State v. Stroud

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0234-PR
Appellee, )
) Court of Appeals
) Division Two
v. ) No. 2 CA-CR 03-0112
)
) Cochise County
SUDDEN RIO STROUD, ) Superior Court
) No. CR200200498
Appellant. )
__________________________________) O P I N I O N

Appeal from the Superior Court in Cochise County
The Honorable Charles A. Irwin, Judge

CONVICTION REINSTATED; REMANDED

Opinion of the Court of Appeals, Division Two
207 Ariz. 476, 88 P.3d 190 (App. 2004)

VACATED

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix, AZ
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Diane Leigh Hunt, Assistant Attorney Tucson, AZ
General, Criminal Appeals Section
Attorneys for Appellee

LAW OFFICE OF STACY TAEUBER Madison, WI
by Stacy Taeuber
Attorney for Appellant

B E R C H, Justice

¶1 We are asked to resolve whether a conviction for the

crime of escape is sustainable under the facts of this case. We
conclude that sufficient evidence supports the jury’s verdict

and therefore reinstate the conviction. We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution,

and Arizona Revised Statutes (“A.R.S.”) section 12-120.24

(2003).

FACTS AND PROCEDURAL BACKGROUND

¶2 Bisbee Police Officer William Silva saw Defendant

Sudden Rio Stroud sitting in a car. Knowing that there was an

outstanding felony warrant for Stroud’s arrest, Officer Silva

approached him. As Stroud got out of the car, Silva ordered him

to put his hands on the patrol car. Although he questioned why

he was being arrested, Stroud started to comply with the order.

When the officer advised him of the arrest warrant, Stroud tried

to evade Silva, but Silva grabbed Stroud’s shirt collar, shoved

him against the car and held him there, telling him that he was

under arrest. Stroud continued to struggle and kick, so Silva

used pepper spray in an effort to subdue him. Some of the spray

blew into Silva’s eyes, causing him to lose his grip on Stroud,

who broke free and fled. Another officer later apprehended

Stroud.

¶3 As a result of the incident, Stroud was charged with

resisting arrest and second-degree escape. A jury convicted

Stroud of both counts, finding also that he was on probation

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when he committed the offenses. The trial judge imposed

consecutive prison terms totaling four years.

¶4 On appeal, the court of appeals affirmed Stroud’s

conviction and sentence for resisting arrest, but vacated his

conviction and sentence for escape, finding the evidence

insufficient to establish that Stroud had been “in custody,” a

prerequisite to an escape. State v. Stroud, 207 Ariz. 476, 479-

80, 481, ¶¶ 12, 19, 88 P.3d 190, 193-94, 195 (App. 2004).

¶5 The State of Arizona petitioned this court for review.

A. Standard of Review

¶6 The State urges us to find that the court of appeals

erred in holding that the facts of this case cannot support

convictions for both resisting arrest and escape.1 See id. at

477-78, ¶ 4, 88 P.3d at 191-92. We review the sufficiency of

evidence presented at trial only to determine if substantial

evidence exists to support the jury verdict. See Hutcherson v.

City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449, 451

(1998). Substantial evidence has been described as “more than a

‘mere scintilla’” of evidence; but it nonetheless must be

evidence that “reasonable persons could accept as sufficient to

support a guilty verdict beyond a reasonable doubt.” State v.

1
Stroud also questioned whether the trial court erred in
finding that consecutive sentences were required. The State now
concedes that the judge had discretion to impose concurrent
sentences. See infra section C, ¶¶ 18-22.

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Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 469 (1997) (quoting

State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990)).

In determining whether substantial evidence exists, we view the

facts in the light most favorable to sustaining the jury verdict

and resolve all inferences against Stroud. State v. Arredondo,

155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).2

B. Discussion

¶7 In Arizona, the crimes of resisting arrest and escape

are controlled by separate statutes, each having distinct

elements. A person commits the crime of 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.

