{ "id": 9185720, "name": "STATE OF NORTH CAROLINA v. PHILLIP JAMES EVERY", "name_abbreviation": "State v. Every", "decision_date": "2003-04-15", "docket_number": "No. COA02-150", "first_page": "200", "last_page": "216", "citations": [ { "type": "official", "cite": "157 N.C. App. 200" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "193 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565363 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0396-01" ] }, { "cite": "85 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "241 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606351 ], "year": 1954, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0226-01" ] }, { "cite": "368 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515920, 2513065, 2519374, 2514999 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0329-02", "/nc/322/0329-04", "/nc/322/0329-01", "/nc/322/0329-03" ] }, { "cite": "362 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "608-09" }, { "page": "609", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357788 ], "year": 1987, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0069-01" ] }, { "cite": "230 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551171 ], "year": 1976, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0575-01" ] }, { "cite": "430 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "894" }, { "page": "894" } ], "opinion_index": 0 }, { "cite": "333 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548343 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "731" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0719-01" ] }, { "cite": "272 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0479-01" ] }, { "cite": "265 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "492" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552433 ], "year": 1980, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0608-01" ] }, { "cite": "553 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378012 ], "year": 2001, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0077-01" ] }, { "cite": "554 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138404, 138314, 138383, 138482, 138297 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0222-05", "/nc/354/0222-02", "/nc/354/0222-01", "/nc/354/0222-04", "/nc/354/0222-03" ] }, { "cite": "550 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "202" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433790 ], "year": 2001, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0267-01" ] }, { "cite": "476 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "344 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867709 ], "year": 1996, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0611-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "276 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645332 ], "year": 1981, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0418-01" ] }, { "cite": "335 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523457 ], "year": 1985, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0454-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "278 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170318 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0376-01" ] }, { "cite": "298 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563392, 8563365, 8563502, 8563474, 8563443 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0471-02", "/nc/307/0471-01", "/nc/307/0471-05", "/nc/307/0471-04", "/nc/307/0471-03" ] }, { "cite": "297 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527317 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0724-01" ] }, { "cite": "515 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "506" }, { "page": "506" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219977 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "423" }, { "page": "423" }, { "page": "423" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0420-01" ] }, { "cite": "339 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "809" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522298 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "603" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0599-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "180", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "567", "parenthetical": "emphasis added" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "427 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545258, 2548556, 2544118, 2549759 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0465-02", "/nc/333/0465-04", "/nc/333/0465-01", "/nc/333/0465-03" ] }, { "cite": "424 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1993, "pin_cites": [ { "page": "690", "parenthetical": "quoting Black's Law Dictionary (6th ed.)" }, { "page": "690" }, { "page": "690" }, { "page": "690", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525252 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "653", "parenthetical": "quoting Black's Law Dictionary (6th ed.)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0648-01" ] }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "580" }, { "page": "580" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "104-05" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "869" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "year": 2002, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "515 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "133 N.C. 