IN THE SUPREME COURT OF NORTH CAROLINA No. 239A18 Filed 28 February 20 20 STATE OF NORTH CAROLINA

v. NEIL WAYNE HOYLE
Appeal pursuant to N.C.G.S. § 7A

- 3 0(2) from the decision of a divided panel of the Court of Appeals , 818 S.E.2d 1 49 (N.C. Ct. App. 2018), vacat ing a judgment entered on 1 June 201 7 by Judge Jeffrey P. Hunt in Superior Court, Catawba County , and remanding for a new trial

. On 5 December 2018, the Supreme Court allowed the parties’ petitions for discretionary review of additional issues. Heard in the Supreme Court on 5 Novemb er 2019.
Joshua H. Stein , Attorney General, by Tiffany Y. Lucas, Special Deputy Attorney General, for the State

- appellant

. Anne Bleyman for defendant

- appellee.
NEWBY, Justice

.
In this case we decide whether a defendant charged with felony indecent exposure is entitled to an instruction requiring the jury to find that the victim could have seen the expos ed private part had the vi ctim looked. We hold that a defendant is not entitled to such an instruction. I t is sufficient for the instruction to explain that the jury must find beyond a reasonable doubt that the exposure was in the presenceS TATE V
. H OYLE Opinion of the Court

2 of another person . We also conclude that t he evidence at trial was sufficient for the jury to find that defendant exposed himself in the presence of the child victim

. Finding no error in defendant’s conviction, w e therefore reverse the decision of the Court of Appeals in part.
The child victim was four years old at the time of the incident. His mother drove home from the grocery store with him in the car . After the mother parked, she began remov ing grocery bags from the car while the child played in the yard. As she was removing the bags , defend ant came to her home in his car. Defendant parked along the street at the edge of the yard and called out to her to ask for directions. She explained to defendant that she could not help him ; defendant then offered to do some work on her house. She decline d, but defendant persisted . Finally, at defendant’s request , the mother walked over to defendant’s car to take his business card. When she arrived at the passenger side window and reach ed in to take the card, she saw defendant’s exposed genitals . She quick ly pull ed her hand back, stumbled, dropped the groceries, and ran to grab her child and go inside the house. As she ran from defendant’s car, she heard him laugh. During this encounter, the child was playing by a tree in the yard about twenty feet from def endant ’s car

. Law enforcement identified defendant by the business card he had given the mother. Defendant was tried in Superior Court, Catawba County, for one count of felony indecent exposure , the child being the victim , and one count of misdemeanor indecent exposure , the mother being the victim , both under N.C.G.S. § 14

- 190.9S TATE V
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3 (2017). After the State presented its evidence, and again after all evidence was presented , defendant moved to dismiss the felony indecent exposure charge for insufficient evidence . T he trial court denied the motion. Defendant also asked the court to instruct the jury that , to find that defendant ’s exposure was in the presence of someone under the age of sixteen as required by the statute, it must fi nd beyond a reasonable doubt that the child “could have seen [ the exposure ] had [ he ] looked.” The court declined and , instead , followed the pattern jury instruction. It instructed the jury that to satisfy the “presence” element, the State must prove beyond a reasonable doubt that the exposure “was in the presence of at least one other person.” It also explained that “ [ i ] t is not necessary that [the exposure] be directed at or even seen by another person.” The jury found defendant guilty of both felony and m isdemeanor indecent exposure, and the trial court arrested judgment on the misdemeanor charge

. Defendant was sentenced to ten to twenty

- one months in custody and was ordered to register as a sex offender and enroll in lifetime satellite

- based monitoring. Defendant appealed to the Court of Appeals, arguing that the trial court committed prejudicial error by refus ing to give the instruction he requested

. He also argued that the Court of Appeals should vacate his conviction for felony indecent
exposure becaus e the evidence was insufficient to show that he exposed himself “in the presence of” the child . The Court of Appeals hel d that the trial court should have instructed the jury that to satisfy the “presence” element the State must show that the victim could have seen the exposure had he looked , and that failure to give th eS TATE V
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4 instruction was reversible error. T he C ourt of Appeals , however, agreed with the trial court that the evidence was sufficient to allow the jury to consider whether the presence element was satisfied . It thus ordered a new trial requiring defendant’s requested jury instruction. T he dissent thought the trial court properly instructed the jury . The State appealed to this Court based on th e dissent. This Court also allowed the parties’ petition s for discretionary review , including defendant’s request that the Court review the sufficiency of the evidence issue.
T he State argues that the Court of Appeals wrongly held that the “presence” requirement under sub section 14

- 190.9(a1) means the child must have been able to see defendant’s expos ed private part had he looked. Defendant claims the Court of Appeals was correct about the jury instruction and also argues that the evidence wa s insufficient to satisfy the presence element of felony indecent e xposure . S ubs ection 14

- 190.9(a1) provides that any person at least 18 years of age who shall willfully expose the private parts of his or her person in any public place in the presence of any other person less than 16 years of age for the purpose of arousing or gratifying sexual desire shall be guilty of a Class H felony. The elements of felony indecent exposure under this statute are that the defendant was at least eighteen years old at the time of the exposure, that he willfully exposed his private parts, that the exposure was in a public place, that the exposure was in the “presence” of someone under the age of sixteen, and that the exposure was committed to arouse or gratify sexual desire. See State v. Fly , 348 N.C. 556, 559, 501S TATE V
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5 S.E.2d 656 , 658 (1998) ( interpreting a similarly worded prior version of section 14

