(dissenting):
21 Because I believe the majority interpretation of Utah Code Annotated section 76-8-309 (1999) is flawed, I respectfully dissent.
1 22 The majority concludes that under the plain language of our escape statute, an escape is not accomplished absent a prisoner successfully leaving the prison. The majority relies upon State v. Gaines, 372 So.2d 552 (La.1979), to support this position. However, because the Louisiana escape statute is materially different from our own, the majority's reliance on Gaines is misplaced. In Gaines, the Louisiana Supreme Court examined whether a prisoner who fled from his assigned area within the prison, with the intent to leave the prison, had violated Louisiana's escape statute. See id. at 558-54. The court examined the plain language of the Louisiana statute and determined that the legislature had amended the escape statute to require specific proof of two distinct elements: (1) The prisoner must escape from official custody; and (2) the prisoner must escape from a place of legal confinement.1 See id. at 554. Having so interpreted the statute, the Louisiana Supreme Court reversed Gaines's convietion, because while he escaped from official custody, at no point did he actually leave prison grounds. See id. at 555.
123 In contrast, our escape statute, seetion 76-8-809, states that "[a] prisoner is guilty of escape if he leaves official custody without authorization." Utah Code Ann. § 76-8-309(1). Thus, unlike the statute at issue in Gaines, in Utah, an escape is complete onee a prisoner "leaves official custody [making no reference to geographic boundaries] without authorization." Id. § 76-8-809(1). Accordingly, it is clear that our legislature has not seen fit to require the state to prove two conjunctive elements to establish that the crime of escape has been committed.*9832 I therefore cannot join in the majority view that the analysis offered in Gaines provides constructive assistance in the present case.
124 Instead, I believe that 79 AL.R.4th 1060, Annotation Convictions For Escape Where Prisoner Fails to Leave Confines of Prison or Institution (1990 & Supp.2002), is much more helpful in analyzing this situation. Specifically, 79 A.L.RAth 1060 presents a myriad of case law that directly supports my interpretation of section 76-8-809. Among these cases, I find Huffman v. State, 659 N.E.2d 214 (Ind.Ct.App.1995),3 to be particularly instructive. In Huffman, the defendant was a prisoner who had left his dormitory without authorization and hid on prison grounds until he was later discovered. See id. at 215. Subsequently, the defendant was convicted of escape. See id. On appeal, the defendant argued that "he could not properly be convicted of Escape because he had not made it off" prison grounds. Id. In denying his claim, the Indiana Court of Appeals noted
that our sister states have almost universally upheld Escape convictions where the prisoner did not make it outside the prison or detention facility where the states' statutes involved proscribed "escape from 'custody,' 'confinement, or the like" (as opposed to statutes which proseribed "escape from 'prison, 'detention facility, or the like") and the prisoner exhibited an intention to leave the confines of the prison or institution.
Id. (citations omitted).
125 Similarly, in Urbauer v. State, 744 P.2d 1274 (Okla.Crim.App.1987), the defendant was convicted of escape after scaling two of three fences surrounding the prison where he was incarcerated. See id. at 1275. (On appeal the defendant argued that the evidence was insufficient to prove escape because he had not succeeded in leaving the prison grounds. See id. The court, in denying his claim, noted that "[wle think that for purposes of escape from a penal institution, 'custody' may be restraint by either physical means or by a superior force acting as a moral restraint. But there must be actual or constructive custody in order to escape from that custody." Id. The court further stated that "[alny departure from such restraint or control, with or without force, whether from custody of an officer or from any place where one is lawfully confined may be adjudged an escape." Id.
