S054561, Opinion — State v. Lonergan

15
Argued and submitted September 1 1 , 2007, decision of Court of Appeals reversed;
judgment of circuit court reversed in part, and case remanded to circuit court
for further proceedings January 25, 2008
STATE OF OREGON,
Respondent on Review,
v.
JOSEPH NATHAN LONERGAN,
Petitioner on Review.
(CC 200300729; CA A 12 1288; SC S054561)
176 P3d 374
CJS, Escape § 2.
On review from the Court of Appeals.*
Tammy W. Sun, Deputy Public Defender, argued the
cause for petitioner on review. With her on the briefs was
Peter Gartlan, Chief Defender, Office of Public Defense
Services, Salem.
Kaye Ellen McDonald, Assistant Attorney General,
Salem, argued the cause for respondent on review. With her
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor GeneraL
* Appeal from Lane County Circuit Court, Lauren S. Holland, Judge. 210 Or
App 155, 1 49 P3d 12 15 (2006).

Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler and Walters, Justices .**
DE MUNIZ, C . J.
The decision of the Court of Appeals is reversed. The judg
ment of the circuit court is reversed in part, and the case is
remanded to the circuit court for further proceedings.
Kistler, J . , dissented and filed an opinion, in which
Balmer, J., joined.
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 344 Or 15 (2008) 1 7
DE MUNIZ, C. J.
Defendant was convicted of escape in the second
degree.1 ORS 162. 155( 1).2 The issue before us is whether
defendant's use of physical force occurred when he was
"escaping from custody" as required to constitute escape in
the second degree under the statute. The Court of Appeals
concluded that the crime of escape, as defined in ORS
162. 155( 1), encompasses ongoing, continuous conduct that
extends at least during the immediate pursuit of the escapee,
and that the use of physical force at any time during a single
continuous course of escaping was sufficient under the stat
ute. State v. Lonergan, 210 Or App 155, 149 P3d 12 15 (2006).
We allowed defendant's petition for review and now reverse
the decision of the Court of Appeals, reverse in part the judg
ment of the trial court, and remand for further proceedings.
The underlying facts are undisputed. At 2: 15 a.m. on
January 12, 2003, Springfield Police Officer Myers responded
to a 9-1-1 call regarding a stolen truck. Myers located defen
dant driving the truck and activated his overhead lights and
siren. In response, defendant leapt from the truck while it
was still moving, jumped over a guardrail, and ran down a
20-foot embankment into a field of blackberry bushes. Myers
eventually caught defendant, handcuffed him, and walked
him back up the embankment to the patrol car. When Myers
placed defendant against the trunk of his car and reached
into the vehicle for his radio, defendant "took off running."
Defendant managed to reach a distance of 50 to 75 yards
from the patrol car before Myers eventually overtook and
tackled him. At that time Myers "deliver[ed] several focused
blows to [defendant's] head and shoulders," while defendant
continued to fight and kick Myers. Eventually, however,
1 In the same proceeding, defendant also was convicted of unauthorized use of
a vehicle, ORS 164. 135; attempting to elude a police officer, ORS 8 1 1 .540; criminal
mischief in the second degree, ORS 164.354; and theft in the first degree, ORS
164.055. Defendant did not challenge any of those convictions in the Court of
Appeals and does not do so in this court.
2 ORS 162. 155(1) provides, in part:
"A person commits the crime of escape in the second degree if:
"(a) The person uses or threatens to use physical force escaping from
custody[.]"

