State v. Raquel Ramirez State v. Jorge Orozco (083902) (Union County & Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Raquel Ramirez; State v. Jorge Orozco (A-59-19) (083902)

Argued December 1, 2020 -- Decided April 14, 2021

FERNANDEZ-VINA, J., writing for the Court.

In this case, the Appellate Division found reversible error in the manner in which
the trial court instructed the jury on accomplice liability and vacated both the
manslaughter and the endangering convictions of each defendant.

Raquel Ramirez and Jorge Orozco were charged with murder and endangering the
welfare of a child in connection with the death of their two-year-old daughter. They were
tried jointly. The prosecution argued in part that defendants were equally responsible for
the many injuries their daughter suffered, including the blunt-force head trauma that
caused her death, by failing to prevent those injuries.

In keeping with that theory of the case, the court instructed the jury on the
elements of N.J.S.A. 2C:2-6(c)(1)(c), which governs accomplice liability for the failure to
prevent the commission of an offense when under a legal duty to do so. In preparing the
jury charge, the trial court looked to the only precedential authority to address that
particular section of the accomplice liability statute, State v. Bass, 221 N.J. Super. 466
(App. Div. 1987). In Bass, the Appellate Division approved a challenged instruction on
accomplice liability for murder under -6(c)(1)(c). Id. at 488. The trial court here
expressed misgivings about the charge approved in Bass, which seemed to the court to
create a “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.” Nevertheless,
noting that Bass remained good law, the court derived its charge to accomplice liability
for murder directly from that opinion.

The jury acquitted both defendants of murder but convicted each of a lesser
included offense -- Ramirez of second-degree reckless manslaughter, Orozco of first-
degree aggravated manslaughter. The jury found both defendants guilty of endangering.
The Appellate Division found reversible error in the accomplice liability charge and
vacated both the manslaughter and the endangering convictions of each defendant.

HELD: The Court affirms as to defendants’ respective manslaughter convictions but
reverses as to their convictions for endangerment.
1. Based on the accomplice liability statute’s plain language, the Court shares the
Appellate Division’s view that the jury “should have been clearly instructed that
culpability under [N.J.S.A. 2C:2-6(c)(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.” 462 N.J. Super. 1, at 25-26
(App. Div. 2019). The Court reviews the instruction given in detail and finds that it was
clearly capable of confusing the jury because “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.” Id. at 25. And, in light of “the circumstantial nature of the
proofs in this case, the failure to provide such an instruction was clearly capable of
producing an unjust result,” requiring reversal. See id. at 26. The matter is remanded for
a new trial on defendants’ respective manslaughter convictions. (pp. 3-6, 11)

2. The Court offers guidance to trial courts as to accomplice liability instructions under
N.J.S.A. 2C:2-6(c)(1)(c) when two parents owe a legal duty to protect their child from
harm. The Court notes that a particular passage from State v. Bielkiewicz, 267 N.J.
Super. 520, 529 (App. Div. 1993), has the same potential to cause confusion as the
language in Bass because it, too, would permit a prosecutor to argue that if an actor is
liable for a “knowing” crime, vicarious liability for that crime or a lesser-included crime
may attach to an accomplice who purposely promoted or facilitated the actor’s conduct
knowing that the criminal result was sufficiently likely to follow. Such a result is
untenable under N.J.S.A. 2C:2-6(c)(1). The Court requests that the Committee on Model
Criminal Jury Charges draft a model charge in connection with accomplice liability under
N.J.S.A. 2C:2-6(c)(1)(c). (p. 6-10)

3. The trial judge charged endangering after charging murder and the relevant lesser
included offenses of murder. The judge read the model charge verbatim, no objection to
the endangering instruction was made at trial, and there is no ground for finding that the
endangering charge was tainted by the accomplice liability charge. Defendants’
convictions for endangering are reinstated. (pp. 10-11)

AFFIRMED AS MODIFIED in part and REVERSED in part.

JUSTICE ALBIN, concurring, is of the view that accomplice liability does not
have to play any role in the retrial of defendants on the manslaughter charges. Rather,
Justice Albin writes, when parents have a legal obligation, as here, not to allow a child to
be physically abused, they can be charged directly as principals for their alleged
recklessness in causing the child’s death under the manslaughter statute.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUSTICE FERNANDEZ-VINA’s opinion.
JUSTICE ALBIN filed a concurrence.

2
 SUPREME COURT OF NEW JERSEY
A-59 September Term 2019
083902

State of New Jersey,

Plaintiff-Appellant,

v.

