State v. Ashbaugh

301 P.3d 972, 256 Or. App. 739, 2013 WL 2250590, 2013 Ore. App. LEXIS 557
CourtCourt of Appeals of Oregon
DecidedMay 22, 2013
Docket090002CR; A147736
StatusPublished
Cited by1 cases

This text of 301 P.3d 972 (State v. Ashbaugh) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ashbaugh, 301 P.3d 972, 256 Or. App. 739, 2013 WL 2250590, 2013 Ore. App. LEXIS 557 (Or. Ct. App. 2013).

Opinion

EGAN, J.

Defendant appeals a judgment convicting him of second-degree escape, ORS 162.155, assigning error to the trial court’s denial of his motion for judgment of acquittal (MJOA). Defendant contends that there was insufficient evidence from which a rational trier of fact could find that he was in custody and that he used or threatened force while escaping. We affirm.

Because this case arises from defendant’s MJOA, we state the facts in the light most favorable to the state. See State v. Alexander, 238 Or App 597, 599, 243 P3d 476 (2010), rev den, 349 Or 654 (2011). At the time of the relevant events, defendant was on post-prison supervision (PPS), a condition of which was that defendant submit to a mental health evaluation. Defendant’s PPS supervisor told defendant on multiple occasions that he was required to have the mental health evaluation completed and eventually told defendant that he would receive sanctions if he failed to comply with that PPS condition. Ultimately, the supervisor called defendant to inquire about whether he had undergone the evaluation and, when defendant told the supervisor that he was not going to submit to the evaluation, told defendant to report to a particular jail to receive sanctions. Defendant told his supervisor that he would not do so.

As a result, a detention warrant was issued for defendant’s arrest. Two police officers, Osborn and Garibay, went looking for defendant and encountered him outside of a restaurant. Garibay told defendant that they needed to talk with him and that they had a detainer for his arrest. Defendant responded that he would not go with them and ran away from the officers. The officers chased him, telling him to stop because he was under arrest.

Defendant crossed a creek that was behind the restaurant. From across the creek, defendant asked the officers why they were chasing him. Osborn responded that they had a warrant and were placing defendant under arrest. Defendant did not respond and continued to run from the officers. Garibay then crossed the creek, while Osborn pursued defendant on the other side. At some point, defendant told the officers, “If you want a war, you just wait. We’re going to [741]*741have a war. You better watch your back.” Osborn once again told defendant to stop because he was under arrest. Defendant said to Garibay, “Come on, fat boy. You want a war, you got one.”

The officers eventually lost track of defendant. After searching for about 10 minutes, they found him hiding under a tree, and, as they approached him from different directions, defendant told them that he would cooperate with them. Garibay, who was approximately 15 to 20 feet from defendant, instructed him to put his hands up and allow the officers to arrest and handcuff him. Garibay had drawn his Taser and pointed it at defendant. Defendant asked Garibay what he was going to do with the Taser, and Garibay responded that, if defendant did not comply and allow Osborn to put handcuffs on him, then he would shoot defendant with the Taser. Defendant told Garibay that, if he shot him with the Taser, defendant would come after Garibay. Defendant then turned and ran from the officers, and Garibay shot him with the Taser, which hit and immobilized him.

The officers tried to handcuff defendant but had difficulty because he was swinging his arms around and kicking his legs. Garibay activated his Taser again, holding the trigger down until Osborn was able to handcuff defendant.

Defendant was charged with escape in the second degree, ORS 162.155, for unlawfully and knowingly threatening to use physical force to escape from custody.1 After the state submitted evidence of the foregoing events, defendant moved for a judgment of acquittal on the escape count. The trial court denied defendant’s motion and found bim guilty of second-degree escape.

Defendant appeals, contending that the court erred in denying his MJOA. “We review a trial court’s denial of a motion for judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable [742]*742doubt.” State v. Kaylor, 252 Or App 688, 691, 289 P3d 290 (2012), rev den, 353 Or 428 (2013). Defendant contends that the state’s evidence was insufficient to establish that he was in custody and that, assuming that he was in custody, the state’s evidence was insufficient to establish that he threatened to use physical force while escaping from custody.

A person commits second-degree escape if, among other things, the “person uses or threatens to use physical force escaping from custody[.]” ORS 162.155(1)(a). Escape is defined as the “unlawful departure of a person from custody [.]” ORS 162.135(5). Custody is defined as “the imposition of actual or constructive restraint by a peace officer pursuant to an arrest[.]” ORS 162.135(4). Thus, a person commits second-degree escape if, among other things, the person uses or threatens to use physical force while unlawfully departing from the imposition of actual or constructive restraint by a peace officer pursuant to an arrest.

Defendant contends that he was never in custody and, thus, could not escape from custody, because the officers never actually or constructively restrained him. The state does not contend that the officers actually restrained defendant and, instead, contends that the officers constructively restrained defendant. Defendant challenges that contention, arguing that a person is not constructively restrained unless that person is under the physical control of a peace officer. We disagree.

Constructive restraint is “control that is imputed as a matter of law, even if the control does not exist in fact.” Alexander, 238 Or App at 603. Imposition of constructive restraint depends on whether the restraint was for the purpose of arrest and whether, in the totality of the circumstances, the peace officer’s purpose to apprehend the person was manifested. Id. at 603-04. Although no “particular oral litany is necessary to establish constructive restraint,” id. at 603, a person is under constructive restraint when an officer tells the person that he is under arrest. See State v. Thomas, 229 Or App 453, 460, 211 P3d 979, rev den, 347 Or 349 (2009) (concluding that a defendant was in custody because an officer stated “words of arrest manifesting the purpose of [743]*743apprehending a defendant”). Thus, an officer’s statements are sufficient to establish constructive restraint over a person even without the officer imposing physical control over the person.

It is possible that, as defendant fled from the officers, the officers constructively restrained him numerous times because the officers repeatedly told defendant that he was under arrest.

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Bluebook (online)
301 P.3d 972, 256 Or. App. 739, 2013 WL 2250590, 2013 Ore. App. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ashbaugh-orctapp-2013.