State v. Davis

360 Or. 201

377 P.3d 583

State of Oregon, Respondent on Review

v.Robert Gordon Davis, Petitioner on Review.

CC 131084

CA A154382

SC S063216

Supreme Court of Oregon.

August 11, 2016

Argued and submitted November 13, 2015.

Rond Chananudech, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Shannon T. Reel, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, and Nakamoto, Justices.^**

LANDAU, J.

Two police officers approached defendant, suspecting that he had been involved in an assault. Defendant bolted. The police ran after him, yelling, “Stop, police!” Defendant kept running away. The issue in this case is whether, in running from the police, defendant committed the criminal offense of third-degree escape. The statute that defines the offense requires proof that the defendant was in custody at the time of the escape. ORS 162.145(1). The trial court concluded that the police, in shouting for defendant to stop, had effectively placed him in “constructive custody.” The Court of Appeals agreed, affirming without a written opinion. State v. Davis , 270 Or.App. 351, 350 P.3d 234 (2015). We conclude that police merely shouting for another person to stop does not place that person in custody for the purposes of establishing third-degree escape. We therefore reverse.

The relevant facts are not in dispute. Defendant threatened and assaulted two people outside of a store, and two uniformed officers were dispatched to the area. When the officers arrived, one of them saw defendant walking away from a group of people. Believing that defendant was the perpetrator, the officer got out of his patrol car and identified himself as a police officer. Defendant ran away. The officer chased him and repeatedly yelled “Stop, police!” The other officer pursued defendant in his patrol car, activating its overhead emergency lights and siren. Defendant kept running and continued to run from the officers until they apprehended him. The state ultimately charged him with third-degree escape for fleeing from police after the officer commanded him to stop.

At trial, defendant moved for a judgment of acquittal, arguing that the state failed to prove that he had been in custody for purposes of the third-degree escape statute. Specifically, he argued that the police did not constructively place him in custody merely by shouting “Stop police!” and following him with the police siren on. In response, the state argued that “with the police yelling—telling [defendant] they were police, telling him to stop, being in clear uniform * * * would count as the escape from custody.”

The trial court denied defendant's motion, concluding that defendant had been constructively restrained:

“Well, I think on that one, where you have ‘stop’ and then ‘stop, police,’ at least—while we were waiting for your last witness, it would have been nice if it had said, ‘stop, you're under arrest, stop police,’ but I think saying, ‘stop, stop, police’ is sufficient to establish a person is in * * * constructive custody.”

Defendant was convicted. He appealed, assigning error to the trial court's denial of his motion for judgment of acquittal. The Court of Appeals affirmed without a written opinion.

Before this court, defendant argues that there was no evidence that, when he ran from police, he was escaping from “custody” as required by ORS 162.145(1), the statute that defines the elements of third-degree escape. Defendant notes that ORS 162.135(4) defines “custody” as the imposition of “actual or constructive restraint * * * pursuant to an arrest or court order.” As defendant sees it, the statute's wording is significant in two respects. First, it refers to an escape from restraint that was imposed pursuant to an “arrest.” Defendant argues that the term “arrest” is one of art and refers to “formally taking a person into custody or actually restraining a person.” Second, defendant notes that the statute refers to the escape from restraint “pursuant to” such an act of formally taking a person into custody or actually restraining the person. Thus, defendant concludes, third-degree escape occurs only when a person escapes from restraint “after a formal arrest,” which he insists necessarily involves being taken into physical custody. (Emphasis added.) Said another way, defendant sees the statute as requiring a specific sequence of events: First, the police must formally arrest a person by taking him or her into physical custody. Second, thereafter, a person may commit third-degree escape if he or she escapes from actual or constructive restraint. In this case, defendant argues, the police had not yet placed him in physical custody before he escaped. They merely yelled, “Stop, police!”