1 26 Finally, in State v. Sugden, 148 Wis.2d 728, 422 NW.2d 624 (1988), the defendant was convicted of escape after highjacking a prison vehicle and driving it through the inner wall only to be stopped before reaching the outer wall. See id. at 625-26. At trial, and on appeal, the state argued that the defendant's escape was complete when he broke out of the housing facility within the prison and that the defendant's point of capture was immaterial. See id. at 626. The Wisconsin Supreme Court agreed, stating that within the meaning of the Wisconsin escape statute, "custody of an institution may exist within the perimeters of an institution because of special treatment that is given to particular inmates." Id. at 627. Thus, the court concluded, "[tlhere may be custody without the walls and custody of various kinds, without limitation, within the walls." Id. at 627;4 see also Annotation Conviction *984For Escape Where Prisoner Fails to Leave Confines of Prison of Institution, T9 A.L.R.4th 1060 (1990 & Supp.2002) ("As a general matter, it has been held that the crime of escape may be complete, notwithstanding the fact that the prisoner does not depart from the enclosure of the prison, if he succeeds in leaving his cell, where the statute penalizes an escape from 'any place whatsoever' in which the prisoner is placed.").
€27 Much like the statutes at issue in Sugden and Urbaquer, Utah's escape statute criminalizes "leaving] official custody without authorization." Utah Code Ann. § 76-8-309(1). Thus, because "[tJhere may be custody without walls and custody of various kinds, without limitation, within the walls," Sugden, 422 NW.2d at 627; see also Utah Code Ann. § 76-8-809(7)(b) (defining the broad meaning of "official custody" under the statute), I would conclude that Germonto left official custody when he left his authorized area of confinement. It is clear from the record that Germonto's authorized area of confinement at the time of his escape was comprised of the yard through which he was traveling, following a church service, to return to his cell, and that when he scaled the fence into the "no-man's-land" area between the fences he had left official custody without authorization. See State v. Descoteaux, 94 Wash.2d 31, 614 P.2d 179, 181 (1980) ("[DJe-fendant could be convicted of escape if he knew his actions would result in leaving confinement without permission."), modified by State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982).
T 28 Moreover, inserting the definitions for "official custody" and "confinement" supplied in section 76-8-309(7)(a), (b), does not require a different result in this case. The application of the provided definitions changes the statute to read that Germonto is guilty of escape if he leaves "confinement in a state prison," where he is housed, without authorization. Utah Code Ann. § 76-8-309(TM)(a)-(b)5 At the time of his escape, Germonto was "confined" to an area within the prison, bounded by a substantial fence, through which the guards transported the prisoners to and from the chapel. It was from this area of confinement within the prison that Germonto left without authorization when he successfully scaled the inner fence, knowing that if left unchecked he would reach "freedom." Thus, even considering the definitions provided for within the statute, Germonto's actions violated section 76-8-309. See also Fitzgerald v. State, 782 S.W.2d 876, 879 (Tex.Crim.App.1990) (concluding that defendant had escaped from custody when he left specific housing unit within the prison to which he was confined).
1 29 While it is possible to read into section 76-8-809 the implied requirement that to be convicted of the erime of escape a prisoner must successfully escape all boundaries of the prison in which he finds himself, I believe that had the legislature intended that effect it could have, and would have, clearly communicated that intent in the statutory language. Instead, the legislature chose to criminalize the act of leaving official custody without authorization, an act that is accomplished not by escaping from the geographic boundaries of an institution, but by escaping from the authorized presence and immediate control of the institution or an arresting officer. See Sugden, 422 NW.2d at 627-28. Because the act of escaping official custody carries with it an inherent danger to the prisoner, police and correctional officers, and the public at large, the legislature is well within the bounds of reason in criminalizing *985the behavior as early in the process as is feasible. See Kinney v. Indiana Youth Cir., 950 F.2d 462, 465 (7th Cir.1991) ("[A] prisoner in the act of escaping may pose a serious threat to members of the community."); see also United States v. Dickerson, T7 F.8d T74, TT (4th Cir.1996) ("[Nlo one could credibly dispute the contention that an overt escape, especially an overt escape from a maximum security prison, inherently presents a serious potential risk of physical injury to another.").
