                               NO. COA14-8

                  NORTH CAROLINA COURT OF APPEALS

                           Filed: 3 June 2014

STATE OF NORTH CAROLINA

    v.                                Forsyth County
                                      Nos. 11 CRS 62234
                                           11 CRS 62605
WINSTON HARVEY STEPHENS, JR.



    Appeal by defendant from judgments entered 6 May 2013 by

Judge V. Bradford Long in Forsyth County Superior Court.         Heard

in the Court of Appeals 6 May 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    David Gordon, for the State.

    Mark Montgomery for defendant.


    HUNTER, Robert C., Judge.


    Defendant    Winston    Harvey   Stephens,   Jr.   appeals    the

judgments entered after a jury convicted him of three counts of

indecent liberties with a student.      On appeal, defendant argues

that: (1) the trial court erred in not instructing the jury on

the specific acts set out in the amended bills of particulars;

and (2) the trial court erred in denying defendant’s motion to

dismiss because the victim was not a “student” at the time of

the incidents.
                                             -2-
       After careful review, we find no error.

                                     Background

       The    State’s     evidence      at    trial    tended     to    establish         the

following: In the spring of 2011, J.B.1 was a sophomore at East

Forsyth       High    School     (“East      Forsyth”).        Defendant          was     East

Forsyth’s music teacher.                J.B. claimed that he met defendant

when    he     was     attending    Madrigal         workshops,      choral        training

workshops       for    students    at     East     Forsyth;     defendant          was     the

director of the Madrigals.              J.B. auditioned for and was accepted

into    the    Madrigals       program       which    would    begin     in       the    fall

semester.       At trial, J.B. claimed that defendant contacted him

to see whether J.B. would be interested in helping him during

the summer.           Specifically, defendant needed a page turner and

assistant to help him record music for “Joseph and the Amazing

Technicolor Dream Coat,” a musical scheduled to be performed at

Reynolds       High    School     (“Reynolds”)        during     a     special          Summer

Enrichment Program (“SEP”).               After he agreed, J.B. claimed that

defendant picked him up every morning and brought him home in

the    afternoon,       around    3:00.       This    occurred       over     a   two-week

period in July 2011; the performance of the musical occurred on

three days at the end of July.

1
  To protect the identity of the minor victim, we have used
initials.
                                       -3-
    At trial, J.B. gave detailed testimony regarding numerous

alleged     incidents     of    inappropriate     sexual     conduct     between

defendant and J.B.           Specifically, J.B. claimed that the first

incident    occurred    in     the   recording   room   at   Reynolds.      J.B.

testified that defendant grabbed his arm and kissed it before

giving him a full-frontal hug that lasted ten to twenty seconds.

J.B. also described two incidents of “cuddling” that happened in

the recording room at Reynolds; J.B. stated that he laid on the

couch with his back to defendant’s stomach while defendant would

brush his hair and hold him tightly.               J.B. claimed that these

incidents lasted anywhere from fifteen minutes to an hour.                 J.B.

also alleged that two other incidents of “cuddling” occurred at

J.B.’s apartment—one on the couch in the living room and one on

J.B.’s bed.

    J.B.      testified      that    incidents   of     full-frontal     hugging

happened on a consistent basis during the two-week period at

Reynolds.     He also alleged that defendant kissed him on his arm,

cheek, and neck ten to fifteen times and on his mouth twice.

All these incidents allegedly occurred in the recording room,

orchestra pit, or on the stage deck at Reynolds.                    J.B. also

claimed that defendant hugged him in the bathroom at Reynolds.
                                      -4-
    J.B. further testified that several incidents occurred in

defendant’s car on the way to and from the SEP at Reynolds.

Specifically,   J.B.    claimed   that      he    and    defendant    would   hold

hands,    defendant    would   brush     his      hair    at    stoplights,   and

defendant would lean over and kiss his neck and cheek daily.

J.B. alleged that one final “cuddling” incident occurred on the

couch in defendant’s office at East Forsyth.

    At trial, J.B. also provided a great deal of testimony

regarding intimate communications between himself and defendant.

Specifically, in one email, defendant referred to J.B. as a

“stud muffin” and a “manly man.”                  He also claimed to “love

feeling    [J.B.’s]    soft    skin    when       [their]      arms   touch[ed].”

Furthermore, J.B. described the pet names they had for each

other and the gifts they exchanged with each other.

    In October, after school had resumed, J.B. told his mother

about the incidents.      She withdrew him from the Madrigals course

but did not report the incidents to the school.                       Eventually,

J.B. spoke with the Kernersville Police Department about the

allegations after he was called to the principal’s office and

questioned.

    On 25 June 2012, defendant was indicted for three counts of

indecent liberties with a student.               On 25 April 2013, the State
                                        -5-
filed three amended bills of particulars.                     The State contended

that the alleged offenses occurred during the month of July 2011

at J.B.’s residence, at defendant’s apartment, in defendant’s

car, and in the orchestra pit and recording room at Reynolds.

As for the acts that constituted the offenses, the State listed

numerous    acts,     including:       hugging,        kissing,      cuddling,     and

various other types of inappropriate touching by defendant.

