STATE OF NEW JERSEY VS. CARLTON L. CLARK(13-05-1059, ESSEX COUNTY AND STATEWIDE)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5025-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN E. KILLION,

Defendant-Appellant.
__________________________

Argued December 13, 2016 – Decided April 26, 2017

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-03-0720.

David A. Gies, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Mr. Gies, on the brief).

Sara M. Quigley, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Quigley, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 A jury convicted defendant Brian E. Killion of thirty-four

counts of an indictment charging him with sexually assaulting five

children over a sixteen-year period. Twenty-eight counts survived

merger. He was given an aggregate sentence of eighty-five years

in prison. Seventy-five of those years are subject to the eighty-

five percent parole disqualification provision of the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals both

the convictions and sentence. After reviewing the record in light

of the contentions advanced on appeal, we reverse the convictions

for counts twelve and twenty-seven and the sentencing under NERA

on three counts, and remand for resentencing and a further hearing

regarding counts seventeen and twenty-two. In all other respects

we affirm.

I

The State called the five victims, two victims' mothers and

several investigators to testify. Defendant did not testify.

"David"1 testified that he met defendant, who was his

assistant scoutmaster, at a Boy Scout meeting at the end of David's

sixth-grade year, when he was approximately twelve years old.

David went to weekly meetings and overnight camping trips where

1 We use pseudonyms or initials for the victims and their mothers.
R. 1:38-3(c)(12).
2 A-5025-13T2
defendant was present. David also spent time with defendant at

defendant's home.

Defendant first performed oral sex on David when David was

"about fourteen" in "the back bay marshes . . . around

Absecon/Smithville area" in the spring of 1997. After this

encounter, before David was sixteen years old, defendant continued

to engage David in oral sex and mutual masturbation at times at

David's home in Atlantic County.

Defendant sometimes viewed David's semen under a microscope.

Defendant also took pictures of David in defendant's bedroom; some

of these photos included images of David measuring his own penis.

David went on many trips with defendant, including a camping trip

to Bass River where defendant masturbated David and performed oral

sex on David when David was younger than sixteen. David testified

that it seemed he and defendant engaged in "some kind of sexual

conduct every time [they] were alone together." Defendant also

unsuccessfully attempted to have anal sex with David. David

continued to have a relationship with defendant until he was twenty

years old. The State located David in a homeless shelter using

photographs of David retrieved from defendant's bedroom. David

was twenty-nine years old at the time of the trial.

The second victim, "Wyatt," testified he was eleven years old

when he met defendant through a string band that marched in the

3 A-5025-13T2
Mummer's Parade. Wyatt started sleeping over at defendant's house

shortly after meeting him. One of the first times Wyatt slept at

defendant's house, Wyatt walked in on defendant watching

pornography and masturbating. Defendant told Wyatt to take his

pants down and proceeded to masturbate Wyatt. That same day,

Wyatt witnessed defendant masturbate and ejaculate into a tissue.

Later, Wyatt and defendant masturbated themselves while watching

pornography.

When Wyatt was thirteen years old, defendant also used a sex

toy, "Flip-a-Sista," in front of Wyatt, and offered it to Wyatt

who also used it. Defendant also took photos of Wyatt while Wyatt

was naked from the waist down. Wyatt testified that he was

thirteen years old when defendant took these pictures. Defendant

kept a chart of Wyatt to keep measurements of his body as he

developed, including the growth of his penis. Defendant performed

oral sex on Wyatt "a lot." Wyatt testified that this began when

he was around twelve years old. When defendant performed oral sex

on Wyatt, defendant also masturbated.

Defendant masturbated Wyatt and performed oral sex on Wyatt

upstairs in Wyatt's home while Wyatt's mother was downstairs.

Defendant took Wyatt's semen and put it under a microscope to

determine if Wyatt had any sperm. Defendant and Wyatt built a

4 A-5025-13T2
computer together, and defendant told Wyatt "now you can go home

and watch videos at home, pornography videos at home."

Defendant took Wyatt on trips at defendant's expense,

including a trip to Florida for a week to see NASA. Defendant

also brought Wyatt to the dentist to be examined for braces, and

took Wyatt "for an entry exam at a local high school by

[defendant's] house." The last time Wyatt saw defendant was at a

band practice when defendant told Wyatt he had a gift for him, but

Wyatt did not take it because "if I had taken it I'd have been

basically saying it's okay."

The third victim, "Joey," testified that defendant was a

family friend who he knew for most of his life, but that he became

friends with defendant when Joey was between the ages of seven and

nine years old. Defendant was not Joey's scoutmaster, but he did

show up at the end of scout day-camp to help "with any work that

would have to be done and just talk after that." Joey and Wyatt

went with defendant for more than a week to the Ice Harvest

Festival in Pennsylvania when Joey was eleven or twelve years old.

Defendant showed Joey pornography while at Ice Harvest and while

camping at Belleplain State Park in Woodbine. One time while at

Belleplain, Joey walked into the lean-to where they were staying

and found defendant and another boy masturbating while they watched

pornography. Joey said that he was twelve years old when this

5 A-5025-13T2
incident occurred. Joey also testified that in 2007, when he was

eleven years old, defendant tried to wake Joey by touching Joey's

"genital region."

When defendant and Joey went on trips, defendant bought the

food, paid for hotel rooms, and was generally in charge. Joey's

mother told him to listen to defendant when they were together.

The fourth victim, "Noah," met defendant when Noah was nine

years old. K.C., Noah's mother, testified that Noah met defendant

through another friend, and that Noah and defendant were very

close. K.C. was happy defendant was close with her son, because

Noah's husband was not around to do things with Noah. Whenever

defendant took Noah anywhere, defendant always paid for Noah.

Noah testified that after he met defendant, he saw defendant

almost every weekend, and they watched pornographic movies

"[n]early every time" Noah went to defendant's house. When they

watched the pornography, defendant masturbated while naked.