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Stat.", "year": 1995, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1328, "char_count": 39268, "ocr_confidence": 0.772, "pagerank": { "raw": 2.6419575289730413e-07, "percentile": 0.8232111215750416 }, "sha256": "7ba4017b1e46312e64de4e6c669a5d6545bd6dcd595786eeb95ba50f0eedc8bf", "simhash": "1:1f2be90c46be0cfe", "word_count": 6272 }, "last_updated": "2023-07-14T16:54:20.581695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge ELMORE dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP JAMES EVERY" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nDefendant, Phillip James Every, appeals from judgment entered in Forsyth County Superior Court upon a jury verdict finding him guilty of taking indecent liberties with a child.\nThe State\u2019s evidence tended to establish that the victim (\u201cE.B.\u201d) began taking karate lessons at Karate International in Winston-Salem, North Carolina, when she was twelve-years-old. Defendant, who was in his \u201cforties\u201d at the time, was the \u201cmain instructor\u201d at the studio. E.B. continued taking lessons from defendant until she was fourteen-years-old, at which point E.B. began taking lessons at a more convenient studio. Although the record indicates that nothing inappropriate occurred during this time, E.B. did develop somewhat of a \u201ccrush\u201d on defendant while he was her instructor. After E.B. transferred, defendant was no longer her instructor.\nE.B. contacted defendant by phone during the summer of 1995, shortly after transferring to the new studio. During their conversation, defendant asked E.B. if she \u201cwould let him kiss [her].\u201d When E.B. responded that she \u201cdidn\u2019t know,\u201d defendant said: \u201cSay yes. It doesn\u2019t ever have to happen, but I just want to hear you say it.\u201d Defendant then asked E.B. if she \u201cwould ever let him touch [her] breasts.\u201d E.B. again expressed equivocation and defendant responded that \u201cit doesn\u2019t have to happen, but I just want to hear you say yes.\u201d The conversation lasted approximately twenty to thirty minutes and ended with E.B. agreeing to call defendant back the following Wednesday.\nDuring the evening of the following Wednesday, E.B. called defendant just as she had been instructed. Defendant said \u201che missed [E.B.]\u201d because she \u201cwas a very good student, one of his favorites.\u201d Defendant asked E.B. if she had \u201cthought about what [they] had talked about that Friday before.\u201d When E.B. responded affirmatively, the conversation turned \u201csexual in nature.\u201d Using very explicit language, defendant inquired into E.B.\u2019s willingness to participate in various sexual acts with him. Defendant asked E.B. if she would let him \u201ckiss [her] breasts.\u201d Defendant also asked E.B. if she would \u201cstroke\u201d his genitals. Defendant was \u201cbreathing heavily\u201d throughout the conversation, which lasted approximately fifteen to twenty minutes. Near the end of the conversation, defendant instructed E.B. to call him back the following Wednesday.\nE.B. called defendant again the following Wednesday. This time, the conversation was \u201cmore explicit.\u201d Defendant told E.B. he \u201cwanted to f \u2014 k\u201d her and \u201click\u201d her genitals. When E.B. hesitated, defendant said \u201cjust let me hear you say it.\u201d Again, defendant sounded like he was \u201cbreathless\u201d while speaking to E.B.\nE.B. soon began calling defendant approximately once a week, usually on Wednesday. Each conversation was sexual in nature and became more graphic and sexually explicit as each week passed. During the course of these conversations defendant told E.B. that he wanted to \u201cget together with [her] at some point to . . . f \u2014 k [her]\u201d and have her \u201csuck his c \u2014 k,\u201d making explicit reference to E.B.\u2019s virginity when he discussed his desire to have sexual intercourse with her. Defendant also invited E.B. to \u201cplay with [her]self while [she] was talking to him because he was doing the same thing.\u201d E.B. testified that defendant was \u201cbreathless\u201d and making \u201cgroaning noises\u201d when he made this statement and that defendant\u2019s heavy breathing continued until he reached \u201corgasm.\u201d At that point the conversation ended.\nSometime during the fall of 1995, in the midst of these explicit phone conversations, both defendant and E.B. attended a karate camp near Hanging Rock. On one particular evening, E.B. was sitting with defendant and several other students around a campfire when defendant began rubbing his foot against E.B.\u2019s foot. After \u201cseveral minutes\u201d of rubbing his foot against hers, defendant stood and walked off into the woods. However, E.B. remained by the fire. Defendant later asked E.B. \u201cwhy [she] didn\u2019t follow him into the woods.\u201d E.B. continued calling defendant until shortly after her sixteenth birthday, when she stopped because the conversations \u201cgrossed [her] out.\u201d\nThe State also presented evidence of defendant\u2019s other crimes, wrongs or acts, pursuant to N.C.R. Evid. 404(b). \u201cN.G.,\u201d another teenaged girl, testified that she began taking karate lessons from defendant when she was nine-years-old and continued until she was fourteen-years-old. N.G. said she stopped taking lessons in May of 1999, after defendant touched her inappropriately. According to N.G., the incident was preceded by defendant telling her that she \u201cwas a very good student, his favorite\u201d and that she \u201chad become a very beautiful young lady.\u201d Later, defendant approached N.G. in an isolated part of the karate studio and \u201casked [N.G.] if [she] would kiss him.\u201d N.G., standing with her arms crossed, said \u201cno.