                    -THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

             The State, Respondent,

             v.

             Anthony Clark Odom, Appellant.

             Appellate Case No. 2012-206186


                          Appeal from Oconee County
                     R. Lawton McIntosh, Circuit Court Judge


                              Opinion No. 27517 

                    Heard May 21, 2014 – Filed April 22, 2015 


                                   AFFIRMED


             Brian D. McDaniel, of Beaufort, for Appellant.

             Attorney General Alan McCrory Wilson and Assistant
             Attorney General William M. Blitch, Jr., both of
             Columbia, for Respondent.


JUSTICE KITTREDGE: Anthony Clark Odom (Appellant) appeals his
conviction for criminal solicitation of a minor. We affirm.

                                         I.

Appellant's conviction for criminal solicitation of a minor1 followed a series of
internet chat sessions with an undercover Westminster, South Carolina, city police

1
 See S.C. Code Ann. § 16-15-342 (Supp. 2013) (defining the crime of criminal
solicitation of a minor and requiring that the defendant be "eighteen years of age or
older).
officer2 posing as a fourteen-year-old girl. The internet exchanges occurred from
May 4–6, 2006, in Oconee County, South Carolina. A jury found Appellant guilty
of one count of criminal solicitation of a minor, based on the internet chats that
occurred from May 4–5, 2006. Appellant was acquitted of the count involving a
chat room conversation that allegedly occurred on May 6, 2006. The trial court
sentenced Appellant to seven years' imprisonment, suspended upon the service of
five years' probation, along with conditions including registering as a sex offender.
Appellant appealed his conviction, and the Court certified the case from the court
of appeals pursuant to Rule 204(b), SCACR.

                                         II.

"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Therefore, this Court is
bound by the trial court's factual findings unless the appellant can demonstrate that
the trial court's conclusions either lack evidentiary support or are controlled by an
error of law. State v. Laney, 367 S.C. 639, 644, 627 S.E.2d 726, 729 (2006).

                                         A.

Appellant argues that the officer posing as a fourteen-year-old girl must have a
bond to be acting in his official capacity and therefore the trial court erred in
refusing to instruct the jury on the law of bonding.3 We find no error.

First, there is no evidence that the undercover officer, Officer Patterson, was not
bonded. Moreover, Officer Patterson was a municipal police officer with the
Westminster City Police Department. State law does not mandate a bond
requirement for full-time sworn (non-reserve) municipal police officers. Compare
S.C. Code Ann. § 5-7-110 (Supp. 2013) (containing no bond requirement for
municipal police officers), with § 23-7-30 (Supp. 2013) (requiring special state
constables to file a bond before discharging his or her duties), and § 23-13-20

2
 The case was prosecuted by the Attorney General's (AG) Office because the
officer was participating in the AG's Internet Crimes Against Children (ICAC)
Task Force.
3
  See S.C. Code Ann. § 16-15-342(D) ("It is not a defense to a prosecution
pursuant to this section, on the basis of consent or otherwise, that the person
reasonably believed to be under the age of eighteen is a law enforcement agent or
officer acting in an official capacity." (emphasis added)).
(Supp. 2013) (requiring county deputy sheriffs to file a bond before discharging his
or her duties), and § 23-27-70 (Supp. 2013) (requiring deputy sheriffs of
unincorporated areas to provide a bond before discharging his or her duties), and §
23-28-20 (requiring reserve police officers to provide a bond before discharging
his or her duties). Therefore, had the trial judge instructed the jury on a bonding
requirement, it would have been an erroneous instruction. We affirm on this issue.

                                          B.

Appellant next assigns error to the trial court's refusal to dismiss the indictments
due to vindictive prosecution. We find no error.

Initially, the State sought to indict Appellant for his conversations with an
undercover officer in Spartanburg County.4 It was not the State's original intent to
indict Appellant for his conversations with Officer Patterson in Oconee County
that are the subject of this appeal. Rather, the AG's strategy was to try Appellant in
Spartanburg County on other similar charges, and use the evidence gathered in the
Oconee investigation as "prior bad acts" evidence5 in the Spartanburg trial.