Defendant asked Noah if he wanted to join him, and initially Noah

declined, but eventually Noah joined defendant and the two

masturbated while they watched the videos.

Noah identified the sex toy, Flip-a-Sista, and a lubricant,

"Feel the Zing," which defendant showed him how to use. When he

was at defendant's house, defendant asked Noah to masturbate

6 A-5025-13T2
defendant, which Noah refused to do. Defendant also asked Noah

if defendant could hold Noah's penis, but Noah refused.

Defendant took Noah several places for day and weekend trips.

They went on one camping trip to Belleplain State Park with Joey,

who was thirteen at the time. The three of them masturbated

together.

Noah's mother, K.C., testified that defendant, whom she

called "Brian," was responsible for Noah when they went camping:

Q: And did you consider Brian to be in charge of
your son?

A: Most definitely. If you're taking my child
out of my care, out of my custody, as an adult
of 37 at the time, you're darn straight that
you're responsible for my child. Everything
that happens with my child you're responsible
for.

Q: And [what] did you expect him to do . . .
for your son?

A: Take care of him, take care, make sure he
ate, make sure he was fed, make sure he got
bathed, make sure he went to bed on time. He
was a little boy at the time, you know, so I
expected him to do all the things I would
have done or my husband would have done if he
had been home.

K.C. also testified about a weekend trip when defendant took

Noah to Virginia:

I made sure Brian was in charge. I had
written up consent that God forbid anything
happened with my son, whether it was
emergency, medical-wise or anything, I gave
him more or less power-of-attorney for the

7 A-5025-13T2
 weekend that they were there to take care of
his needs basically, and that's what he did.

Q: Did you ever give Brian insurance cards?

A: I always - - he had a copy of [Noah's]
insurance card, yes, he did.

The fifth victim to testify, "Ethan," met defendant through

Noah when Ethan was eleven years old, and went camping many times

with Noah and defendant. Ethan testified that during these camping

trips defendant was in charge:

Q: When you went away on these camping trips,
who was in charge?

A: Brian.

Q: Did you have to listen to what he said?

A: Yeah.

Q: Did he get you food?

A: Yes.

Ethan also spent many nights at defendant's house. Ethan

testified that when he went to defendant's house, Noah and

defendant would watch "sexual-type movies" based on "the sounds

that came from the laptop."

Ethan's mother, B.O., testified about defendant's role when

he was around her son:

Q: Okay. Having allowed your son to stay
overnight with Brian on those two occasions,
what was your thought as to Brian's role with
those kids?

8 A-5025-13T2
 A: He was responsible, and, I mean, I trusted
[Noah's mother, K.C.]. My son had slept over
[Noah's] house, you know, on several
occasions, more than several, actually, many
times, and since [K.C.] trusted Brian, I
trusted him with my son.

Q: Did you trust him to take care of [Ethan]
in case of an emergency?

A: Yes, he's an adult.

Q: I'm sorry.

A: He's an adult; he was the one in charge.

Q: And did you trust him, I guess, based on
that line of thinking to feed your son?

A: Yes.

Q: And to supervise him?

A: Yes.

Q: Did you expect that Brian would, when they
went camping, did you expect Brian would stay
with the boys the entire weekend?

A: Yes.

Q: When he stayed at his house in Absecon, did
you expect him to be fed and clothed and
supervised?

A: Yes.

The last camping trip that Noah, Ethan and defendant took was

to Bass River in 2010. That Sunday morning, Ethan and defendant

started shaking Noah to wake him up. Defendant decided to wake

Noah by performing oral sex on him until Noah ejaculated. Ethan

9 A-5025-13T2
testified that he witnessed defendant perform oral sex on Noah and

then buried his face in his pillow "to try not to look at it."

When Noah and Ethan arrived home from this camping trip with

defendant, Noah immediately told his mother, K.C., that defendant

had molested him. She punched defendant. The boys later told

K.C. that earlier that morning defendant placed his mouth on Noah's

penis to wake him up, while Ethan was in the tent. K.C. alerted

the police. Later that night, defendant called K.C. and told her,

"whatever [Noah] told you that I did to him, it was true."

The police searched defendant's bedroom in his house pursuant

to a warrant. A detective testified he found a lubricant, Feel

the Zing, a sexual toy, Flip-A-Sista, a letter from a mother giving

defendant permission to take her son out of state and a letter

from defendant to Noah. The detective read the contents of

defendant's letter to the jury. In the letter, defendant

apologized for letting Noah down, wrote that he loved Noah and

that he hoped Noah would forgive him.

The detective also found pictures of Wyatt, and a letter from

Wyatt to defendant, in which Wyatt apologized for acting up and

stated that he would try to do better. The police also took a

flash drive, a computer, a laptop, floppy disks, a camera and CDs,

from defendant's bedroom. A microscope was visible in a photograph

of defendant's room. The police found images of nude boys and

10 A-5025-13T2
girls, of a penis with a ruler measuring the penis's length and

pornographic videos on a hard drive in defendant's home. Several

of these videos involved young children performing sex acts. Some

of the photographs depicted David, who, the detective testified,

was "a member of the Boy Scouts at the time with the defendant

Brian Killion."

A detective who works in the computer crimes unit of the

Atlantic County Prosecutor's Office examined the digital evidence

recovered from defendant's home, which he described as:

20 pictures of young boys, nude male video,
it was labeled as a 15-year-old penis, unable
to tell the age; pictures of pre-teen
underwear, 125 pictures of young boys in
underwear; pictures of adult male, 20
pictures of penises; pictures of nude
children/child abuse images, there was 1188
pictures of nude children mostly male under
the age of 16.

The detective showed the jury samples of many of these pictures

and videos.

II

Defendant was convicted of the following counts of the second

superseding indictment, after merger: first-degree aggravated

sexual assault of Noah in 2010, N.J.S.A. 2C:14-2(a) (count one);

second-degree endangering the welfare of Noah in 2010, N.J.S.A.

