               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1118

                                Filed: 20 August 2019

Rowan County, Nos. 17 CRS 974, 51350, 51353, 51412, 51470,

STATE OF NORTH CAROLINA

              v.

KENNETH RUSSELL ANTHONY


        Appeal by defendant from order entered on 26 April 2018 by Judge Lori I.

Hamilton in Superior Court, Rowan County. Heard in the Court of Appeals 8 May

2019.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
        Calloway-Durham, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
        Andrews, for defendant-appellant.


        STROUD, Judge.


        Defendant appeals from an order imposing lifetime satellite-based monitoring

(“SBM”). Although the State presented argument to the trial court regarding the risk

of recidivism by sex offenders based upon various studies and statistics, the State did

not provide the studies to Defendant or the trial court. The statistics noted by the

State were not subject to judicial notice under Rule 201 since they are subject to

reasonable dispute and they are not “either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by
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                                     Opinion of the Court



resort to sources whose accuracy cannot reasonably be questioned.” N.C. Gen. Stat.

§ 8C-1, Rule 201(b) (2017). Since the State presented no evidence supporting the

reasonableness of SBM as applied to Defendant, we must reverse the trial court’s

order for the reasons discussed in State v. Grady, ___ N.C. App. ___, 817 S.E.2d 18

(2018) (“Grady II”), and State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (2018).

                                    I.      Background

       Defendant entered an Alford plea to attempted first-degree sex offense,

habitual felon, assault on a female, communicating threats, interfering with

emergency communication, first-degree kidnapping, incest, and second-degree

forcible rape. Defendant’s charges were consolidated into a single judgment and the

trial court imposed a sentence of 216 to 320 months. On the same day judgment was

entered, Defendant submitted a motion to dismiss the State’s petition for SBM. The

trial court held a hearing regarding SBM. The trial court denied Defendant’s motion

and entered an order directing Defendant to submit to lifetime SBM upon his release

from prison. Defendant timely appealed the order requiring him to submit to lifetime

SBM.

                              II.        Standard of Review

       “An appellate court reviews conclusions of law pertaining to a constitutional

matter de novo.” Grady II, ___ N.C. App. at ___, 817 S.E.2d at 21 (quoting State v.

Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010)).



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                     III.   Evidence of Reasonableness of SBM

      Defendant argues “[b]ecause the State in this case failed to satisfy its burden

of demonstrating that SBM was a reasonable search, the order requiring Mr. Anthony

to submit to lifetime SBM must be reversed without remand to superior court.”

Defendant also argues that “North Carolina’s SBM program is an unreasonable

search that violates the Fourth Amendment.”

      Once the trial court has determined that a defendant is subject to SBM under

North Carolina General Statute § 14-208.40(a)(1)-(3), it must then determine the

constitutionality of the search as applied to the particular defendant. Grady II, ___

N.C. App. at ___, 817 S.E.2d at 28 (“We reiterate the continued need for individualized

determinations of reasonableness at Grady hearings.”). This analysis includes two

parts: the defendant’s risk of recidivism and the efficacy of SBM to accomplish a

reduction of recidivism. See id. at ___, 817 S.E.2d at 27. Even if we assume for

purposes of argument that sex offenders have a higher risk of recidivism than those

convicted of other crimes, the State still must address whether SBM is actually

effective to prevent recidivism for that defendant.

      At the hearing, the only evidence the State presented was “bills that the victim

received for medical treatment, an order of evidence to destroy some evidence, two

proposed form 615s for the registration and satellite-based monitoring, and two




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                                       Opinion of the Court



proposed permanent no-contact orders for the two victims.”1 As part of its argument,

the State’s counsel noted various studies and statistics:

               [T]here are some statistics I do want to recite for the Court
               so you can consider in your finding that this is reasonable
               search in this case. The United States Department of
               Justice, Office of Just Programs -- I’m referencing the office
               of sex offender sentencing, monitoring, apprehending,
               registering and tracking a research brief that was done by
               Louise DeBaca, D-e-B-a-c-a, he’s a director, on July of 2015.