The state responds that defendant's proposed interpretation is contrary to the wording of the relevant statutes, which refer to escape from actual or constructive restraint during the course of an arrest, not necessarily after formal, physical custody has been achieved. In the state's view, the evidence shows that police placed defendant in constructive custody by yelling, “Stop, police,” in the course of trying to arrest him. When defendant ran away, the state concludes, he committed third-degree escape.

The parties' arguments thus require two things of us. First, we must determine what is required to establish the elements of the offense of third-degree escape. That presents a question of statutory construction, which necessitates an examination of the text of relevant statutes in context, along with any pertinent legislative history and other aids to construction. State v. Gaines , 346 Or. 160, 171–73, 206 P.3d 1042 (2009). Second, we must determine whether the state offered sufficient evidence to survive defendant's motion for a judgment of acquittal. That requires us to view the facts and all reasonable inferences that can be drawn from them in the light most favorable to the state, to assess whether a reasonable finder of fact could find proof of each of the elements of the offense beyond a reasonable doubt. State v. Waterhouse , 359 Or. 351, 353, 373 P.3d 131 (2016).

We begin with the elements of the offense of third-degree escape. ORS 162.145(1) provides that “[a] person commits the crime of escape in the third degree if the person escapes from custody.” An “escape” is the “unlawful departure of a person from custody.” ORS 162.135(4). It includes running away. See State v. Lonergan , 344 Or. 15, 21, 176 P.3d 374 (2008) (defendant committed third-degree escape when he “stood up and ran” from custody). “Custody,” in turn, means the “imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but does not include detention in a correctional facility, youth correction facility, or a state hospital.” ORS 162.135(5).

The legislature has not defined the key terms of the statutory definition of “custody”—“constructive restraint” or “pursuant to an arrest”—and this court has not yet had occasion to interpret them. “Constructive” ordinarily means “[i]nferred—often used in law of an act or condition assumed from other acts or conditions which are considered by inference or by public policy as amounting to or involving the act or condition assumed.” Webster's Third New Int'l Dictionary 489 (unabridged ed. 2002); see also Black's Law Dictionary 333 (4th ed. 1968) (defining “constructive” as “[t]hat which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law”). “Restraint” usually refers to “the condition of being restrained, checked, or controlled : deprivation of liberty : confinement.” Webster's at 1937. Taken together, those definitions suggest that a person is subject to “constructive restraint” when an officer lawfully asserts authority to control a person's actions or freedom of movement, even if the officer does not have physical control of the person.

That leaves the requirement that the act of placing another person in actual or constructive restraint have been taken “pursuant to” an “arrest.” The former term generally refers to “in the course of carrying out” or “in conformance to or agreement with : according to.” Webster's at 1848; see also Black's at 1401 (“in accordance with or by reason of something; conformable; in accordance; agreeably; conform-ably; a carrying out or with the effect, the act of executing”). Thus, in State v. McVay , 313 Or. 292, 833 P.2d 297 (1992), this court held that a defendant had not committed third-degree escape when he ran from police officers who had lacked authority to arrest him at that time. The court explained that, although the officers had restrained him before he had escaped, that restraint was not “pursuant to an arrest.” Id . at 295–96, 833 P.2d 297.¹

The term “arrest” itself is not defined in the statute setting out the elements of the offense. At the time of the enactment of ORS 162.135(4), however, there did exist two other statutory definitions of “arrest.” See generally State v. McClure, 355 Or. 704, 708, 335 P.3d 1260 (2014) (describing history of statutory definitions of “arrest”). One defined the term to mean “the taking of a person into custody so that he may be held to answer for a crime.” Former ORS 133.210 (1969), repealed by Or. Laws 1973, ch. 836, § 358. The other provided that “[a]n arrest is made by an actual restraint of the person of the defendant or by his submission to the custody of the officer.” Former ORS 133.250, repealed by Or. Laws 1973, ch. 836, § 358.² Both of those are consistent with the ordinary meaning of...