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State v. Girard

Court of Appeals of Oregon

April 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
LACY RENEE GIRARD, aka Lacy Girard, Defendant-Appellant.

          Argued and Submitted February 28, 2017

         Douglas County Circuit Court 15CR44876 William A. Marshall, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Nathan Riemersma, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

         Case summary: Defendant appeals from a judgment of conviction for second-degree escape, ORS 162.155. The trial court entered that judgment after finding defendant guilty on two counts of second degree escape, which the court determined should merge. She assigns error to the trial court's denial of her request for entry of judgment of acquittal as to each count, contending that, when ORS 162.155 is correctly construed, the evidence is not suffcient to sustain her conviction. With respect to Count 1, she argues that she was entitled to a judgment of acquittal because she escaped from custody imposed in connection with alleged probation violations and, therefore, did not escape from custody "imposed as a result" of a felony conviction for purposes of ORS 162.155(1)(b). As to Count 2, she argues that she escaped from a courtroom and, consequently, did not escape from a "correctional facility" within the meaning of ORS 162.155(1)(c).

         Held: Regarding Count 1, a person in custody for a suspected probation violation is not in custody "imposed as a result" of a felony conviction for purposes of ORS 162.155. With respect to Count 2, under State v. Lane, 341 Or 433, 439, 144 P.3d 927 (2006), a courtroom generally becomes a "correctional facility" when a trial court remands a defendant into custody and the factual differences between this case and Lane are insufficient to render its holding in applicable. As a result, the trial court correctly determined that, under Lane, defendant escaped from a correctional facility when she fed the courtroom under the circumstances present in this case.

         Reversed and remanded for entry of judgment of acquittal on Count 1 and judgment of conviction on Count 2, and for resentencing.

          LAGESEN, J.

         Defendant appeals from a judgment of conviction for second-degree escape, ORS 162.155.[1] The trial court entered that judgment after finding defendant guilty as charged on two counts of second-degree escape, which the court determined should merge. She assigns error to the trial court's denial of her request for entry of judgment of acquittal as to each count, contending that, when ORS 162.155 is correctly construed, the evidence is not sufficient to sustain her conviction. For the following reasons, we conclude that defendant was entitled to entry of a judgment of acquittal as to Count 1, but that the trial court correctly denied defendant's motion as to Count 2. See State v. Link. 346 Or 187, 198-203, 208 P.3d 936 (2009) (holding that, because a defendant has a cognizable interest in being acquitted on any count on which the defendant legally is entitled to an acquittal, a trial court's erroneous denial of a motion for judgment of acquittal on a particular count is not harmless and constitutes reversible error, even where the guilty verdict on the count was merged with guilty verdicts on other counts on which the defendant was not entitled to acquittal).

         Defendant's challenges to the trial court's denial of her request for judgment of acquittal turn on questions of statutory construction. We therefore review for legal error. State v. Hunt. 270 Or.App. 206, 210, 346 P.3d 1285 (2015).

         The pertinent facts are not disputed. While on probation, defendant appeared for a proceeding in drug court in a courtroom on the third floor of the Douglas County Courthouse. At the proceeding, defendant's probation officer alerted the court that defendant was alleged to have violated the terms of her probation. The probation officer requested that the court remand defendant into custody to be detained pending a subsequent hearing to address the alleged probation violations. The court granted that request and remanded defendant into custody. The probation officer could have taken defendant to jail herself but decided to ask the court clerk to summon the third-floor deputy to do so. While the court clerk contacted the deputy, the probation officer directed defendant to sit in a chair. Defendant fled instead. She ran past the third-floor deputy, who was at his security station on the phone with the clerk, and departed the courthouse by jumping off of a third floor balcony.

         For that conduct, defendant was charged with two counts of second-degree escape, ORS 162.155. Count 1 alleged that defendant committed the crime by, having been convicted of a felony, "escap[ing] from custody imposed as a result thereof." ORS 162.155(1)(b). Count 2 alleged that defendant committed the crime by the alternative means of "escap[ing] from a correctional facility." ORS 162.155(1) (c). Following a bench trial, the trial court found defendant guilty as charged, rejecting defendant's argument that, when ORS 162.155 is correctly construed, the evidence was insufficient to convict her on either theory of second-degree escape alleged in the indictment. The trial court concluded that its verdict on Count 2 merged with its verdict on Count 1 and entered judgment on a single conviction of second-degree escape. The court sentenced defendant to 30 months' incarceration for that conviction.

         Defendant appeals, assigning error to the trial court's determination that she was not entitled to a judgment of acquittal on both counts. With respect to Count 1, she argues that she was entitled to a judgment of acquittal because she escaped from custody imposed in connection with alleged probation violations and, therefore, did not escape from custody "imposed as a result" of a felony conviction for purposes of ORS 162.155(1)(b). As to Count 2, she argues that she escaped from a ...


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