State v. Davis ( 2016 )

No. 54 August 11, 2016 201
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
ROBERT GORDON DAVIS,
Petitioner on Review.
(CC 131084; CA A154382; SC S063216)
On review from the Court of Appeals.*
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.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Case Summary: Police approached defendant and identified themselves as
police officers. Defendant ran. He continued to run after one of the officers com-
manded him to stop, shouting “Stop, police!” Defendant was charged with third-
degree escape under ORS 162.145(1), which requires that a person escape from
custody. Custody is defined by ORS 162.135(4) as the imposition of “actual or
constructive restraint * * * pursuant to an arrest or court order.” At trial, defen-
dant moved for a judgment of acquittal, arguing that he was not in custody for
purposes of ORS 162.145(1) before he ran from the officers. The trial court denied
______________
**  Appeal from Clatsop County Circuit Court, Philip L. Nelson, Judge. 270
Or App 351, 350 P3d 234 (2015).
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
202 
that motion, and the Court of Appeals affirmed. Held: (1) Custody for purposes of
ORS 162.145(1) occurs when police lawfully assert authority to control a person’s
freedom during the course of an arrest or pursuant to their authority to make
such an arrest; (2) the state failed to prove that defendant was in custody before
he ran from police because it presented no evidence that the officers intended to
arrest him.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 360 Or 201 (2016) 203
LANDAU, J.
Two police officers approached defendant, suspect-
ing 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 writ-
ten opinion. State v. Davis, 270 Or App 351, 350 P3d 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 iden-
tified 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 acquit-
tal, 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.”
204 
The trial court denied defendant’s motion, conclud-
ing 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 * * * con-
structive custody.”
Defendant was convicted. He appealed, assigning error to
the trial court’s denial of his motion for judgment of acquit-
tal. 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 impo-
sition of “actual or constructive restraint * * * pursuant to
an arrest or court order.” As defendant sees it, the stat-
ute’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 “pursu-
ant to” such an act of formally taking a person into cus-
tody 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 cus-
tody. (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 inter-
pretation is contrary to the wording of the relevant statutes,
which refer to escape from actual or constructive restraint
Cite as 360 Or 201 (2016) 205
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 pres-
ents 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 P3d
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 P3d 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 depar-
ture of a person from custody.” ORS 162.135(4). It includes
running away. See State v. Lonergan, 344 Or 15, 21, 176 P3d
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 correc-
tion 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
206 
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 conse-
quence 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 defi-
nitions suggest that a person is subject to “constructive
restraint” when an officer lawfully asserts authority to con-
trol 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 P2d 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 295-96.1
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.
1
The state emphasizes the first of the quoted definitions—“in the course of
carrying out”—observing that defendant does not argue that any of the other
definitions applies. In construing a statute, however, our task is not merely to
pick among interpretations that the parties choose to advance. Rather, it is to
determine the interpretation that the legislature most likely intended, regard-
less of the parties’ arguments. Engweiler v. Persson / Dept. of Corrections, 354
Or 549, 559, 316 P3d 264 (2013) (“[T]his court has an obligation to reach what
we regard as a correct interpretation of statutes and rules. Indeed, we are so
obliged whether or not the correct interpretation has even been advanced by the
parties.”).
Cite as 360 Or 201 (2016) 207
McClure, 355 Or 704, 708, 335 P3d 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 the term as “[t]aking, under real
or assumed authority, custody of another for the purpose
of holding or detaining him to answer a criminal charge
or civil demand.” Black’s at 140. They are also consistent
with the way that this court has generally referred to the
term “arrest” in discussing police encounters that are sub-
ject to the constraints of Article I, section 9, of the Oregon
Constitution, which protects against unreasonable searches
and seizures. See, e.g., State v. Ashbaugh, 349 Or 297, 308-
09, 244 P3d 365 (2010) (“arrests” are “restraints on an indi-
vidual’s liberty that are steps toward charging individuals
with a crime”).
With those definitions in mind, then, third-degree
escape occurs when a person runs away from a police offi-
cer who has lawfully asserted authority to control a person’s
freedom in the course of carrying out an arrest, that is, in
the course of taking a person into custody to answer for a
crime. Contrary to defendant’s argument, the relevant stat-
utes do not provide that third-degree escape may occur only
after a person has been taken into physical custody; ORS
162.135(4) specifies that the offense occurs when a person
escapes custody during the course of an arrest or when police
attempt to restrain that person pursuant to their authority
to make such an arrest.
That much, at least, is evident from an examination
of the text of ORS 162.135(4) and ORS 162.145(1). There is
little in the legislative history that touches on the intended
2
Both statutes were repealed and replaced with what is now ORS 133.005(1),
which defines “arrest” as “to place a person under actual or constructive restraint
or to take a person into custody for the purpose of charging that person with an
offense.” That definition, unlike the ones that it replaced, is limited in its applica-
tion to ORS chapter 133 and so had no direct application to this case.
208 
meaning of those statutes. But a review of the little history
that does exist appears to confirm what our analysis of the
text suggests.
