Legal Research AI

State v. Stroud

Court: Arizona Supreme Court
Date filed: 2005-01-07
Citations: 103 P.3d 912, 209 Ariz. 410
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                       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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