Raquel Ramirez,

Defendant-Respondent.
______________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

v.

Jorge Orozco,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
462 N.J. Super. 1 (App. Div. 2019).

Argued Decided
December 1, 2020 April 14, 2021

Sarah C. Hunt, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney General,
attorney; Sarah C. Hunt, of counsel and on the briefs).

1
 Alyssa A. Aiello, Assistant Deputy Public Defender,
argued the cause for respondent Raquel Ramirez
(Joseph E. Krakora, Public Defender, attorney; Alyssa
A. Aiello, of counsel and on the briefs).

Frank M. Gennaro, Assistant Deputy Public Defender,
argued the cause for respondent Jorge Orozco (Joseph
E. Krakora, Public Defender, attorney; Frank M.
Gennaro, of counsel and on the briefs).

Darcy J. Baboulis-Gyscek argued the cause for amicus
curiae Association of Criminal Defense Lawyers of
New Jersey (Pashman Stein Walder Hayden,
attorneys; Darcy J. Baboulis-Gyscek, and Aidan P.
O’Connor, on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

Defendants Raquel Ramirez and Jorge Orozco were charged with murder

and second-degree endangering the welfare of a child in connection with the

death of their two-year-old daughter. They were tried jointly. The prosecution

argued in part that defendants were equally responsible for the many injuries

their daughter suffered, including the blunt-force head trauma that caused her

death, by failing to prevent those injuries. In keeping with that theory of the

case, the court, when presenting the charge for murder and its relevant lesser

included offenses, instructed the jury on the elements of N.J.S.A. 2C:2-

6(c)(1)(c), which governs accomplice liability for the failure to prevent the

commission of an offense when under a legal duty to do so.

2
 The jury acquitted both defendants of murder but convicted each of a

lesser included offense -- Ramirez of second-degree reckless manslaughter,

Orozco of first-degree aggravated manslaughter. The jury found both

defendants guilty of endangering.

The Appellate Division found reversible error in the manner in which

accomplice liability was charged and vacated both the manslaughter and the

endangering convictions of each defendant. We affirm as to defendants’

respective manslaughter convictions but reverse as to their convictions for

endangerment.

I.

We affirm the judgment of the Superior Court, Appellate Division, as to

defendants’ manslaughter convictions substantially for the reasons given in

Judge Messano’s comprehensive opinion, reported at 462 N.J. Super. 1 (App.

Div. 2019).

Under N.J.S.A. 2C:2-6(c)(1), a person may be deemed “an accomplice of

another person in the commission of an offense if . . . [w]ith the purpose of

promoting or facilitating the commission of the offense,” that person takes one

of the courses of action specified in subsections -6(c)(1)(a) through -6(c)(1)(c).

Based on that plain statutory language, we share the Appellate Division’s view

that the jury “should have been clearly instructed that culpability under

3
[N.J.S.A. 2C:2-6(c)(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.” Ramirez, 462 N.J.

Super. at 25-26. Because the charge given did not so instruct the jurors, we

agree that a new trial is warranted on the manslaughter convictions.

A.

In preparing a jury charge on the theory of accomplice liability advanced

by the prosecution under N.J.S.A. 2C:2-6(c)(1)(c), the trial court looked to the

only precedential authority to address that particular section of the accomplice

liability statute, State v. Bass, 221 N.J. Super. 466 (App. Div. 1987). See

Ramirez, 462 N.J. Super. at 22. In Bass, the Appellate Division approved a

challenged instruction on accomplice liability for murder under -6(c)(1)(c).

221 N.J. Super. at 488.

The trial court here expressed misgivings about the charge approved in

Bass, which seemed to the court to create a “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.” Nevertheless, noting that Bass

remained good law, the court derived its charge to accomplice liability for

murder directly from that opinion, changing only the victim’s name, and

adapted the Bass charge to fit the lesser-included manslaughter charges.

4
 The trial judge’s accomplice liability instructions for murder, aggravated

manslaughter, and reckless manslaughter read as follows:

If you find that only one defendant committed the acts
causing [D.O.]’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 over
the child or who otherwise assumed responsibility for
her; and 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 by the
other would result in death or serious bodily injury
resulting in death.

If you find that only one defendant committed the acts
causing [D.O.]’s death, the other can be deemed an
accomplice to aggravated manslaughter 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 her; and 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.

If you find that only one defendant committed the acts
causing [D.O.]’s death, the other can be deemed an
accomplice to reckless manslaughter if you find that he
or she was the natural parent or person having custody
or control of the child or who otherwise assumed
responsibility for her and that he or she 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.