Appellant was indicted in Spartanburg County on June 22, 2006. During pre-trial
motions, the court suppressed all of the evidence obtained by the ICAC Task Force
pursuant to 18 U.S.C. §§ 2703(d) (stating requirements for court orders to procure
stored electronic communications) and 3127(2)(B) (2006) (permitting state
criminal courts to "enter orders authorizing the use of a pen register or a trap and
trace device").6 The State appealed this ruling, and on March 30, 2009, this Court

4
 Appellant was indicted in Spartanburg County on one count of criminal
solicitation of a minor for engaging in seventeen separate conversations in an
online chat room with an undercover agent posing as a thirteen-year-old girl.
These conversations allegedly occurred from March 12–May 4, 2006. The
Spartanburg trial resulted in a mistrial because of a hung jury on March 2, 2010.
5
 See Rule 404(b), SCRE (stating that "[e]vidence of other crimes, wrongs, or acts"
may "be admissible to show motive, identity, the existence of a common scheme or
plan, the absence of mistake or accident, or intent"); State v. Lyle, 125 S.C. 406,
118 S.E. 803 (1923) (explaining the permissible uses of evidence of prior bad
acts).
6
 The bulk of the electronic evidence implicating Appellant in the Oconee charges
was obtained using these orders during the Spartanburg investigation.
reversed. See State v. Odom, 382 S.C. 144, 676 S.E.2d 124 (2009).7 The State
planned to proceed with the Spartanburg trial in August 2009.8

In June 2009, Officer Patterson, lead investigator in the Oconee County case, was
dismissed from the police department. Officer Patterson was arrested in
connection with a dispute with his ex-wife, a charge that was ultimately dismissed.
Because the State planned to use evidence from the Oconee investigation in the
Spartanburg trial, Appellant's defense counsel in that trial, James Huff, attempted
to subpoena Patterson's personnel records, including his arrest records.

Before the Spartanburg trial began, the State notified Appellant that it planned to
seek separate indictments in Oconee County. The Spartanburg trial began on
February 22, 2010, and resulted in a mistrial due to a hung jury on March 2, 2010.

On April 12, 2010, a grand jury true billed the indictments in Oconee County.
Appellant asserted that the State chose to prosecute him on the Oconee County
charges in retaliation for counsel Huff's attempts to obtain the Patterson records in
the Spartanburg trial.

The trial court held a pre-trial hearing on Appellant's vindictive prosecution
motion. At the hearing, Huff stated that on February 16, 2010, he spoke to lead
prosecutor Megan Wines on the telephone regarding the Patterson arrest records,
during which Wines told Huff that she had instructed Patterson's criminal defense
attorney to refuse to relinquish the records to Huff because she did not believe that
Huff had the authority to subpoena the information. Wines also indicated that she
was frustrated by Huff's pursuit of these records.

Huff further stated that he again discussed the matter of the records with Wines
two days later. Huff stated that Wines again indicated that she was unhappy with
him for pursuing the Patterson arrest records because she felt they were irrelevant

7
  While the Spartanburg case was under appellate review, the ICAC Task Force
underwent a change in leadership, and Megan Wines replaced David Stumbo as
lead prosecutor. We make note of this in view of the trial court's reference to the
change in leadership. As the trial court found, there was no evidence of
misconduct against either lead prosecutor.
8
 The trial did not actually start on this date because Appellant obtained a
continuance after he hired new trial counsel.
to the Spartanburg charges. Huff related that, as a consequence of his pursuit of
the records, Wines told him, "Fine. We'll just indict [Appellant] in Oconee." Thus,
Huff believed that the AG belatedly chose to indict Appellant in Oconee because
Huff subpoenaed Patterson's records in the Spartanburg trial. According to Huff,
from the time of Appellant's arrest until the second conversation with Wines, he
received no indication from the AG's office that the AG planned to prosecute
Appellant in Oconee County.