The State then discussed various studies and statistics but did not provide the trial

court or defense counsel with these studies, nor are they in the record on appeal.

       Much of the State’s brief focuses on the portion of the hearing regarding

Defendant’s plea and its factual basis, but there is no issue regarding defendant’s

Alford plea or his convictions. After entry of the plea and sentencing, the trial court

considered the State’s petition for SBM and Defendant’s motion to dismiss the

petition. But the State presented no evidence as to the reasonableness of SBM.

Instead, the State presented only argument opposing defendant’s motion to dismiss

and supporting its petition for SBM. In the argument, the State referred to various

studies and statistics on recidivism by sex offenders, but the State did not attempt to

present any evidence or request judicial notice of any studies regarding the actual

efficacy of its SBM program in preventing recidivism. Even if we assume sex offenders



1 The State presented this evidence during the portion of the hearing dealing with the plea and
sentencing, but the trial court heard the SBM issues in the same hearing. The State did not present
any additional evidence during the portion of the hearing regarding SBM.

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                                    Opinion of the Court



in general do have a higher rate of recidivism than those convicted of other crimes,

and even if a defendant in particular has an increased likelihood of reoffending, if

there is no evidence that SBM actually prevents recidivism, the State cannot show

that imposing a continuous, life-time search is reasonable under the Fourth

Amendment of the United States Constitution.

      The State argues this case differs from Griffin because here the trial court took

judicial notice of studies referenced by the State at trial. In Griffin, the State stresses

that it did not present any evidence on the “efficacy of the SBM program.” Griffin,

___ N.C. App. at ___, 818 S.E.2d at 340. In its brief, the State argues:

             Defendant also takes exception to the fact the State relied
             upon statistics from studies in its argument on the efficacy
             of SBM. However, at no point either during the hearing or
             in its memorandum did he object to the State’s ability to
             raise those statistics. Instead, Defendant argued about the
             constitutionality of SBM on the basis of fees, the ability to
             travel, the burden of proof, and the ability to seek
             termination.
                    However, on appeal, the basis for his argument
             about the statistics stems from this Court’s decision in
             Griffin, namely that in relying upon a decision from the
             Fourth Circuit Court of Appeals, this Court reasoned,
             “Decisions from other jurisdictions relied upon by our
             dissenting colleague—and by the State—holding that SBM
             is generally regarded as effective in protecting the public
             from sex offenders are not persuasive;” and also the State
             did not attach the empirical or statistical reports to its
             memorandum. Understanding of course that this Court
             cannot overturn itself, it is therefore relevant that
             notwithstanding the lack of a bright-line test in Grady II,
             neither the State nor Defendant’s trial court had the
             benefit of either Grady II or Griffin when addressing the


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                                   Opinion of the Court



             reasonableness of SBM as it relates to Defendant.
                    Even so, the State did not simply argue about other
             cases, it argued about actual studies. While the State did
             not appear to have introduced the physical research, seeing
             as the information about the studies came from a well-
             known source, the United States Department of Justice,
             the court was within its right to take judicial notice of the
             studies. See Khaja v. Husna, 243 N.C. App. 330, 353, 777
             S.E.2d 781, 794 (2015) (quoting N.C.G.S. § 8C-1, Rule
             201)(holding that a court may take judicial notice of facts
             “capable of accurate and ready determination by resort to
             sources whose accuracy cannot reasonably be questioned. .
             . . A court may take judicial notice, whether requested
             or not.”).

(Emphasis added) (citations omitted.) Therefore, the State’s argument relies upon

the contention that the trial court took judicial notice of the studies and statistics

noted in its argument to the trial court, despite the fact that (1) the studies were not

presented to defendant or the trial court; (2) the State did not request judicial notice;

and (3) the trial court made no indication it was taking judicial notice of the studies.