2C:24-4 (count three); second-degree sexual assault of Ethan in

2010, N.J.S.A. 2C:14-2(b) (count four); second-degree endangering

11 A-5025-13T2
the welfare of Ethan in 2010, N.J.S.A. 2C:24-4 (count five);

second-degree sexual assault of Noah from 2009 to 2010, N.J.S.A.

2C:14-2(b) (count six); third-degree showing obscene material to

Noah from 2009 to 2010, N.J.S.A. 2C:34-3(b)(2) (count seven);

second-degree endangering the welfare of Noah from 2009 to 2010,

N.J.S.A. 2C:14-2(b) (count eight); first-degree aggravated sexual

assault of Wyatt from 2004 to 2006, N.J.S.A. 2C:14-2(a) (count

nine); second-degree endangering the welfare of Wyatt from 2004

to October 2006, N.J.S.A. 2C:24-4 (count eleven); first-degree

aggravated sexual assault of Wyatt from October 2006 to October

2008, N.J.S.A. 2C:14-2(a) (count twelve); second-degree

endangering the welfare of Wyatt from October 2006 to October 2008,

N.J.S.A. 2C:24-4 (count fourteen); first-degree aggravated sexual

assault of Wyatt from 2004 to October 2006, N.J.S.A. 2C:14-2(a)

(count fifteen); second-degree endangering the welfare of Wyatt

from 2004 to October 2006, N.J.S.A. 2C:24-4(a) (count seventeen);

third-degree showing obscene material to Wyatt, N.J.S.A. 2C:34-

3(b)(2) (count twenty-one); second-degree endangering the welfare

of Wyatt from 2004 to 2008, N.J.S.A. 2C:24-4(a) (count twenty-

two); second-degree sexual assault of Joey from 2007 to 2008,

N.J.S.A. 2C:14-2(b) (count twenty-three); second-degree

endangering the welfare of Joey from 2007 to 2008, N.J.S.A. 2C:24-

4(a) (count twenty-four); second-degree sexual assault of Joey

12 A-5025-13T2
from 2007 to 2008, N.J.S.A. 2C:14-2(b) (count twenty-five);

second-degree endangering the welfare of Joey from 2007 to 2008,

N.J.S.A. 2C:24-4(a) (count twenty-six); third-degree aggravated

criminal sexual contact of Joey in 2009, N.J.S.A. 2C:14-3(a)

(count twenty-seven); third-degree showing obscene material to

Joey from 2007 to 2009, N.J.S.A. 2C:34-3(b)(2) (count thirty);

second-degree endangering the welfare of Joey from 2007 to 2009,

N.J.S.A. 2C:24-4(a) (count thirty-one); first-degree aggravated

sexual assault of David from 1997 to 1999, N.J.S.A. 2C:14-2(a)

(count thirty-two); first-degree aggravated sexual assault of

David from 1997 to 1999, N.J.S.A. 2C:14-2(a) (count thirty-three);

first-degree aggravated sexual assault of David from 1997 to 1999,

N.J.S.A. 2C:14-2(a) (count thirty-five); fourth-degree endangering

the welfare of a child by possessing child pornography, N.J.S.A.

2C:24-4(b) (count thirty-seven); second-degree endangering the

welfare of a child by manufacturing child pornography, N.J.S.A.

2C:24-4(b)(5)(A) (count thirty-eight); second-degree causing a

child to engage in a sex act for photography, N.J.S.A. 2C:24-

4(b)(3) (count thirty-nine).2

2 In addition, the jury found defendant guilty of other counts
that the court subsequently merged into these charges, including
second-degree sexual assault of Wyatt (count thirteen), N.J.S.A.
2C:14-2(c)(4).
13 A-5025-13T2
 Defendant through counsel raises the following issues on

appeal:

POINT I: COUNT 4 OF THE INDICTMENT MUST BE
DISMISSED AND THE GUILTY VERDICT PERTAINING
THERETO VACATED WHERE THE STATE PRESENTED NO
EVIDENCE TO SUPPORT A CHARGE THAT THE
DEFENDANT COMMITTED AN ACT OF SEXUAL CONTACT
WITH [ETHAN].

POINT II: THE GUILTY VERDICTS PERTAINING TO
COUNTS 12 AND 27 SHOULD BE REVERSED WHERE THE
STATE DID NOT SHOW THAT THE DEFENDANT HAD
SUPERVISORY POWER OVER [WYATT] OR [JOEY] BY
VIRTUE OF HIS LEGAL, PROFESSIONAL OR
OCCUPATIONAL STATUS.

POINT III: THE GUILTY VERDICTS PERTAINING TO
COUNTS 3, 5, 8, 11, 14, 17, 22, 24, 26 AND 31
SHOULD BE REVERSED NOT ONLY WHERE THE STATE
FAILED TO MEET ITS BURDEN OF PROOF AS TO THE
DEFENDANT'S ASSUMPTION OF RESPONSIBILITY FOR
THE CARE OF [NOAH], [ETHAN], [WYATT] OR
[JOEY], BUT DUE TO THE TRIAL COURT'S ERROR IN
FAILING TO CHARGE A LESSER INCLUDED OFFENSE.
(NOT RAISED BELOW)

POINT IV: COUNTS 9, 10, 15 AND 16 MUST BE
DISMISSED AND THE GUILTY VERDICTS PERTAINING
THERETO VACATED BECAUSE THE STATE FAILED TO
PROVIDE EXCULPATORY EVIDENCE TO THE GRAND JURY
WITH RESPECT TO THE AGE OF [WYATT] AT THE TIME
THE ALLEGED OFFENSES OCCURRED.

POINT V: NOT ONLY DID THE TRIAL COURT FAIL TO
PROPERLY INSTRUCT THE JURY ON THE STATE'S
THEORY OF LIABILITY AS TO THE CRIMES FOR WHICH
THE DEFENDANT WAS CHARGED REGARDING [DAVID],
BUT THE STATE DID NOT SHOW BEYOND A REASONABLE
DOUBT THAT THE DEFENDANT HAD SUPERVISORY
AUTHORITY OVER [DAIVD] SIMPLY BECAUSE HE WAS
AN ASSISTANT SCOUTMASTER.

