State v. StroudState v. Stroud
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- Brammer
¶ 1 After a trial held in his absence, a jury found appellant Sudden Rio Stroud guilty of resisting arrest and second-degree escape. Because the jury found he had been on probation at the time he committed the offenses, the trial court imposed presumptive, consecutive prison terms totaling four years. On appeal, Stroud challenges the court’s rulings on a number of issues, arguing (1) that the crimes of resisting arrest and escape are mutually exclusive when based on the same conduct and that he could not have been convicted of both; (2) his conviction for resisting arrest is not supported by sufficient evidence; (3) the court improperly instructed the jury on escape; (4) the court erroneously interpreted
Factual Background
¶2 We view the facts in the light most favorable to sustaining the jury verdicts and resolve all inferences against Stroud. See State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App.1999). Bisbee Police Officer William Silva, who knew Stroud and who also knew there was an outstanding felony warrant for his arrest, saw Stroud sitting in a parked car. Stroud left the car as Silva approached, and Silva commanded Stroud to place his hands on the car. Stroud “made a halfway attempt” to comply and asked why he was being arrested. Immediately after Silva told him about the arrest warrant, Stroud tried to jump in front of Silva. Silva grabbed Stroud’s shirt collar, leaned him against his car, and held him down. Silva repeatedly told Stroud he was under arrest, but Stroud continued to struggle and kick his feet, attempting “to get away from the situation.” Silva warned Stroud that, if he did not stop resisting, Silva would use pepper spray. Stroud continued to be combative, and Silva used the pepper spray.
¶ 3 Stroud broke free and fled through a nearby residence. Silva was unable to catch Stroud and ultimately lost sight of him. Shortly thereafter, Officer Coronado apprehended Stroud by subduing him with additional pepper spray.
Escape and Resisting Arrest
¶4 Stroud first argues that “it was legally improper for [him] to be found guilty of resisting arrest and escape [because both
¶ 5 Although Stroud failed to object on this ground at any time below and did not request that we review the issue for fundamental error, this court will not ignore fundamental error when it is clearly apparent. See State v. Hickman, 194 Ariz. 248, 980 P.2d 501 (App.1999); see also State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997) (Martone, J., concurring) (reviewing court has discretion to address fundamental error that is manifest from court’s examination of appeal issues). “Fundamental error is ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’ ” State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). The absence of any reasonable evidence to support a conviction constitutes fundamental error. State v. Fontes, 195 Ariz. 229, 986 P.2d 897 (App.1998); State v. Roberts, 138 Ariz. 230, 673 P.2d 974 (App.1983). Because we find that the evidence the state presented simply does not satisfy the statutory requirements for second-degree escape, we conclude the trial court’s failure, sua sponte, to dismiss Stroud’s escape charge at the close of the evidence constitutes fundamental error.
V 6 A judgment of acquittal is appropriate only when “there is no substantial evidence to warrant a conviction.”
¶ 7 Although the cases the parties cite are somewhat instructive, none attempted to reconcile charges of resisting arrest and escape in the context of a fact situation similar to this one.
State v. Sanchez,
145 Ariz. 313, 701 P.2d 571 (1985) (defendant improperly convicted of escape because he was never under actual restraint);
State v. Mitchell,
204 Ariz. 216, 62 P.3d 616 (App.2003) (in resisting-arrest context, effectuation of arrest is ongoing process);
State v. Cole,
172 Ariz. 590, 838 P.2d 1351 (App.1992) (defendant properly charged with escape because evidence showed he had actually been restrained before he fled). Thus, we focus our analysis on the language of the statute Stroud was charged with violating. Under
¶ 8 We first examine whether Stroud had been arrested so as to have been in “custody” for purposes of
¶ 9 In Cole, Division One of this court found that the defendant had been under actual restraint because he had been told he was under arrest and he had been physically restrained by two officers who had held his arms and shirt. The defendant had escaped only by dragging those officers twenty-five feet. Despite some factual similarities with this ease, the court there only determined whether an arrest had occurred in the context of a first-degree escape conviction; resisting arrest was not an issue in that case, nor was that court required to harmonize escape and resisting-arrest convictions arising from the same conduct.
