267 N.C. App. 45
N.C. Ct. App.2019Background
- Kenneth Russell Anthony pleaded Alford to multiple sex- and violence-related offenses and was sentenced to 216–320 months.
- After sentencing, the State petitioned for lifetime satellite-based monitoring (SBM); Anthony moved to dismiss.
- At the SBM hearing the State made argument citing studies and statistics about sex-offender recidivism and SBM efficacy but did not introduce the studies into evidence or request judicial notice.
- The trial court denied Anthony’s motion and ordered lifetime SBM; Anthony appealed.
- The Court of Appeals reviewed whether the State met its burden to show SBM is a reasonable search as applied to Anthony, focusing on (1) the defendant’s recidivism risk and (2) empirical evidence that SBM actually reduces recidivism.
Issues
| Issue | State's Argument | Anthony's Argument | Held |
|---|---|---|---|
| Whether the trial court could rely on studies/statistics the State cited without the studies being in the record or formally noticed | The court could take judicial notice of DOJ studies (accuracy not reasonably questioned) and consider the State’s recited statistics | The State’s citations were argument-only, not evidence; judicial notice was improper because recidivism rates and SBM efficacy are subject to reasonable dispute | The court may not rely on uncited, unintroduced studies; the State did not present admissible evidence supporting its recidivism claims or efficacy of SBM, so judicial notice was not appropriate |
| Whether the State proved SBM is a reasonable, constitutional search as applied to Anthony | The State argued general recidivism statistics support reasonableness of SBM for sex offenders | Anthony argued the State failed to prove SBM’s effectiveness to prevent recidivism for him and that the State offered no evidence at the Grady hearing | The Court reversed: absent evidence that SBM actually prevents recidivism (as applied), imposing lifetime SBM is unreasonable; the State presented no such evidence here |
Key Cases Cited
- State v. Grady, 817 S.E.2d 18 (N.C. Ct. App. 2018) (requires individualized Grady hearings and two-part reasonableness analysis for SBM)
- State v. Griffin, 818 S.E.2d 336 (N.C. Ct. App. 2018) (reversed/vacated SBM order where State presented no efficacy evidence)
- State v. Greene, 806 S.E.2d 343 (N.C. Ct. App. 2017) (reversal of SBM order for insufficient evidence)
- State v. Gordon, 820 S.E.2d 339 (N.C. Ct. App. 2018) (vacated SBM order; discussed remand vs. reversal)
- State v. Collins, 478 S.E.2d 191 (N.C. 1996) (argument of counsel is not evidence)
- Khaja v. Husna, 777 S.E.2d 781 (N.C. Ct. App. 2015) (judicial notice not appropriate for matters open to reasonable debate)
- State v. Bowditch, 700 S.E.2d 1 (N.C. 2010) (standard for de novo review of constitutional legal questions)