ann. tit. II § 271(2)(c) (1953); Haw. Rev. 

Stat. §702-222(1)(c) (1972); Ky. Rev. Stat. Ann. § 502.020(2)(c) (LexisNexis 

1974); N.D. Cent. Code § 12.1-03-01(1)(b) (1973); Or. Rev. Stat. § 

161.155(2)(c) (1971); Tenn. Code Ann. § 39-11-402(3) (1989); Tex. Code 

Ann. § 7.02(a)(3) (1973).
A-4250-16T4 29

the failure to perform a legal duty. The only reported case in New Jersey that 

addresses accomplice liability under subsection 1(c) is Bass.

To the extent our decision there implied the State need not prove the 

accomplice's purposeful intent, we expressly disapprove of Bass. We hold that 

like other provisions of the Criminal Code defining accomplice liability, 

accomplice liability under subsection 1(c) is predicated on a finding beyond a 

reasonable doubt that the defendant's failure to act was accompanied by a 

purpose to promote or facilitate the commission of the offense.

We reach this conclusion for several reasons. Initially, as the trial judge 

noted, the plain language of N.J.S.A. 2C:2-6(c) requires that to be vicariously 

liable as an accomplice for another's commission of a crime, one must act or 

fail to act "[w]ith the purpose of promoting or facilitating the commission of 

the offense[.]" Accord White, 98 N.J. at 129 (first alteration in original). The 

Legislature's intent is clear and unambiguous. See State v. Munafo, 222 N.J.

480, 488 (2015) (holding that we give effect to the Legislature's intent by first 

examining the "plain language of the statute") (citations omitted).

Indeed, the legislative decision to require such a high threshold before 

imposing vicarious criminal liability for complicity in a crime — proof of 

purpose — was no accident, as demonstrated by the commentaries that 

presaged enactment of our Criminal Code. "The Code limits the scope of 
A-4250-16T4 30

liability to crimes which the accomplice had the purpose of promoting or 

facilitating. It is intended not to include those which he merely knowingly 

facilitated substantially. We agree with the MPC in this regard." II The New 

Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision 

Commission 58 (1971) (emphasis added); Weeks, 107 N.J. at 403. Addressing 

the three subsections of N.J.S.A. 2C:2-6(c)(1), the commentators explained:

The Code includes . . . not only those who 

command, request, encourage, provoke or aid[,] but 

also those who agree or attempt to aid in the planning 

or execution. It also includes one who has a legal duty 

to prevent the crime who fails to make proper effort to 

do so. This represents an exhaustive description of the 

ways in which one may purposely enhance the 

probability that another will committee a crime. 

There being a purpose (i.e., a "specific intent") to 

further or facilitate, there is no risk of innocence.

[II The New Jersey Penal Code: Final Report of the 

New Jersey Criminal Law Revision Commission 59 

(1971) (emphasis added).]

The commentaries to the MPC reiterate the requirement that to be 

culpable as an accomplice, the actor must "have a purpose to promote or 

facilitate the offense in question." Model Penal Code and Commentaries 

(Official Draft and Revised Comments) §2.06 314 (1985). The commentators 

specifically explained the rejection of a lesser standard, i.e., that one could be 

culpable as an accomplice if, "with knowledge that another was committing or 

had the purpose of committing an offense, [he] knowingly facilitated its 
A-4250-16T4 31

commission." Ibid. Instead, the MPC as adopted reflects "a general principle . 

. . pointed toward a narrow formulation in order not to include situations where 

liability was inappropriate. Id. at 318. The commentaries specifically 

addressed accomplice liability by failure to act, noting "it [was] unduly harsh 

to view it as participation in the crime[,]" if the actor's "dereliction [was] not 

purposeful[.]" Id. at 320.

A careful reading of the State's brief makes clear it does not disagree 

with the proposition that one cannot be criminally liable under subsection 1(c) 

unless, duty bound, he or she fails to take action with the purpose to promote 

or facilitate the offense. Instead, the State contends the judge's charge as a 

whole adequately conveyed this principle, and neither the judge nor the 

prosecutor suggested subsection 1(c) did not require proof that the accomplice 

failed to act with the purpose to promote or facilitate the crime. As to this 

latter point, we cited the colloquy above at length because it specifically 

demonstrates the opposite.

