dissenting.
I dissent. There is no doubt that defendant committed a crime when he escaped. The question is whether he committed escape in the second degree. Because an essential element of that crime was not proven, the court erred in denying the motion for judgment of acquittal.
ORS 162.155 provides, in part:
“ (1) A person commits the crime of escape in the second degree if:
<<* * * * *
“(b) Having been convicted or found guilty of a felony, the person escapes from custody imposed as a result thereof; * * * >>
*389ORS 136.495 provides, in part:
“If a general verdict against the defendant is given, the defendant shall be remanded, if in custody * *
ORS 162.135(4) defines “custody” to mean restraint “pursuant to an arrest or court order.”
Many weeks before trial, the court ordered defendant into custody. He remained in that custody through the trial. Defendant was found guilty of a felony. At that point, he escaped from the courtroom. The question is whether he was in “custody imposed as a result” of the jury’s verdict when he ran away. See State v. McVay, 313 Or 292, 294, 833 P2d 297 (1992) (court must determine defendant’s custody status “when he pulled away and ran.”).
Defendant is guilty of escape in the third degree if he escapes from custody. ORS 162.145; State v. McVay, supra. Escape in the second degree, ORS 162.155(l)(b), requires that he escape from custody imposed by the court as a result of a finding of guilty of a felony. Custody is “imposed” when the court orders restraint. ORS 162.135(4). The statutory phrase “as a result” means that the court must make the custody order as a consequence of the finding of guilty. Custody ordered before trial is not imposed as a result of the verdict at the end of trial. Here, the court had made no order imposing custody as a result of the verdict at the time defendant ran away.
The majority’s error stems from its mistaken premise that custody can be imposed by operation of law. That ignores ORS 162.135(4), which presupposes that custody is created by an action, either in the form of an arrest or a court order, that imposes restraint. ORS 162.155(l)(b) does not punish escaping after a finding of guilty. It is the court’s order, made as a result of the jury’s finding, that alters defendant’s status and gives him notice of the change. The legislature chose to impose a greater sanction on a defendant who escapes after receiving that notice. The majority rewrites the statute by eliminating the requirement that the court make a custody order as a result of the jury’s finding.
State v. Palaia, 289 Or 463, 468, 614 P2d 1120 (1980), construed the phrase “as a result thereof’ in ORS 162.155(l)(b) to refer to restraint “following a finding of guilt *390and an order remanding defendant to the custody of a law enforcement person or agency * * *.” (Emphasis supplied.) The court’s statement contradicts the majority’s holding that the statute punishes escaping after a finding of guilty without a court order remanding defendant to custody.
The majority suggests that even if a court action is required, that was satisfied when the court received the verdict and left the bench without modifying defendant’s custodial status. I fail to see how those actions are tantamount to a court order imposing custody as a consequence of the verdict. The majority has simply erased the phrase “imposed as a result thereof’ from the statute. We are forbidden to omit language from a statute under the guise of interpreting it. ORS 174.010.
I dissent.