State v. Womack

847 P.2d 609, 174 Ariz. 108, 122 Ariz. Adv. Rep. 65, 1992 Ariz. App. LEXIS 274

• Court: Court of Appeals of Arizona
• Decided: September 29, 1992
• Docket: 1 CA-CR 89-753
• Status: Published

Opinions

OPINION

TAYLOR, Presiding Judge, Retired.

In our review of this case, we focus upon the distinction between avoiding arrest and resisting arrest.

Pursuant to a plea agreement, Wesley Alan Womack (“defendant”) pled guilty to three charges: flight from a pursuing law enforcement vehicle, a class 5 felony; possession of marijuana, a class 6 felony; and resisting arrest, a class 6 felony. The trial court suspended defendant’s sentence and imposed three years intensive probation on each count. As a condition of probation, defendant was ordered to serve one year in the county jail.

Defendant’s plea of guilty to the charge of resisting arrest was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant appeals only from his conviction on this charge, contending that the State failed to set forth a sufficient factual basis for his conviction under the resisting arrest statute, Ariz.Rev.Stat.Ann. (“A.R.S.”) § 13-2508. We agree and reverse defendant’s conviction.

PACTS

The charges against defendant arose out of an incident occurring in St. Johns, Arizona, on December 11, 1987. The facts, as given by the prosecutor at the time of defendant’s change of plea, are as follows:

[BY MR. WING]: If th[is] matter were to proceed to trial, the evidence would be ... that on 7/11 ... 1987, Officer Lloyd Wolfe, a police officer with the City of St. Johns Police Department, observed the defendant driving a red Honda motorcycle in the area of Cleveland and 13th West, here in St. Johns. The motorcycle did not have a taillight, so this officer attempted to stop the motorcycle. As he did so, the driver of the motorcycle, which was later identified to be the defendant, looked back at the police officer and then sped the motorcycle up to move away from the police officer.

Officer Wolfe was in a fully marked police vehicle. As he pursued the defendant’s motorcycle, he activated his emergency lights and his siren over a distance of several miles. The defendant fled from the police officer with his equipment in full operation, the emergency equipment.

At times, the motorcycle went between 70 and 80 miles-per-hour in a residential district. At one location, he made a turn and lost partial control of the motorcycle, going up in the yard of a residence.

At two locations, those being at 5th South 13th West and at 7th South and 13th West, the defendant ran two stop signs during the commotion, the chase. A second fully marked police vehicle of the St. Johns Police Department with its emergency equipment in operation was also in pursuit.

After a distance of miles, the officers were able to locate the defendant and take him into custody.

At the time that he was arrested, he had in his possession, a small quantity or usable quantity of marijuana, which was submitted to DPS laboratory and analyzed to be a usable amount of marijuana.

THE COURT: Tom, did he resist the arrest?

MR. WING: That was driving a motorcycle in the manner likely to cause injury to [the] officer or to others along the route of the chase.

Additional facts contained in the police reports and made a part of the record prior to sentencing reveal that a total of four police officers and at least three police vehicles participated in the chase, that the stop and arrest occurred “without further incident” in a farming area adjacent to the community, and that the defendant was booked by the arresting officers for “flight from a law enforcement vehicle and possession of marijuana.” The reports also indicate that Officer Wolfe’s initial effort to effect a traffic stop of defendant was by úse of his emergency lights and siren.

Defendant entered a plea agreement whereby he pled guilty to the charges of flight from a pursuing law enforcement vehicle, possession of marijuana, and resisting arrest. At the change of plea hearing, however, defense counsel argued that there was an insufficient factual basis to find defendant guilty of resisting arrest. Defendant timely appealed following the trial court’s acceptance of his plea and the imposition of sentence.

DISCUSSION

Defendant argues that his act of fleeing by motorcycle from the officers does not constitute resisting arrest under Arizona’s statute defining that offense. His argument is twofold. First, he contends that his act of fleeing from the officers does not furnish a factual basis for that offense. Second, he asserts that the resisting arrest statute requires proof that he intended to place either the pursuing officers or other persons in risk of physical injury.¹ The statute defining the offense of resisting arrest, A.R.S. § 13-2508, states in pertinent part:

A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by:

1. Using or threatening to use physical force against the peace officer or another; or

2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.

