State v. Lonergan

KISTLER, J.,

dissenting.

After an officer placed defendant under arrest, defendant broke away and took off running. The majority holds that, in running away from the officer, defendant was not “escaping” from him. The majority’s holding is at odds with both the ordinary understanding and the legally accepted meaning of that term. The act of escaping either from an officer’s grasp or the confines of a prison does not end once a defendant has broken away from the officer or crossed the threshold of the prison. Rather, the act of escaping includes, at a minimum, the immediate flight from either the officer or the prison. Because the jury reasonably could have found that defendant was in the process of escaping when he was fleeing from the officer, I would affirm his conviction for second-degree escape. I respectfully dissent.

ORS 162.155(l)(a) provides that a person commits the crime of second-degree escape if “[t]he person uses or threatens to use physical force escaping from custody.” ORS 162.135(5) provides that “escape” means “the unlawful departure of a person from custody or a correctional facility.” The majority reasons that defendant “escaped” from the officer when he broke away from him. In the majority’s view, because the crime of escape was complete once defendant broke away, defendant could not have been escaping when he took off running from the officer. In essence, the majority views an “escape” as a single point in time rather than a continuing event. Everything that precedes that point in time is, at most, an attempt, and everything that follows it is irrelevant, at least to the crime of escape.

The majority’s interpretation of the term “escape” is at odds with the ordinary understanding of that term. Ordinarily, escape means “to get away (as by flight or conscious effort) : break away, get free, or get clear <the prisoner escaped from prison>.” Webster’s Third New Int’l Dictionary *24774 (unabridged ed 2002) (emphasis in original). That definition does not refer to an escape as a single point in time; rather, it recognizes that escape and, a fortiori, “escaping” are not that limited. To be sure, a person has escaped once he or she breaks from the officer’s grasp or crosses the threshold of the prison. But the act of escaping from custody or prison does not end there, if the escape is to succeed. It also includes “get [ting] away” from the officer or prison “as by flight.” The legislature that enacted the escape statute would be surprised, I submit, to learn that a person who is in the act of fleeing from either the confines of a prison or an officer’s grasp is not in the act of “escaping.”

The definition of escape in ORS 162.135(5) leads to the same conclusion. As noted, ORS 162.135(5) provides that “ ‘[e] scape’ means the unlawful departure of a person from custody or a correctional facility.” “Departure,” in turn, means “the act of going away” or “setting out (as on a journey * * *).” Webster’s at 604. Both definitions of departure use a gerund (“going away” or “setting out”) to define that term; the use of those gerunds refers to a continuing act, not a single point in time.

Put in the context of this case, defendant began his unauthorized departure from custody when he broke away from the officer, but he was still in the “act of going away” (or, alternatively, he was still “setting out * * * on [his] journey”) when he was fleeing from the officer. The statutory definition of “escape” does not provide any reason to depart from the ordinary understanding of that term. Rather, the statutory definition confirms that, when the legislature prohibited the use of force while “escaping from custody,” it did not intend to limit the prohibition against using force to the initial act of breaking away from an officer. The prohibition applies equally to the “act of going away” — i.e., to defendant’s immediate flight from the officer.

The other courts that have considered this issue have recognized that the crime of escape is not limited to the initial act of leaving custody but instead continues beyond that point. See, e.g., United States v. Bailey, 444 US 394, 413, 100 S Ct 624, 62 L Ed 2d 575 (1980); United States v. Michelson, 559 F2d 567 (9th Cir 1977); United States v. *25Chapman, 455 F2d 746 (5th Cir 1972).1 Those courts have held that escape is a continuing crime that extends for the duration of the time that a defendant is absent from custody. This case does not require us to decide whether the crime of escape extends that far. It is sufficient to say, as the words of the statute dictate, that the crime is not limited to the act of breaking away from the officer or crossing the threshold of a prison. It also includes the immediate flight from the officer’s grasp and the prison walls.

The legislative history confirms what the text says.2 The 1971 legislature enacted the second-degree escape statute as part of a comprehensive revision of the state’s criminal code. See Or Laws 1971, ch 743, § 191 (enacting second-degree escape statute); State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980) (describing process of adopting the 1971 criminal code). The persons who drafted the code explained that they relied on “the risk to others created by the escape” in determining which escapes warranted greater sanctions. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 190-192, 194-95 (July 1970) (emphasis omitted).3 Specifically, they explained that the use of force while escaping increases the crime from third- to second-degree escape because “[t]he use of force in escapes obviously increases the hazards imposed on those obligated to resist such conduct.” Id. at 195. A defendant’s use of force to effect his or her escape (and the ensuing hazards imposed on those obligated to resist the *26escape) does not end the moment that he or she breaks away from an officer’s grasp or crosses the threshold of the prison. Rather, it continues during the defendant’s immediate flight from custody. See Buchler v. Oregon Corrections Div., 316 Or 499, 507, 853 P2d 798 (1993) (recognizing that inmate could cause harm to persons outside the prison walls “during the stress of the actual escape from custody itself’).