Both ORS 162.135(4) and ORS 162.145(1) were
enacted as part of the revision of the Oregon Criminal
Code based on the recommendations of the Criminal Law
Revision Commission in 1970. Or Laws 1971, ch 743, §§ 189-
90. During a meeting of the commission, members discussed
the offense of third-degree escape, as well as the related
offense of resisting arrest. At one point during the discus-
sion of resisting arrest, one of the members, Judge Burns,
raised the question whether flight from arrest was “covered
elsewhere.” A representative of the Office of Legislative
Counsel, Wallingford, replied that, “if an arrest had been
made, flight would be escape in the third degree in that the
person would be in constructive custody.” Minutes, Criminal
Law Revision Commission, Jan 23, 1970, 20. Another com-
mission member, Knight, then asked precisely when an
arrest would be made, and Wallingford replied that “it was
made at the moment the officer verbally or physically made
it known that the individual was under arrest.” Id.
Defendant seizes on Wallingford’s reference to an
arrest having been “made” as evidence that the legislature
intended a completed, physical arrest to have been accom-
plished before the escape could take place. But that is con-
tradicted by Wallingford’s immediately following qualifica-
tion, in which he said that the escape could occur any time
after the officer “made it known that the individual was
under arrest,” which he said would constitute “constructive
custody.” As we have suggested, the statute applies when
a person escapes from constructive restraint that occurs
during the course of an arrest or pursuant to the authority
to make an arrest, not solely after police have taken the
person into physical custody. Thus, for example, if an officer
were to say, “Stop, police! You are under arrest,” the statute
would apply if a defendant were to continue running from
the officer. The defendant would have been subject to con-
structive restraint “pursuant to” an arrest; indeed, as the
foregoing legislative history suggests, the defendant in that
example would effectively be escaping from an arrest, albeit
not one that involved actual, physical custody.
Cite as 360 Or 201 (2016) 209
The commission’s official commentary to the pro-
posed revisions sheds little additional light. It does say that
the proposed revision
“defines ‘custody’ as the imposition of actual or construc-
tive restraint by a peace officer pursuant to either (a) an
arrest, or (b) a court order. * * * ‘Custody’ is intended to
apply to custodial situations other than correctional facil-
ity confinement, i.e., while the actor is under actual or con-
structive restraint but not yet committed to a correctional
facility.”
Commentary to the Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 189, 193 (July 1970). That particular comment confirms
our interpretation of the phase “pursuant to” as referring
to imposing actual or constructive restraint not after a com-
pleted, physical arrest, but in the course of or under the
officer’s authority to make an arrest. In emphasizing that
the term “custody” is intended to apply to circumstances
in which confinement has not yet actually occurred, the
comment also appears to confirm that the statute applies
to an escape that occurs before physical restraint has been
imposed; rather, it applies when escape occurs while the
person was under constructive restraint in the course of an
arrest or in carrying out authority to arrest.
With that in mind, we turn to our second task, that
is, to determine whether the trial court erred in denying
defendant’s motion for a judgment of acquittal. The evidence
in this case shows that, when officers located defendant, one
of them got out of his patrol car and identified himself as a
police officer. Defendant ran away. The officer chased him
and yelled “Stop, police!” The other officer pursued defen-
dant 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.
A reasonable trier of fact certainly could conclude
from that evidence that the officer had, by yelling “Stop,
police!,” placed defendant in constructive restraint. The
officer asserted authority to restrict defendant’s freedom to
move about. What is missing, however, is any evidence that
the officer did so “pursuant to an arrest” in any of the senses
210 
that we have identified. There is no evidence that the offi-
cer yelled for defendant to stop as part of an effort to place
him under arrest. There is no evidence that the officer told
defendant to stop in accordance with the officer’s authority
to arrest him. The evidence, taken in the light most favor-
able to the verdict, shows only that, at the time defendant
ran away, the officer had told him to stop. An order to stop is
not necessarily equivalent to placing a person under arrest.
The former entails a “temporary restraint on a person’s lib-
erty,” while, as we have noted above, the latter involves a
more significant “restraint[ ] on an individual’s liberty that
[is a] step[ ] toward charging that individual with a crime.”
Ashbaugh, 349 Or at 308-09; see also State v. Rodgers/
Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010) (explaining
distinctions between different police encounters, including
“stops” and “arrests”).
The state insists that defendant does not dispute
the fact that the officer intended to arrest him. Cited in sup-
port of that assertion is a page from defendant’s brief before
this court. What defendant said at that point in his brief,
however, is that “the officer did not actually restrain defen-
dant as part of a formal arrest.” Defendant acknowledged
that, by yelling “Stop, police!,” the officer “intended to or
attempted to restrain defendant.” Thus, defendant conceded
that the officer intended to restrain him. But nowhere in
his brief do we see a concession that the officer intended to
arrest him.
Given a complete absence of evidence that the offi-
cer commanded defendant to stop in the course of making
an arrest or pursuant to the officer’s authority to arrest him,
the state failed to establish all the required elements of the
offense of third-degree escape. It necessarily follows that the
trial court erred in denying his motion for a judgment of
acquittal on that charge.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.