A.R.S. § 13-2508(A) (2001). A person commits second-degree

escape by knowingly “[e]scaping or attempting to escape from

custody imposed as a result of having been arrested for, charged

2
Stroud’s counsel did not object to the submission of the
case to the jury or move for a judgment of acquittal at trial.
Stroud, 207 Ariz. at 478, ¶ 5, 85 P.3d at 192. We therefore
review the record only for fundamental error. State v. Gendron,
168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). It is, however,
“fundamental error to convict a person for a crime when the
evidence does not support a conviction.” State v. Roberts, 138
Ariz. 230, 232, 673 P.2d 974, 976 (App. 1983).

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with or found guilty of a felony.” A.R.S. § 13-2503(A)(2)

(2001) (emphasis added).

¶8 The court of appeals held that Stroud’s convictions for

resisting arrest and escape could not both stand. 207 Ariz. at

479-80, ¶ 12, 88 P.3d at 193-94. It concluded that the escape

conviction was not supported by substantial evidence. Id. To

establish the second-degree escape charge, the State had to

prove beyond a reasonable doubt that Stroud knowingly

“[e]scap[ed] from custody imposed as a result of having been

arrested for . . . a felony.” A.R.S. § 13-2503(A)(2). The

court reasoned that because Officer Silva never “completed

arresting Stroud,” he was never in “custody,” and thus the trial

court erred by submitting the escape charge to the jury.

Stroud, 207 Ariz. at 480, ¶ 12, 88 P.3d at 194.

¶9 In concluding that Stroud was never in custody, the

court of appeals relied upon definitions of custody derived from

other jurisdictions. Id. at 479-80, ¶¶ 11-12, 88 P.3d at 193-94

(citing Ex parte McReynolds, 662 So. 2d 886 (Ala. 1994); People

v. Thornton, 929 P.2d 729 (Colo. 1996); People v. Becoats, 451

N.Y.S.2d 497 (App. Div. 1982); Medford v. State, 13 S.W.3d 769

(Tex. Crim. App. 2002)). Arizona statutes, however,

specifically define “custody” as the “imposition of actual or

constructive restraint pursuant to an on-site arrest.” A.R.S. §

13-2501(3) (2001). “Restraint” is not defined by statute, but

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the common understanding of the word connotes controlling,

limiting, or restricting the movement of another. See Black’s

Law Dictionary 1315-16 (7th ed. 1999); see also A.R.S. § 1-213

(2002) (requiring that words in statutes “be construed according

to the common and approved use of the language”); State v. Wise,

137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (stating

that “words and phrases in statutes shall be given their

ordinary meaning unless it appears from context or otherwise

that a different meaning is intended”). Moreover, the term has

been construed by Arizona case law. See State v. Sanchez, 145

Ariz. 313, 316, 701 P.2d 571, 574 (1985) (analyzing concepts of

arrest and constructive restraint in the context of an escape

charge); State v. Cole, 172 Ariz. 590, 592, 838 P.2d 1351, 1353

(App. 1992) (analyzing “custody” in the context of the escape

statute). Thus, Arizona authority provides ample guidance

regarding the statutory requirements for proving escape.

¶10 Arizona authority also addresses what constitutes an

arrest for purposes of the escape statute. Section 13-3881

provides that an “arrest is made by an actual restraint of the

person to be arrested, or by his submission to the custody of

the person making the arrest.” A.R.S. § 13-3881 (2001). No

easily identifiable point defines the moment at which an arrest

or custody occurs. Whether an arrest has occurred must be

determined by examining the facts and circumstances of each

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case. See Cole, 172 Ariz. at 592, 838 P.2d at 1353 (finding

actual restraint when two police officers held the defendant’s

arms, only temporarily, and told him he was under arrest before

he escaped).

