IN THE COURT OF APPEALS OF IOWA
No. 17-1039
Filed May 2, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSHUA COOK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
Joshua Cook appeals from his conviction for escape from custody.
AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
2
DANILSON, Chief Judge.
Joshua Cook appeals from his conviction following a bench trial for escape
from custody, a class “D” felony, in violation of Iowa Code section 719.4(1) (2016).
Cook contends there is insufficient evidence to show he “intentionally escape[d], .
. . from a . . . community-based correctional facility.” Iowa Code § 719.4(1). Cook
argues instead he should have been prosecuted for absence from custody under
section 719.4(3).1 Because we conclude substantial evidence supports Cook’s
conviction, we affirm.
In 2016, after being convicted for sponsoring a gathering where controlled
substances were unlawfully used,2 Cook was sentenced to probation at the
Residential Corrections Facility (RCF) in Davenport—a community-based
correctional facility. Cook was charged with escape from custody after fleeing from
the facility on November 25, 2016. In its order and ruling entered following an April
10, 2017 bench trial, the district court summarized the facts:
Murphy Simms testified he was a Residential Officer at the
RCF on Friday, November 25, 2016. Part of his duty was to log in
and log out residents who come and go on passes. In the evening
of November 25, 2016, Cook returned from an approved [Alcoholics
Anonymous] meeting. When Cook checked in, Simms directed him
to provide a urine sample which tested positive for opioids. Simms
directed Cook to sit in the dining room while he contacted a
supervisor to determine what to do about the failed drug test. State’s
Exhibit 1 is a video from inside the RCF on the night in question. This
video shows [Cook] seated at a table in the dining room near the
Residential Officer kiosk which is near the front door. The video
shows Cook get up from the table where he was directed to sit and
walk out of the dining room into the courtyard. Cook can be seen
breaking into a jog as he continues out of the courtyard into the
1
Section 719.4(3) provides, “A person who has been committed to . . . a community-based
correctional facility, . . . who knowingly and voluntarily is absent from a place where the
person is required to be, commits a serious misdemeanor.”
2
See Iowa Code § 124.407.
3
fenced smoking area at the rear of the RCF. Here, Cook can be seen
jogging to the rear gate, opening same and then running at full tilt
away from the RCF. . . .
Simms stated that Cook violated Rule 4 of the RCF when he
left the dining area, that rule being that he disobeyed a lawful
order. . . . [The manager of the RCF, Kevin] Rommel testified the
front door and rear gates must be unlocked at all times per the fire
code. However, residents are never allowed to arrive or depart the
RCF except through the front door. The only exceptions to this rule
are that a resident may leave through the back gate to take trash to
the dumpster in the alley and immediately return, but only [if] they
are part of the pre-approved cleaning crew. Cook has been a part of
the cleaning crew in the past. Residents may also leave through the
back gate in the company of the RCF manager if they are requested
to assist the manager in carrying groceries from a nearby grocery
store. Other than these two exceptions, residents are never allowed
to arrive to the center or depart therefrom except through the front
door.
In order to find Cook guilty of escape from custody, the State must establish
he “intentionally depart[ed] without authority from a detention facility or institution
to which [he] has been committed . . . whether the departure is accomplished
through ‘stealth, guile, or violence.’” State v. Burtlow, 299 N.W.2d 665, 669 (Iowa
1980) (citation omitted). As opposed to absence from custody, escape from
custody is “intended to apply [to] unauthorized departures from physical restraint.”
Id. This is because “[i]n those cases a danger of injury to persons or property
exists.” Id. However, physical restraint does not require “actual physical contact
with the arrestee. Instead, ‘physical restraint,’ . . . is necessarily involved whenever
an individual either is or would be subjected to immediate physical restraint if an
attempt to flee from authorities was made.” State v. Breitbach, 488 N.W.2d 444,
449 (Iowa 1992).
In a case nearly identical to this matter, this court held that an individual
escaped from a facility pursuant to section 719.4(1) when he left the building
4
through a fire exit that was not locked or equipped with an alarm. State v.
Paarmann, No. 10-0862, 2013 WL 541631, at *1 (Iowa Ct. App. Feb. 13, 2013).
In Paarmann, the court stated:
The question is whether Paarmann’s departure from the
[Department of Corrections (DOC)] facility subjected him to
immediate physical restraint. See State v. Smith, 690 N.W.2d 75, 77
(Iowa 2004). The district court was correct in concluding it did; ‘the
defendant certainly knew or should have known that when
permission was required to be absent from the facility, by leaving the
facility without permission, he was escaping from it. To accept the
defendant’s argument would essentially nullify subsection one
except in escapes from actual physical contact.’ After his
unauthorized departure from the work release center on December
30, 2009, the DOC placed Paarmann on ‘escape status,’ and he was
arrested six days later. When he walked out of the fire exit, even in
the absence of a guard or an alarm, Paarmann was subject to
immediate physical restraint because he had been committed to the
DOC facility and did not have permission to be at any other location.
Paarmann, 2013 WL 541631, at *2. Here, although the back exit through which
Cook left the RCF was not locked or equipped with an alarm, Cook did not have
permission to leave the building. Rommel stated Cook was subject to immediate
arrest upon leaving the RCF without permission. Simms explained after Cook
violated Simms’s direct order to remain in the dining room and left the RCF through
the back door, he was placed on “escape” status. This matter is not similar to State
v. Oponski-Sims, No. 13-1784, 2014 WL 3511894, at *4 (Iowa Ct. App. July 16,
2014), as Cook asserts, because the record here clearly explained the rules and
security measures of the RCF facility and established Cook was required to obtain
permission before leaving the building.
We acknowledge Cook could have been prosecuted for absence from
custody under section 719.4(3). See State v. Miller, 841 N.W.2d 583, 593 (Iowa
2014) (concluding absence from custody may be a lesser-included offense of
5
escape from custody under section 719.4(1) because “a person who leaves a
correctional facility without authority is necessarily a person who is absent from a
place the person is required to be”). However, if a defendant has intentionally left
the facility, he may be prosecuted for the greater offense of escape from custody.
Id. at 591. Here, Cook jogged out the facility and, once out of the facility, sprinted
away.
On our review for correction of errors at law, State v. Thomas, 847 N.W.2d
438, 442 (Iowa 2014), we find substantial evidence3 establishing Cook intentionally
left the facility without authority, thus supporting Cook’s conviction for escape from
custody under section 719.4(1). We therefore affirm.
AFFIRMED.
3
“Evidence is considered substantial if, when viewed in the light most favorable to the
State, it can convince a rational jury that the defendant is guilty beyond a reasonable
doubt.” Thomas, 847 N.W.2d at 442 (citation omitted).