POINT VI: THE PROSECUTOR'S COMMENTS DURING
SUMMATION TO WHICH THE DEFENDANT OBJECTED WERE

14 A-5025-13T2
 CLEARLY AND UNMISTAKABLY IMPROPER WHERE THE
THEME SHE CONVEYED TO THE JURY PORTRAYED THE
DEFENDANT AND HIS TRIAL ATTORNEY AS LIARS.

POINT VII: CONTRARY TO ITS EXPRESSED INTENTION
THAT, IN ORDER TO RECOGNIZE THERE CAN BE NO
FREE CRIMES, IT WOULD IMPOSE SEPARATE
CONSECUTIVE SENTENCES ON EACH OF THE MOST
SERIOUS CRIMES INVOLVING EACH VICTIM, THE
SENTENCING COURT DID OTHERWISE WITHOUT
EXPLANATION.

POINT VIII: UNDER THE PRE-AMENDMENT STATUTE,
THE APPLICATION OF NERA REQUIRED A JURY TO
DETERMINE WHETHER THE OFFENSE WAS A "VIOLENT
CRIME".

Defendant raises the following issues in his pro se

supplemental brief:

POINT I: WHERE JUDGE . . . , J.S.C. PERSONALLY
KNEW MR. KILLION AND FAILED TO RECUSE HIMSELF,
ALL ARREST AND SEARCH WARRANTS ISSUED BY SAID
JUDGE MUST BE DEEMED INVALID.[3]

POINT II: COUNTS 32, 33, 34, 35 AND 36 MUST
BE DISMISSED AND THE ASSOCIATED GUILTY
VERDICTS VACATED BECAUSE THE PLAINTIFF FAILED
TO PROVIDE EXCULPATORY EVIDENCE TO THE GRAND
JURY PERTAINING TO SUPERVISORY POWERS OVER
[DAVID] AT THE TIME THE ALLEGED OFFENSES
OCCURRED (NOT RAISED BELOW).

POINT III: THE ERRONEOUS JURY CHARGE IS NOT
LEGALLY ACCURATE, FACTUALLY SUPPORTABLE OR

3 The trial judge conducted an investigation as to whether the
judge who approved the search warrant knew at the time that
defendant was connected to the Boy Scouts and found no evidence
that the judge was aware of the connection. Based on this
decision, and for the reasons expressed by the trial judge in his
April 23, 2013 letter opinion quashing defendant's subpoena of the
judge who issued the warrant, we reject the argument raised in
defendant's pro se Point I.
15 A-5025-13T2
 SUPPORTED BY THE EVIDENCE, THUS CONSTITUTING
REVERSIBLE ERROR.

A. LEGALLY VAGUE REASONABLE DOUBT
INSTRUCTIONS.
B. DIFFERING THEORIES OF LIABILITY FOR
4, 5, AND 38.
C. ERRONEOUSLY ADDING [DAVID] TO COUNT
39.

POINT IV: WHERE THE PLAINTIFF FAILED TO PROVE
THAT ANY CONDUCT OR RESULT OCCURRED WITHIN THE
JURISDICTION OF THIS STATE, BASING THE VERDICT
ON INSUFFICIENT EVIDENCE VIOLATED MR.
KILLION'S DUE PROCESS AND FAIR TRIAL BY JURY
RIGHTS AFFORDED BY THE U.S. CONST. AMEND. V,
VI, AND XIV.

A. LACK OF JURISDICTION WITH RESPECT TO
[JOEY]
B. LACK OF JURSIDICTION FOR MANUFACTURING
C. LACK OF JURISDICTION FOR PUBLISHING

POINT V: WHERE K.C. WAS PRESENTED AS A FRESH
COMPLAINT WITNESS AND HER TESTIMONY WENT
BEYOND THE SCOPE OF FRESH COMPLAINT HEARSAY,
THUS BOLSTERING VICTIM TESTIMONY AND CLEARLY
CAPABLE OF PRODUCING AN UNJUST RESULT, MR.
KILLION WAS DENIED HIS DUE PROCESS AND FAIR
TRIAL BY JURY RIGHTS AFFORDED BY THE U.S.
CONST. AMEND V, VI, AND XIV AND N.J. CONST.
ART. I, PARA. 9 AND 10. (NOT RAISED BELOW)

Defendant through counsel raises the following issues in his

reply brief:

POINT I: SEXUAL CONTACT OF THE ACTOR WITH
HIMSELF OR WITH THE VICTIM IS NECESSARY TO
PROVE A VIOLATION OF N.J.S.A. 2C:14-2b.

POINT II: THE TRIAL COURT'S FAILURE TO EXPLAIN
THAT THE SEPARATE QUESTION ON THE VERDICT
SHEET WOULD DETERMINE THE DEFENDANT'S DEGREE
OF CULPABILITY UNDULY PREJUDICED THE
DEFENDANT'S RIGHT TO A FAIR TRIAL.

16 A-5025-13T2
 POINT III: CONTRARY TO THE STATE'S ARGUMENT,
THE TRIAL COURT DID NOT CURE WHAT IT BELIEVED
TO BE "VERY STRONG" LANGUAGE BY THE PROSECUTOR
IN ORDER TO DISPARAGE THE DEFENDANT AND HIS
TRIAL ATTORNEY.

POINT IV: THE DEFENDANT'S SENTENCE OF 11
CONSECUTIVE TERMS IS EXCESSIVE.

III

In Point I, defendant first claims that count four, second-

degree sexual assault of Ethan, violating N.J.S.A. 2C:14-2(b),

should have been dismissed, because defendant did not have sexual

contact with Ethan and Ethan did not witness defendant touch

himself. The State argues that defendant may be convicted under

N.J.S.A. 2C:14-2(b) because defendant performed a sexual act on

Noah in view of Ethan, who was in the same tent at the time.