¶11 Thus, to prove Stroud guilty of escape, the State had

to show that Stroud was “arrested” (that is, that he was

actually restrained) and was in “custody” (defined as the

imposition of actual or constructive restraint pursuant to an

arrest). On these points, the record shows that during the

ongoing struggle, Officer “Silva grabbed Stroud’s shirt collar,

leaned him against his car, and held him down” while repeatedly

telling “Stroud he was under arrest.” Stroud, 207 Ariz. at 477,

¶ 2, 88 P.3d at 191. From this evidence, a reasonable jury

could find that Silva actually restrained Stroud, even if only

temporarily, before Stroud broke free. See Cole, 172 Ariz. at

592, 838 P.2d at 1353. The jurors could reasonably have

concluded that Silva’s actual restraint of Stroud satisfied the

definition of “custody” set forth in A.R.S. § 13-2501(3). This

action, coupled with the declaration to Stroud that he was under

arrest, provided sufficient evidence to support a guilty verdict

on the charge of second-degree escape, as defined in A.R.S. §

13-2503(A)(2).

¶12 Although the record contains conflicting evidence on

the degree of control exercised by Officer Silva, viewing the

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evidence presented in favor of upholding the verdict, we

conclude that a reasonable jury could find the evidence

sufficient to support Stroud’s conviction for escape. Thus, we

find no fundamental error.

¶13 The court of appeals, however, found fundamental error

in the trial court’s submission of the escape charge to the jury

because it concluded that Stroud had not been “restrained,” as

that term is used in the statute defining custody. A.R.S. § 13-

2501(3); Stroud, 207 Ariz. at 480, ¶ 12, 88 P.3d at 194. In

doing so, it relied upon language from this court’s decision in

Sanchez, 145 Ariz. at 316, 701 P.2d at 574. While we reaffirm

the thrust of that opinion — that one cannot escape unless one

has been actually restrained or arrested — we believe the court

of appeals has unmoored the language of the opinion from its

contextual anchor.

¶14 The Sanchez case involved constructive restraint, not

the actual restraint at issue in this case. Id. at 314, 701

P.2d at 572. In Sanchez, the officer never was closer than ten-

to-fifteen feet from the defendant, who walked away when the

officer began to walk toward him. Id. As the two circled back

and forth around a parked car, the officer finally said, “This

is it, Roy; you’re under arrest.” Id. At that point, the

defendant ran. Id. In light of those facts, this court

concluded that the defendant could not have escaped because he

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had never submitted to the officer’s authority, nor had he

actually been restrained by the officer. Id. at 315, 701 P.2d

at 573. That case, unlike the one before us, did not involve an

actual restraint of the defendant. Rather, the court

characterized Sanchez’s actions as a flight from an attempted

arrest. Id. at 316, 701 P.2d at 574. In actual restraint

cases, the factfinder must carefully examine the facts and

circumstances to see whether, taken as a whole, they demonstrate

that the officer exercised the necessary degree of control over

the defendant to establish that an arrest has occurred. See

Cole, 172 Ariz. at 591, 838 P.2d at 1352. Sanchez sheds little

light on such an inquiry.

¶15 The court of appeals then attempted to “reconcile” the

crimes of resisting arrest and escape. Stroud, 207 Ariz. at

478-79, ¶¶ 7, 11, 88 P.3d at 192-93. But no such reconciliation

is necessary. The crimes are separate, each consisting of

elements that differ from those that constitute the other.

Compare A.R.S. § 13-2508(A) (resisting arrest) with A.R.S. § 13-

2503(A)(2) (escape); see also supra ¶ 7. One is not a lesser-

included offense of the other. If the facts are such that a

reasonable jury can find that the elements of each crime are

met, a conviction for each may stand, even in the same case.

¶16 The record shows that the jury was adequately

instructed on both resisting arrest and escape, and the

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defendant interposed no objection to either instruction. Under

those circumstances, and given the facts presented at trial, the

judge was justified in submitting both offenses to the jury, and

the jury was justified in finding that Stroud committed both

resisting arrest, as defined in A.R.S. § 13-2508(A), and second-

degree escape, as defined in A.R.S. § 13-2503(A)(2).