\u201d Defendant then approached N.G., uncrossed her arms and \u201casked if he could squeeze\u201d her breast. N.G. again responded negatively. Defendant then asked N.G. to remove her top, but ceased his advances when N.G.\u2019s mother entered the room. N.G. reported the incident to her mother and to police and never returned to defendant\u2019s class. The following Saturday, defendant approached N.G. at a karate tournament, put his arm around her and told her \u201cyou can be my girlfriend and we\u2019ll just keep it a secret from everybody else.\u201d N.G.\u2019s testimony was corroborated by the testimony of her mother and the police officer who investigated her complaint.\nDefendant presented no evidence and moved for dismissal at the close of the evidence. The trial court denied defendant\u2019s motion to dismiss. Defendant was convicted of taking indecent liberties with a child and sentenced to imprisonment for a term of 16 to 20 months, which was suspended in lieu of supervised probation for a period of 48 months. Defendant appeals.\nI.\nDefendant first argues that the trial court erred by denying his motion to dismiss because the State failed to present sufficient evidence that he took indecent liberties with a child. We disagree.\nWe first note that a motion to dismiss in a criminal case is properly denied where the State presents substantial evidence of each essential element of the charged offense and defendant\u2019s identity as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cSubstantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). When reviewing the denial of a motion to dismiss, appellate courts \u201c \u2018must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrep-anci\u00e9s do not warrant dismissal of the case but are for the jury to resolve.\u2019 \u201d Id. (citations omitted).\nSection 14-202.1 of the North Carolina General Statutes provides:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\nN.C. Gen. Stat. \u00a7 14-202.1 (1995).\nIn order to withstand a motion to dismiss charges brought under G.S. 14-202.1(a)(1), the State must present substantial evidence of each of the following elements:\n(1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.\nState v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987).\nHere, the first, second and fourth elements were established by uncontradicted direct evidence. With respect to the third element, defendant asserts two arguments: (1) that \u201c[m]ere words\u201d cannot constitute an indecent liberty under G.S. 14-202.1; and (2) evidence that defendant spoke to the victim over the phone is insufficient to establish that defendant was in either the actual or constructive \u201cpresence\u201d of the child. Defendant further asserts the State failed to produce sufficient evidence of the fifth element. We address defendant\u2019s arguments below.\nDefendant first contends that the utterance of \u201cmere words,\u201d no matter how reprehensible, does not constitute the taking of an indecent liberty with a child. We disagree.\n\u201c \u2018Indecent liberties\u2019 are defined as \u2018such liberties as the common sense of society would regard as indecent and improper.\u2019 \u201d State v. McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690 (1993) (quoting Black\u2019s Law Dictionary (6th ed.)), disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993).\nThe evil the legislature sought to prevent in this context was the defendant\u2019s performance of any immoral, improper, or indecent act in the presence of a child \u2018for the purpose of arousing or gratifying sexual desire.\u2019 Defendant\u2019s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.\nState v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990) (emphasis added). Therefore, neither a completed sexual act nor an offensive touching of the victim are required to violate the statute. State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986). In fact, no physical touching of the victim at all is required in order to show the taking of an indecent liberty. State v. Nesbitt, 133 N.C. App. 420, 423, 515 S.E.2d 503, 506 (1999).\nActivity that has been held to violate the statute includes: photographing an unclothed child in a sexually suggestive position, see State v. Kistle, 59 N.C. App. 724, 297 S.E.2d 626 (1982), disc. rev. denied, 307 N.C. 471, 298 S.E.2d 694 (1983); masturbating in front of a child, see State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981); defendant exposing himself and placing his hand on his penis while in close proximity to a child, see State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806 (1986); defendant masturbating behind a glass door in his home, within the view of children at a bus stop, see State v. Nesbitt, 133 N.C. App. 420, 515 S.E.2d 503 (1999); and defendant secretly videotaping a child who was undressing. See State v. McClees, 108 N.C. App. 648, 424 S.E.2d 687 (1993).\nThe breadth of conduct that has been held violative of the statute indicates a recognition by our courts of \u201cthe significantly greater risk of psychological damage to an impressionable child from overt sexual acts,\u201d as well as \u201cthe enhanced power and control that adults, even strangers, may exercise over children who are outside the protection of home or school.\u201d Hicks, 79 N.C. App. at 603, 339 S.E.2d at 809. Not only do these decisions \u201cdemonstrate that a variety of acts may be considered indecent and may be performed to provide sexual gratification to the actor,\u201d State v. Etheridge, 319 N.C. 34, 49, 352 S.E.2d 673, 682 (1987), they also demonstrate the scope of the statute\u2019s protection: to \u201cencompass more types of deviant behavior\u201d and provide children with \u201cbroader protection\u201d than that available under statutes proscribing other sexual acts. Id.