1 30 Finally, I am also unpersuaded by the majority's arguments concerning attempted escape. First and foremost, it is clear from the statutory language, and the cases interpreting similar statutory language, that a prisoner must enjoy some level of suceess, albeit incomplete success, to be liable for the crime of escape.6 See Sugden, 422 NW .2d at 627-28. It is the success of leaving an area of authorized confinement that defines the crime of escape. Thus, had Germonto failed to scale the inner fence-the limits of his authorized confinement area at the time of his eseape-his crime would have been attempted escape. But, in the face of his success in scaling the fence, Germonto escaped from official custody.7
31 Moreover, I see little difference between this interpretation and our interpretation of the robbery or burglary statutes, where our focus is not on the success of the criminal act as a whole; rather, we focus our analysis on the completion of certain acts to determine whether the statute has been violated. See Utah Code Ann. § 76-6-801 (1999) ("A person commits robbery if: (a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person."); id. § 76-6-202 (1999) ("A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person."). In the instant case, Germonto climbed over the inner fence with the knowledge that his actions would result in his leaving confinement without authorization. While he was not ultimately successful in leaving the prison grounds, much like burglary or robbery, by taking the material step of scaling the inner fence with the required intent, his actions satisfied the statutory elements of an unauthorized leaving a place of confinement, and thus, the trial court properly bound him over for trial.
1 832 Accordingly, I dissent from the majority opinion and would instead affirm the trial court's decision to bind Germonto over on the escape charge.
. During the relevant period, Louisiana's escape statute read as follows:
Simple escape is: .... The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections, from any place where such person is legally confined.
State v. Gaines, 372 So.2d 552, 554 (La.1978) (quotations and citation omitted).
. Admittedly, Utah Code Annotated section 76-8-309 (1999) offers a number of definitions for the term "official custody." I believe, however, that the broad range provided supports, rather than undermines, my conclusion. The definitions offered range from simple arrest, which can occur on the street and which is technically complete once a person is informed of the fact, with or without handcuffs or other restraining devices, to "confinement in a state prison, jail" or other area of secure confinement, Id. § 76-8-309(7)(b). Thus, unlike the majority, I do not believe the definitions offered create additional elements that must be proved by the state. Rather, I believe the definitions merely highlight those individuals who are subject to prosecution under section 76-8-309 should they "leave[ ] official custody without authorization." - Id. § 76-8-309(1).
. The Indiana escape statute in effect at the time of Huffman's action defined escape as follows: "A person who intentionally flees from lawful detention commits escape ...." Huffman v. State, 659 N.E.2d 214, 215 (Ind.Ct.App.1995) (quoting Ind.Code § 35-44-3-5(a)).
. The Wisconsin court also noted that " 'escape from prison' means something different from 'escape from custody of such institution [or prison].' " State v. Sugden, 143 Wis.2d 728, 422 *984N.W.2d 624, 628 (1988) (alterations in original) (citations omitted).
. - Nor do I believe that this interpretation creates the sort of equal protection problem envisioned by the majority. Utah Code Annotated section 76-8-309(7) (1999) offers a broad definition for "official custody" that ranges from fleeing from an arrest, or from the custody of a transport officer, to leaving confinement in a jail or prison. Utah Code Ann. § 76-8-309(7)(b). From this language it is clear that the legislature intended the act of leaving official custody to be the defining moment in the crime of escape. See Maynard v. State, 652 P.2d 489, 493 n. 7 (Alaska Ct.App.1982) ("[Any voluntary departure from the arresting officers' immediate presence without their consent was an escape; this would be true even if he had been recaptured almost immediately."). Thus, leaving the area of confinement, not the entire institutional grounds, with the goal of securing an illegal freedom, is the action prohibited by section 76-8-309.
. Escape is defined variously to mean: "an act or instance of escaping: as [a] flight from confinement{, or the] evasion of something undesirable." Merriam-Webster's Collegiate Dictionary 395 (10th ed.1999). Accordingly, escape refers not to a successful act, but rather to the "flight" or "evasion" involved. Id.
. Compare the present circumstance of escaping from official custody within a prison to escaping from the custody of an arresting officer. In the context of arrest, an escape occurs with the first step taken by a prisoner who is in the custody of an arresting officer. See Utah Code Ann. § 76-8-309(7)(b); see also State v. Descoteaux, 94 Wash.2d 31, 614 P.2d 179, 181 (1980) ("[Defendant could be convicted of escape if he knew his actions would result in leaving confinement without permission."), modified by State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982).