Our review of a trial court's interpretation of a statute is

a question of law. See State v. Maurer, 438 N.J. Super. 402, 411

(App. Div. 2014). We review questions of law de novo and "owe no

deference to the trial court's 'interpretation of the law and the

legal consequences that flow from established facts.'" Ibid.

(quoting State v. Bradley, 420 N.J. Super. 138, 141 (App. Div.

2011)).

N.J.S.A. 2C:14-2(b) states: "An actor is guilty of sexual

assault if he commits an act of sexual contact with a victim who

is less than 13 years old and the actor is at least four years

17 A-5025-13T2
older than the victim." N.J.S.A. 2C:14-1(d) defines "sexual

contact" as:

an intentional touching by the victim or
actor, either directly or through clothing,
of the victim's or actor's intimate parts for
the purpose of degrading or humiliating the
victim or sexually arousing or sexually
gratifying the actor. Sexual contact of the
actor with himself must be in view of the
victim whom the actor knows to be present.

[(Emphasis added).]

Our Supreme Court has interpreted these statutes to cover

three types of scenarios: a defendant touching himself, a defendant

touching a victim and a victim touching a defendant. State v.

Zeidell, 154 N.J. 417, 428 (1998). In Zeidell, the defendant

masturbated on the boardwalk in view of two children under the age

of thirteen. Id. at 419-21. The Court found that the statute

prohibited this behavior, because the defendant was touching

himself with the purpose of "sexually arousing or sexually

gratifying" himself. Id. at 428, 435. The Court explained,

When the controlling statutory provisions of
the Code are read together, we find that a
tender-years-sexual assault under N.J.S.A.
2C:14-2(b) contains three key elements. They
are: (1) a victim who is less than thirteen
years old, (2) a defendant-actor who is at
least four years older than the victim, and
(3) a sexual contact with a victim under the
critical age. The sexual contact with a
victim involves an intentional or purposeful
touching of an intimate part. There are three
types of intentional sexual touchings: the
actor may touch himself or herself, the actor

18 A-5025-13T2
 may touch the victim, or the victim may touch
the actor. Each such intentional touching
must be for at least one of four purposes:
either degrading or humiliating the victim,
or sexually arousing or sexually gratifying
the defendant-actor. Finally, if the touching
is by the actor of himself or herself, the
sexual touching must be in view of the victim
whom the actor knows to be present.

[Id. at 428.]

In contrast, lewdness, N.J.S.A. 2C:14-4(b)(1), "is limited to

exposing or displaying an actor's intimate parts rather than

touching them. For example, a 'flasher' or 'streaker' may expose

the genitals without touching them." Id. at 431.

The charge of N.J.S.A. 2C:14-2(b) arises out of the last

interaction defendant had with Noah and Ethan while camping on the

morning of June 27, 2010. Defendant performed oral sex on Noah,

and thus defendant violated N.J.S.A. 2C:14-2(b) against Noah. The

question is whether this activity also constituted a violation

of the same statute against Ethan. There was no testimony that

defendant touched himself, rather than Noah, in the presence of

Ethan. In Zeidell, the Court described three types of touching

that the statute covered, but did not include a defendant touching

a child sexually in the presence of another child. Zeidell, supra,

154 N.J. at 428.

In deciding not to dismiss count four, the trial court

explained: "The [d]efendant had sexual contact with a victim under

19 A-5025-13T2
the age of 13 in view of [another] victim under the age of 13."

Defendant was sexually touching Noah when he performed oral sex

on him. This sexual touching was "in the view of" Ethan, who

testified he was in the tent and saw defendant perform oral sex

on Noah. Because defendant "engage[d] in a sexual touching 'in

the view of' an underage child," count four of the indictment

should not be dismissed. Id. at 431. We agree with the trial

court that although our Supreme Court did not consider this

possible scenario when describing the ways a defendant could be

guilty of a violation of the statute, the Legislature intended to

punish this behavior as well. We are confident that the

Legislature intended the statute to cover an incident such as this,

where defendant knew he was in the presence of a second child when

he performed oral sex on a child. Certainly, masturbating in front

of a child, which is behavior clearly covered by the statute, is

less opprobrious than performing a child-sexual assault in front

of another child. Moreover, the latter offense poses an even

greater risk of a "shocking and threatening" impact on the child-

observer. Id. at 432.

IV

We now consider defendant's arguments, in Point II, III, and

V, that the State failed to prove the statutorily-required

relationship between defendant and the victims. We review these

20 A-5025-13T2
issues under the same de novo standard as we applied to the

interpretation of N.J.S.A. 2C:14-2(b) above. When analyzing

whether sufficient evidence was presented of defendant's

assumption of the childcare responsibility, or his supervisory

power, the question is whether "a reasonable jury could find guilt

of the charge beyond a reasonable doubt" viewing the State's

evidence in the light most favorable to the State. State v. Reyes,

50 N.J. 454, 458-59 (1967).

In Point III, defendant argues that that the State failed to

meet its burden to prove that defendant assumed the child-care

responsibility required by N.J.S.A. 2C:24-4(a)(1) to sustain a

conviction of second-degree endangering the welfare of Noah,

Ethan, Wyatt and Joey. Similarly, in Points II and V defendant

argues that the State failed to meet its burden of proof that

defendant had supervisory power over Wyatt, Joey and David by

virtue of his legal, professional or occupational status to sustain

a conviction of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(2)(b) or third-degree aggravated criminal sexual

contact, N.J.S.A. 2C:14-3(a). Both first-degree aggravated sexual

assault and third-degree aggravated criminal sexual contact

require the defendant to have the same supervisory relationship

with the victim.