Defendant was charged with resisting arrest under subsection (A)(2).

Our current resisting arrest statute was derived from Haw.Rev.Stat. § 710-1026. Rudolph J. Gerber, Criminal Law of Arizona § 13-2508, at 357 (1978). “A statute adopted from another state is presumed to have been adopted with a construction previously placed upon it by the courts of that state.” State v. Flores, 160 Ariz. 235, 239-40, 772 P.2d 589, 593-94 (App.1989). No Hawaii court has interpreted that state’s statute with facts similar to those before us. The comment to the Hawaii statute, however, offers the following insight of its purpose as perceived by the commentator.

The Code deals specifically with resisting arrest out of a desire to confine the offense to forcible resistance that involves some substantial danger to the person. Mere non-submission ought not to be an offense. One who runs away from an arresting officer or who makes an effort to shake off the officer’s detaining arm might be said to obstruct the officer physically, but this type of evasion or minor scuffling is not unusual in an arrest, nor would it be desirable to make it a criminal offense to flee arrest. In this case the proper social course is to authorize police pursuit and use of reasonable force to effect the arrest. If the actor is captured, he may be convicted of the underlying offense. If conviction cannot be had, it would be a grave injustice to permit prosecution for an unsuccessful effort, by an innocent man, to evade the police.

Haw.Rev.Stat. § 710-1026 cmt. (1985) (emphasis added) (footnote omitted); accord Gerber, supra, at 358; American Law Institute, Model Penal Code and Commentaries § 242.2, at 214 (1980).

The comment is not deemed to be an expression of legislative intent. We find, however, a similar legislative intent as reflected in the specific wording of our statute. See City of Show Low v. Owens, 127 Ariz. 266, 268, 619 P.2d 1043, 1045 (App. 1980) (“We consult first ... the language of the statute itself in order to determine legislative intent.”). That intent, as we glean it from the statute, is to prohibit threats or any conduct that creates a substantial risk of injury to another, including the officer. As we read the statute, it prohibits assaultive behavior directed toward an arresting officer, not an arrestee’s efforts to put as much distance as possible between himself and the officer. Defendant’s conduct of fleeing from the officer was appropriately and adequately prohibited by A.R.S. § 28-622.01, flight from a pursuing law enforcement vehicle. To stretch the resisting arrest statute to cover defendant’s act of fleeing is, in our opinion, violative of the rule that “[c]ourts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself.” Collins v. Stockwell, 137 Ariz. 416, 420, 671 P.2d 394, 398 (1983).

In State v. Sanchez, 145 Ariz. 313, 701 P.2d 571 (1985) our supreme court had occasion to examine A.R.S. § 13-2502(A), escape in the third degree, as it applied to one who ran from an officer after being told he was under arrest. After pointing out the necessity of actual restraint by the officer or submission by the person before an arrest is accomplished, the court stated:

There is evidence that the legislature may never have intended these escape statutes to criminalize flight prior to arrest. The Arizona Criminal Code Commission proposed a set of escape statutes quite similar to those adopted by our legislature. In their commentary, the Criminal Code Commission writers noted:

Neither [nonviolent] nonsubmission nor flight are covered by these sections [resisting arrest and escape]. The proper course in such a case is to pursue or use reasonable force to overcome the suspect. Arizona Criminal Code Commission, Arizona Revised Criminal Code, p. 238 (1975).

Id. at 315, 701 P.2d at 573. The court also referred to State v. Swanson, 34 Or.App. 59, 578 P.2d 411 (1978), in which that court, interpreting statutes similar to Arizona’s and with similar commentaries, found that the legislature did not intend to make nonviolent flight from an attempted arrest criminal behavior.

In our opinion, the defendant’s flight was conduct which prevented, without the use of resistance, the effectuation of his arrest. In other words, such conduct constituted avoiding arrest, not resisting arrest. This interpretation of the statute flows from what we deem to be a common sense application of the ordinary meaning of the statutory language. See A.R.S. § 1-213 (“Words and phrases shall be construed according to the common and approved use of the language.”); State v. Flores, 160 Ariz. 235, 240, 772 P.2d 589, 594 (App.1989) (words of a statute are given their ordinary meaning unless from the context it appears that a different meaning is intended). This interpretation also is supported by the legislative policy and the historical background of the statute. See State v. Hoag, 165 Ariz. 215, 216, 797 P.2d 1233, 1234 (App.1990) (legislative intent determined by policy and historical background of statute); Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988) (the primary principle in statutory interpretation is to determine legislative intent). In substance, we “look to the policy behind the statute and to the evil that it was designed to remedy.” State v. Takacs, 169 Ariz. 392, 395, 819 P.2d 978, 981 (1991).