In contrast, Wines stated that she initially thought to use the Oconee charges as
Lyle evidence in the Spartanburg trial in furtherance of the trial strategy devised by
her predecessor, Solicitor Stumbo. However, prior to the call of the case in
Spartanburg, she changed her mind because she felt that using the charges in such
a way was complicating matters in the Spartanburg trial, and that Patterson's arrest
was "too collateral an issue" to deal with in the Spartanburg case. She was also
worried that the subpoena issue would further delay the start of the Spartanburg
trial, which had already been delayed numerous times, including for the appeal of
the pre-trial evidentiary ruling. Therefore, Wines claimed she decided to pursue
indictments in Oconee County, where Patterson led the investigation, and where
his arrest records would be more directly relevant. She further testified that
another change in strategy was to seek separate indictments for each conversation
due to the mistrial in Spartanburg where a single indictment for all of the
conversations resulted in confusion for the jury.

While Wines admitted that she was irritated with Huff for serving subpoenas that
she did not believe he had the authority to pursue, Wines testified that her decision
to seek the indictments in Oconee County ultimately came down to a change in
trial strategy:

      And I was frustrated that the matter had come to Judge Hayes
      ordering that we would have a hearing on attorney/client privilege
      with regard to Mark Patterson's records which were not instrumental
      to the Spartanburg trial . . . . There was gonna [sic] be potential Lyle
      evidence, and I don't know that we would have ever gotten it in.

      So it made sense to me at that point that I believe separate crimes had
      been committed, it made sense to change trial strategy and to go ahead
      and have those sent to the Oconee County Grand Jury, which was
      done in May.

The trial court denied Appellant's motion, stating:
      I don't find that there was established any actual malice or evidence
      that would rise to an implied malice or vindictiveness. I think under
      the circumstances the explanation given by the State was reasonable,
      and given the wide discretion given to prosecutors, the evidence
      doesn't amount to the level that would give rise to the draconian
      remedy of dismissing the warrants.

"It is a due process violation to punish a person for exercising a protected statutory
or constitutional right." State v. Fletcher, 322 S.C. 256, 259–60, 471 S.E.2d 702,
704 (Ct. App. 1996) (citing United States v. Goodwin, 457 U.S. 368, 372 (1982));
see also United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001) (stating if a
prosecutor "responds to a defendant's successful exercise of his right to appeal by
bringing a more serious charge against him, he acts unconstitutionally"); United
States v. Lanoue, 137 F.3d 656, 664–65 (1st Cir. 1998) (stating that such
retaliatory conduct amounts to vindictive prosecution and "violates a defendant's
Fifth Amendment right to due process"). On a claim of vindictive prosecution,
courts generally "review the [trial court's] legal conclusions de novo and its
findings of fact for clear error." United States v. Jarrett, 447 F.3d 520, 524 (7th
Cir. 2006) (citing United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003)).
"A claim of prosecutorial vindictiveness turns on the facts of each case." People v.
Hall, 726 N.E.2d 213, 220 (Ill. App. Ct. 2000).

Courts will "reverse a conviction that is the result of a vindictive prosecution where
the facts show an actual vindictiveness or a sufficient likelihood of vindictiveness
to warrant . . . a presumption [of vindictiveness]." Barrett v. Virginia, 585 S.E.2d
355, 365 (Va. Ct. App. 2003) (citations omitted), aff'd, 597 S.E.2d 104 (Va. 2004).

"To demonstrate actual vindictiveness, a defendant must show that the government
harbored 'vindictive animus' and that the superseding indictment was brought
'solely to punish' him." United States v. Bell, 523 F. App'x 956, 959 (4th Cir.
2013) (quoting Wilson, 262 F.3d at 316). In other words, to prove a claim of actual
vindictiveness, "a defendant must show, through objective evidence, that (1) the
prosecutor acted with genuine animus toward the defendant and (2) the defendant
would not have been prosecuted but for that animus." Wilson, 262 F.3d at 314
(citations omitted); see also United States v. Sanders, 211 F.3d 711, 716–17 (2d
Cir. 2000) ("To establish an actual vindictive motive, a defendant must prove
objectively that the prosecutor's charging decision or the resultant indictments were
a direct and unjustifiable penalty, that resulted solely from the defendant's exercise
of a protected legal right." (internal citations and quotation marks omitted)).
      Accordingly, while the prosecutor's charging decision is
      presumptively lawful, and the prosecutor is not required to sustain any
      burden of justification for an increase in charges, the defendant is free
      to tender evidence to the court to support a claim that enhanced
      charges are a direct and unjustifiable penalty for the exercise of a
      procedural right. Of course, only in a rare case would a defendant be
      able to overcome the presumptive validity of the prosecutor's actions
      through such a demonstration.

