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State v. McColly

Supreme Court of Oregon

February 28, 2019

STATE OF OREGON, Respondent on Review,
v.
DAWN MARIE McCOLLY, Petitioner on Review.

          Argued and submitted March 2, 2018

          On review from the Court of Appeals. (CC 14CR03429) (CA A156900) [*]

          Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.

          Christopher Page, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore. [**]

         [364 Or. 465] Case Summary:

         Defendant moved for judgment of acquittal on a charge of second-degree failure to appear, arguing that the state had not proved that she had been "released from custody" before she failed to appear. T he trial court denied defendant's motion, a jury convicted her of second-degree failure to appear, and the Court of Appeals affirmed. Held: (1) The failure-to-appear statutes require the state to prove, prior to a defendant's failure to appear, that a peace officer had imposed actual or constructive restraint, pursuant to an arrest or court order, amount to "custody"; and, then, that the trial court had released the defendant from that custody, under a release agreement and upon an appearance condition; and (2) because the state's evidence did not satisfy those requirements, the trial court erred in denying defendant's motion for judgment of acquittal.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [364 Or. 466] NELSON, J.

         This criminal case concerns a conviction for second-degree "failure to appear," which involves the failure to appear on a misdemeanor charge after having been "released from custody" by court order, under a release agreement and upon a condition of future appearance. ORS 162.195(1)(a); see also ORS 162.135(4) ("[c]ustody" means "the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order ***"). Defendant failed to appear for a scheduled trial call, but, before that date, she had not been released following arrest, detention, or confinement. Instead, as part of a voluntary arraignment appearance, the trial court had ordered that she be conditionally released and also officially fingerprinted and photographed pursuant to a "book-and-release" process; defendant also had signed a release agreement stating that she had "been released" and agreed to personally appear at future court appearances. In response to a motion for judgment of acquittal at defendant's trial on the failure-to-appear charge, the court concluded that the previously ordered book-and-release process satisfied the statutory "custody" requirement. A jury convicted defendant, and the Court of Appeals affirmed. State v. McColly, 286 Or.App. 168, 399 P.3d 1045 (2017). We conclude that the statutes required the state to prove that, prior to defendant's failure to appear, (1) a peace officer had imposed actual or constructive restraint, pursuant to an arrest or court order, amounting to "custody"; and, then, (2) the trial court had released her from that custody, under a release agreement and upon an appearance condition. We further conclude that the state's evidence did not satisfy those requirements, and we therefore reverse defendant's judgment of conviction.[1]

         I. FACTS AND PROCEDURAL BACKGROUND

         We set out the facts in the light most favorable to the state. State v. Makin, 360 Or. 238, 240, 381 P.3d 799 (2016). Defendant was charged by a District Attorney's complaint with menacing and harassment, both misdemeanors. The complaint included a letter directing defendant to appear [364 Or. 467] in court for a scheduled arraignment, and she voluntarily appeared as directed.[2] On the same day as her arraignment, the trial court issued an order that directed defendant to complete-also on the same day-a "book-and-release" process, and it further ordered that she be conditionally "released" on her own recognizance. Also that day, defendant signed a release agreement, in which she stated her understanding that she had "been released" by the court, instead of being held in jail, because she "agree[d] to submit to all orders and process of the court"; "to personally appear at all court appearances," trial, and sentencing; and to comply with other conditions. Defendant further agreed to personally appear in court at an upcoming scheduled hearing "and all other times ordered by the [c] ourt." The agreement acknowledged her understanding that violation of that or any other condition could result in revocation of release.

         Defendant later appeared at a scheduled hearing, but she did not appear at a subsequent trial call. The trial court revoked her release and issued a bench warrant, and defendant was arrested. The state moved to dismiss the menacing and harassment charges-and the trial court did so-but the state filed a new charge alleging second-degree failure to appear, which proceeded to trial.

         During its case in chief, the state introduced the trial court's arraignment order directing completion of the book-and-release process, as well as defendant's release agreement. The state also introduced testimony from the trial court administrator, to the effect that the book-and-release process was "the official process of being fingerprinted and [photographed] by the deputies [.]" At the close of the state's case, defendant moved for judgment of acquittal, arguing [364 Or. 468] that the state had failed to prove that she had been released from custody by court order before she failed to appear. ORS 162.195(1)(a). The trial court denied defendant's motion, a jury found her guilty of second-degree failure to appear, and the Court of Appeals affirmed her conviction. McColly, 288 Or.App. at 172, 177. We allowed defendant's petition for review.

         II. ANALYSIS

         A. Statutory Provisions and Parties' Arguments

         This case involves the application of two statutes. The second-degree failure-to-appear statute, ORS 162.195, makes it a crime to knowingly fail to appear

"after * * * [h]aving by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge against the person of having committed a misdemeanor[.]"