\nHere, defendant repeatedly engaged the victim in extremely graphic and explicit conversations that were sexual in nature. Defendant told the victim he was masturbating during these conversations and invited the victim to do the same. Defendant\u2019s conversations were punctuated with heavy breathing and \u201cgroaning,\u201d leaving little doubt in the mind of the victim as to what was transpiring on the other end of the line. Moreover, defendant exploited and abused a position of trust he had occupied with the victim, karate instructor, in order to overcome the victim\u2019s hesitancy about participating in sexually explicit conversations with him and to persuade her to continue contacting him by phone. Because a rational juror could find that the common sense of society would regard this conduct as indecent or improper, we hold this conduct constitutes an indecent liberty for purposes of N.C.G.S. 14-202.1.\nDefendant next contends that phone conversations alone are insufficient to establish that he was either actually or constructively in the presence of the victim. We disagree.\nIt is not necessary that an actual touching of the victim by defendant occur in order for the defendant to be \u201cwith\u201d a child for purposes of taking indecent liberties under \u00a7 14-202.1(a)(1). Nesbitt, 133 N.C. App. at 423, 515 S.E.2d at 506. All that is required is that \u201cat the time of the immoral, improper, or indecent liberty,\u201d the defendant must be in either the \u201cactual or constructive \u2018presence\u2019 of the child.\u201d Id.\nOur decisions provide that spatial distance between the defendant and victim at the time of the offense is not the determinative factor when evaluating whether the defendant was in the actual presence of the child. State v. Strickland, 77 N.C. App. 454, 456, 335 S.E.2d 74, 75 (1985). In Strickland, the defendant exposed himself and masturbated in front of two young boys from approximately 62 feet away. This Court rejected a requirement \u201cthat a defendant must be within a certain distance of or in close proximity to the child\u201d to be \u201cwith\u201d them for purposes of taking an indecent liberty. Id. The Strickland court held that because defendant was close enough to see and be seen by the children; and the children could hear defendant\u2019s invitation to imitate his activity, the defendant was \u201cwith\u201d the children within the meaning of G.S. 14-202.1. Id.\nIn State v. McClees, 108 N.C. App. 648, 424 S.E.2d 687 (1993), this Court also provided that \u201cthe forces of modem electronic technology\u201d can enable a person to \u201cconstructively place himself in the \u2018presence\u2019 of another.\u201d Id. at 654, 424 S.E.2d at 690.\nIn McClees, the defendant headmaster of a private school, asked a fifteen-year-old female student to try on basketball uniforms in order to help him decide which uniform to buy for use at the school. Defendant instructed the student to change clothes in his office while he waited outside. Without the student\u2019s knowledge, defendant had secretly placed a video camera on the shelf in his office and recorded the student while she changed clothes. Defendant argued that the State failed to show that he took an indecent liberty \u201cwith\u201d a child because he was not in her actual presence. This Court said:\nCertainly defendant\u2019s behavior was such as the common sense of society would regard as indecent and improper. Although the defendant was not actually located in the room with his victim, he strategically placed a camera such that she was unaware of its presence, thereby secretly filming the child as she changed clothes several times at his direction. As a result, he essentially had the same capability of viewing her in a state of undress as he would have had, were he physically present in the room. Through the forces of modern electronic technology, namely the video camcorder, one can constructively place himself in the \u2018presence\u2019 of another. Thus we find that defendant was \u2018constructively present\u2019 and thereby took immoral, improper or indecent liberties \u2018with\u2019 the minor victim.\nId. at 654, 424 S.E.2d at 690.\nHere, there can be little doubt that at the time defendant spoke to the victim over the phone, he was not in her actual presence. However, by using the telephone, defendant had virtually the same capability to hear and be heard by the victim as he would have had if he were in the same room with the victim. Because this same conduct would constitute the taking of indecent liberties if defendant were in the victim\u2019s actual presence, we conclude the use of this technology, albeit arguably less than modem, renders defendant constructively present under these circumstances.\nWe conclude that where, as here, the use of electronic technology enables the defendant to effectively carry out conduct: (1) that would constitute the taking of an indecent liberty if done in the victim\u2019s actual presence; (2) to substantially the same degree that could have been achieved in the victim\u2019s actual presence, he may be deemed constructively present by the law for purposes of proving the taking of indecent liberties with a child. Accordingly, we hold that defendant\u2019s use of the telephone placed him in the victim\u2019s constructive presence at the time he took the indecent liberties.\nDefendant\u2019s final contention is that the State failed to sufficiently establish that his actions were done for the purpose of arousing or gratifying a sexual desire. We disagree.