18 State v. Lonergan
defendant gave up, and Myers walked him back to the patrol
car.
The state charged defendant with escape in the sec
ond degree in violation of ORS 162. 155( 1)(a), on the theory
that he "us[ed] or threaten[ed] to use physical force escaping
from custody." At trial, at the conclusion of the state's case,
defendant moved for a judgment of acquittal on the escape
in-the-second-degree charge. Defendant based his argument,
in part, on State v. Metcalfe , 1 72 Or App 501 , 505, 19 P3d 374
(200 1), in which the Court of Appeals held that an escape is
complete even if a defendant only "momentarily" leaves a
peace officer's control. Based on that holding, defendant
argued that he did not use physical force escaping from cus
tody but, instead, used physical force only as he was attempt
ing to avoid recapture after his escape was completed. There
fore, according to defendant, he had committed only escape in
the third degree.3 The state responded that defendant had
not "gotten away," because Myers was in close pursuit of
defendant the entire time. Therefore, according to the state,
the escape was still ongoing when defendant used physical
force to resist Myers. The trial court agreed with the state,
denied defendant's motion, and found defendant guilty of
escape in the second degree. Defendant appealed to the Court
of Appeals.
On appeal, defendant again argued that his escape
was complete at the point that he left the vicinity of the patrol
car, because he had "departed from the immediate presence
of the officer and was no longer in the officer's restraint or
control." According to defendant, his escape was complete
before he used physical force in resisting Myers. The state
responded that defendant's escape was ongoing " [a]s long as
defendant was out of the control of the officer and actively
trying to escape." According to the state, a person may have
"escaped" in the sense of having successfully freed him or
herself, at least momentarily, from an officer's restraint and
3 ORS 162.145 provides, in part:
"( 1) A person commits the crime of escape in the third degree if the person
escapes from custody.
''* * * * *
"(3) Escape in the third degree is a Class A misdemeanor."

Cite as 344 Or 15 19
control, but still be "escaping" in the sense of "making good"
his or her escape.
In Metcalfe, the defendant, who was in a courtroom
for a criminal hearing, jumped from his seat, "pushed off of'
the officer who had escorted him, and ran toward a door in
the back of the courtroom, where he was subdued by other
officers . 172 Or App at 503. The defendant was found guilty
of second-degree escape. On appeal, the defendant argued
that his actions constituted only attempted escape because,
during the incident, he remained within the constructive
restraint of the courtroom or the actual restraint of one or
more deputies. Id. Applying the plain meanings of "depar
ture," "custody," and "restraint," the Court of Appeals con
cluded that
" [Al person 'escap[es] from custody' within the meaning of
ORS 162. 155(1)(a) when a person subject to actual or con
structive restraint or control by a peace officer sets out on a
course of action and that setting out results, even momen
tarily, in the person no longer being within the peace offi
cer's restraint or control."
Id. at 505 (second brackets in original; emphasis added). The
court also concluded that, based on the plain meaning of"con
structive," the scope of an officer's actual or constructive cus
tody of a defendant "consists of those boundaries within
which the peace officer can and does exercise effective control
over the [defendant] ." Id. ( emphasis in original). The Court of
Appeals affirmed the defendant's escape conviction, conclud
ing that a reasonable jury could find that the defendant
"escap [ed] from custody" at the time that he "pushed off of'
the officer who had escorted him, because, however momen
tarily, he was no longer within the officer's effective restraint
or control. The court also held that the fact that the defen
dant was inside a courtroom and that there were other dep
uties present was irrelevant to "the scope of the constructive
custody to which defendant was subject." Id. at 507.
In this case, the Court of Appeals attempted to dis
tinguish Metcalfe. Applying the methodology from PGE v.
Bureau ofLabor and Industries, 3 1 7 Or 606 , 610-12, 859 P2d
1 143 ( 1993), to the pivotal phrase in ORS 162. 155( 1)(a), "uses
* * * physical force escaping from custody," the court first

