State v. Strickland

335 S.E.2d 74 (1985)

STATE of North Carolina
v.
Wade Shirlen STRICKLAND.

No. 8429SC1155.

Court of Appeals of North Carolina.

October 15, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for State.

White & Dalton by Tony C. Dalton, Brevard, for defendant-appellant.

PHILLIPS, Judge.

Defendant's first contention is that the prosecution should have been dismissed before trial, pursuant to his motion, because G.S. 14-202.1, which prohibits taking indecent liberties with children, is unconstitutionally vague and overbroad. This same contention was squarely rejected by our Supreme Court in State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981).

Defendant next contends that the court erred in failing to dismiss the case at the close of the evidence because the evidence is insufficient to warrant his conviction. The indictment is based on Section (a)(1) of G.S. 14-202.1 (rather than Section (a)(2), which concerns a lewd or lascivious act committed or attempted on a child) and the State was required to prove that: (1) defendant is at least sixteen years old and more than five years older than the child in question, (2) the child is less than sixteen years old, and (3) defendant willfully took an indecent, immoral or improper liberty with the child for the purpose of gratifying his sexual desire. The first two elements, clearly established by evidence, require no discussion. As to the third element, defendant argues that: He was too far away from the children to be with them for the purpose of taking an indecent liberty, and that the word "with" in the statute requires close proximity or nearness, which the State's evidence failed to establish. This argument is rejected. In State v. Turman, 52 N.C.App. 376, 278 S.E.2d 574 (1981), we refused to hold that physical touching is necessary in an indecent liberty prosecution under G.S. 14-202.1(a)(1), and in this case we refuse to hold that a defendant must be within a certain distance of or in close proximity to the child. Here, the defendant was about the same distance from the boys that home plate is from the pitcher's mound on a baseball diamond; it was close enough, according to the evidence, for the boys to see what he was doing and to hear his invitation; and it was close enough for defendant to see them and invite them to imitate his own activity. The liberty that defendant willfully took with the boys, according to evidence, in exposing his lewd and lascivious activity to them and inviting their participation was certainly indecent, immoral and improper; and that it was done for the purpose of arousing and gratifying his sexual desire could be inferred. Thus, this contention is overruled.

Defendant's other assignment of error, based on the court's refusal to instruct the jury that he had to be in close proximity to the boys in order to be guilty of the offense charged, is also overruled, for the reasons stated above.

No error.

WELLS and WHICHARD, JJ., concur.