\n\u201cA defendant\u2019s purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference.\u201d State v. Campbell, 51 N.C. App. 418, 421, 276 S.E.2d 726, 729 (1981). Indeed, whether \u201cthe action was for the purpose of arousing or gratifying sexual desire, may be inferred from the evidence of the defendant\u2019s actions.\u201d State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, 580 (1987). Based on the evidence presented at trial, we conclude a rational juror could properly infer that defendant\u2019s conduct was for the purpose of arousing or gratifying a sexual desire.\nHaving concluded the State presented substantial evidence of each element of the charged offense, we hold the trial court properly denied defendant\u2019s motion to dismiss.\nII.\nDefendant next argues that the trial court erred by admitting evidence of other misconduct pursuant to N.C.R. Evid. 404(b). Defendant contends the trial court abused its discretion by failing to exclude the evidence related to the 1999 incident involving N.G., pursuant to N.C.R. Evid. 403.\nRule 404(b) of the North Carolina Rules of Evidence provides in pertinent part:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1995).\nNorth Carolina\u2019s appellate courts have been \u201cmarkedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b) . . . .\u201d State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987). The test for determining the admissibility of such evidence is whether the incidents are \u201csufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. \u00a7 8C-1, Rule 403.\u201d State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996). The exclusion of evidence under Rule 403 is a matter \u201cwithin the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision.\u201d State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001).\nHere, the State proffered the evidence for the purposes of establishing modus operandi, common plan or scheme and the absence of mistake. The evidence tended to show that defendant followed a similar pattern of communications in order to persuade or coerce adolescent female karate students into engaging in inappropriate sexual conduct with him. In each case, defendant praised his victims\u2019 classroom performance and told them they were his \u201cfavorite\u201d student. Defendant broached the subject of inappropriate physical contact by first suggesting that he and the victims kiss. Defendant further suggested that the victims permit him to fondle their breasts. Finally, not only did defendant express a desire to engage in a surreptitious sexual relationship with both victims, he also approached both victims during off-site karate events for the apparent purpose of facilitating sexual encounters.\nFollowing voir dire of the witnesses and arguments from both counsel, the trial court concluded that the State had only \u201cmet its burden with respect to the similar plan exception,\u201d based on the \u201csimilarity to the manner of approach.\u201d The trial court issued appropriate limiting instructions both before any corroborating testimony was received and again in its charge to the jury. Finally, defendant interposed a total of eight Rule 403 objections during the testimony in question, all of which were sustained by the trial court. On this record, we cannot say as a matter of law that the trial court\u2019s decision could not have been the result of a reasoned decision. Accordingly, we conclude the trial court did not abuse its discretion.\nDefendant further states that evidence of subsequent conduct \u201ccannot constitute . . . evidence of a \u2018plan\u2019 \u201d with respect to the charged offense. However, defendant fails to support this assertion with either citation to legal authority or legal argument. Accordingly, this contention is deemed abandoned. State v. Stitt, 147 N.C. App. 77, 84, 553 S.E.2d 703, 708 (2001); N.C.R. App. P. 28(b)(5).\nIII.\nDefendant next argues the trial court erred by denying his request for special jury instructions and by giving an erroneous supplemental instruction. We disagree and find no prejudicial error.\nAt the charge conference, defendant submitted two written requests for special instructions. Defendant\u2019s first proposed instruction states in pertinent part:\nThe defendant is charged with a violation of G.S. 14-202.1, i.e., Taking Indecent Liberties With Children.\nThe word \u201cwith\u201d in the connection in which it is employed in the statute indicates \u201cin the company of: as companion of,\u201d Webster\u2019s Third new [sic] International Dictionary (Unabridged 1968), or \u201cdenoting a relation of proximity, contiguity or association.\u201d Black\u2019s, supra. Thus, \u201cindecent liberties with\u201d a minor implies an inherent liberty committed in the presence of the minor. However, Black\u2019s Law Dictionary defines \u201cpresence\u201d as: [t]he existence of a person in a particular place at a given time particularly with reference to some act done there and then. Besides actual presence, the law recognizes constructive presence, which latter may be predicated of a person who, though not on the very spot, was near enough to be accounted *654 present by the law, or who was actively cooperating with another who was actually present. State v. McElees. [sic] 108 N.C. App. 648 (1993).\n(Emphasis omitted). Defendant\u2019s second proposed instruction states in pertinent part:\nThe defendant is charged with a violation of G.S. 14-202.1, i.e., Taking Indecent Liberties With Children.