The State also contends that Defendant waived any argument regarding judicial

notice of the studies by his failure to object, but since the State did not present the

studies to the trial court or request that the trial court take judicial notice of them,

defendant had no opportunity to object to judicial notice.

      Judicial notice is governed by Rule 201 of the North Carolina Rules of

Evidence:

                (b) Kinds of facts. — A judicially noticed fact must be
             one not subject to reasonable dispute in that it is either (1)
             generally known within the territorial jurisdiction of the


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             trial court or (2) capable of accurate and ready
             determination by resort to sources whose accuracy cannot
             reasonably be questioned.
                (c) When discretionary. — A court may take judicial
             notice, whether requested or not.
                (d) When mandatory. — A court shall take judicial
             notice if requested by a party and supplied with the
             necessary information.
                (e) Opportunity to be heard. — In a trial court, a
             party is entitled upon timely request to an opportunity to
             be heard as to the propriety of taking judicial notice and
             the tenor of the matter noticed. In the absence of prior
             notification, the request may be made after judicial notice
             has been taken.

N.C. Gen. Stat. § 8C-1, Rule 201.

      Defendant argues that the trial court could not take judicial notice under Rule

201 of the State’s “purported studies” for several reasons. First, the State presented

no evidence of the studies to the trial court. “[I]t is axiomatic that the arguments of

counsel are not evidence.” State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193

(1996). In addition, Defendant notes that the risk of recidivism by sex offenders is

subject to extensive reasonable debate and this debate has been noted by our Court.

             As the State itself acknowledges, a court can only take
             judicial notice of a fact whose accuracy “cannot reasonably
             be questioned.” State’s Brief, p. 20 (quoting Rule 201
             of the North Carolina Rules of Evidence). Indeed, the
             State itself relies on Khaja v. Husna, 243 N.C. App. 330,
             354, 777 S.E.2d 781, 794 (2015), which makes clear that
             “[a]ny subject . . . that is open to reasonable debate is not
             appropriate for judicial notice.” Here, the results of the
             purported studies relied on by the State are subject to
             reasonable debate.
                    As this Court has itself observed, there are multiple


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                                        Opinion of the Court



               State and federal reports that counter the “widely held
               assumption that sex offenders recidivate at higher rates
               than other groups.” State v. Grady, ___ N.C. App. ___, ___,
               817 S.E.2d 18, 27-28 (2018). For example, a study of the
               Bureau of Justice Statistics found that “state prisoners in
               general had almost a one in two chance of a new conviction
               . . . .” Chrysanthi Leon et al, Net-widening in Delaware:
               The Overuse of Registration and Residential Treatment for
               Youth Who Commit Sex Offenses, 17 Widener L. Rev. 127,
               145 (2011). Of the released sex offenders, “the sex offense
               recidivism rate was only 5.3% over the three-year follow-
               up period.” Id. Ultimately, because there is no consensus
               on recidivism rates among sex offenders, it is improper
               for the State to use judicial notice to establish such
               recidivism rates.

(Alterations in original).

       This Court noted in Grady II that the defendant had “presented multiple

reports authored by the State and federal governments rebutting the widely held

assumption that sex offenders recidivate at higher rates than other groups.” ___ N.C.

App. at ___, 817 S.E.2d at 27-28. Our SBM statutes themselves also recognize that

rates of recidivism vary for different classes of offenders and offenses, as the

STATIC-99 evaluates the level of the risk of reoffending based upon the type of

offense and characteristics of the particular defendant. See N.C. Gen. Stat. § 14-

208.40A (2017).

       At trial, the State described statistics and studies to support its position that

Defendant’s risk of recidivism was higher because of his status as a sex offender.2


2During the hearing the State informed the trial court “I’ll be reciting some of the statistics, but I
don't have anything to present[,]” and the trial court responded, “Okay.”

