Defendant was indicted on 22 October 1990, pursuant to North Carolina General Statute § 14-202.1, for taking and attempting to take immoral, improper, or indecent liberties with N. B., a minor child.
The State’s evidence tends to show that in April of 1984, some six years prior to the indictment, defendant was the headmaster of Pongo Christian Academy, located outside of Belhaven, North Carolina. Defendant asked N. B., a fifteen year old female student at the school, to try on some basketball uniforms so he could evaluate them аnd determine whether to purchase sets for the school team. Defendant placed the uniforms on a desk in his office then left the office while Ms. B. changed. Resting on a shelf in the office, pointed in the direction of the desk, was a video tape camera which was recording at the time. The camera recorded Ms. B. as she removed all of her clothing except her underwear and tried on the uniforms.
Ms. B. testified that she was not aware of the presence of the video camera nor of the tape it produced until 1990 when police showed her the tape. Other evidence submitted by the State will be discussed within the context of our opinion below.
Defendant presented no evidence. At the close of all of the evidence, the defendant moved to dismiss the charges in the indictment. The trial judge denied the motion. Upon the jury verdict of guilty and sentencing to three years imprisonment, defendant appeals.
I.
Defendant’s sole assignment of error alleges that the trial court erred in denying his motion for a directed verdict. Defendant contends that the evidence was insufficient to find him guilty of taking indecent liberties with a minor under the North Carolina statute. As a preliminary matter, we note that the defendant did not in fact move for a directed verdict in this criminal action but did move for a dismissal at the close of the State’s evidence and again at the close of all evidence.
The test of the sufficiency of the evidence in a criminal prosecution is the same whether the issue is rаised by a motion to dismiss, directed verdict or nonsuit.
State v.
Moser,
Defendant contends that the State presented insufficient evidence to prove a violation of N.C.G.S. § 14-202.1(a)(l), which defines the crime of taking indecent liberties with a minor as follows:
(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:
(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.
N.C. Gen. Stat. § 14-202.1 (1986). In order to obtain a conviction under this statute, the State must prove (1) the defendant was at least 16 years of age, and more than five years older than the victim, (2) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (3) the defendant willfully took or attempted to take an immoral, improper, or indecent liberty with the victim for the purpose of arousing or gratifying sexual desire.
State v. Strickland,
The first two elements are clearly established by the evidence. With respect to the third element, defendant makes two arguments: (1) that thе State failed to show that he took an indecent liberty “with” a minor; and (2) that the State failed to show that the taping of the minor in this case was “for the purpose of arousing or gratifying sexual desire.” We address each of the defendant’s contentions in turn bеlow and conclude that the offensive acts in this case fall within the purview of the statute.
*652 1. Was The Defendant “With” A Minor Within The Context Of N.C.G.S. § 14-202.1 (a)(1)?
The defendant first contends that the statute and subsequent case law require either physical contact or that the victim аnd the alleged perpetrator be in one another’s physical presence and further that the victim must be aware of the perpetrator’s presence before an indecent liberty may be taken “with” a child.
This Court has firmly rejected the notion that the words “with any child” require that a defendant actually touch his victim to commit an immoral, improper, or indecent liberty under the statute.
State v. Turman,
These decisions recognize the legislative policy inherent in the statute, to provide “children broader proteсtion than available under other statutes proscribing sexual acts.”
State v. Etheridge,
Both the North Carolina Supreme Court and the Court of Appeals have addressed the purpose and scope of the indecent liberties statute. The Supreme Court has stated that:
*653 The evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child “for the purpose of arousing or gratifying sexual desire.” Defendant’s purpose fоr committing such an act is the gravamen of this offense; the particular act is immaterial. It is important to note that the statute does not contain any language requiring a showing of intent to commit an unnatural sexual act. Nor is there any requirement that the State prove that a touching occurred. Rather the State need only prove the taking of any of the described liberties for the purpose of arousing or gratifying sexual desire.
State v. Hartness,
Undoubtedly [the statute’s] breadth is in recognition of the significantly greater risk of psychological damage to an impressionable child from overt sexual acts. We also bear in mind the enhanced power and control that adults, even strangers, may exercise over children who are outside the protection of home or school.
Hicks,
[t]he existenсe 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 рerson 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.
Id. (emphasis in original).
In the subject case, defendant took advantage of an authoritative position of trust by asking the victim to try on uniforms so that he could secretly film, and later observe her in a state of undress. Certainly defendant’s 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 rеsult, 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 сan constructively place himself in the “presence” of another. Thus we find that defendant was “constructively present” and thereby took immoral, improper or indecent liberties “with” the minor victim.
2. Did The State Present Sufficient Evidence To Establish That The Aсts Of The Defendant Were Done For The Purpose Of “Arousing Or Gratifying Sexual Desire”?
Defendant next argues that since no evidence was presented showing that he ever actually viewed the video tape which depicted N. B. changing clothes, there was nо evidence proving that he acted “for the purpose of arousing or gratifying sexual desire.” However, the video tape in question also contained a number of other scenes which were admitted into evidence over the defendant’s objection. Among those, was a scene showing the defendant setting up the camera in a small bathroom in the school. It showed an unidentified young woman rushing in the bathroom and using the toilet. The tape also contained two scenes showing the defendant mаsturbating, one of which showed him calling out the name “Donna” while viewing a video tape, and the other as he sat on the toilet in a school bathroom. Another scene showed a female student’s buttocks as she used the telephone in defendant’s оffice. Moreover, the State introduced evidence of pictures taken from a file in defendant’s desk at the school. One picture showed a former student, D. B., sitting beside a river wearing a bathing suit. Some of the pictures were from pages of the lingеrie section *655 of an Avon products catalogue, with pictures of the faces of certain female students from the school taped over the faces of the lingerie models. One of the faces taped over the face of' a model was D. B.’s, a 1985 graduate of Pongo Academy, who testified that the defendant often asked her to go into the coach’s office or the headmaster’s office for the purpose of trying on uniforms. The State elicited further testimony that the defendant had frequently asked other female students at the school to try on uniforms. One student testified that in the process of trying on a uniform she opened the door to ask the defendant a question and was stunned to find the defendant leaning over as if looking through the key-hole.
This evidence may be considered to determine whether the defendant acted for the purpose of arousing or gratifying sexual desire. “A defendant’s purpose being a mental attitude, is seldom provable by direct evidence and must ordinarily be proved by inference.”
State v. Campbell,
We conclude that thе State’s evidence, taken in the light most favorable to the State, fell within the purview of the statute and sufficed to show that defendant took or attempted to take an immoral, improper, or indecent liberty with a child for the purpose of arousing or gratifying sexual desire. Accordingly, the trial court properly denied defendant’s motion to dismiss.
No error.