Goodwin, 457 U.S. at 384 n.19 (internal quotation marks omitted).

Likewise, a presumption of vindictiveness may arise if a criminal defendant
establishes that "circumstances surrounding the initiation of the prosecution . . .
'pose[d] a realistic likelihood of vindictiveness.'" Wilson, 262 F.3d at 317 (quoting
Blackledge v. Perry, 417 U.S. 21, 27 (1974)). "If the defendant creates a
presumption of vindictiveness the burden shifts to the government to show that
legitimate reasons exist for the prosecution." Barrett, 585 S.E.2d at 365 (citations
omitted). When determining if a presumption of vindictiveness is warranted,

      the appropriate inquiry is whether . . . for example, where, after the
      defendant's prior exercise of a procedural or substantive legal right, or
      his having succeeded in reversing a conviction on appeal, the
      prosecution acts arguably to punish the exercise of such rights, by
      increasing the measure of jeopardy by bringing additional or more
      severe charges, or where the judge assesses a larger penalty upon
      subsequent conviction for the same offense following an earlier
      reversal.

United States v. Ward, 757 F.2d 616, 619–20 (5th Cir. 1985).

Despite the prosecutor's candid omission that she was irritated with Huff, we find
Appellant has fallen far short of presenting evidence tending to show that
vindictiveness played any role in the decision to prosecute the Oconee County
charges. We join the able trial judge in rejecting the claim of vindictiveness under
these circumstances. In so holding, we note that a defendant asserting
prosecutorial misconduct carries a "heavy burden of proving that the . . .
prosecution 'could not be justified as a proper exercise of prosecutorial discretion.'"
Wilson, 262 F.3d at 316 (quoting Goodwin, 457 U.S. at 380 n.12); see State v.
Dawkins, 297 S.C. 386, 389, 377 S.E.2d 298, 300 (1989) ("[A]n initial decision by
the prosecutor should not freeze future conduct, because the initial charges filed by
a prosecutor may not reflect the extent to which an individual is legitimately
subject to prosecution."); see also Goodwin, 457 U.S. at 382 ("A prosecutor should
remain free before trial to exercise the broad discretion entrusted to him to
determine the extent of the societal interest in prosecution."); United States v.
Esposito, 968 F.2d 300, 306 (3d Cir. 1992) ("We will not apply a presumption of
vindictiveness to a subsequent criminal case where the basis for that case is
justified by the evidence and does not put the defendant twice in jeopardy. Such a
presumption is tantamount to making an acquittal a waiver of criminal liability for
conduct that arose from the operative facts of the first prosecution. It fashions a
new constitutional rule that requires prosecutors to bring all possible charges in an
indictment or forever hold their peace . . . . We reject such a proposition for it
undermines lawful exercise of discretion as well as plain practicality."); cf. State v.
Langford, 400 S.C. 421, 435 n.6, 735 S.E.2d 471, 479 n.6 (2012) (stating a
prosecutor "has discretion in choosing how to proceed with a case, including
whether to prosecute in the first place and whether he brings it to trial or offers a
plea bargain.").

                                          C.

Appellant argues that the trial court erred by taking judicial notice of an element of
the offense, Appellant's age. We agree but find the error harmless.

The State requested the trial court take judicial notice under Rule 201(b), SCRE, of
Appellant's date of birth based on certified copies of records from the Department
of Motor Vehicles (DMV). Further, the State asserted that because the document
was a certified record of the DMV, the trial judge did not have discretion to
"question it." The trial court accepted the State's argument and ruled that it would
take judicial notice of Appellant's date of birth, June 22, 1973, based on section 19-
5-30 (concerning certification of governmental records), Rule 901(7), SCRE
(concerning authentication of records), and also Rule 201(b)(2) and (g), SCRE
(concerning judicial notice).

