State v. Ashbaugh

For the purposes of ORS 162.155, an escapee enters into the constructive custody of authorities upon verbal notice of a warrant for his arrest and the intent of authorities to place him under arrest.

Defendant appealed and assigned error to the trial court's denial of his motion for judgment of acquittal (MJOA) and that the state's evidence was insufficient to prove Defendant was in custody. Defendant was on post-prison supervision (PPS) at the time of these events. Defendant was to submit to a mental health evaluation pursuant to his PPS. Defendant failed to do so. The court issued a detention warrant for his arrest. After a chase, and repeated warnings by authorities regarding a warrant for Defendant's arrest and the intention of the authorities to execute the warrant, Defendant responded "you better watch your back" before being subdued via Taser. Second degree escape is committed wherein an escapee threatens physical force while departing "actual or constructive restraint by a peace officer pursuant to an arrest." ORS 162.135(4), see also ORS 162.155(1)(a); ORS 162.135(5). The Court determined that constructive restraint, and by extension custody, existed when the officer informed that Defendant was under arrest. With custody established, the Court concluded that Defendant had escaped. Additionally, the Court found that a rational trier of fact could find that Defendant's threats during pursuit could be understood as threats toward physical force. Therefore, the trial court did not err in denying Defendant's motion for MJOA.