¶ 10 Moreover, Stroud simply did not flee from the “custody imposed as a result of having been arrested,” as
¶ 11 Stroud cites various cases from other jurisdictions in support of his argument that “a consistent definition of ‘arrest’ is required for both statutes.” See Ex parte McReynolds, 662 So.2d 886 (Ala.1994) (defendant convicted of possession of marijuana, assault, and first-degree escape); People v. Thornton, 929 P.2d 729 (Colo.1996) (defendant charged with escape); People v. Becoats, 88 A.D.2d 766, 451 N.Y.S.2d 497 (1982) (defendant pled guilty to possession of stolen property and was convicted of second-degree escape); Medford v. State, 13 S.W.3d 769 (Tex.Crim.App.2000) (defendant convicted of escape and possession of cocaine). Although none of those cases involved a situation in which the defendant had been charged with and convicted of both resisting arrest and escape, and those courts were not confronted with reconciling those two charged offenses after the defendant was convicted of both, they do yield some instructive language. For example, in analyzing when a suspect is “in custody” for statutory escape purposes, the Colorado Supreme Court found that “a common theme [among jurisdictions] is that effecting an arrest . . . is the point at which the potential for an escape charge begins and the potential for a less serious charge such as resisting arrest ends.” 1 Thornton, 929 P.2d at 734. The court further held that “effecting an arrest, in the sense of establishing physical control over the arrestee, is required before a person is ‘in custody1 for the purposes of the escape statute.” Id. at 733.
¶ 12 Similarly, in Becoats, the court affirmed the trial court’s refusal to submit the offense of resisting arrest to the jury as a lesser-included offense of escape. In analyzing whether the trial court should have given a lesser-included offense instruction, the appellate court found that “Resisting arrest involves conduct occurring at the time of the arrest itself; escape involves conduct occurring subsequent to the arrest, when the person has already been taken into custody.” Becoats, 451 N.Y.S.2d at 498. 2 Likewise, in McReynolds, the Alabama Supreme Court determined that resisting arrest is not a lesser-included offense of escape. The court added:
There is a distinction between “resisting arrest” and “escape from custody.” One cannot escape from custody until one is in custody____[T]he arrest must be completed for a person to be in custody. The veryfact that the legislature created the two separate and distinct offenses of “escape from custody” and “resisting arrest” requires this differentiation between the two offenses.
662 So.2d at 888. The foregoing language, although derived from factually and procedurally divergent case law, nevertheless lends additional authority to our conclusion that the trial court here erred in submitting the escape charge to the jury.
See also State v. Nakoa,
72 Haw. 360, 817 P.2d 1060, 1064 (1991) (“[Rjesisting arrest relates to a person who has not submitted to the custody and control of the arresting officer . . . [while] escape . . . requires that the arrest be completed before the defendant is deemed to be in custody.”);
Medford,
13 S.W.3d at 773 (“If one could be prosecuted for escape without a completed arrest, it would negate the effectiveness of an evading arrest . . . charge.”). Because the evidence failed to show that Silva had completed arresting Stroud by placing him in custody as
¶ 13 We note that, perhaps this matter could have been, and may in the future be, resolved by posing an interrogatory to the jury. Such an interrogatory would instruct the jury that it must, as a preliminary matter, determine whether the state has proven that the defendant had been arrested and was “in custody” at the time he or she was alleged to have escaped. Of course, in light of the opinion in Sanchez, which permits the use of “constructive restraint” to establish custody only in situations in which the process of taking an arrestee to the police station has begun, 145 Ariz. at 316, 701 P.2d at 574, the “custody” definition should, in those cases in which the facts of the case so demand, omit the constructive restraint alternative. The jury should be instructed, if it first concludes that the person arrested was in custody, that it may then consider whether the state has proved beyond a reasonable doubt the elements of the escape charge. Sufficiency of Evidence for Resisting Arrest
¶ 14 Next, Stroud challenges the sufficiency of the evidence supporting his conviction for resisting arrest. In reviewing such a claim, we view the evidence in the light most favorable to sustaining the conviction and will not set aside a jury’s verdict unless it “clearly appear[s] that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.”
State v. Arredondo,
155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). According to
A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer . . . 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.
¶ 15 Stroud contends that, “[b]y its plain language, Arizona’s resisting arrest statute is . . . not meant to punish every minor act of resistance to an arrest” and that mere avoidance of arrest, “such as by fleeing,” does not constitute resisting arrest. Stroud relies on the opinion of Division One of this court in
State v. Womack,
174 Ariz. 108, 847 P.2d 609 (App.1992), for the proposition that, in enacting
¶ 16 In
Womack,
the court found that the defendant’s “mere flight” from officers in a high-speed automobile chase after an officer had made an unsuccessful attempt to stop the vehicle was insufficient to support a conviction under
¶ 17 The evidence here established that, when Silva grabbed Stroud’s shirt collar in
V18 Stroud also challenges the jury instruction on resisting arrest, arguing the jury was improperly instructed on both subsections (1) and (2) of
Disposition
¶ 19 For the foregoing reasons, we affirm Stroud’s conviction and sentence for resisting arrest but vacate his conviction and sentence for escape.
FLÓREZ, J. and BROWNING, J. * , concurring.
Notes
. We note that Colorado’s resisting-arrest statute closely mirrors Arizona‘s.
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. We also note that New York‘s resisting-arrest and escape statutes are similar to Arizona‘s.
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