20 State v. Lonergan
determined that its decision in Metcalfe did not preclude the
state's construction of the statute, "given the statute's syn
tax, viz., 'escaping,' which can reasonably be understood as
connoting a process." Lonergan , 210 Or App at 162. The court
determined that both defendant's and the state's interpreta
tions of the statute were plausible, given the statutory text
and context. Finding nothing conclusive in the legislative his
tory, the court therefore considered maxims of statutory con
struction, determining that the legislature's purpose in cre
ating a graded scheme for escape was to increase the
penalties for escape when "additional risk producing ele
ments" are present, including ongoing, continuous conduct
that extends at least during the immediate pursuit of the
escapee. Id. at 165. For that reason, the Court of Appeals con
cluded that the trial court had correctly denied defendant's
motion for judgment of acquittal on the second-degree escape
charge. Id.
In this court, defendant reiterates his argument
that, when a person has fled from custody and is no longer
within a police officer's restraint or control, the escape is
complete. Therefore, defendant argues, when an escapee
uses physical force in response to the officer's attempt to
reestablish custody, he has not "used physical force escaping
from custody" as defined under ORS 162. 155 ( l )( a). Defen
dant posits that his interpretation is faithful to the literal
text of the statute and the intent of the legislature, which was
"to adopt the traditional legal meaning of escape, i.e. , an
unlawful departure from custody, as opposed to the broader
lay usage of the term that includes evading capture." Defen
dant asserts that, "[n] owhere does the [statutory] definition
of escape describe a continuing activity that encompasses
pursuit and recapture."
To decide the question presented in this case, we
consider the statutory text in its context. The crime at issue
here is escape. "Escape" is defined, in part, as "the unlawful
departure of a person from custody * * * ." ORS 162. 135(5).
There are three degrees of escape. See ORS 162. 145 ( defining
escape in the third degree); ORS 162. 155 ( defining escape in
the second degree); ORS 162 . 165 ( defining escape in the first
degree). "Custody" is defined, in part, as "the imposition of
actual or constructive restraint by a peace officer pursuant to

Cite as 344 Or 15 2 1
an arrest * * *." ORS 162. 135(4). Defendant was convicted of
second-degree escape.
Here, defendant had. been arrested and placed
against the trunk of the patrol car. At that time, he was in
custody, because he was under "actual or constructive
restraint by a peace officer pursuant to an arrest." ORS
162. 135(4). When defendant stood up and ran, he was no
longer under the officer's actual or constructive restraint; he
had unlawfully departed from custody. See Rollin M. Perkins
and Ronald N. Boyce, Criminal Law 564 (3d ed 1982) ("[T]he
limits within which a prisoner may be required by law to
remain, at a certain time, may be * * * the immediate pres
ence of his guard on the street * * *. Whatever the limits may
be for him at the time [of] a departure therefrom is the phys
ical part of an escape." (footnotes omitted)). By unlawfully
departing from custody, defendant had committed an escape,
as that term is defined in ORS 162. 135(5).4
In committing his escape-in escaping-defendant
did not use physical force or its threat. By definition, then,
defendant's actions in running away could not constitute the
crime of escape in the second degree: He did not "use [ ] or
threaten[ ] to use [ ] physical force escaping from custody."
ORS 162. 155( 1)(a) . It was only later, after the officer had
tackled him, that defendant used physical force, kicking the
officer. At that point, defendant may have been resisting
arrest. See ORS 162.315 (defining that offense).5 However,
defendant was not escaping; defendant had already escaped.
4 We note that, when defendant ran, he was still handcuffed. The state has not
made any argument that the handcuffs were relevant to the determination of when
defendant had departed from actual or constructive restraint.
5 ORS 162.815 provides, in part:
"( 1) A person commits the crime of resisting arrest if the person intention
ally resists a person known by the person to be a peace officer * * * in making
an arrest.
"(2) As used in this section:
''* * * * *
"(c) 'Resists' means the use or threatened use of violence, physical force or
any other means that creates a substantial risk of physical injury to any person
and includes, but is not limited to, behavior clearly intended to prevent being
taken into custody by overcoming the actions of the arresting officer. The
behavior does not have to result in actual physical injury to an officer. Passive
resistance does not constitute behavior intended to prevent being taken into
custody."

