                       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               NOT FOR PUBLICATION WITHOUT THE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,
                                   APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                         December 12, 2019
v.
                                       APPELLATE DIVISION

RAQUEL RAMIREZ,

     Defendant-Appellant.
____________________________

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

JORGE OROZCO,

     Defendant-Appellant.
____________________________

          Argued October 29, 2019 – Decided December 12, 2019

          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
            (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 two-

year-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 second-

degree 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 lesser-

included 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
                                       2
      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 forty-

eight-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
                                       3
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
                                        4
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
                                      5
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
                                         6
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
                                       7
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 Oroz co, 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 d id 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
                                      8
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
                                       9
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
                                        10
      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
                                       11
      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
                                       12
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-year-

old 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 defendant-

father, 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
                                        13
      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
                                        14
                    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
                                        15
              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
                                         16
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
                                       17
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
                                          18
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
                                        19
agree on whether the defendant is a principal, accomplice, or a co-

conspirator.") (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
                                          20
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, th e

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, th e judge



                                                                        A-4250-16T4
                                       21
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 cont ends 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
                                         22
      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
                                       23
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
                                       24
            [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
                                       25
      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
                                       26
            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 co-
            conspirator 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
                                      27
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 mu st 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
                                        28
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
                                       29
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
                                       30
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
                                       31
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
                                        32
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 oth er

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
                                        33
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 promot 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
                                         34
      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.




                                                                         A-4250-16T4
                                       35
