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State v. Anthony

Court of Appeals of North Carolina

August 20, 2019

STATE OF NORTH CAROLINA
v.
KENNETH RUSSELL ANTHONY

          Heard in the Court of Appeals 8 May 2019.

          Appeal by defendant from order entered on 26 April 2018 by Judge Lori I. Hamilton in Superior Court, Rowan County Nos. 17 CRS 974, 51350, 51353, 51412, 51470.

          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 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)).

         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 proposed permanent no-contact orders for the two victims."[1] As ...


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