Thereafter, the trial judge instructed the jury:

      [L]adies and gentlemen of the jury, I have taken judicial notice of a
      fact. That means that you are not allowed to debate whether or not it's
      true or accurate. I charge you that you must find as conclusive the
      fact that [Appellant's] date of birth is June 22nd, 1973. That's June
      22nd, 1973, and you shall not and you are not allowed to debate that.
      You must accept that as a conclusive fact.

Appellant contends that the trial court erred in instructing the jury to take judicial
notice of Appellant's date of birth because his age was an element of the crime
charged. We agree. To withstand a constitutional challenge, Rule 201 cannot be
construed as a license to conclusively establish a fact that is an element of the
offense charged.

Rule 201, SCRE, governing judicial notice, provides:

      (a) Scope of Rule. This rule governs only judicial notice of 

      adjudicative facts. 


      (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 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. 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.

      (f) Time of Taking Notice. Judicial notice may be taken at any stage
      of the proceeding.

      (g) Instructing Jury. The court shall instruct the jury to accept as
      conclusive any fact judicially noticed.
The State correctly points out that "'Courts will take judicial notice of subjects and
facts of general knowledge, and also of facts in the field of any particular science
which are capable of demonstration by resort to readily accessible sources of
indisputable accuracy, and judges may inform themselves as to such facts by
reference to standard works on the subject.'" In re Harry C., 280 S.C. 308, 309–10,
313 S.E.2d 287, 288 (1984) (quoting State v. Newton, 204 S.E.2d 724, 725 (N.C.
Ct. App. 1974)). But the State overlooks the mandatory nature of a judicially
noticed fact under our version of Rule 201 juxtaposed to the constitutionally
imposed burden that the State prove each element of the offense.

In all criminal prosecutions, "[t]he government must prove beyond a reasonable
doubt every element of a charged offense." Victor v. Nebraska, 511 U.S. 1, 5
(1994) (citing In re Winship, 397 U.S. 358, 364 (1970)); see Dervin v. State, 386
S.C. 164, 168, 687 S.E.2d 712, 713 (2009) ("Due process requires the State to
prove every element of a criminal offense beyond a reasonable doubt." (citing State
v. Brown, 360 S.C. 581, 595, 602 S.E.2d 392, 400 (2004))). Here, the jury was
instructed to accept as conclusively determined that Appellant was born on June
22, 1973, which established Appellant as eighteen years or older at the time of the
offense. The taking of judicial notice of Appellant's date of birth was tantamount
to a directed verdict on the element of the accused's age, a practice which is clearly
forbidden. See United Bhd. of Carpenters & Joiners of Am. v. United States, 330
U.S. 395, 408 (1947) ("[A] judge may not direct a verdict of guilty no matter how
conclusive the evidence.").

The jury was instructed, "you are not allowed to debate whether or not it's true or
accurate . . . you shall not and you are not allowed to debate that. You must accept
that as a conclusive fact." This was error. The federal courts largely avoid this
problem, for Federal Rule of Evidence 201(f) is permissive and states that the jury
"may or may not accept the noticed fact as conclusive." Thus, federal courts have
typically rejected challenges similar to Appellant's when the jury was properly
instructed that it was free to accept or reject the noticed fact. See, e.g., United
States v. Bello, 194 F.3d 18, 25 (1st Cir. 1999) ("[T]here is widespread agreement
that [Federal Rule of Evidence 201(f)], which makes judicial notice non-conclusive
in criminal cases, adequately safeguards the criminal defendant's [constitutional
rights]."); United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994) (holding
that a court does not "usurp the jury's fact-finding role by taking judicial notice"
when the jury is instructed that it is not required to accept the noticed fact as
conclusive).
Although we hold that the trial court erred in taking judicial notice of Appellant's
age in this case, "most constitutional errors can be harmless." Arizona v.
Fulminante, 499 U.S. 279, 306 (1991) (citations omitted). Indeed, the United
States Supreme Court "has applied harmless-error review in cases where the jury
did not render a 'complete verdict' on every element of the offense." Neder v.
United States, 527 U.S. 1, 13 (1999). This harmless error standard "serve[s] a very
useful purpose insofar as [it] block[s] setting aside convictions for small errors or
defects that have little, if any, likelihood of having changed the result of the trial."
Chapman v. California, 386 U.S. 18, 22 (1967).