The state argues and the dissent agrees that, when
defendant kicked Myers, defendant was escaping, in the
sense that he was trying to make good on his earlier escape.
However, the state and the dissent cannot have it both ways;
either defendant had departed from custody, or he had not.
As we have explained, we agree with defendant that he had
already departed from custody when he used physical force.
Thus, defendant could not have been in the process of depart
ing from custody-he could not have been "escaping," as that
term is used in ORS 162. 155( 1)(a)-when he used physical
force .
The state argues that our construction o f the statute
could result, as the Court of Appeals noted, in a "Keystone
Kops" situation, in which a defendant runs away from an offi
cer, is caught and subdued after several yards, runs away
and is caught again, and is then charged with multiple
escapes. The possibility of such occurrences does not affect
the clear meaning of the words of the statute. Should the sce
nario the state describes occur, an escapee who uses physical
force in escaping each time well may be exposed to multiple
charges of escape in the second degree, and multiple sen
tences on conviction of those offenses.
We hold that the trial court erred in denying defen
dant's motion for judgment of acquittal on the charge of
escape in the second degree and the Court of Appeals erred in
affirming that conviction. In the trial court, defendant
argued that he was not guilty of escape in the second degree
but was guilty of escape in the third degree. We agree. ORS
162. 145 provides, in part:
"( 1) A person commits the crime of escape in the third
degree if the person escapes from custody.
''* * * * *
"(3) Escape in the third degree is a Class A
misdemeanor."
Defendant's flight from Myers fits that statutory description.
Defendant escaped from custody as defined in that statute
and the trial court should have accepted defendant's argu
ment in that regard and found him guilty of escape in the

Cite as 344 Or 15 23
third degree. The case must be remanded to the trial court for
entry of such a judgment.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed in part, and the case
is remanded to the circuit court for further proceedings.
KISTLER, J., dissenting.
After an officer placed defendant under arrest,
defendant broke away and took off running. The majority
holds that, in running away from the officer, defendant was
not "escaping" from him. The majority's holding is at odds
with both the ordinary understanding and the legally
accepted meaning of that term. The act of escaping either
from an officer's grasp or the confines of a prison does not end
once a defendant has broken away from the officer or crossed
the threshold of the prison. Rather, the act of escaping
includes, at a minimum, the immediate flight from either the
officer or the prison. Because the jury reasonably could have
found that defendant was in the process of escaping when he
was fleeing from the officer, I would affirm his conviction for
second-degree escape. I respectfully dissent.
ORS 162 . 155( 1)(a) provides that a person commits
the crime of second-degree escape if "[t]he person uses or
threatens to use physical force escaping from custody." ORS
162. 135(5) provides that "escape" means "the unlawful
departure of a person from custody or a correctional facility."
The maj ority reasons that defendant "escaped" from the offi
cer when he broke away from him. In the majority's view,
because the crime of escape was complete once defendant
broke away, defendant could not have been escaping when he
took off running from the officer. In essence, the majority
views an "escape" as a single point in time rather than a con
tinuing event. Everything that precedes that point in time is,
at most, an attempt, and everything that follows it is irrele
vant, at least to the crime of escape.
The maj ority's interpretation of the term "escape" is
at odds with the ordinary understanding of that term. Ordi
narily, escape means "to get away (as by flight or conscious
effort) : break away, get free, or get clear <the prisoner
escaped from prison> ." Webster's Third New Int'l Dictionary