\nAlthough \u201cwith\u201d as used in section 14-202.1(aj(l) has not been defined by our legislature, our courts have set its parameters. It is well settled that a physical touching of a child by the defendant is not required in order to show an indecent liberty with the child in violation of section 14-202(a)(l) (citations omitted) (lewd or lascivious act must be \u201cupon or with the body or any part or member of the body of any child\u201d). It is necessary, however, that the defendant, at the time of the immoral, improper, or indecent liberty, be either in the actual or constructive \u201cpresence\u201d of the child. State v. Nesbitt. 133 N.C. App. 420, 423 (1999); State v. Hartness. 326 N.C. 561, 567 (1990).\n(Emphasis omitted.)\nThe trial court denied defendant\u2019s request and instructed the jury in accordance with N.C.RI. 226.85. The trial court instructed:\nThe Defendant has been accused of taking an indecent liberty with a child. I charge that for you to find the Defendant guilty of taking an indecent liberty with a child the State must prove three things beyond a reasonable doubt:\nFirst, that the Defendant wilfully took an indecent liberty with a child for the purpose of arousing or gratifying sexual desire. An indecent liberty is an immoral, improper or indecent act by the defendant upon the child.\nSecond, the State must prove beyond a reasonable doubt that the child had not reached her sixteenth birthday at the time in question.\nAnd third, the State must prove beyond a reasonable doubt that the Defendant was at least five years older than the child and had reached his sixteenth birthday at that time.\nAfter retiring to deliberate, the jury asked the trial court to \u201cdefine act upon the child.\u201d In response, the trial court gave the following supplemental instruction:\nYou have requested additional instructions with respect to the language of the instructions previously given concerning the meaning of the term \u201cindecent liberty[.]\u201d[]\nI previously instructed you that an indecent liberty is an immoral, improper or indecent act by the Defendant upon the alleged victim. An actual touching of the victim by the Defendant is not required. However, the State is required to prove to you beyond a reasonable doubt that the act was committed within the actual or constructive presence of the victim. Constructive presence means that the Defendant has constructively placed himself in the presence of the victim by means including modern electronic technology.\nDefendant first contends the trial court was required to give his proposed instructions because they were correct statements of the law and supported by the evidence.\nIt is well settled that \u201cif a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.\u201d State v. Lynch, 46 N.C. App. 608, 608, 265 S.E.2d 491, 492, rev\u2019d on other grounds, 301 N.C. 479, 272 S.E.2d 349 (1980). However, \u201c[t]he trial court is not required to give requested instructions verbatim, even when they correctly state the law.\u201d State v. Williams, 333 N.C. 719, 731, 430 S.E.2d 888, 894 (1993). Furthermore, the trial court\u2019s charge to the jury must be construed contextually. State v. Reese, 31 N.C. App. 575, 577, 230 S.E.2d 213, 215 (1976). \u201c[Segregated portions will not be held prejudicial error where the charge as a whole is free from objection.\u201d Id. \u201cWhen the trial court gives substantially the same instructions as those requested . . . purged of irrelevant and confusing features, the court does not err in refusing to give defendant\u2019s instructions exactly as proposed.\u201d Williams, 333 N.C. at 731, 430 S.E.2d at 894.\nHere, defendant sought special instruction with respect to the following issues: (1) that no physical touching is required to violate G.S. \u00a7 14-202.1; (2) that a defendant must be in either the actual or constructive presence of the child to violate G.S. \u00a7 14-202.1; and (3) definitions of the words \u201cwith,\u201d \u201cpresence\u201d and \u201cconstructive presence.\u201d Although the supplemental instructions did not track the language of defendant\u2019s proposed instructions verbatim, we conclude they adequately reflected the substance of defendant\u2019s requests with respect to the first two issues. Although, the court failed to specifically define the words \u201cwith\u201d and \u201cpresence,\u201d it did define \u201cconstructive presence.\u201d Therefore, we conclude the charge as a whole, presented the law fairly and accurately and in substantial accord with defendant\u2019s requested instructions.\nMoreover, even if the trial court\u2019s failure to specifically define \u201cwith\u201d and \u201cpresence\u201d was error, defendant suffered no prejudice. For an error in the trial court\u2019s instructions to be prejudicial error, defendant must show \u201c \u2018that the jury was misled or misinformed by the charge as given, or that a different result would have been reached had the requested instruction been given.\u2019 \u201d State v. Wilds, 88 N.C. App. 69, 74, 362 S.E.2d 605, 608-09 (1987), disc. review denied, 322 N.C. 329, 368 S.E.2d 873 (1988). A defendant fails to demonstrate prejudice where the instructions requested are for words that \u201care so generally used and their meaning so commonly understood as to require no further definition.\u201d Id. at 74, 362 S.E.2d at 609 (citation omitted).\nHere, the trial court\u2019s instructions notified the jury that in addition to actual presence, a person could also be constructively present. The trial court then instructed the jury on the definition of constructive presence. In light of the instructions given, the only words left undefined by the trial court were \u201cwith\u201d and \u201c[actual] presence.