We find the error in this case to be harmless beyond a reasonable doubt in light of
the properly admitted evidence that Appellant was eighteen years or older at the
time of the underlying offense. Specifically, Appellant repeatedly acknowledged
in the Internet chats (with a person he believed to be a minor) that he was over the
age of eighteen. In fact, Appellant claimed to be forty years old and emphasized
the vast age difference between himself and the purported minor, describing
himself as "alot [sic] older" than the minor. This evidence together with the jury's
ability to view Appellant's appearance in the courtroom provides a proper basis on
which to find the error in this case harmless beyond a reasonable doubt. See State
v. Lauritsen, 261 N.W.2d 755, 757 (Neb. 1978) ("It is uniformly the rule that a
defendant's physical appearance may be considered by the jury in determining his
or her age. It has been held, however, that the jury may not fix the age of the
defendant by merely observing him during the trial; and that there must be some
other evidence in conjunction with the appearance of the defendant." (emphasis
added) (citations omitted)).

                                          D.
Appellant finally contends that section 16-15-342 of the South Carolina Code
violates his rights to equal protection and free speech and is unconstitutional. We
disagree and affirm pursuant to Rule 220(b)(1), SCACR, and the following
authorities: State v. Gaster, 349 S.C. 545, 549–50, 564 S.E.2d 87, 89–90 (2002)
("When the issue is the constitutionality of a statute, every presumption will be
made in favor of its validity and no statute will be declared unconstitutional unless
its invalidity appears so clearly as to leave no doubt that it conflicts with the
constitution."); see Bodman v. State, 403 S.C. 60, 69, 742 S.E.2d 363, 367 (2013)
("A classification will survive rational basis review when it bears a reasonable
relation to the legislative purpose sought to be achieved, members of the class are
treated alike under similar circumstances, and the classification rests on a rational
basis." (citation omitted)); State v. Green, 397 S.C. 268, 277–78, 724 S.E.2d 664,
668 (2012) (rejecting a First Amendment challenge to section 16-15-342 and
noting that "[c]ourts have recognized that speech used to further the sexual
exploitation of children does not enjoy constitutional protection." (quotation
omitted)).

                                      III.

Appellant's conviction and sentence are affirmed.


AFFIRMED.

PLEICONES, BEATTY and HEARN, JJ., concur. TOAL, C.J., concurring in
a separate opinion.
CHIEF JUSTICE TOAL: While I concur in the result reached by the majority, I
write separately because I disagree that the trial judge's decision to take judicial
notice of Appellant's birthdate was an error of law.

      At trial, the State provided the judge with certified DMV records indicating
Appellant's date of birth, but did not formally seek to enter the DMV records into
evidence. The trial judge then instructed the jury:

      [L]adies and gentlemen of the jury, I have taken judicial notice of a
      fact. That means that you are not allowed to debate whether or not it's
      true or accurate. I charge you that you must find as conclusive the fact
      that [Appellant's] date of birth is June 22, 1973. That's June 22, 1973,
      and you shall not and you are not allowed to debate that. You must
      accept that as a conclusive fact.

      Rule 201, SCRE, governing judicial notice, provides:

      (a) Scope of Rule. This rule governs only judicial notice of 

      adjudicative facts. 


      (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 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. 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.

      (f) Time of Taking Notice. Judicial notice may be taken at any stage
      of the proceeding.
      (g) Instructing Jury. The court shall instruct the jury to accept as
      conclusive any fact judicially noticed.