         ORS 162.195(1)(a) (emphasis added).[3] Another statute, ORS 162.135(4), defines "custody" for purposes of failure to appear as "the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but does not include detention in a correctional facility [.]"[4]

         The parties focus on the statutory requirement for "custody," for purposes of defendant having been "released from custody" before failing to appear. ORS 162.195(1)(a). The state argues that the trial court's arraignment order- coupled with the book-and-release process that the order directed defendant to complete-satisfied that requirement. Defendant disagrees and contends that the state did not [364 Or. 469] show that she had been subject to any restraint by a peace officer.[5]

         In addressing those arguments, we resolve threshold statutory construction questions consistently with our familiar methodology. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (when construing a statute to determine the legislature's intent, court examines text and context, and legislative history when appropriate). We otherwise assess whether the state presented sufficient evidence from which a reasonable trier of fact could find facts to prove each element of second-degree failure to appear, beyond a reasonable doubt. State v. Rader, 348 Or. 81, 91, 228 P.3d 552 (2010); see also State v. Turnidge, 359 Or. 364, 455-56, 374 P.3d 853 (2016) (explaining approach when motion for judgment of acquittal frames a threshold construction dispute about a legal element).

         B. "Custody" under ORS 162.135(4) and ORS 162.195(1)(a) 1. Preliminary discussion

         ORS 162.135(4) sets out the following definition for "custody," for purposes of having been "released from custody" before failing to appear under ORS 162.195(1)(a): "the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but *** not includ[ing] detention in a correctional facility [.]" The parties agree about two aspects of that definition. First, they both read the text as providing that a peace officer must impose the restraint at issue-either pursuant to an arrest or pursuant to court order. Arguably, as a textual matter, that phrase could be read a different way: either a peace officer must impose the restraint pursuant to an arrest, or a court must impose the restraint by order. As explained later, however, the applicable legislative history supports the parties' shared understanding-that a peace officer must impose the restraint-and we therefore apply that reading as well. See 364 Or at ___ and n 18 (discussing legislative history).

         [364 Or. 470] Second, the parties agree that this court's decision in State v. Davis, 360 Or. 201, 377 P.3d 583 (2016), provides a construction of "constructive restraint" under ORS 162.135(4)-there, in the context of an arrest. See generally State v. Mullins, 352 Or. 343, 349, 284 P.3d 1139 (2012) (case law construing statute at issue considered as part of text and context). That case involved the escape statutes, which utilize the same definition of "custody" as the failure-to-appear statutes. In Davis, two police officers had approached the defendant, whom they suspected of committing an assault, and he ran away. The police ran after him, yelling "stop, police!" but he continued to run. He later was apprehended and charged with third-degree escape. 360 Or at 203.

         The threshold issue in Davis was whether "constructive restraint" had been imposed on the defendant by an officer pursuant to an arrest, amounting to "custody" at the time of his alleged escape. Id. at 204. In resolving that issue, the court first construed "constructive restraint" as follows:

"'Constructive' ordinarily means '[i]nferred-often used in law of an act or condition assumed from other acts or conditions which are considered by inference or by public policy as amounting to or involving the act or condition assumed.' Webster's Third New Int'l Dictionary 489 (unabridged ed 2002); see also Black's Law Dictionary 333 (4th ed 1968) (denning 'constructive' as '[t]hat which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law'). 'Restraint' usually refers to 'the condition of being restrained, checked, or controlled: deprivation of liberty: confinement.' Webster's at 1937."

360 Or at 205-06. The court concluded that a person is subject to "constructive restraint" under ORS 162.135(4) "when an officer lawfully asserts authority to control a person's actions or freedom of movement, even if the officer does not have physical control of the person." Id. at 206. The court then determined that, by establishing that an officer had yelled "stop, police!" to the defendant, the state had sufficiently proved that the officer had placed the defendant in constructive restraint because the officer had "asserted [364 Or. 471] authority to restrict [the] defendant's freedom to move about." Id. at 209.[6]

         Applying that construction here, the state was required to prove the "custody" aspect of ORS 162.195(1)(a) by showing that a peace officer had lawfully asserted his or her authority to control defendant's actions or freedom of movement, regardless of any physical control over defendant. Additionally, as applicable here, an officer imposing restraint must have done so pursuant to court order. ORS 162.135(4).

         The state does not disagree that it must prove the imposition of constructive restraint by a peace officer, as described in Davis. It argues, however, that the trial court's arraignment order-once coupled with the evidence about the book-and-release process administered by deputies-satisfied that requirement. As the state describes it, the court's decision to conditionally release defendant and order completion of the book-and-release process restricted her freedom of movement until she fulfilled that condition. Given that restriction, together with the presence of deputies administering the process, defendant had been subject to constructive restraint continuing through that process. In its view, because the circumstances deriving from the arraignment order had required defendant to submit to lawful law enforcement authority to restrict her freedom of movement, she had been "released from custody," ORS 162.195(1)(a), before she failed to appear.

         We turn to additional aspects of the text, as well as the applicable context and the legislative history of the failure-to-appear statutes, to determine whether the legislature intended those provisions to operate as the state contends. As explained, we ultimately disagree with the state's construction and instead conclude that the statutes require proof that, prior to a defendant's failure to appear, (1) a peace officer had imposed actual or constructive restraint, [364 Or. 472] pursuant to an arrest or court order; and, then, (2) the court released the defendant from that custody under a release agreement and upon an appearance condition. Stated another way, under the failure-to-appear statutes, the custodial event from which a court releases a defendant must ...


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