¶17 We therefore vacate the court of appeals’ conclusion on

this issue and reinstate the jury’s verdict on the escape

charge.

C. Sentencing Issues

¶18 The trial judge seems to have believed that he was

statutorily compelled to impose consecutive sentences on Stroud.

On appeal, Stroud argued that the trial court erred in

“interpret[ing] A.R.S. § 13-2503(B) as requiring it to impose

consecutive sentences,” and that the imposition of consecutive

sentences “violate[d] statutory and constitutional prohibitions

against double punishment.” Stroud, 207 Ariz. at 477, ¶ 1, 88

P.3d at 191. Because the court of appeals reversed Stroud’s

conviction on the escape charge, the court never addressed these

issues. The reinstatement of the defendant’s escape conviction

requires that we now resolve them. We review the issues de novo

because they involve statutory construction and questions of

law. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d

1227, 1230 (1996).

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 1. Consecutive Sentences

¶19 In Arizona, a sentence for escape “shall run

consecutively to any sentence of imprisonment for which the

person was confined” or to the imposition of probation, parole,

work furlough, or release. A.R.S. § 13-2503(B); see also State

v. Weaver, 158 Ariz. 407, 410, 762 P.2d 1361, 1364 (App. 1988).

In other situations, the judge has discretion to impose

consecutive or concurrent sentences. A.R.S. § 13-2503(B);

Weaver, 158 Ariz. at 410, 762 P.2d at 1364.

¶20 Section 13-604.02(B), A.R.S., is the sentencing

provision that applies to offenses committed while on probation.

While that statute requires that the sentence imposed for a new

offense “be consecutive to any other sentence from which the

convicted person had been temporarily released or had escaped,”

A.R.S. § 13-604.02(B) (2001), it does not require that the

sentence for two new charges be consecutive. Nevertheless, at

the sentencing hearing, Stroud’s lawyer stated that consecutive

sentences were required. The trial judge, apparently under the

misimpression that counsel’s statement was correct, imposed

consecutive sentences.

¶21 The parties now agree that the trial court erred in

believing that consecutive sentences were statutorily mandated.

When a trial court labors under a misunderstanding of the

sentencing law, thinking that a consecutive sentence is

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mandatory rather than discretionary, that portion of the

sentence imposing a consecutive sentence should be set aside and

the matter remanded for sentencing. Weaver, 158 Ariz. at 410,

762 P.2d at 1364; State v. LaBar, 148 Ariz. 522, 524, 715 P.2d

775, 777 (App. 1985); State v. Pena, 140 Ariz. 545, 551, 683

P.2d 744, 750 (App. 1983). Accordingly, we remand the case to

the trial court for re-sentencing under the correct standard.

2. Double Punishment

¶22 Stroud also argues that consecutive punishment for

escape and resisting arrest constitutes impermissible double

punishment. See A.R.S. § 13-116 (2001). The sentences in this

case have been vacated and the case remanded for re-sentencing.

Because the trial court may elect not to impose consecutive

sentences, we need not reach the issue of double punishment. We

do note, however, that A.R.S. § 13-116 prohibits consecutive

sentences for an “act or omission” that is punishable by

“different sections of the laws.” But as set forth in ¶¶ 7-8,

the crimes of escape and resisting arrest constitute separate

acts. See State v. Gordon, 161 Ariz. 308, 312, 778 P.2d 1204,

1208 (1989) (setting forth “identical elements” test). Stroud’s

double punishment claim is therefore meritless.

CONCLUSION

¶23 For the foregoing reasons, we vacate the opinion of the

court of appeals, reinstate the jury verdict on the charge of

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escape, and remand the case to the trial court for re-

sentencing.

__________________________________
Rebecca White Berch, Justice

CONCURRING:

________________________________________
Charles E. Jones, Chief Justice

________________________________________
Ruth V. McGregor, Vice Chief Justice

________________________________________
Michael D. Ryan, Justice

_________________________________________
Andrew D. Hurwitz, Justice

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