       "'A trial court may take judicial notice of a fact only if sufficient notoriety
attaches to the fact involved as to make it proper to assume its existence without
proof.'" Bowers v. Bowers, 349 S.C. 85, 94, 561 S.E.2d 610, 615 (Ct. App. 2002)
(quoting Eadie v. H.A. Sack Co., 322 S.C. 164, 171–72, 470 S.E.2d 397, 401 (Ct.
App. 1996)); see also Moss v. Aetna Life Ins. Co., 267 S.C. 370, 377, 228 S.E.2d
108, 112 (1976) ("'Judicial notice' takes the place of proof. It simply means that the
court will admit into evidence and consider, without proof of the facts, matters of
common and general knowledge."). This is because "'courts are not required to be
ignorant of a fact which is generally and reliably established merely because
evidence of the fact is not offered.'" In re Harry C., 280 S.C. 308, 309–10, 313
S.E.2d 287, 288 (1984) (quoting State v. Newton, 204 S.E.2d 724, 725 (N.C. Ct.
App. 1974)). Rather, courts "'will take judicial notice of subjects and facts of
general knowledge, and also of facts in the field of any particular science which are
capable of demonstration by resort to readily accessible sources of indisputable
accuracy, and judges may inform themselves as to such facts by reference to
standard works on the subject.'" Id. (quoting Newton, 204 S.E.2d at 725).

      The offense of criminal solicitation of a minor occurs where:

      A person eighteen years of age or older . . . knowingly contacts or
      communicates with, or attempts to contact or communicate with, a
      person who is under the age of eighteen, or a person reasonably
      believed to be under the age of eighteen, for the purpose of or with the
      intent of persuading, inducing, enticing, or coercing the person to
      engage or participate in a sexual activity as defined in Section 16-15-
      375(5) or a violent crime as defined in Section 16-1-60, or with the
      intent to perform a sexual activity in the presence of the person under
      the age of eighteen, or person reasonably believed to be under the age
      of eighteen.

S.C. Code Ann. § 16-15-342(A) (Supp. 2013). Thus, the element of the crime
related to age is whether the accused is eighteen years of age or older. See id.

       Because the trial judge took judicial notice of Appellant's date of birth, I
disagree with the majority's characterization of the trial judge's action in this case
as taking judicial notice of an "element" of the offense. While I concede that the
taking of judicial notice of Appellant's birth date likely resulted in the foregone
conclusion that Appellant was over the age of eighteen, the fact that the trial judge
did not directly instruct the jury to find Appellant "over the age of eighteen" is a
notable, albeit technical, distinction. As stated previously, a fact properly
judicially noticed is any fact "not subject to reasonable dispute in that it is either . .
. generally known within the territorial jurisdiction of the trial court or . . . capable
of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Rule 201(b), SCRE. In my opinion, the DMV records
containing Appellant's date of birth fall within this definition. Cf. Martin v. Bay,
400 S.C. 140, 153, 732 S.E.2d 667, 674 (Ct. App. 2012) (finding the Master erred
in taking judicial notice of a fact based on his "personal knowledge" because the
fact was not "one of common knowledge accepted by the general public without
qualification or contention").

       Moreover, even though the result of the taking of judicial notice of
Appellant's birth date is that Appellant's age was almost conclusively established,
by providing the jury with Appellant's birth date, the jury still had to take the
additional step of applying this fact to establish the element of the crime. In this
respect, taking judicial notice of Appellant's date of birth is no different from
taking judicial notice of the time of sunset in a burglary case, in which one of the
elements of the crime is that the robbery must occur at nighttime.9 In either case,
the jury is provided with an indisputable fact—Appellant's birthdate, or the time of
sunset—which it must then use to determine whether the State has established an
element of the crime—whether Appellant was over eighteen when engaging in
sexually explicit conversations with a minor, or whether the robbery occurred at
night. These examples illustrate the critical distinction—ignored by the majority—
between taking judicial notice of an adjudicative fact, and taking judicial notice of
an element of the crime. In my opinion, the majority's reasoning will lead to
unnecessary challenges whenever a judge takes judicial notice, because the fact
noticed almost always corroborates an element of the offense.


9
  See, e.g., James v. State, 546 S.W.2d 306, 310 (Tex. Crim. App. 1977)
(recognizing that a court may "take judicial notice of the time the sun rose and set
on the day of a burglary for purposes of determining if such burglary was
committed in the 'daytime'" (citation omitted)); cf. Toole v. Salter, 249 S.C. 354,
362, 154 S.E.2d 434, 437 (1967) (finding that where the relevant statute provided
that a parked vehicle must display lights one-half hour after sunset, the trial court
committed prejudicial error in failing to take judicial notice of the time of sunset
on the day of the collision).
      Accordingly, I would affirm the trial judge's decision to take judicial notice
of Appellant's date of birth.