21 A-5025-13T2
 The standard for second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a)(1), requiring a caregiving

relationship, and first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(2)(b), requiring a recognized supervisory relationship,

differ – "N.J.S.A. 2C:24-4(a) focus[es] more on the dependence and

trust the child places in the adult" while N.J.S.A. 2C:14-

2(a)(2)(b) focuses "on the coercive aspects of the relationship

defined as 'supervisory or disciplinary power.'" State v.

McInerney, 428 N.J. Super. 432, 449 (App. Div. 2012). Many

aspects of the nature of the relationship between the defendant

and the child "overlap." Ibid. The factfinder should consider

"factors such as disparity in ages or maturity; the importance of

the activity the adult supervises to the child; and the extension

of the supervisory relationship beyond 'guidance and advice'

expected given the defendant's supervisory role." Ibid.

A.

In Point III, defendant argues as plain error that the

evidence does not support a conviction on counts three, five,

eight, eleven, fourteen, seventeen, twenty-two, twenty-four,

twenty-six and thirty-one because the State presented insufficient

proof at trial that defendant had the necessary "legal duty for

the care of" or had "assumed responsibility for the care of" the

22 A-5025-13T2
victim, an element of second-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a)(1).

When an issue was not raised in the trial court, we review

for plain error. See State v. Murray, 338 N.J. Super. 80, 87

(2001) (citing State v. Timmendequas, 161 N.J. 515, 575 (1999),

cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89

(2001)), certif. denied, 169 N.J. 608 (2001). "Plain error is

'error possessing a clear capacity to bring about an unjust result

and which substantially prejudiced the defendant's fundamental

right to have the jury fairly evaluate the merits of his defense.'"

Timmindequas, supra, 161 N.J. at 576-77 (quoting State v. Irving,

114 N.J. 427, 444 (1989)).

Our Supreme Court has explained that the assumption of

responsibility covers more than just the parent-child

relationship. See State v. Sumulikoski, 221 N.J. 93, 107-08

(2015). The Court explained that "the assumption of responsibility

in question can be formal or informal; it can be based on custody

situations and less-structured relations." Ibid. (citing State

v. Galloway, 133 N.J. 631, 659 (1993)).

To be convicted, the defendant "must have established a

continuing or regular supervisory or caretaker relationship with

the child." Galloway, supra, 133 N.J. at 661. In Galloway, the

Court determined that a defendant who dated his victim's mother

23 A-5025-13T2
did not have the continuous caretaking or supervisory

responsibilities necessary to be convicted under this statute.

Id. at 662. The defendant dated the mother for only three months,

and no evidence was presented about how often the defendant assumed

the care of the child. Ibid.

Here, defendant had continuous relationships with his victims

in which he regularly assumed responsibility. Noah testified that

he saw defendant every weekend, often at defendant's home, and

that he viewed defendant as a "father figure." During their

relationship, defendant took Noah to the Franklin Institute in

Philadelphia several times, Washington, D.C. for a weekend trip,

the Ice Harvest Festival in the Poconos, and several camping trips

in New Jersey. Additionally, Noah's mother testified that

defendant was in charge of her son and that defendant always paid

for her son whenever they were together. When Noah and defendant

went to Washington, D.C., Noah's mother gave defendant a "written

up consent" in case something happened so defendant was "more or

less power-of-attorney."

Although Ethan's relationship with defendant was not as

extensive as Noah's, Ethan testified he often spent the night at

defendant's house and went camping with defendant several times.

Ethan's mother also testified that when Ethan was with defendant,

24 A-5025-13T2
defendant was in charge and she expected defendant to take care

of Ethan.

Joey testified that defendant was a family friend whom he had

known for most of his life. Joey explained that he went on trips

and spent many weekends with defendant. Joey also testified that

defendant bought him food, paid for hotel rooms and was generally

in charge. Joey's mother told Joey to listen to defendant while

they were together.

Defendant and Wyatt had an extensive relationship. Wyatt

testified that shortly after meeting defendant, he began staying

at defendant's house a few nights a week. He also took trips with

defendant, including a trip to Florida for one week during which

defendant paid for everything. Wyatt further testified that

defendant took Wyatt and Joey to Pennsylvania for a trip that

lasted more than one week. Defendant took Wyatt to an orthodontist

appointment and to take a high school entrance examination. At

one point, defendant even offered to have Wyatt live with him.

The facts in this case are distinguishable from the facts in

Galloway because here defendant had a continuous relationship with

his victims in which he was responsible for them for frequent and

lengthy periods of time. See Galloway, supra, 133 N.J. at 661-

62. As our Supreme Court said in Sumulikoski, the relationship

does not need to be a formal one to fall under this statute.

25 A-5025-13T2
Sumulikoski, supra, 221 N.J. at 107-08. Defendant has not

demonstrated plain error.

B.

To be guilty of first-degree aggravated sexual assault of a

child under thirteen years old, such as Ethan and Noah, the State

need not prove that the defendant had supervisory authority over

the victim. N.J.S.A. 2C:14-2(a). When the victim is between the

age of thirteen and sixteen years old, however, the defendant's

supervisory position must be demonstrated to convict for first-

degree sexual assault. Defendant argues as a matter of law that

counts twelve, thirty-two, thirty-three, and thirty-five should

be dismissed because the State did not prove he had "supervisory

or disciplinary power over [David, Wyatt and Joey] by virtue of

[his] legal, professional, or occupational status" as required

under N.J.S.A. 2C:14-2(a)(2)(b). Similarly, defendant argues that

count twenty-seven, charging third-degree aggravated criminal

sexual contact and also requiring the element of a supervisory

position should be dismissed. N.J.S.A. 2C:14-3(a). The State

responds that defendant had supervisory and disciplinary power of

these boys as an adult caregiver, and, in the case of David, as a

scoutmaster.

