State v. McCauley , 119 Or. App. 384 ( 1993 )

EDMONDS, J.

Defendant appeals from his conviction for second degree escape. ORS 162.155(l)(b). He assigns as error the failure of the trial court to grant his motion for judgment of acquittal based on insufficiency of evidence. We affirm.

Our standard of review is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989). Defendant argues that the evidence was insufficient to convict him because he was not expressly remanded to custody by the trial court after being found guilty of murder.

Defendant’s argument is based on these facts: During the trial, defendant had been in custody as a result of a pretrial hearing when his bail was set at $100,000. After the jury announced its verdict of guilty of murder against defendant, the court received the verdict and the jury was dismissed by the trial judge. The court engaged in a short colloquy with counsel regarding sentencing and both counsel and the judge left the courtroom, leaving the defendant seated there. As the officer responsible for transporting defendant to and from the courthouse jail approached him in order to handcuff him and return him to the jail, defendant jumped the railing separating the courtroom spectators from the counsel tables, and ran out the courtroom door. He was apprehended two days later.

ORS 162.155 provides, in part:

“(1) Aperson commits the crime of escape in the second degree if:

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“(b) Having been convicted or found guilty of a felony, the person escapes from custody imposed as a result thereof!.]”

ORS 136.495 provides, in part:

“If a general verdict against the defendant is given, the defendant shall he remanded, if in custody * *

Defendant’s argument that he was not in custody as a “result of the jury verdict” within the meaning of ORS 162.155(l)(b) is specious. Had the jury returned a “not guilty” verdict which was received by the court, defendant’s custodial status would have automatically terminated unless there were custody orders regarding other cases pending. ORS 136.490. Under ORS 136.495, when the jury returned a “guilty” verdict and the court received that verdict, defendant’s custody status was the result of the jury’s verdict, whether the trial court expressly said so or not. The requirement that the custody be ‘ ‘imposed as the result’ ’ of the guilty verdict occurred as a matter of law. ORS 162.155(l)(b) does not require the trial court to do a redundant act by expressly remanding a defendant to custody when he is already in custody.¹ Accordingly, the requirements of ORS 162.155 (l)(b) were met.

Defendant and the dissent rely upon State v. Palaia, 289 Or 463, 614 P2d 1120 (1980), as authority for a contrary result. Their reliance is misplaced. In Palaia, the defendant had been convicted of robbery in the first degree and was serving time in the Oregon State Penitentiary. He was transported to the Marion County Courthouse for a court appearance. After the appearance he absconded from custody while waiting to get into a van that was to transport him back to the penitentiary. He argued that he could not be found guilty under ORS 162.155(l)(b) because the court order pursuant to which he was in custody “did not state that such custody was the result of a prior felony conviction.”

The court examined the underlying legislative history of ORS 162.155(l)(b) and noted that the legislature did not intend the statute to apply to circumstances where a defendant escaped while charged with but not convicted of a felony, or to a person who had previously been convicted of a felony but had been released from custody on that conviction. The court said:

“We construe the phrase ‘as a result thereof,’ as used in ORS 162.155(l)(b), to apply to the numerous situations in which a felon is in actual or constructive restraint of a peace officer and not within a correctional facility (a) following a finding of guilt and an order remanding defendant to the custody of a law enforcement person or agency, or (b) following commitment of defendant by court order toa correctional facility after a judgment of conviction. This case falls within Ob).” 289 Or at 468. (Emphasis supplied.)

As the Supreme Court said, it was the legislature’s intention that the statute apply to the numerous situations in which a felon is in actual or constructive restraint of a peace officer and not within a correctional facility following a finding of guilty and an order remanding defendant to the custody of a law enforcement person or agency.

Here, defendant was in custody at the time the jury returned its verdict. When the court received that verdict, defendant’s custody status was as a result of the jury having found him guilty régardless of whether the trial court expressly remanded him. Even if Palaia requires some additional act by the trial court when a defendant is in custody before the jury returns, that requirement is satisfied when the trial judge receives the verdict and leaves the bench without modifying defendant’s custodial status. Under these facts, the requirements of ORS 162.155(l)(b), that custody be imposed as a result of having been found guilty of a felony, were satisfied.

Affirmed.

1 Such an act would not be redundant when a defendant is not in custody at the time the jury returns its verdict. ORS 136.495.