¶1dissenting.
¶2Because I do not agree with the majority’s 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.
¶3In order to withstand a motion to dismiss charges brought under N.C. Gen. Stat. § 14-202.1(a)(l), the State must present substantial evidence that, inter alia, the defendant “willfully took or attempted to take an indecent liberty with the victim.” 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 “with” 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 “actual or constructive ‘presence’ of the child.” Id.
¶4Since there are no North Carolina Supreme Court decisions defining “constructive presence” 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’s lone previous attempt to define “constructive presence” in an “indecent liberties” context, as our touchstone in determining whether defendant’s 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 McCleesand compel a different outcome.
¶5The McCleesCourt reasoned that by hiding a video camera in his office “such that [the victim] was unaware of its presence” and filming her changing clothes at his invitation but outside of *216his presence, the defendant “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.” McClees, 108 N.C. App. at 654, 424 S.E.2d at 690 (emphasis added). The McCleesCourt stressed that the victim was not aware of the camera’s presence, and certainly was unaware that she was being filmed by defendant. The defendant’s use of video recording equipment in McCleessupported 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 McCleesinvolved secretly videotaping the unaware victim in a state of undress and was accomplished solely on the defendant’s initiative and through an elaborate ruse. By contrast, defendant’s conduct in the instant case consisted of answering the victim’s telephone calls and engaging her in sexually explicit conversation, with no recording and no deception on his part.
¶6The majority cites the McCleesCourt’s holding that “[t]hrough the forces of modem electronic technology, namely the video camcorder, one can constructively place himself in the ‘presence’ of another[,]” Id.,to support its own holding that defendant’s telephone conversations with the victim “renders defendant constructively present under these circumstances.” For the reasons stated above, I believe- that “these circumstances” are readily distinguishable from those considered by the McCleesCourt. Further, I would limit the “forces of modern technology” sufficient to confer constructive presence to the single “modern technology” considered by the McCleesCourt, “namely[,] the video camcorder.”
¶7Because I do not believe the State has presented sufficient evidence that defendant was in the victim’s 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’s motion to dismiss the charges against him.