- 190.9 )

. The presence element is the only element defendant contests before this Court, so we do not address the others

. T his Court previously considered the presence el ement of indecent exposure in State v. Fly . In that case, the victim walked up the steps of her condominium building , and, upon rounding a section of stairs, looked up and saw the defendant “mooning” her. Id. at 557, 501 S.E.2d at 657. The defendant’s pants were pulled down to his ankles and the victim could see the “crack of his [ exposed ] buttocks. ” Id. When the victim saw the defendant, she yelled, and the defendant quickly pulled up his pants and ran away. Id. One issue in Fly was whether the defendant could be convicted when the victim saw the “crack of his buttocks,” bu t could not see his genitals. Id. at 559, 501 S.E.2d at 658. Th e Court first held that though the buttocks is not a “private part” under the indecent exposure statute, “the external organs of sex and excretion ”

are . Id. at 560, 501 S.E.2d at 659. It then h eld that a jury could reasonably find that the defendant had exposed “either his anus, his genitals, or both.” Id. at 561, 501 S.E.2d at 659. Th e Court explained that the statute does not require the victim to have seen the exposure ; instead, it only requires that the exposure was willfully made in a public place and in the presence of another

. Id. T he exposure need not have be en
to another, as long as it occurred in the presence of another. Id. Indecent exposure, th e Court said, “does not go to what t he victim saw but to what defendant exposed in her presence without her consent.” Id. Therefore, the Court held that a jury couldS TATE V
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6 have found that the defendant exposed his genitals in the presence of the victim, even though the victim did not see them and could not have seen them without being positioned differently

. Id. In light of the plain language of N.C.G.S. § 14

- 190.9 as interpreted in Fly , we hold that the requirement that the exposure be “in the presence of” the victim does not require a jury to fin d that the victim could have seen the expos ed private parts had he or she looked. The statutory require ment that the exposure be in the presence of another focuses on where a defendant places himself relative to others ; it concerns what the defendant does, not what the victim does or could do

. See, e.g. , Fly , 348 N.C. at 561, 501 S.E.2d at 659 (“ T he statute does not go to what the victim saw but to what defendant exposed in her presence without her consent

. ”)

. If a defendant exposes himself in public and has positioned himself so he is sufficiently close to someone under the age of sixteen, the presence element of sub section 14

- 190.9(a1) is satisfied. 1
The jury instruction in this case drew directly from the statutory language and th e Fly opinion. The trial court instructed the jury that to return a guilty verdict it must find beyond a reasonable doubt “that the exposure was in the presence of at

1 To hold otherwise would lead to absurd results. If the offense of indecent exposure is not committed unless the victim could have seen the exposure had he or she looked, then a conviction could hinge on considerations like the quality of the victim’s vision. We see nothing in the statute’s language indicating that the General Assembly inten ded a defendant to be culpable for indecent exposure by exposing himself near a child with 20/20 vision, but not for exposing himself near a visually impaired child who left her glasses at home that day. In the same way, we do not think the General Assembl y would have intended defendant’s culpability to be contingent on whether the victim child happened to climb a tree or otherwise move to a position where he could more easily see the exposure

.S TATE V
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7 least one other person” and that “[i]t is not necessary that [the exposure] be directed

a t or even seen by another person.” This instruction was correct

. Finally, the evidence at trial was sufficient to satisfy the presence element of the felony indecent exposure statute

. When we consider a defendant’s motion to dismiss, the question is “ whether there is substantial evidence

. . . of each essential element of the offense charged. ” State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) ( quoting State v. Powell , 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) ). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v . Smith , 300 N.C. 71, 78

– 79, 265 S.E.2d 164, 169 (1980) (citation omitted)

. The trial c ourt must consider the evidence in the light most favorable to the State. State v. Rose , 339 N.C. 172, 192

– 93 , 451 S.E.2d 211, 223 (1994). Because defendant has only contested the sufficiency of the evidence as
to the “presence” element of the offense, that is the only element we consider.
At the time of the exposure, def endant was in his car along a road in front of the victim ’s house. He exposed himself w hile the child was about twenty feet away. Viewing the evidence in the light most favorable to the State, th e proximity of the exposure to the victim was sufficiently cl ose that a jury could find it was in the child’s
presence. The properly instructed jury , by returning a guilty verdict , apparently concluded it was

. T he conviction was thus appropriate. We therefore agree with the Court of Appeals that the evidence was sufficient to support defendant’s felony indecent exposure conviction

. That p ortion of the Court of Appeals’ decision isS TATE V
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8 affirmed. But because the Court of Appeals erroneously held that defendant was entitled to an instruction requiring the jury to find th at the child could have seen the exposure had he looked , and that the failure to give the instruction was prejudic ial to defendant, we reverse th at portion of the decision of the Court of Appeals that awarded defendant a new trial and find no error in defe ndant’s conviction for felony indecent exposure

. AFFIRMED IN PART ; REVERSED IN PART

.