The jury should consider many factors in determining whether

a supervisory relationship existed. See State v. Buscham, 360

26 A-5025-13T2
N.J. Super. 346, 361-62 (App. Div. 2003). Not only is a legal,

professional or occupational status required, but also the

relationship between the adult defendant and the child victim must

be one "inherently unequal as to vest disciplinary or supervisory

power" in the adult. Id. at 362. In Buscham, the question was

whether a gymnastics instructor could qualify as having

supervisory power over the victim. Id. at 352-62. While we found

that a gymnastic instructor might exercise supervisory power, we

noted that the inquiry was fact-specific. We listed several case-

specific questions for the jury to consider:

whether there was a significant disparity in
ages and/or maturity level between the two;
the role that the athletic activity plays in
the life of the alleged victim; the extent,
if any, to which the coach has offered
guidance and advice to the alleged victim on
questions and issues outside the athletic
arena; and the power or ability of the coach
to affect future athletic participation or
success.

[Id. at 362.]

We noted the questions for the jury's consideration should be

structured "with particular reference to the evidence presented

during the course of the trial." Ibid. The judge included these

considerations in his jury charge.

David, Joey and Wyatt testified extensively about their

relationship with defendant. Defendant was significantly older

27 A-5025-13T2
and more mature than all three boys and was often in charge of

their physical wellbeing.

Defendant met David through his role as assistant scoutmaster

at a Boy Scout meeting. David testified that he went to weekly

meetings and monthly overnight camping trips where defendant was

present "[n]inety-nine point 9 percent of the time." David

testified that he saw defendant as a role model. Defendant

ultimately parlayed their common interest in camping and the

wilderness into a sexual relationship with David, where they spent

a great deal of time together at their homes. Defendant's focus

on David's physical growth and sexual maturity also contributed

to his parent-like, supervisory role.

Besides camping with the Boy Scouts, David and defendant went

camping together in New Jersey, Pennsylvania, and Delaware while

David was still in high school. During these trips, defendant was

the only adult and David testified he put his trust in defendant.

Viewing the State's evidence in its most favorable light, the jury

could have found beyond a reasonable doubt that defendant had the

statutorily required supervisory power over David by virtue of

their relationship and defendant's occupational status as David's

assistant scoutmaster.

As detailed above, "the nature of the relationship" between

defendant and Joey and Wyatt demonstrates a similar supervisory

28 A-5025-13T2
power. Defendant took them on trips and engaged in sleepovers

while overseeing their wellbeing. Buscham, supra, 360 N.J. Super.

at 362. However, having supervisory power is not enough; N.J.S.A.

2C:14-2(a)(2)(b) requires that the defendant have such power "by

virtue of . . . legal, professional, or occupational status."

(Emphasis added). The plain meaning of this requirement is that

defendant acquired his supervisory power through his status, which

invested additional responsibility in defendant. See State v.

Rangel, 213 N.J. 500, 508-08 (2013) (stating that interpretation

of legislative intent begins with an analysis of the statute's

"ordinary meaning").

This standard can be contrasted with N.J.S.A. 2C:14-

2(c)(3)(b), second-degree sexual assault, which states the actor

must have "supervisory or disciplinary power of any nature or in

any capacity over the victim," who is at least sixteen years old

but less than eighteen years old. (Emphasis added). According

to our Supreme Court "[w]ords make a difference." Rangel, supra,

213 N.J. at 514. "'[W]hen the Legislature includes limiting

language in one part of a statute, but leaves it out of another,'

a court should assume that it intended a different meaning." Ibid.

(quoting Ryan v. Renny, 203 N.J. 37, 58 (2010)). Furthermore, "we

must try to read the various parts of N.J.S.A. 2C:14-2 so that

none are rendered meaningless." Id. at 512. The language of

29 A-5025-13T2
N.J.S.A. 2C:14-2(a)(2)(b), which defines an element of first-

degree aggravated sexual assault and third-degree aggravated

sexual contact, is intended to identify those defendants who should

be subjected to harsher penalties. Defendant, who met Wyatt

through shared band activity, where defendant was not an

instructor, and met Joey through Joey's family, does not meet this

requirement with regard to his sexual assaults on Wyatt or Joey.

This is not to suggest that an offending party must be part

of a formal activity in order to be subject to N.J.S.A. 2C:14-

2(a)(2)(b). In Buscham, the court declined to restrict the

"supervisory or disciplinary" relationship to leaders and

participants in institutional activities. Buscham, supra, 360

N.J. Super. at 361-62. In this case, however, the only

relationship the State alleges is one of "caregiver." Defendant

was not a childcare provider.

Count twelve is therefore dismissed and count thirteen,

charging the lesser-included crime of second-degree sexual assault

on Wyatt, N.J.S.A. 2C:14-2(c)(4), should be resurrected. We remand

for sentencing on count thirteen, and also remand on count twenty-

seven, for sentencing on the lesser-included crime. Defendant was

convicted of count twenty-seven, third-degree aggravated criminal

sexual contact against Joey, when the jury checked the verdict

sheet to answer that he was guilty of the lesser-included crime

30 A-5025-13T2
of fourth-degree criminal sexual contact. The jury also

affirmatively answered that he had the supervisory power over Joey

necessary to convict him of third-degree aggravated criminal

contact. That finding of supervisory power based on "legal,

professional or occupational status" was not supported by the

evidence, thus we remand for resentencing on the lesser crime of

fourth-degree sexual contact.

V

In Point III, defendant argues as plain error that the judge

erred by not charging the lesser-included offense of second-degree

child endangerment, N.J.S.A. 2C:24-4(a). "No defendant should be

convicted of a greater crime or acquitted merely because the jury

was precluded from considering a lesser offense that is clearly

indicated in the record." State v. Garron, 177 N.J. 147, 180

(2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed.

2d (2004).

The judge charged the jury:

Now, you'll have back there with you when you
begin your deliberations what we call a jury
verdict sheet. It sets forth the counts of
the indictment that you're to consider. It's
not evidence; It's to assist you in recording
your verdict, whatever it may be, and to
report it back to the Court . . . You'll
notice, however, that some of the counts,
you'll see they're set forth with boldface
type, have additional questions and that
really just helps you in deciding what
happened in each of the cases, so you'll read

31 A-5025-13T2
 the count in the indictment, for example, the
endangering counts have the additional
question. It sets forth the allegations and
then you decide not guilty or guilty. If you
find the defendant guilty, then you consider
the additional question and that regards his
supervisory power, whether you believe he had
supervisory power, you answer it yes or no.

