No. 54 August 11, 2016 201

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ROBERT GORDON DAVIS,

Petitioner on Review.

(CC 131084; CA A154382; SC S063216)

On review from the Court of Appeals.*

Argued and submitted November 13, 2015.

Rond Chananudech, Deputy Public Defender, Salem, 

argued the cause and filed the brief for petitioner on review. 

With him on the brief was Ernest G. Lannet, Chief Defender, 

Office of Public Defense Services.

Shannon T. Reel, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

With her on the brief were Ellen F. Rosenblum, Attorney 

General, and Paul L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

LANDAU, J.

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.

Case Summary: Police approached defendant and identified themselves as 

police officers. Defendant ran. He continued to run after one of the officers commanded him to stop, shouting “Stop, police!” Defendant was charged with thirddegree escape under ORS 162.145(1), which requires that a person escape from 

custody. Custody is defined by ORS 162.135(4) as the imposition of “actual or 

constructive restraint * ** pursuant to an arrest or court order.” At trial, defendant moved for a judgment of acquittal, arguing that he was not in custody for 

purposes of ORS 162.145(1) before he ran from the officers. The trial court denied 

______________

** Appeal from Clatsop County Circuit Court, Philip L. Nelson, Judge. 270 

Or App 351, 350 P3d 234 (2015).

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
202 

that motion, and the Court of Appeals affirmed. Held: (1) Custody for purposes of 

ORS 162.145(1) occurs when police lawfully assert authority to control a person’s 

freedom during the course of an arrest or pursuant to their authority to make 

such an arrest; (2) the state failed to prove that defendant was in custody before 

he ran from police because it presented no evidence that the officers intended to 

arrest him.

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.
Cite as 360 Or 201 (2016) 203

LANDAU, J.

Two police officers approached defendant, suspecting that he had been involved in an assault. Defendant 

bolted. The police ran after him, yelling, “Stop, police!” 

Defendant kept running away. The issue in this case is 

whether, in running from the police, defendant committed 

the criminal offense of third-degree escape. The statute that 

defines the offense requires proof that the defendant was in 

custody at the time of the escape. ORS 162.145(1). The trial 

court concluded that the police, in shouting for defendant to 

stop, had effectively placed him in “constructive custody.” 

The Court of Appeals agreed, affirming without a written opinion. State v. Davis, 270 Or App 351, 350 P3d 234 

(2015). We conclude that police merely shouting for another 

person to stop does not place that person in custody for the 

purposes of establishing third-degree escape. We therefore

reverse.

The relevant facts are not in dispute. Defendant 

threatened and assaulted two people outside of a store, and 

two uniformed officers were dispatched to the area. When 

the officers arrived, one of them saw defendant walking 

away from a group of people. Believing that defendant was 

the perpetrator, the officer got out of his patrol car and identified himself as a police officer. Defendant ran away. The 

officer chased him and repeatedly yelled “Stop, police!” The 

other officer pursued defendant in his patrol car, activating 

its overhead emergency lights and siren. Defendant kept 

running and continued to run from the officers until they 

apprehended him. The state ultimately charged him with 

third-degree escape for fleeing from police after the officer 

commanded him to stop.

At trial, defendant moved for a judgment of acquittal, arguing that the state failed to prove that he had been 

in custody for purposes of the third-degree escape statute. 

Specifically, he argued that the police did not constructively 

place him in custody merely by shouting “Stop police!” and 

following him with the police siren on. In response, the state 

argued that “with the police yelling—telling [defendant] 

they were police, telling him to stop, being in clear uniform 

*** would count as the escape from custody.”
204 

The trial court denied defendant’s motion, concluding that defendant had been constructively restrained:

“Well, I think on that one, where you have ‘stop’ and 

then ‘stop, police,’ at least—while we were waiting for your 

last witness, it would have been nice if it had said, ‘stop, 

you’re under arrest, stop police,’ but I think saying, ‘stop, 

stop, police’ is sufficient to establish a person is in *** constructive custody.”

Defendant was convicted. He appealed, assigning error to 

the trial court’s denial of his motion for judgment of acquittal. The Court of Appeals affirmed without a written opinion.

