STATE OF NEW JERSEY VS. CARLTON L. CLARK(13-05-1059, ESSEX COUNTY AND STATEWIDE), A-5065-13T1

Background

Defendant Brian Killion was tried by jury and convicted on multiple counts for sexual assaults and related offenses against five boys over ~1997–2010; after merger 28 counts remained and he received an aggregate 85-year sentence (NERA applied to most years).
Victims testified to repeated sexual conduct during camping trips, sleepovers, and at defendant's home; physical evidence seized from defendant’s bedroom and computers included child pornography, sexual toys, letters, and photos.
Key contested elements at trial and on appeal included whether defendant had supervisory/caretaker authority over certain victims (statutory element for some aggravated offenses and endangering-the-welfare counts) and whether certain charges overlapped or required lesser-included instructions.
Procedurally, the appellate court reviewed statutory interpretation de novo and unpreserved issues for plain error; defendant also filed pro se claims about the warrant judge and grand-jury disclosures.
The court affirmed most convictions but reversed/dismissed some counts (count 12 and count 27), remanded for resentencing on lesser-included offenses (count 13 resurrected; count 27 reduced to fourth-degree), and ordered removal of NERA for three counts because the jury was not asked to decide ‘‘violent crime’’ as required by the pre‑amendment statute.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of N.J.S.A. 2C:14-2(b): whether defendant’s sexual act on one child in view of another child supports a charge against the observing child (count 4)	State: statute covers sexual contact by actor in view of another child; conviction allowed for observer as victim	Killion: no evidence he touched himself or that the statute applies when actor touches a different child in view of an observer	Court: held statute covers this scenario; count 4 stands
Sufficiency of evidence of supervisory/professional status for aggravated offenses (counts 12, 27; counts 32/33/35 also raised)	State: relationships (Boy Scouts, band, frequent trips, sleepovers) established supervisory/caretaker authority	Killion: lacked required supervisory authority by virtue of legal/professional/occupational status for first-degree and certain aggravated-contact offenses	Court: reversed count 12 and remanded to substitute lesser second-degree sexual-assault conviction; count 27 reduced to fourth-degree—insufficient proof that supervisory power derived from legal/professional/occupational status; convictions for David (scout) and others largely upheld except as noted
Failure to charge lesser-included offenses / jury instruction adequacy on caretaking question (endangering counts)	State: jury had verdict sheet with supplemental supervisory questions; judge’s instructions permitted lesser findings	Killion: trial court failed to charge lesser-included offenses, prejudicing defense	Court: no plain error; jury had means to convict of lesser offenses and record supported instruction given
Grand jury disclosure / exculpatory evidence regarding victim age & sufficiency of grand-jury presentation (counts 9–10, 15–16; 32–36)	State: initial inconsistent statements about victim age go to credibility, not clearly exculpatory; prosecutor met Hogan standard	Killion: failure to present exculpatory grand-jury evidence (initial statement that victim was older) warrants dismissal	Court: affirmed—prosecutor is not required to present impeachment evidence that does not directly negate guilt or is not clearly exculpatory

Key Cases Cited

State v. Zeidell, 154 N.J. 417 (statutory interpretation of "sexual contact" and kinds of touchings covered by tender-years statute)
State v. Galloway, 133 N.J. 631 (assumption-of-responsibility standard for caretaker relationship)
State v. Sumulikoski, 221 N.J. 93 (assumption of responsibility can be formal or informal)
State v. Buscham, 360 N.J. Super. 346 (factors for determining supervisory/disciplinary power)
State v. Rangel, 213 N.J. 500 (statutory-interpretation principle that differing statutory language implies differing scope)
State v. Hogan, 144 N.J. 216 (when prosecutor must present exculpatory evidence to grand jury)
State v. Garron, 177 N.J. 147 (requirement to charge lesser-included offenses when indicated)
State v. Timmendequas, 161 N.J. 515 (plain-error standard for unpreserved issues)
State v. Parolin, 171 N.J. 223 (apply sentencing law in effect at time of offense; effect on NERA)
State v. Mosley, 335 N.J. Super. 144 (jury determination required for "violent" finding under pre-amendment NERA)
State v. Cassady, 198 N.J. 165 (appellate review of sentencing for abuse of discretion)
State v. Koskovich, 168 N.J. 448 (standard for prosecutorial misconduct in summation)