[(emphases added, and we have initialized the victim’s
name as per the Appellate Division’s practice in this
case, see Ramirez, 462 N.J. Super. at 5 n.1).]

5
 That instruction was clearly capable of confusing the jury since

accomplice liability under our Criminal Code requires the accomplice to act or

fail to make a proper effort to act “[w]ith the purpose of promoting or

facilitating the commission of the offense.” N.J.S.A. 2C:2-6(c)(1) (emphasis

added).

As the Appellate Division determined, the trial court’s instruction did

not convey to the jury the required statutory findings for a conviction based on

accomplice liability because, 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.” Id. at 25. And, in light of “the circumstantial nature of

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

capable of producing an unjust result,” requiring reversal. See id. at 26.

B.

We offer the following comments to guide trial courts as to accomplice

liability instructions under N.J.S.A. 2C:2-6(c)(1)(c) when two parents owe a

legal duty to protect their child from harm.

Although there are three types of accomplice liability under N.J.S.A.

2C:2-6(c)(1), all three require the accomplice to act or fail to act “[w]ith the

6
purpose of promoting or facilitating the commission of the offense.” N.J.S.A.

2C:2-6(c)(1) (emphasis added). “An accomplice is only guilty of the same

crime committed by the principal if he shares the same criminal state of mind

as the principal.” State v. Whitaker, 200 N.J. 444, 458 (2009). However, an

accomplice may be guilty of a lesser crime if their state of mind is different

from the principal’s. Thus, “an accomplice who does not have a shared

purpose ‘to commit a robbery with a weapon’ is guilty of robbery -- not armed

robbery.” Id. at 459 (quoting State v. Weeks, 107 N.J. 396, 405 (1987)).

An accomplice liability inquiry necessarily focuses on the defendant’s

state of mind. See id. at 457 (“The Code’s accomplice liability statute requires

that a defendant act with a purposeful state of mind in furtherance of the

crime.”); State v. Bielkiewicz, 267 N.J. Super. 520, 529 (App. Div. 1993) (“If

the actor is liable for an ‘intent’ crime, vicarious liability for that crime may

only attach to an accomplice . . . who shared the intent that that crime be

committed. Vicarious liability for a ‘reckless’ crime may also, however, attach

when the actor commits an ‘intent’ crime and the accomplice . . . did not

intend that that crime be committed but nevertheless intended that the actor

take a specific action or actions which resulted in the crime.” (omissions in

original) (quoting State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992),

aff’d in part, rev’d in part on other grounds, 133 N.J. 447 (1993))).

7
 Accordingly, a finder of fact should first determine what the putative

accomplice intended to do. If the accomplice intended to facilitate or assist the

exact crime the putative principal is accused of, then the finder of fact may

proceed along the lines spelled out by Whitaker and determine whether the

defendant in fact acted, or failed to act, in accordance with that guilty mind, in

order to facilitate the principal’s commission of the criminal act. See

Whitaker, 200 N.J. at 459.

However, if the factfinder determines instead that the alleged accomplice

intended to facilitate the commission of a different crime than that of the

principal, the focus should turn to the principal’s conduct. In that scenario, the

factfinder should determine whether the would-be accomplice engaged in an

act, or evaded a legal duty, to facilitate an action or series of actions on the

part of the principal with the desire that the principal carry out a particular

crime.

Here, the trial judge’s omission of the statutory language “[w]ith the

purpose of promoting or facilitating the commission of the offense,” N.J.S.A.

2C:2-6(c)(1), in his accomplice-liability instructions on murder, aggravated

manslaughter, and reckless manslaughter clearly could have confused the jury.

Reading the above instruction, the jury could have found that either defendant

was an accomplice to aggravated or reckless manslaughter -- the charges the

8
defendants were convicted of -- by “recklessly [doing] nothing” to halt the

abuse of the child. Given that accomplice liability under N.J.S.A. 2C:2-6(c)(1)

is premised on the accomplice acting or failing to act “[w]ith the purpose of

promoting or facilitating the commission of the offense,” the judge’s

instruction on accomplice liability for murder, aggravated manslaughter, and

reckless manslaughter was incomplete because it omitted such language.

Briefly, we find it necessary to comment on a particular passage from

Bielkiewicz that quoted Bridges extensively and has the same potential to

cause confusion as the language in Bass. In Bielkiewicz, the Appellate

Division stated:

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 . . . 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 [un]justifiable risk of that conduct; and
who nevertheless promoted that conduct in conscious
disregard of that risk.