774 ( unabridged ed 2002) (emphasis in original). That defi
nition does not refer to an escape as a single point in time;
rather, it recognizes that escape and, a fortiori, "escaping"
are not that limited. To be sure, a person has escaped once he
or she breaks from the officer's grasp or crosses the threshold
of the prison. But the act of escaping from custody or prison
does not end there, ifthe escape is to succeed. It also includes
"get[ting] away" from the officer or prison "as by flight." The
legislature that enacted the escape statute would be sur
prised, I submit, to learn that a person who is in the act of
fleeing from either the confines of a prison or an officer's
grasp is not in the act of"escaping."
The definition of escape in ORS 162. 135(5) leads to
the same conclusion. As noted, ORS 162. 1 35(5) provides that
" ' [e]scape' means the unlawful departure of a person from
custody or a correctional facility." "Departure," in turn,
means "the act of going away" or "setting out (as on a journey
* * *)." Webster's at 604. Both definitions of departure use a
gerund ("going away" or "setting out") to define that term; the
use of those gerunds refers to a continuing act, not a single
point in time.
Put in the context of this case, defendant began his
unauthorized departure from custody when he broke away
from the officer, but he was still in the "act of going away'' (or,
alternatively, he was still "setting out * * * on [his] j ourney")
when he was fleeing from the officer. The statutory definition
of "escape" does not provide any reason to depart from the
ordinary understanding of that term. Rather, the statutory
definition confirms that, when the legislature prohibited the
use of force while "escaping from custody," it did not intend to
limit the prohibition against using force to the initial act of
breaking away from an officer. The prohibition applies
equally to the "act of going away"-i.e. , to defendant's imme
diate flight from the officer.
The other courts that have considered this issue
have recognized that the crime of escape is not limited to the
initial act of leaving custody but instead continues beyond
that point. See, e.g. , United States v. Bailey, 444 US 394,
4 13 , 100 S Ct 624, 62 L Ed 2d 575 ( 1980); United States v.
Michelson, 559 F2d 567 (9th Cir 1977); United States u.

Cite as 344 Or 1 5 25
Chapman , 455 F2d 746 (5th Cir 1972).1 Those courts have
held that escape is a continuing crime that extends for the
duration of the time that a defendant is absent from custody.
This case does not require us to decide whether the crime of
escape extends that far. It is sufficient to say, as the words of
the statute dictate, that the crime is not limited to the act of
breaking away from the officer or crossing the threshold of a
prison. It also includes the immediate flight from the officer's
grasp and the prison walls.
The legislative history confirms what the text says.2
The 197 1 legislature enacted the second-degree escape stat
ute as part of a comprehensive revision of the state's criminal
code. See Or Laws 1 97 1 , ch 743 , § 191 (enacting second
degree escape statute); State v. Garcia, 288 Or 413, 416, 605
P2d 67 1 ( 1980) (describing process of adopting the 1971 crim
inal code). The persons who drafted the code explained that
they relied on "the risk to others created by the escape" in
determining which escapes warranted greater sanctions.
Commentary to Criminal Law Revision Commission Pro
posed Oregon Criminal Code, Final Draft and Report §§ 190-
192, 194-95 (July 1970) (emphasis omitted).3 Specifically,
they explained that the use of force while escaping increases
the crime from third- to second-degree escape because " [t]he
use of force in escapes obviously increases the hazards
imposed on those obligated to resist such conduct." Id. at 195.
A defendant's use of force to effect his or her escape (and the
ensuing hazards imposed on those obligated to resist the
1 Those courts were interpreting 18 USC § 75 1(a), which imposes a penalty on
persons who "escap[e]" from a federal prison or from custody. See Bailey, 444 US at
396 (setting out text of federal statute). The federal statute does not define
"escape," but the Court explained that it means "absenting oneself from custody
without permission." Id. at 407.
2 In my view, the text of the statute provides a complete answer to defendant's
argument. Even if the text were unclear, the legislative history and general max
ims of statutory construction lead to the same conclusion as the text.
" The 1967 legislature created the Oregon Criminal Law Revision Commission
to revise the state's criminal laws. Garcia, 288 Or at 416. The Commission divided
responsibility for drafting the revised criminal code among three subcommittees.
Those subcommittees produced drafts of the code and submitted those drafts,
together with commentaries on them, to the Commission, which produced a final
draft of the proposed code and presented the final draft and commentary to the leg
islature. This court has looked to both the commentary and the discussions that
preceded the adoption of the final draft as legislative history for the resulting laws.
See id. at 4 16-20 (relying on those sources).