\u201d Since these are generally used words whose meaning is commonly understood, no further definition was needed. Therefore, defendant suffered no prejudice from the trial court\u2019s failure to give the requested instructions.\nDefendant\u2019s final contention is that he was prejudiced by the trial court\u2019s definition of \u201cconstructive presence.\u201d Defendant first asserts there was no precedential basis for inclusion of the phrase \u201cmodern electronic technology\u201d in the definition. We disagree.\nIt is the general rule that where a trial court, in charging a jury, undertakes the definition of a term that the law provides no set formula for defining, \u201cthe definition given should be in substantial accord with definitions approved by [our Supreme] Court.\u201d State v. Hammonds, 241 N.C. 226, 232, 85 S.E.2d 133, 138 (1954). Accord, State v. McClain, 282 N.C. 396, 193 S.E.2d 113 (1972). Our research has yielded no North Carolina Supreme Court decision either addressing or defining \u201cconstructive presence\u201d for purposes of taking indecent liberties with a child. On the other hand, this Court has, on one previous occasion, elaborated on the parameters of what may establish \u201cconstructive presence\u201d in this context. In State v. McClees, 108 N.C. App. 648, 424 S.E.2d 687 (1993), this Court held that \u201c[t]hrough the forces of modem electronic technology, namely the video camcorder, one can constructively place himself in the \u2018presence\u2019 of another.\u201d Id. at 654, 424 S.E.2d at 690 (emphasis added). Because our Supreme Court has yet to pass upon this issue, McClees was the only North Carolina decision on point. Accordingly, the trial court properly relied on McClees in framing its definition. Since the definition given by the trial court was in substantial accord with the holding of McClees, this argument is without merit.\nDefendant next asserts that it was improper to state in the instruction \u201cthat the defendant has constructively placed himself in the presence of the victim,\u201d because the \u201cevidence revealfed] that the victim called the defendant, not vice versa.\u201d We disagree.\n\u201c[W]hen a charge, as a whole, presents the law accurately, fairly, and clearly to the jury, reversible error does not occur.\u201d State v. Nesbitt, 133 N.C. App. 420, 426, 515 S.E.2d 503, 507 (1999). After reviewing the entire jury charge, in context, we conclude the trial court presented the law to the jury fairly and accurately. Furthermore, there is ample evidence in the record indicating that after the first call, defendant, victim\u2019s former karate instructor, either requested or instructed the victim to call him the next week on Wednesday, which she dutifully did for a number of weeks. Therefore, we find this argument without merit.\nAccordingly, we hold defendant received a fair trial, free from prejudicial error.\nNo error.\nJudge McCULLOUGH concurs.\nJudge ELMORE dissents.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "ELMORE, Judge\ndissenting.\nBecause I do not agree with the majority\u2019s holding that defendant placed himself in the constructive presence of the victim by participating in telephone conversations of a sexual nature with her, I respectfully dissent.\nIn order to withstand a motion to dismiss charges brought under N.C. Gen. Stat. \u00a7 14-202.1(a)(l), the State must present substantial evidence that, inter alia, the defendant \u201cwillfully took or attempted to take an indecent liberty with the victim.\u201d Rhodes, 321 N.C. at 104, 361 S.E.2d at 580 (emphasis added). As the majority correctly notes, it is not necessary for physical contact to occur in order for the defendant to be \u201cwith\u201d a child for purposes of taking indecent liberties under the statute. Nesbitt, 133 N.C. App. at 423, 515 S.E.2d 506. Rather, at the time of the indecent liberty, the defendant must be in either the \u201cactual or constructive \u2018presence\u2019 of the child.\u201d Id.\nSince there are no North Carolina Supreme Court decisions defining \u201cconstructive presence\u201d for the purpose of taking indecent liberties with a child, the majority correctly identifies State v. McClees, 108 N.C. App. 648, 424 S.E.2d 687 (1993), this Court\u2019s lone previous attempt to define \u201cconstructive presence\u201d in an \u201cindecent liberties\u201d context, as our touchstone in determining whether defendant\u2019s conduct placed him in the constructive presence of the victim in the case at bar. However, unlike the majority, I find that the facts of the instant case are clearly distinguishable from McClees and compel a different outcome.\nThe McClees Court reasoned that by hiding a video camera in his office \u201csuch that [the victim] was unaware of its presence\u201d and filming her changing clothes at his invitation but outside of his presence, the defendant \u201cessentially had the same capability of viewing her in a state of undress as he would have had, were he physically present in the room.\u201d McClees, 108 N.C. App. at 654, 424 S.E.2d at 690 (emphasis added). The McClees Court stressed that the victim was not aware of the camera\u2019s presence, and certainly was unaware that she was being filmed by defendant. The defendant\u2019s use of video recording equipment in McClees supported an inference that he planned to view the tape repeatedly as a means of arousing or gratifying sexual desire. This is in stark contrast with the case at bar, where the victim, over a period of several weeks, initiated each of the telephone calls at issue and willingly engaged in sexually explicit conversation with defendant, knowing all the while of the presence and identity of the party on the other end of the line. Further, there was no evidence that defendant recorded any of these telephone conversations. The conduct at issue in McClees involved secretly videotaping the unaware victim in a state of undress and was accomplished solely on the defendant\u2019s initiative and through an elaborate ruse. By contrast, defendant\u2019s conduct in the instant case consisted of answering the victim\u2019s telephone calls and engaging her in sexually explicit conversation, with no recording and no deception on his part.