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In a case of first impression in North Carolina, an adult who engaged in phone sex with a teenager was in her presence for purposes of state law proscribing the taking of indecent liberties with a child, the North Carolina Court of Appeals held on April 15. State v. Every, No. COA-02-150. The ruling affirms a trial judge’s denial of a motion to dismiss the charge and upholds a jury’s conviction. Karate instructor Phillip Every engaged in several sessions of phone sex with a teenage former student and was charged with taking indecent liberties. At the end of the prosecution’s case, Every moved for dismissal, arguing that mere words could not constitute indecent liberties under the law. He argued that talking on the phone did not establish his “constructive presence” with the girl, a requirement for conviction. Nonetheless, the trial court denied the motion and the jury convicted him. Affirming, the appeals court held that mere words do qualify and that the calls did establish a constructive presence. The panel said, “the evil the legislature sought to prevent” by passing the law was any indecent activity with a minor for the purposes of sexual gratification of the adult. Thus, the court held, “no physical touching of the victim at all is required in order to show the taking of an indecent liberty.” As for his constructive presence, the court held that “the forces of modern technology” can put the offender in the constructive presence of the victim. A dissent argued, however, that the majority erred in relying on precedent arising from the surreptitious videotaping of a minor. In Every’s case, the minor placed the calls, which were not recorded for future indecent uses.

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