26 State v. Lonergan
escape) does not end the moment that he or she breaks away
from an officer's grasp or crosses the threshold of the prison.
Rather, it continues during the defendant's immediate flight
from custody. See Buchler v. Oregon Corrections Div. , 316 Or
499, 507, 853 P2d 798 ( 1993) (recognizing that inmate could
cause harm to persons outside the prison walls "during the
stress of the actual escape from custody itself').
One other part of the legislative history bears men
tion because it specifically touches on the legislature's use of
the word "escaping." When the full committee considered the
proposed crime of first-degree escape,
"Representative Frost pointed out that the language in sec
tion 4 [defining first-degree escape] used different tenses
when it said 'uses or threatens to use . . . in escaping . . .'
Mr. Paillette advised that the intent was to refer to a
situation where the escape was an accomplished fact.
Chairman Yturri explained that Representative Frost's
interpretation brought in the connotation of an inchoate
crime when the draft said 'in escaping' whereas the draft
was intended to mean that the person simultaneously 'used
or threatened to use' force or a weapon during the course of
an escape.
"There were a number of suggestions for resolving this
problem. It was finally determined that the best method
was to delete 'in' before 'escaping' in subsection ( 1) of section
3 [defining second-degree escape] and in subsections ( 1 ) and
(2) of section 4 [defining first-degree escape] . Representa
tive Frost so moved and the motion carried unanimously."
Minutes, Criminal Law Revision Commission, Mar 18, 1 970,
20 (ellipses and emphases in original).4
Although that passage discusses the legislature's
use of the word "escaping," it does not shed much light on the
4 The full committee was considering the third preliminary draft of the escape
statutes. That draft provided that a person commits the crime of second-degree
escape if " [h]e uses or threatens to use physical force in escaping from custody."
Criminal Law Revision Commission, Proposed Oregon Criminal Code, Preliminary
Draft No 3, Art 2 3 , § 3(1) (Jan 1970l. That draft also provided that a person com
mits the crime of first-degree escape if" la] ided by another person actually present
he uses or threatens to use physical force in escaping from custody * *" or if"[h]e
uses or threatens t o use a dangerous or deadly weapon in escaping from custody
* * ." Id. § 4.

Cite as 344 Or 27
specific issue that this case presents. The passage establishes
that the first- and second-degree escape statutes apply to the
completed crime, not to an attempt. It also establishes that
"the draft was intended to mean that the person simultane
ously 'used or threatened to use' force or a weapon during the
course of an escape." The passage, however, does not explain
what the "course of an escape" includes, although the use of
the word "course" suggests that "escaping" refers to a series
of events rather than a single point in time, as the majority
holds.
Although not dispositive, the legislative history is
consistent with the plain meaning of the words that the leg
islature used. Even ifthe wording ofthe statute, coupled with
the legislative history, left some doubt and it were necessary
to resort to general principles of construction to decide this
case, I agree with the Court of Appeals that the appropriate
principle is to ask how the legislature would have decided
this issue if it had considered it. See Carlson u. Myers, 327 Or
2 13 , 226, 959 P2d 3 1 ( 1998) (stating that inquiry); State u.
Gulley, 324 Or 5 7 , 66, 92 1 P2d 396 ( 1996) (same). In pursuing
that inquiry, we should interpret the statute consistently
with the drafters' stated purpose-to punish and thus deter
the use of force during escapes. See State u. Lonergan, 210 Or
App 155, 164-65, 149 P3d 1 2 15 (2006) (following that course).
As noted, the risk that a person will use force to effectuate an
escape is not limited to the act of breaking away from the offi
cer or getting beyond the prison walls. Rather, it extends to
the person's immediate flight from custody. The majority's
interpretation thwarts the legislature's purpose; the Court of
Appeals' interpretation gives effect to it.
Interpreting the statute consistently with its text,
history, and purpose, I would affirm the Court of Appeals
decision and the trial court's judgment. There was evidence
from which a reasonable trier of fact could find that defen
dant was in the course of immediate flight from the officer's
grasp when he hit the officer to effectuate his escape. The
trial court correctly denied defendant's motion for judgment
of acquittal, and the Court of Appeals correctly affirmed the
resulting judgment for second-degree escape. I respectfully
dissent.
Balmer, J., joins in this dissent.