Before this court, defendant argues that there was 

no evidence that, when he ran from police, he was escaping 

from “custody” as required by ORS 162.145(1), the statute 

that defines the elements of third-degree escape. Defendant 

notes that ORS 162.135(4) defines “custody” as the imposition of “actual or constructive restraint ** * pursuant to 

an arrest or court order.” As defendant sees it, the statute’s wording is significant in two respects. First, it refers 

to an escape from restraint that was imposed pursuant to 

an “arrest.” Defendant argues that the term “arrest” is one 

of art and refers to “formally taking a person into custody 

or actually restraining a person.” Second, defendant notes 

that the statute refers to the escape from restraint “pursuant to” such an act of formally taking a person into custody or actually restraining the person. Thus, defendant 

concludes, third-degree escape occurs only when a person 

escapes from restraint “after a formal arrest,” which he 

insists necessarily involves being taken into physical custody. (Emphasis added.) Said another way, defendant sees 

the statute as requiring a specific sequence of events: First, 

the police must formally arrest a person by taking him or 

her into physical custody. Second, thereafter, a person may 

commit third-degree escape if he or she escapes from actual 

or constructive restraint. In this case, defendant argues, the 

police had not yet placed him in physical custody before he 

escaped. They merely yelled, “Stop, police!”

The state responds that defendant’s proposed interpretation is contrary to the wording of the relevant statutes, 

which refer to escape from actual or constructive restraint
Cite as 360 Or 201 (2016) 205

during the course of an arrest, not necessarily after formal, 

physical custody has been achieved. In the state’s view, the 

evidence shows that police placed defendant in constructive 

custody by yelling, “Stop, police,” in the course of trying to 

arrest him. When defendant ran away, the state concludes, 

he committed third-degree escape.

The parties’ arguments thus require two things of 

us. First, we must determine what is required to establish 

the elements of the offense of third-degree escape. That presents a question of statutory construction, which necessitates 

an examination of the text of relevant statutes in context, 

along with any pertinent legislative history and other aids 

to construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 

1042 (2009). Second, we must determine whether the state 

offered sufficient evidence to survive defendant’s motion for 

a judgment of acquittal. That requires us to view the facts 

and all reasonable inferences that can be drawn from them 

in the light most favorable to the state, to assess whether 

a reasonable finder of fact could find proof of each of the 

elements of the offense beyond a reasonable doubt. State v. 

Waterhouse, 359 Or 351, 353, 373 P3d 131 (2016).

We begin with the elements of the offense of thirddegree escape. ORS 162.145(1) provides that “[a] person 

commits the crime of escape in the third degree if the person 

escapes from custody.” An “escape” is the “unlawful departure of a person from custody.” ORS 162.135(4). It includes 

running away. See State v. Lonergan, 344 Or 15, 21, 176 P3d 

374 (2008) (defendant committed third-degree escape when 

he “stood up and ran” from custody). “Custody,” in turn, 

means 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, youth correction facility, or a state hospital.” ORS 162.135(5).

The legislature has not defined the key terms of the 

statutory definition of “custody”—“constructive restraint” 

or “pursuant to an arrest”—and this court has not yet 

had occasion to interpret them. “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 
206 

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) (defining “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. Taken together, those definitions suggest that a person is subject to “constructive 

restraint” 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.

That leaves the requirement that the act of placing 

another person in actual or constructive restraint have been 

taken “pursuant to” an “arrest.” The former term generally 

refers to “in the course of carrying out” or “in conformance 

to or agreement with : according to.” Webster’s at 1848; see 

also Black’s at 1401 (“in accordance with or by reason of 

something; conformable; in accordance; agreeably; conformably; a carrying out or with the effect, the act of executing”). 

Thus, in State v. McVay, 313 Or 292, 833 P2d 297 (1992), this 

court held that a defendant had not committed third-degree 

escape when he ran from police officers who had lacked 

authority to arrest him at that time. The court explained 

that, although the officers had restrained him before he had 

escaped, that restraint was not “pursuant to an arrest.” Id. 

at 295-96.1

The term “arrest” itself is not defined in the statute 

setting out the elements of the offense. At the time of the 

enactment of ORS 162.135(4), however, there did exist two 

other statutory definitions of “arrest.” See generally State v. 

1 The state emphasizes the first of the quoted definitions—“in the course of 

carrying out”—observing that defendant does not argue that any of the other 

definitions applies. In construing a statute, however, our task is not merely to 

pick among interpretations that the parties choose to advance. Rather, it is to 

determine the interpretation that the legislature most likely intended, regardless of the parties’ arguments. Engweiler v. Persson / Dept. of Corrections, 354 