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                                   Opinion of the Court



But the studies were not presented to Defendant or the trial court, and there is no

indication in our record or the transcript that the State requested or that the trial

court actually took judicial notice. And as we have already noted, the studies the

State relied upon were not included in the record on appeal.

      Defendant also argues that if the trial court could have taken judicial notice of

the studies and statistics argued by the State, the State still presented no evidence

of the efficacy of SBM. The statistics noted by the State addressed only the risk of

recidivism, but this is just one part of the determination of the reasonableness of

SBM. Defendant argues, and we agree, that the State presented no evidence on the

second part of the analysis of the reasonableness of SBM—whether SBM is actually

effective to prevent recidivism:

             Further, the studies recited by the prosecutor did not
             indicate that SBM would prevent Mr. Anthony himself
             from committing sex crimes upon his release from prison.
             As explained in Riley, it is insufficient for the State to
             merely assert its interest in a search. Any warrantless
             search must actually further the interest claimed. Here,
             the State failed to produce any evidence that SBM was a
             valuable law enforcement tool or that it had ever prevented
             the commission of a crime. It likewise did not put on any
             evidence that Mr. Anthony, who will be 68-years old when
             he is released from prison, actually will present a risk
             to public safety at that time.

(Citation and emphasis omitted.)

        The State’s attempt to distinguish this case from prior SBM cases where the

State presented no evidence to support the reasonableness of SBM fails. The trial


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                                   Opinion of the Court



court did not take judicial notice of the studies mentioned by the State in argument,

nor could it have taken judicial notice under Rule 201. The studies were not offered

into evidence or even presented to defendant or the trial court but only discussed in

argument. Even assuming arguendo that making an argument based upon a study

or statistics to a trial court could enable judicial notice, statistics or studies on the

effectiveness of SBM are neither “generally known within the territorial jurisdiction

of the trial court” nor “capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.” Id. And again, the State

presented no evidence regarding the efficacy of SBM.

                                   IV.    Conclusion

       While defendant has facially challenged the constitutionality of North

Carolina’s SBM program, we decline to address this argument as the order requiring

Defendant to submit to SBM was unreasonable as applied to him and must be

reversed. Despite the State’s attempt to distinguish this case from others where this

Court has overturned SBM orders, we conclude that the statistics and studies

mentioned by the State in its argument were not subject to judicial notice under Rule

201.   In addition, the State presented no evidence on whether SBM is actually

effective to prevent recidivism. Accordingly,

                    [w]e also are bound by this Court’s holding in Grady
             II that when the State has presented no evidence that could
             possibly support a finding necessary to impose SBM, the
             appropriate disposition is to reverse the trial court’s order


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                rather than to vacate and remand the matter for
                re-hearing.

Griffin, ___ N.C. App. at ___, 818 S.E.2d at 342. The trial court’s order imposing

lifetime SBM is reversed.3 As has been noted by other SBM cases, we emphasize that

the State has preserved its arguments for review pending the outcome of the SBM

cases with the Supreme Court of North Carolina.

        REVERSED.

        Judges HAMPSON and YOUNG concur.




3 The parties disagree about the proper mandate given this Court’s mandates in State v. Greene, ___
N.C. App. ___, 806 S.E.2d 343 (2017) (reversing the SBM order), and State v. Gordon, ___ N.C. App.
___, 820 S.E.2d 339 (2018) (vacating the SBM order), among other cases. Because “the State will have
only one opportunity to prove that SBM is a reasonable search of the defendant[,]”Grady II, ___ N.C.
App. at ___, 817 S.E.2d at 28, and, in this case, where the trial court held a hearing on SBM, considered
the constitutionality of enrolling Defendant in SBM when the State referenced statistics and studies
in support of its position, and denied Defendant’s motion to dismiss, it is appropriate to reverse the
trial court’s order requiring Defendant to enroll in lifetime SBM.

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