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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NOT FOR PUBLICATION WITHOUT THE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