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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1621


Filed: 21 August 2007


v.                        Mecklenburg County
                            Nos. 05 CRS 229937,
                             05 CRS 229940

    Appeal by defendant from judgments entered 26 July 2006 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 August 2007.

    Attorney General Roy A. Cooper, III, by Associate Attorney General Olga Vysotskaya, for the State

    Peter Wood, for defendant-appellant.

    JACKSON, Judge.

     On 28 May 2005, Samantha Mather (“Mather”) was living at the Summit Grandview Apartments in Charlotte, North Carolina. Mather had spent the night out with friends and returned to her apartment at approximately 2:15 a.m. Upon entering her apartment, she locked the door, removed her makeup, brushed her teeth, took off her clothes, got into bed, and fell asleep. Sometime around 7:00 a.m., Mather woke up when she felt something on her leg. As she awoke, she found an unknown man in her bed, under the covers and on top of her body. She asked him “who are you and what are you doing here.” The man replied that he was “Superman” and was there to “save” her. Mather told the man to get off of her, and he “pushed himself upand ran his hands down [Mather's] body.” The man asked her if she was sure she wanted him to leave. She repeated her demand for him to leave and he walked out of the room. As he left, Mather observed that defendant was wearing boxer shorts and a white undershirt. Mather then heard him open the door to her apartment and walk out. She did not hear the door fully close, so she got up and slammed the door behind him. Mather then went back to bed.
    Mather got back out of bed at around 9:00 a.m and called a friend. She then went downstairs to the building's security desk and spoke to the security guard. She reported that someone had broken into her apartment and crawled on top of her in her bed. She gave the guard a description of the man, specifically mentioning a white birthmark in the man's hairline. The guard responded “Oh, my God, that is the Security Guard that I relieved this morning.” She and the guard then went to a secure room where the emergency keys were kept and noticed that the key to Mather's apartment was missing. Mather immediately filed a report of the incident. A few days later, after returning from a business trip, Mather met with Officer Craig V. Vollman (“Officer Vollman”) of the Charlotte-Mecklenburg Police Department. Officer Vollman took a written statement from Mather regarding the events of 28 May 2005.
    On 8 June 2005, Detective Daniel McCrae (“Detective McCrae”) of the Charlotte-Mecklenburg Police Department met with Steven Bell (“defendant”) and questioned him regarding the incident on 28 May 2005. Initially, defendant denied entering Mather's apartment. Detective McCrae then related that Mather had described herassailant as “a black male with a gray patch or birthmark in his hair.” At that point, defendant removed his hat, revealing a gray patch of hair on his head. Defendant then admitted entering Mather's apartment. Defendant claimed that he was making his rounds and found Mather's apartment door ajar. He pushed the door open and yelled “Barton Security, is anyone here[?]” There was no response, so defendant entered the apartment. He found Mather in bed and stated that she appeared to be unconscious. He walked over to her, put his hand on her shoulder and shook her, asking if she was alright.
     On 29 June 2005, a warrant was issued charging defendant Steven Bell with misdemeanor sexual battery and misdemeanor breaking or entering. On 8 November 2005, defendant was convicted in district court on both charges. Defendant appealed the convictions to the superior court. The case was tried de novo at the 24 July 2006 Criminal Session of Mecklenburg County Superior Court, and defendant was convicted of misdemeanor breaking or entering and misdemeanor sexual battery. The trial court sentenced him to sixty days imprisonment for the sexual battery charge, and forty-five days imprisonment for breaking or entering. The trial court suspended the sentence for breaking or entering and placed defendant on supervised probation for twenty-four months. Defendant appeals from his convictions.
    On appeal, d efendant argues the trial court erred in denying his motion to dismiss the charges based upon an insufficiency of the evidence. We disagree.      To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and of defendant's being the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)).
    We first consider defendant's charge for misdemeanor breaking or entering. North Carolina General Statutes, section 14- 54(b)(2005) provides that “[a]ny person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.” Defendant contends there was insufficient evidence as to the element of a wrongful entry. He claims that because he was a security guard, he was given implied consent to enter the premises. Defendant's contentions are unpersuasive.
    Mather testified that she had locked her door and did not give defendant permission to enter her apartment. Mark Zudell (“Zudell”), an employee of Barton Security Services, testified that as a security guard, defendant could enter a residence only when there was an emergency requiring their presence. Zudell furthertestified that security officers had a duty to report any such incident, and that defendant reported no incident occurring on 28 May 2005. The morning of the incident, both Mather and the security guard on duty observed that the emergency key to her apartment was missing. Thus, we hold there was sufficient evidence for the Court to determine that defendant did not have consent, implied or express, to enter Mather's apartment. Furthermore, Mather's testimony regarding defendant's actions and comments directed towards her while she was in bed, as well as the fact that he was partially undressed, permit an inference that he entered the premises with wrongful intent, i.e., to commit a sexual offense. Therefore, we conclude that the trial court properly denied defendant's motion to dismiss this charge.
    We also conclude that the trial court properly denied the motion to dismiss the sexual battery charge. North Carolina General Statutes, section 14-27.5A provides that:
        (a)    A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:

            (1)    By force and against the will of the other person; or

            (2)    Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.N.C. Gen. Stat. § 14-27.5A(a) (2005) (emphasis added). Defendant argues the State presented no evidence that Mather was “mentally disabled, mentally incapacitated, or physically helpless.” Id. However, it was not necessary that the State prove both section 14- 27.5A(a) (1) and (2). Because these subsections are presented in the disjunctive, proof of either subsection (1) or (2) is sufficient to withstand a motion to dismiss. Here, we hold the State presented sufficient evidence to prove defendant committed a sexual battery as defined by section 14-27.5A(a) (1) . Mather's testimony that defendant was on top of her, she told him to leave, and he then proceeded to “push himself up” and “run his hands down [Mather's] body” permit an inference that his actions were by force and against her will. See N.C. Gen. Stat. § 14-27.5A(a)(1).
    Defendant further asserts there was no evidence that he touched Mather for a sexual purpose. We disagree. Mather's testimony regarding defendant's actions and comments directed towards her while she was in bed, as well as his state of partial undress, permit an inference that his actions were taken for the purpose of sexual arousal or gratification. Accordingly, we find no error.
    No error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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