[267 N.J. Super. at 529 (omission and alteration in
original) (quoting Bridges, 254 N.J. Super. at 566).]

Under that language, a defendant could be tried in almost the exact same

manner as Ramirez and Orozco. A prosecutor could argue that if an actor is

liable for a “knowing” crime, vicarious liability for that crime or a lesser-

included crime may attach to an accomplice who purposely promoted or
9
facilitated the actor’s conduct knowing that the criminal result was sufficiently

likely to follow. Such a result is untenable under N.J.S.A. 2C:2-6(c)(1).

In accordance with this opinion, we request that the Supreme Court’s

Committee on Model Criminal Jury Charges draft a model charge in

connection with accomplice liability under N.J.S.A. 2C:2-6(c)(1)(c) because

the current model charge only includes instructions for accomplice liability

related to N.J.S.A. 2C:2-6(c)(1)(a) and (b). See Model Jury Charges

(Criminal), “Liability for Another’s Conduct (N.J.S.A. 2C:2-6)” (rev. June 11,

2018).

II.

We reverse the Appellate Division’s judgment as to the endangering

charges. The trial judge charged endangering after charging murder and the

relevant lesser included offenses of murder. The judge read the model charge

verbatim, and no objection to the endangering instruction was made at trial.

See Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449, 466 (2000) (“It is

difficult to find that a charge that follows the Model Charge so closely

constitutes plain error.”). Nor is there any ground for finding that the

endangering charge was tainted by the accomplice liability charge: the judge

made no reference to accomplice liability in charging endangering, which he

presented to the jury as the discrete offense that it is. See, e.g., United States

10
v. Adamson, 700 F.2d 953, 968 (5th Cir. 1983) (finding “no spillover taint”

from an erroneous jury instruction on one count where the other count was

properly charged and “[t]here was a clear demarcation between the” charges

for the two offenses). Accordingly, we reinstate defendants’ convictions for

endangering.1

III.

We affirm as to the manslaughter charges as modified by this opinion,

and we reverse as to the endangerment charges. Defendants’ convictions for

endangering are reinstated, and the matter is remanded for a new trial on

defendants’ respective manslaughter convictions.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUSTICE FERNANDEZ-VINA’s
opinion. JUSTICE ALBIN filed a concurrence.

1
The majority does not reach the issue of whether an accomplice liability
charge is needed as raised by the concurrence because that issue is not
presented in this appeal and was not argued by the parties.
11
 State of New Jersey,

Plaintiff-Appellant,

v.

Raquel Ramirez,

Defendant-Respondent.
________________________________________________________________
State of New Jersey,

Plaintiff-Appellant,

v.

Jorge Orozco,

Defendant-Respondent.

JUSTICE ALBIN, concurring.

I concur with the majority that defendant Ramirez’s manslaughter

conviction and defendant Orozco’s aggravated manslaughter conviction must

be reversed because of the deficient jury instructions. I also concur that the

child-endangerment convictions returned against both defendants must be

reinstated because the erroneous instructions on the manslaughter convictions

did not infect the separate instructions on child endangering.

1
 I write separately because accomplice liability does not have to play any

role in the retrial of defendants on the manslaughter charges. Under our child-

abuse laws and child-endangering laws, each parent had an affirmative

obligation to protect the child from physical abuse inflicted on the child by the

other parent. See N.J.S.A. 9:6-8.21(c). A parent who allows another parent to

inflict physical abuse on a child is a principal -- not an accomplice -- to the

crimes of child abuse or neglect and child endangering. See N.J.S.A. 9:6-3

(abuse or neglect); N.J.S.A. 2C:24-4(a)(2) (endangering). A parent who

recklessly allows another parent to inflict abuse on a child resulting in the

child’s death is a principal -- not an accomplice -- to the crime of

manslaughter.

For the State to prove the reckless conduct requirement of manslaughter

in this case, it does not have to satisfy the essential element of accomplice

liability -- the purpose to promote an offense. Indeed, the purposeful conduct

requirement of accomplice liability conflicts with the reckless conduct

requirement of manslaughter in this parental child-abuse case. Therefore, on

remand, the trial court should not give an accomplice-liability charge that will

place an unnecessary burden on the State and likely confuse the jury.

2
 I.

Defendants were charged with criminal responsibility for the death of

their two-year-old daughter, who died of blunt-force head trauma. When the

police and emergency services personnel responded to defendant Orozco’s

apartment, they found the little girl motionless and with terrible bruises and

bite and gash marks over her body. 1

The prosecution presented two alternative theories: (1) both parents

inflicted the injuries that caused their daughter’s death or (2) one of the parents

inflicted the abuse and the other failed to exercise that minimal level of

parental care required under the law to protect the child.