    At      trial,    several       witnesses     testified          on   behalf    of

defendant    including      several    students,        a    teacher,     defendant’s

wife, and defendant himself.            In short, the witnesses testified

that defendant was a “father figure” to the students and would

often hug students in a nonsexual way.                       In addition, several

witnesses    testified      that    defendant     would        not   have    had   the

opportunity to commit any inappropriate acts with J.B. during

the SEP.     Although defendant admitted that some of his behavior

might have been “inappropriate,” he denied any misconduct.

    On 6 May 2013, the jury found defendant guilty on all three

counts.      The    trial   court     sentenced    defendant         to   consecutive

sentences of six to eight months imprisonment but suspended the

sentences     for    thirty-six       months      of        supervised      probation.

Defendant appealed.

                                    Arguments
                                                  -6-
       First, defendant argues that the trial court erred by not

instructing         the     jury        according           to     the    amended        bills     of

particulars         filed    by         the      State.            Specifically,         defendant

contends that the trial court erred in failing to instruct the

jury on the actus reus of each charge.                            We disagree.

       “[Arguments]         challenging               the        trial    court’s        decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009).

       “The     function      of        a     bill    of     particulars         is    to    inform

defendant of specific occurrences intended to be investigated at

trial and to limit the course of the evidence to a particular

scope of inquiry.”             State v. Young, 312 N.C. 669, 676, 325

S.E.2d 181, 186 (1985).                  Here, the amended bills of particulars

set    out     numerous      acts        that      constituted           the    basis       for   the

offenses, including: hugging and kissing at Reynolds; “cuddling”

with    J.B.       at   Reynolds;           hugging,        holding      hands,       and   groping

J.B.’s crotch in defendant’s car; hugging and kissing J.B. at

J.B.’s home; and “cuddling” with J.B. in his bedroom.                                    At trial,

defendant requested the trial court instruct the jury on the

actus reus for each count.                       However, the trial court held that

it    was    not    required       to       do   so   for        indecent      liberty      charges.
                                       -7-
Defendant contends that the trial court’s failure to instruct as

to   the   acts   set   out    in    the     amended   bills   of   particulars

constituted error.

      However,    defendant’s       argument    is   without   merit.      It    is

well-established that

            the crime of indecent liberties is a single
            offense which may be proved by evidence of
            the commission of any one of a number of
            acts. 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 for committing
            such act is the gravamen of this offense;
            the particular act performed 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, 326 N.C. 561, 567, 391 S.E.2d 177, 180-81

(1990) (internal quotation marks omitted).

      Here, the trial court properly instructed the jury that it

could   find    defendant     guilty   if     it   concluded   that     defendant

willfully took “any immoral, improper, or indecent liberties”

with J.B.      The actual act by defendant committed for the purpose

of   arousing     himself     or    gratifying       his   sexual   desire      was
                                             -8-
“immaterial.”          Id.        Furthermore,        J.B.’s     testimony         included

numerous acts, any one of which could have served as the basis

for the offenses, and the amended bills of particulars reflected

his testimony.        Accordingly, the trial court did not err in not

instructing the jury as to the actus reus for each count of

indecent liberties with a student.

      Next,    defendant         argues      that    the     trial    court       erred   in

denying his motion to dismiss because there was insufficient

evidence      that     J.B.      was     a     “student”      during        the    summer.

Specifically, defendant contends that J.B. was not “enrolled” at

East Forsyth at the time of the incidents because a person is

“enrolled” only during the academic school year.                       We disagree.

      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”            State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).              “Upon defendant’s motion for dismissal,

the   question       for   the    Court      is    whether    there    is    substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly   denied.”        State    v.       Fritsch,   351    N.C.    373,       378,    526

S.E.2d 451, 455.
                                         -9-
      At trial, the court instructed the jury that a “student,”

for purposes of N.C. Gen. Stat. 14-202.4(A), means “a person

enrolled in kindergarten, or in grade one through 12 in any

school.”         Defendant contends that a person is only “enrolled”

during     the    academic     year;   thus,    since   the    offenses   occurred

during the summer, J.B. was not enrolled, nor was he a student,

at East Forsyth.             In support of his argument, defendant claims

that each school completes an “Initial Enrollment” count at the

beginning        of   each    school   year,    and   students    do   not    become

enrolled at a school until that initial count.

      However, at trial, Patricia Gainey, the principal of East

Forsyth, testified that students remain enrolled at her school

until a parent withdraws them.                 Although students are required

to register for fall classes during the spring, students remain

in   the    school’s     database      until    a   parent    “signs   them   out.”

J.B.’s mother testified at trial that J.B. had registered for

his fall classes in April or May 2011, the spring before the

incidents occurred.             Since J.B.’s mother did not withdraw him

from East Forsyth until the end of the 2011 school year (June

2012), he remained enrolled at East Forsyth during the summer of

2011 even though he was not taking classes at that time.                          In

other words, he remained in East Forsyth’s database, and, thus,
                                       -10-
remained   enrolled,       until     June   2012.     Therefore,    during   the

summer, although the academic year was over, he was an enrolled

student at East Forsyth.           Accordingly, the trial court did not

err in instructing the jury that a “student” includes anyone

enrolled   in    a   school    and    in    denying   defendant’s   motion     to

dismiss because the State presented substantial evidence that

J.B. was a student at the time of the offenses.

                                   Conclusion

    Based       on   the      foregoing       reasons,   we   conclude       that

defendant’s trial was free from error.



    NO ERROR.

    Judges McGEE and ELMORE concur.
