301 P.3d 972
Or. Ct. App.2013Background
- Defendant on post-prison supervision (PPS) required to have a mental health evaluation; supervisor warned of sanctions for noncompliance.
- Supervisor instructed defendant to report to jail for sanctions after he refused the evaluation.
- Detention warrant issued; Officers Osborn and Garibay sought defendant outside a restaurant.
- Defendant fled, crossing a creek; he threatened, taunted, and attempted to evade arrest.
- Garibay warned of a Taser; defendant was immobilized by a Taser shot and handcuffed after running.
- Defendant was convicted of second-degree escape under ORS 162.155 and challenging the denial of his motion for judgment of acquittal (MJOA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was in custody for escape | State: constructive restraint existed via arrest purpose and surrounding conduct | Defendant: no custody without actual restraint | Yes, constructively restrained and in custody |
| Whether defendant threatened physical force while escaping | State: threat evident in Garibay’s actions and defendant’s flight | Defendant: threat was conditional and to avoid taser, not to escape | Yes, threat found sufficient to support escape |
| Whether evidence supports second-degree escape element | State: evidence shows unlawful departure from custody while restrained | Defendant: insufficient to show escape | Yes, sufficient to prove escape from custody |
Key Cases Cited
- State v. Alexander, 238 Or App 597 (2010) (constructive restraint and custody principles applied to arrest context)
- State v. Metcalfe, 172 Or App 501 (2001) (momentary loss of control can constitute escape from custody)
- State v. Thomas, 229 Or App 453 (2009) (words of arrest establish constructive restraint)