Under N.J.S.A. 9:6-8.21(c), a child suffers abuse or neglect by a parent

when that parent

(1) [i]nflicts or allows to be inflicted upon such child
physical injury by other than accidental means which
causes or creates a substantial risk of death . . . ;

(2) [c]reates or allows to be created a substantial or
ongoing risk of physical injury to such child by other
than accidental means which would be likely to cause
death . . . ; [or]

....

(4) [fails] to exercise a minimum degree of care

1
The daughter resided with her father, Orozco, but her mother, Ramirez, had
also been staying with them in the days immediately preceding her death.

3
 ....

(b) in providing the child with proper
supervision or guardianship, by unreasonably
inflicting or allowing to be inflicted harm, or
substantial risk thereof, including the infliction
of excessive corporal punishment.

[N.J.S.A. 9:6-8.21(c)(1)-(2), (4)(b) (emphases added).]

Under the endangering the welfare of a child statute,

[a]ny person having a legal duty for the care of a child
or who has assumed responsibility for the care of a
child who causes the child harm that would make the
child an abused or neglected child as defined in . . .
[N.J.S.A.] 9:6-8.21 is guilty of a crime of the second
degree.

[N.J.S.A. 2C:24-4(a)(2).]

See also N.J.S.A. 9:6-3 (“Any parent . . . who shall abuse, be cruel to or

neglectful of any child shall be deemed to be guilty of a crime of the fourth

degree.”). Significantly, when the trial court gave its instructions on child

endangering, it did not charge on accomplice liability. Both defendants were

treated as principals.

This Court has held that “[a] parent has the obligation to protect a child

from harms that can be inflicted by another parent.” DYFS v. F.M., 211 N.J.

420, 449 (2012). Indeed, a parent’s failure to act when another person is

inflicting harm on a child can be the basis for an abuse or neglect adjudication.

4
See DCPP v. J.L.G., 450 N.J. Super 113, 121-23 (App. Div. 2015), aff’d o.b.,

229 N.J. 113 (2017).

Because parents have an affirmative obligation to protect a child from

abuse -- particularly from abuse that is likely to cause the child’s death --

parents necessarily act recklessly when they fail to do so. Defendants are

guilty of criminal manslaughter when they “recklessly” cause death, N.J.S.A.

2C:11-4(b)(1), and of aggravated manslaughter when they “recklessly cause[]

death under circumstances manifesting extreme indifference to human life,”

N.J.S.A. 2C:11-4(a)(1).

Under the manslaughter statute, “[a] person acts recklessly with respect

to a material element of an offense when he consciously disregards a

substantial and unjustifiable risk that the material element exists or will result

from his conduct.” N.J.S.A. 2C:2-2(b)(3). Here, for purposes of the

manslaughter statute, the material element is death. Therefore, the question is

whether one parent “consciously disregard[ed] a substantial and unjustifiable

risk” that death would result by failing to protect the child from the physical

abuse caused by the other parent.

Because parents have the legal responsibility to stop the abuse of a child,

the doctrine of accomplice liability does not apply. A parent who consciously

disregards a substantial and unjustifiable risk of causing death to a child by

5
inflicting or allowing to be inflicted such physical injury on the child is guilty

of manslaughter as a principal, not as an accomplice. Accomplice liability

confuses the issue by adding the element of purposeful conduct.

Under the accomplice liability statute,

[a] person is an accomplice of another person in the
commission of an offense if . . . [w]ith the purpose of
promoting or facilitating the commission of the offense;
he . . . [h]aving 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)(c) (emphasis added).]

As noted, a parent has a legal obligation not to “allow” another parent to

inflict physical injury on a child that “creates a substantial risk of death.” See

N.J.S.A. 9:6-8.21(c)(1). Because defendants can be prosecuted as principals

under the manslaughter statute, the State undertakes an additional and

unnecessary burden by proceeding on an accomplice liability theory.

On retrial, given the facts of record, I do not see a need for an

accomplice liability approach.

II.

To be clear, I express no opinion on whether defendants have committed

manslaughter or aggravated manslaughter. That is for the jury to decide. The

instructions to the jury on those charges, however, should be clear and avoid

confusion. Simply stated, when parents have a legal obligation, as here, not to

6
allow a child to be physically abused, they can be charged directly as

principals for their alleged recklessness in causing the child’s death under the

manslaughter statute.

I therefore concur in the judgment.

7