RECORD IMPOUNDED

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 

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

NOT FOR PUBLICATION WITHOUT THE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.

April 26, 2017
2 A-5025-13T2

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 eightyfive 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).
3 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 
4 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 
5 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 
6 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 
7 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 
8 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? 
9 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
10 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 
11 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
12 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 twentytwo); 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
13 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). 
14 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 
15 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.
16 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.
17 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, seconddegree 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 
18 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 
19 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 
20 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 childobserver. 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 
21 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.
22 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 
23 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 
24 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, 
25 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. 
26 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 firstdegree 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 
27 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 casespecific 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 
28 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 
29 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 
30 A-5025-13T2

N.J.S.A. 2C:14-2(a)(2)(b), which defines an element of firstdegree 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 twentyseven, 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 
31 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 
32 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 
33 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, thirtythree 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.
34 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 
35 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 twentytwo, unfortunately, does not solve the overlap between the charges 
36 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.