One other part of the legislative history bears mention because it specifically touches on the legislature’s use of the word “escaping.” When the full committee considered the proposed crime of first-degree escape,

“Representative Frost pointed out that the language in section 4 [defining first-degree escape] used different tenses when it said ‘uses or threatens to use . . . in escaping . . .’ Mr. Paillette advised that the intent was to refer to a situation where the escape was an accomplished fact. Chairman Yturri explained that Representative Frost’s interpretation brought in the connotation of an inchoate crime when the draft said ‘in escaping’ whereas the draft was intended to mean that the person simultaneously ‘used or threatened to use’ force or a weapon during the course of an escape.
“There were a number of suggestions for resolving this problem. It was finally determined that the best method was to delete ‘in’ before ‘escaping’ in subsection (1) of section 3 [defining second-degree escape] and in subsections (1) and (2) of section 4 [defining first-degree escape]. Representative Frost so moved and the motion carried unanimously.”

Minutes, Criminal Law Revision Commission, Mar 18,1970, 20 (ellipses and emphases in original).4

Although that passage discusses the legislature’s use of the word “escaping,” it does not shed much light on the *27specific issue that this case presents. The passage establishes that the first- and second-degree escape statutes apply to the completed crime, not to an attempt. It also establishes that “the draft was intended to mean that the person simultaneously ‘used or threatened to use’ force or a weapon during the course of an escape.” The passage, however, does not explain what the “course of an escape” includes, although the use of the word “course” suggests that “escaping” refers to a series of events rather than a single point in time, as the majority holds.

Although not dispositive, the legislative history is consistent with the plain meaning of the words that the legislature used. Even if the wording of the statute, coupled with the legislative history, left some doubt and it were necessary to resort to general principles of construction to decide this case, I agree with the Court of Appeals that the appropriate principle is to ask how the legislature would have decided this issue if it had considered it. See Carlson v. Myers, 327 Or 213, 226, 959 P2d 31 (1998) (stating that inquiry); State v. Gulley, 324 Or 57, 66, 921 P2d 396 (1996) (same). In pursuing that inquiry, we should interpret the statute consistently with the drafters’ stated purpose — to punish and thus deter the use of force during escapes. See State v. Lonergan, 210 Or App 155, 164-65, 149 P3d 1215 (2006) (following that course). As noted, the risk that a person will use force to effectuate an escape is not limited to the act of breaking away from the officer or getting beyond the prison walls. Rather, it extends to the person’s immediate flight from custody. The majority’s interpretation thwarts the legislature’s purpose; the Court of Appeals’ interpretation gives effect to it.

Interpreting the statute consistently with its text, history, and purpose, I would affirm the Court of Appeals decision and the trial court’s judgment. There was evidence from which a reasonable trier of fact could find that defendant was in the course of immediate flight from the officer’s grasp when he hit the officer to effectuate his escape. The trial court correctly denied defendant’s motion for judgment of acquittal, and the Court of Appeals correctly affirmed the resulting judgment for second-degree escape. I respectfully dissent.

Balmer, J., joins in this dissent.

Those courts were interpreting 18 USC § 751(a), which imposes a penalty on persons who “escap[e]” from a federal prison or from custody. See Bailey, 444 US at 396 (setting out text of federal statute). The federal statute does not define “escape,” but the Court explained that it means “absenting oneself from custody without permission.” Id. at 407.

In my view, the text of the statute provides a complete answer to defendant’s argument. Even if the text were unclear, the legislative history and general maxims of statutory construction lead to the same conclusion as the text.

The 1967 legislature created the Oregon Criminal Law Revision Commission to revise the state’s criminal laws. Garcia, 288 Or at 416. The Commission divided responsibility for drafting the revised criminal code among three subcommittees. Those subcommittees produced drafts of the code and submitted those drafts, together with commentaries on them, to the Commission, which produced a final draft of the proposed code and presented the final draft and commentary to the legislature. This court has looked to both the commentary and the discussions that preceded the adoption of the final dr aft as legislative history for the resulting laws. See id. at 416-20 (relying on those sources).

The full committee was considering the third preliminary draft of the escape statutes. That draft provided that a person commits the crime of second-degree escape if “[h]e uses or threatens to use physical force in escaping from custody.” Criminal Law Revision Commission, Proposed Oregon Criminal Code, Preliminary Draft No 3, Art 23, § 3(1) (Jan 1970). That draft also provided that a person commits the crime of first-degree escape if “[a]ided by another person actually present he uses or threatens to use physical force in escaping from custody * * *” or if “[hie uses or threatens to use a dangerous or deadly weapon in escaping from custody '***.” Id. §4.