\nThe majority cites the McClees Court\u2019s holding that \u201c[t]hrough the forces of modem electronic technology, namely the video camcorder, one can constructively place himself in the \u2018presence\u2019 of another[,]\u201d Id., to support its own holding that defendant\u2019s telephone conversations with the victim \u201crenders defendant constructively present under these circumstances.\u201d For the reasons stated above, I believe- that \u201cthese circumstances\u201d are readily distinguishable from those considered by the McClees Court. Further, I would limit the \u201cforces of modern technology\u201d sufficient to confer constructive presence to the single \u201cmodern technology\u201d considered by the McClees Court, \u201cnamely[,] the video camcorder.\u201d\nBecause I do not believe the State has presented sufficient evidence that defendant was in the victim\u2019s constructive presence while engaging in these admittedly reprehensible telephone conversations with her, I would remand to the trial court for entry of an order granting defendant\u2019s motion to dismiss the charges against him.", "type": "dissent", "author": "ELMORE, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Sue Y. Little, for the State.", "Grace, Holton, Tisdale & Clifton, by Donald K. Tisdale, Sr. and Christopher R. Clifton, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP JAMES EVERY\nNo. COA02-150\n(Filed 15 April 2003)\n1. Indecent Liberties\u2014 telephone conversations \u2014 sexually explicit \u2014 evidence sufficient \u2014 common sense of society\nDefendant\u2019s telephone conversations with the minor victim constituted an indecent liberty with a child, and the trial court correctly denied defendant\u2019s motion to dismiss, where defendant repeatedly engaged in extremely graphic and explicit sexual conversations while he groaned, breathed heavily, told the victim that he was masturbating, and invited her to do the same. Moreover, defendant exploited a position of trust as the victim\u2019s karate instructor to overcome her hesitation.\n2. Indecent Liberties\u2014 telephone conversations \u2014 sexually explicit \u2014 constructive presence\nA defendant using a telephone to have sexually explicit conversations with a minor girl was in her constructive presence for purposes of an indecent liberties prosecution; defendants may be deemed present constructively where the use of electronic technology enables them to effectively carry out conduct that would constitute taking an indecent liberty if done in the victim\u2019s actual presence to substantially the same degree that could have been achieved in the victim\u2019s actual presence.\n3. Indecent Liberties\u2014 telephone conversations \u2014 sexually explicit \u2014 gratification of desire\nThere was sufficient evidence that an indecent liberties defendant accused of having sexually explicit telephone conversations with a minor acted to arouse or gratify a sexual desire.\n4. Evidence\u2014 other misconduct \u2014 indecent liberties\nThe trial court did not abuse its discretion in an indecent liberties prosecution by admitting evidence of other misconduct where the court concluded after voir dire that the State had met its burden on the similar plan exception, issued appropriate limiting instructions, and sustained eight objections from defendant during the testimony.\n5. Trial\u2014 instructions \u2014 substantial accord with request\nThe trial court did not err during an indecent liberties prosecution by not giving defendant\u2019s requested special instructions as to certain issues where the instruction as a whole presented the law fairly and accurately and in substantial accord with the requested instructions.\n6. Indecent Liberties\u2014 instructions \u2014 presence\u2014definition\nThere was no prejudice in a prosecution for taking indecent liberties with a minor from the trial court\u2019s failure to specifically define \u201cwith\u201d and \u201cpresence\u201d because those words are commonly understood.\n7. Indecent Liberties\u2014 instructions \u2014 presence\u2014modern electronic technology\nThe inclusion of the phrase \u201cmodem electronic technology\u201d in the definition of constructive presence in the court\u2019s charge to the jury in an indecent liberties prosecution did not prejudice defendant because the definition was in accord with the holding of the one North Carolina case on point.\n8. Indecent Liberties\u2014 telephone conversations \u2014 constructive presence \u2014 instructions\u2014victim calling defendant\nAn instruction that defendant constructively placed himself in the victim\u2019s presence during sexually explicit telephone conversations was not improper in an indecent liberties prosecution even though the victim called the defendant. He had requested or instructed that she do so.\nJudge Elmore dissenting.\nAppeal by defendant from judgment entered 7 August 2001 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 21 January 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Sue Y. Little, for the State.\nGrace, Holton, Tisdale & Clifton, by Donald K. Tisdale, Sr. and Christopher R. Clifton, for defendant-appellant." }, "file_name": "0200-01", "first_page_order": 232, "last_page_order": 248 }