Because we label defendant’s conduct as avoiding arrest rather than resisting arrest, we deem it appropriate to define those terms as we apply them herein. Webster’s Ninth New Collegiate Dictionary 1003 (1988) defines “resist” as follows: “to exert force in opposition”; “to exert oneself so as to counteract or defeat,” “to withstand the force or effect of.” “Resistance” is defined similarly as “an opposing or retarding force.” Id.

In defining “resist” as applied to that state’s resisting arrest statute, the Appellate Division of the Circuit Court of Connecticut stated that “[t]he word [“resist”] is derived from the Latin, its etymological meaning being “to stand against” or “to withstand.” It is the opposition of force to force____ There must be actual opposition or resistance, making necessary, under the circumstances, the use of force.” State v. Avnayim, 24 Conn.Supp. 7, 185 A.2d 295, 298-99 (App.Ct.1962) (emphasis added).

“Avoid,” on the other hand, is defined as “to depart or withdraw from” or “to keep away from.” Webster’s Ninth New Collegiate Dictionary 120 (1988). In analyzing defendant’s conduct, it appears to us that “avoiding arrest” most accurately describes his actions as he fled from the officers. When an individual is the object of an attempt to effect his or her arrest, the individual may submit to the arrest, avoid the arrest, or resist the arrest. Only the latter conduct constitutes the statutory offense of resisting arrest.

Defining criminal behavior and establishing penalties for violating criminal laws are functions of the legislature, not the judiciary. State v. Wagstaff, 164 Ariz. 485, 490, 794 P.2d 118, 123 (1990). Our legislature has broad discretion in determining culpable and innocent behavior. In re Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, 28, 790 P.2d 723, 726 (1990). While criminal statutory language need not provide for an interpretation amounting to a mathematical certainty, Brockmueller v. State, 86 Ariz. 82, 84, 340 P.2d 992, 994, cert. denied, 361 U.S. 913, 80 S.Ct. 258, 4 L.Ed.2d 184 (1959), it is required to give fair warning that an individual’s actions are prohibited and thus subject to punishment. Franzi v. Superior Court, 139 Ariz. 556, 562, 679 P.2d 1043, 1049 (1984). We cannot say as a matter of law that defendant was on notice that his conduct constituted resisting arrest as he fled from Officer Wolfe.

In reaching the above conclusion, we are mindful that

[d]ue process notions of fundamental fairness require that criminal offenses be defined in terms sufficient to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle for the requirement is that no person should be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute. Thus, “a statute which forbids * * * an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential of due process of law.”

State v. Limpus, 128 Ariz. 371, 375, 625 P.2d 960, 964 (App.1981) (citation omitted) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1925)).

When a criminal statute is susceptible of more than one reasonable interpretation, the rule of lenity requires the courts to resolve any doubt in favor of the defendant. State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d .744, 748-49 (App.1983). We believe that to interpret defendant’s flight, as described in the record before us, as resisting arrest, would resolve any doubts contrary to the above rule and also would subject the statute to a serious vagueness challenge.

We next examine defendant’s flight to determine if it amounted to the use of “any other means creating a substantial risk of causing physical injury to the peace officer or another.” See A.R.S. § 13-2508(A)(2). From the record before us, we conclude that it did not.

The act of defendant fleeing from the officer did not by itself place the officer in danger. In addition, if the act of the officer pursuing defendant at high speeds is construed as “creating a substantial risk of causing physical injury to the ... officer or another,” we believe that in determining whether defendant’s conduct was in violation of A.R.S. § 13-2508(A)(2), the decision to pursue and the manner of pursuit lies with the officer and not with the defendant. While such a response by the officer is an option he may choose when a subject flees, the officer did not have the option of driving in such a manner as to place himself or others at substantial risk of injury. The statute governing the officer’s conduct, A.R.S. § 28-624, states in pertinent part:

B. The driver of an authorized emergency vehicle may while operating [appropriate equipment] ... under normal atmospheric conditions ...:

2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.