The trial judge did not specifically explain to the jury that

answering the additional question in the negative meant convicting

defendant of a lesser-included offense. However, the trial judge

gave the jury the option of finding that defendant did not have a

caretaking role over the children. If the jury answered the

subsequent question "no," defendant would not have been convicted

of the more serious charge. Thus, the jury had the option of

finding defendant guilty of lesser-included crimes.

VI

In Point IV, defendant argues that counts nine, ten, fifteen,

and sixteen should be dismissed because a detective failed to tell

the grand jury about the first interview he had with Wyatt in

which Wyatt told the detective he was thirteen or fourteen when

he met defendant. Later Wyatt disclosed he was actually younger

when he met defendant. Our Supreme Court has held that a

prosecutor must disclose exculpatory evidence to a grand jury

"only if the evidence satisfies two requirements: it must directly

negate guilt and must also be clearly exculpatory." State v.

Hogan, 144 N.J. 216, 237 (1996). Evidence undermining the

32 A-5025-13T2
credibility of a witness need not be presented. Ibid. Thus the

State did not err in failing to mention Wyatt's initial conflicting

statement.

VII

In Point V, defendant also argues counts thirty-two, thirty-

three and thirty-five of the indictment should be dismissed because

the charge failed to inform the jury of the place where the

assaults occurred. In fact, in the verdict sheets the incidents

were alleged to have occurred in Absecon or Brigantine in Atlantic

County.

VIII

With regard to sentencing, the findings of fact concerning

aggravating and mitigating factors were based on competent and

credible evidence in the record, the court correctly applied the

sentencing guidelines enunciated in the Code of Criminal Justice,

and the court did not abuse its discretion in imposing the

aggregate sentence. It is not manifestly excessive or unduly

punitive and does not constitute an abuse of discretion. State

v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J.

334, 364-65 (1984). We are also satisfied that the court correctly

applied the guidelines for imposing consecutive terms. State v.

Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S.

33 A-5025-13T2
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), amended by N.J.S.A.

2C:44-5(a) (L. 1993, c. 223).

Defendant was convicted in counts thirty-two, thirty-three

and thirty-five, of first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a), that occurred between April 1, 1997 and

September 17, 1999. He was sentenced to a ten-year NERA sentence

on each count. The version of NERA in effect at the time of the

crimes must be applied in sentencing. State v. Parolin, 171 N.J.

223, 233 (2002). At the time of these crimes, the statute required

the jury to determine whether or not the crimes were "violent" for

the purpose of imposing NERA. State v. Mosley, 335 N.J. Super.

144, 159 n.4 (2000), certif. denied, 167 N.J. 633 (2001). Because

the jury was not asked that question, the State concedes we must

remand for re-sentencing without the imposition of NERA on those

three counts.

The remaining issues raised by defendant in his counsel's

brief and his pro se brief are without sufficient merit to require

discussion in this opinion. R. 2:11-3(e)(2). We add only that

the State's comments in summation that defendant's argument at one

point was "ridiculous" and that the jury should not let the defense

"hijack" the case, came nowhere close to "misconduct [that] was

'clearly and unmistakably improper, and . . . substantially

prejudiced defendant's fundamental right to have a jury fairly

34 A-5025-13T2
evaluate the merits of his defense.'" State v. Koskovich, 168

N.J. 448, 488 (2001) (quoting Timmendequas, supra, 161 N.J. at

575).

We also note that some counts in the indictment overlap,

charging generally the same conduct during overlapping timeframes

against the same victim. After discussion, the judge cleared up

this problem by distinguishing the behavior charged, or the

location, or the time frames in the verdict sheet to the apparent

satisfaction of both counsel. Counts seventeen and twenty-two

overlap, however, and the verdict sheet for those two counts

seemingly fails to distinguish sufficiently between them. The

verdict sheet for count seventeen reads:

The Defendant, Brian E. Killion, on and
between October 8, 2004 through October 7,
2006, in the City of Fairview, County of
Camden, and within jurisdiction of this Court,
did engage in sexual conduct which would
impair and debauch the morals of [Wyatt].

Count twenty-two reads:

The Defendant, Brian E. Killion, on and
between October 8, 2004 through October 7,
2008, in the City Absecon and the City of
Fairview, Counties of Atlantic and Camden, and
within jurisdiction of this Court, did engage
in sexual conduct which would impair and
debauch the morals of [Wyatt].

[(Emphasis added).]

The additional language in the verdict sheet for count twenty-

two, unfortunately, does not solve the overlap between the charges

35 A-5025-13T2
because if the jury found that defendant committed the sexual

conduct in 2005 in Fairview, it might have convicted defendant of

both counts seventeen and twenty-two for the same conduct.

Although defendant does not raise this issue on appeal, in the

interest of justice, we direct the court on remand to entertain

argument as to whether one of these counts must be dismissed to

ensure defendant was not convicted twice for the same crime. R.

2:10-2.

We dismiss the conviction on count twelve for aggravated

sexual assault, N.J.S.A. 2C:14-2(a), and remand for resentencing

on count thirteen, second-degree sexual assault under N.J.S.A.

2C:14-2(c)(4), which had been merged into the now-dismissed

aggravated sexual assault conviction. We also amend defendant's

conviction on count twenty-seven to a conviction of the lesser

crime of fourth-degree criminal sexual contact and remand for

resentencing on this lesser crime. The NERA provision of the

sentences on counts thirty-two, thirty-three and thirty-five

should be removed, and we remand for that purpose also.

Affirmed in part and reversed and remanded in part. We do

not retain jurisdiction.

36 A-5025-13T2