Indeed, the judge was quite troubled that "Bass liability appears to be 

available upon a much less significant showing" than other aspects of 

accomplice liability. He specifically opined that one could be an accomplice 

under Bass if "he or she [was] a natural parent . . . [a]nd he or she was aware 

of and purposely did nothing to stop the alleged abuse and did nothing with 
A-4250-16T4 32

purpose or knowledge that the alleged abuse would result in death or serious 

bodily injury resulting in death." This understanding, i.e., that subsection 1(c) 

expanded accomplice liability when there was no shared intent, led the judge 

originally to conclude that a specific unanimity charge was required. So, too, 

the prosecutor's summation comments — telling the jury that defendants' 

knowledge and purposeful failure to act was legally sufficient to make either 

an accomplice of the other — were a clear misstatement of the law.

We must consider whether not telling the jury that to be an accomplice 

under subsection 1(c), a defendant's failure to perform his or her legal duty 

must be accompanied by a purpose to promote or facilitate the crime was 

harmful error, i.e., was "of such a nature as to have been clearly capable of 

producing an unjust result[.]" R. 2:10-2. "The possibility must be real, one 

sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict 

it otherwise might not have reached." Baum, 224 N.J. at 159 (alteration in 

original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

"Appropriate and proper jury instructions are essential to a fair trial." 

McKinney, 223 N.J. at 495 (citing State v. Green, 86 N.J. 281, 287 (1981)). 

As a result, ''erroneous instructions on material points are presumed to possess 

the capacity to unfairly prejudice the defendant." Baum, 224 N.J. at 159 

(quoting State v. Bunch, 180 N.J. 534, 542 (2004)). In deciding whether the 
A-4250-16T4 33

error is harmless or not, "[t]he test to be applied . . . is whether the charge as a 

whole is misleading, or sets forth accurately and fairly the controlling 

principles of law." Ibid. (quoting State v. Jackmon, 305 N.J. Super. 274, 299 

(App. Div. 1997)). "The key to finding harmless error in such cases is the 

isolated nature of the transgression and the fact that a correct definition of the 

law on the same charge is found elsewhere in the court's instructions." Ibid.

(quoting Jackmon, 305 N.J. Super. at 299). Applying these standards, we are 

compelled to reverse.

The instructions on accomplice liability began with the definition of an 

"accomplice" as one who, "for the purpose of promoting or facilitating the 

commission of the offense . . . aids or agrees or attempts to aid such other 

person in planning or committing it, or, having a legal duty to prevent the 

commission of the offense[,] he or she fails to make a proper effort to do so." 

However, the judge then described subsection 1(c) as one of "three theories" 

by which one could be an accomplice.

In defining the concept of liability by omission as to murder, aggravated 

manslaughter, reckless manslaughter, and all lesser-included assaults, the 

judge did not instruct the jury that the State was required to prove a 

defendant's failure to act was with a purpose to promote or facilitate the 

specific crime. The prosecutor's summations comments as to Ramirez 
A-4250-16T4 34

accentuated this error, by telling jurors, "if you believe that she was present 

during the beatings that occurred that weekend — they're all together and she 

knowingly did nothing to stop it, she's guilty as well of murder." This is in 

contrast to the judge's instructions on the other two theories of accomplice 

liability, in which the jury was repeatedly told that an accomplice must act 

with the purpose to promote or facilitate the commission of the offense, and 

that he or she must possess the conscious object to engage in the conduct or 

cause the result.

The jury should have been clearly instructed that culpability under 

subsection 1(c) required proof beyond a reasonable doubt that the conscious 

object of a defendant's failure to prevent the commission of a particular crime 

was to promote or facilitate the crime. Given the circumstantial nature of the 

proofs in this case, the failure to provide such an instruction was clearly 

capable of producing an unjust result.

We therefore reverse defendants' convictions and remand for a new trial. 

We also commend to the Supreme Court's Committee on Criminal Model Jury 

Charges consideration of the need for model instructions regarding culpability 

as an accomplice under subsection 1(c).

III.
A-4250-16T4 35

As to Orozco's other points on appeal, it is clear from the trial record 

that he never raised a challenge to the admission of his statements to police 

based on an alleged Miranda violation, never objected to the scientific 

reliability of the testimony of the State's dental expert, and never moved for a 

separate trial. On the latter point, Orozco specifically did not join in Ramirez's 

severance motion, which the trial judge denied. We refuse to consider these 

contentions presented for the first time on appeal. See State v. Witt, 223 N.J. 

409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)) ("[W]ith 

few exceptions, 'our appellate courts will decline to consider questions or 

issues not properly presented to the trial court when an opportunity for such a 

presentation is available.'").

 In light of our decision, we need not address the sentencing arguments 

raised by both defendants.

Reversed and remanded for a new trial.