3. Exceed the prima facie speed limits so long as he does not endanger life or property.

4. Disregard regulations governing direction of movement or turning in specified directions.

D. The provisions of this section do not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons nor do these provisions protect the driver from the consequences of his reckless disregard for the safety of others.

(Emphasis added.) As stated by the Colorado Supreme Court, “a red light and a siren do not constitute a license to travel at any speed under any circumstances.” City and County of Denver v. DeLong, 190 Colo. 219, 545 P.2d 154, 156 (1976).

There is nothing in the record to suggest that Officer Wolfe drove in other than a safe and prudent manner. Neither his speed nor that of the other officers is mentioned. In the absence of evidence to the contrary, we will presume that they drove their vehicles in conformance with the law. Additionally, we are not persuaded that Officer Wolfe intentionally or otherwise placed the residents of St. Johns in jeopardy just because defendant fled when the officer attempted to cite him for an inoperable taillight. Nor do we believe the officer would place his own life in jeopardy over such an inconsequential matter. One should not sink his ship on such a small pebble.

Finally, the state has not established the presence of any other persons at a time and place when defendant’s conduct placed them at substantial risk of injury. The allegation that defendant drove in a manner likely to cause injury to what the prosecutor generically described as “others along the route” does not by itself establish the presence of others within the zone of substantial risk at the time of defendant’s passing. Although we are not unmindful of the dangers inherent in a high-speed chase through a residential neighborhood, the record is devoid of the required specific facts amounting to strong evidence that the officer or another experienced a substantial risk of physical injury as required by the statute.

In addition to our conclusion that mere flight does not constitute resisting arrest, we have another concern in the application of that statute to the facts of this case.

Generally, an intent to arrest will accompany the restraint amounting to an arrest. See Bey v. State, 355 So.2d 850, 852 (Fla. Dist.Ct.App.1978). Although the subjective intent of the officers involved is not dispositive of whether an arrest has actually been made, United States v. Beck, 598 F.2d 497, 500 (9th Cir.1979), we cannot foresee how the crime of resisting arrest can be committed without an intent on the part of the officer to make an arrest.

It is undisputed that at the time he first signaled defendant to pull over, Officer Wolfe intended only to issue a traffic citation, not to arrest defendant. It may be, as defendant fled the scene and Officer Wolfe gave chase, that at some point the officer’s intent changed from the issuance of a citation to that of arresting defendant. If that fact occurred, it was not part of the factual basis given to the court to support a plea of guilty to resisting arrest, nor does it appear in the record.

We find it difficult to see how defendant’s initial flight could be characterized as resisting arrest, since no arrest was being attempted. The inquiry thus posed is whether defendant could be guilty of resisting something which did not then exist — that is, an impending arrest. We think not. If an' intent to arrest was formed at some point in the pursuit and defendant’s further flight is characterized as resisting arrest, we cannot determine from the record when or where this point existed or how defendant was made aware of his increased wrongdoing, since no new or different signals were conveyed to him by the officers.

Defendant also argues that there was an insufficient factual basis to establish his culpable mental state for all the elements of the charge of resisting arrest. Because we have resolved the issue of whether defendant’s conduct was sufficient to support the charge of resisting arrest in his favor, we need not address this last argument.

CONCLUSION

For the foregoing reasons, we find that defendant’s nonviolent flight constituted an insufficient factual basis upon which to charge defendant with resisting arrest. Because we find the legislature did not intend to proscribe defendant’s conduct under the resisting arrest statute, we reverse defendant’s conviction on that count and remand to the trial court with directions to dismiss the charge of resisting arrest.

1 . In his reply brief, defendant alluded to the imposition of double punishment due to his convictions for both resisting arrest and felony flight. While we will not address an assignment of error raised for the first time in the reply brief, State v. Lee, 160 Ariz. 489, 495, 774 P.2d 228, 234 (App.1989), we note that the double punishment statute, A.R.S. § 13-116, was not violated in this case because defendant’s sentence was suspended and concurrent terms of probation were imposed.