Or 549, 559, 316 P3d 264 (2013) (“[T]his court has an obligation to reach what 

we regard as a correct interpretation of statutes and rules. Indeed, we are so 

obliged whether or not the correct interpretation has even been advanced by the 

parties.”).
Cite as 360 Or 201 (2016) 207

McClure, 355 Or 704, 708, 335 P3d 1260 (2014) (describing 

history of statutory definitions of “arrest”). One defined the 

term to mean “the taking of a person into custody so that 

he may be held to answer for a crime.” Former ORS 133.210 

(1969), repealed by Or Laws 1973, ch 836, § 358. The other 

provided that “[a]n arrest is made by an actual restraint 

of the person of the defendant or by his submission to the 

custody of the officer.” Former ORS 133.250, repealed by Or 

Laws 1973, ch 836, § 358.2

 Both of those are consistent with 

the ordinary meaning of the term as “[t]aking, under real 

or assumed authority, custody of another for the purpose 

of holding or detaining him to answer a criminal charge 

or civil demand.” Black’s at 140. They are also consistent 

with the way that this court has generally referred to the 

term “arrest” in discussing police encounters that are subject to the constraints of Article I, section 9, of the Oregon 

Constitution, which protects against unreasonable searches 

and seizures. See, e.g., State v. Ashbaugh, 349 Or 297, 308-

09, 244 P3d 365 (2010) (“arrests” are “restraints on an individual’s liberty that are steps toward charging individuals 

with a crime”).

With those definitions in mind, then, third-degree 

escape occurs when a person runs away from a police officer who has lawfully asserted authority to control a person’s 

freedom in the course of carrying out an arrest, that is, in 

the course of taking a person into custody to answer for a 

crime. Contrary to defendant’s argument, the relevant statutes do not provide that third-degree escape may occur only 

after a person has been taken into physical custody; ORS 

162.135(4) specifies that the offense occurs when a person 

escapes custody during the course of an arrest or when police 

attempt to restrain that person pursuant to their authority

to make such an arrest.

That much, at least, is evident from an examination 

of the text of ORS 162.135(4) and ORS 162.145(1). There is 

little in the legislative history that touches on the intended 

2 Both statutes were repealed and replaced with what is now ORS 133.005(1), 

which defines “arrest” as “to place a person under actual or constructive restraint 

or to take a person into custody for the purpose of charging that person with an 

offense.” That definition, unlike the ones that it replaced, is limited in its application to ORS chapter 133 and so had no direct application to this case.
208 

meaning of those statutes. But a review of the little history 

that does exist appears to confirm what our analysis of the 

text suggests.

Both ORS 162.135(4) and ORS 162.145(1) were 

enacted as part of the revision of the Oregon Criminal 

Code based on the recommendations of the Criminal Law 

Revision Commission in 1970. Or Laws 1971, ch 743, §§ 189-

90. During a meeting of the commission, members discussed 

the offense of third-degree escape, as well as the related 

offense of resisting arrest. At one point during the discussion of resisting arrest, one of the members, Judge Burns, 

raised the question whether flight from arrest was “covered 

elsewhere.” A representative of the Office of Legislative 

Counsel, Wallingford, replied that, “if an arrest had been 

made, flight would be escape in the third degree in that the 

person would be in constructive custody.” Minutes, Criminal 

Law Revision Commission, Jan 23, 1970, 20. Another commission member, Knight, then asked precisely when an 

arrest would be made, and Wallingford replied that “it was 

made at the moment the officer verbally or physically made 

it known that the individual was under arrest.” Id.

Defendant seizes on Wallingford’s reference to an 

arrest having been “made” as evidence that the legislature 

intended a completed, physical arrest to have been accomplished before the escape could take place. But that is contradicted by Wallingford’s immediately following qualification, in which he said that the escape could occur any time 

after the officer “made it known that the individual was 

under arrest,” which he said would constitute “constructive 

custody.” As we have suggested, the statute applies when 

a person escapes from constructive restraint that occurs 

during the course of an arrest or pursuant to the authority 

to make an arrest, not solely after police have taken the 

person into physical custody. Thus, for example, if an officer 

were to say, “Stop, police! You are under arrest,” the statute 

would apply if a defendant were to continue running from 

the officer. The defendant would have been subject to constructive restraint “pursuant to” an arrest; indeed, as the 

foregoing legislative history suggests, the defendant in that 

example would effectively be escaping from an arrest, albeit 

not one that involved actual, physical custody.
Cite as 360 Or 201 (2016) 209

The commission’s official commentary to the proposed revisions sheds little additional light. It does say that 

the proposed revision

“defines ‘custody’ as the imposition of actual or constructive restraint by a peace officer pursuant to either (a) an 

arrest, or (b) a court order. ** * ‘Custody’ is intended to 

apply to custodial situations other than correctional facility confinement, i.e., while the actor is under actual or constructive restraint but not yet committed to a correctional 

facility.”

Commentary to the Criminal Law Revision Commission 

Proposed Oregon Criminal Code, Final Draft and Report 

§ 189, 193 (July 1970). That particular comment confirms 

our interpretation of the phase “pursuant to” as referring 

to imposing actual or constructive restraint not after a completed, physical arrest, but in the course of or under the 

officer’s authority to make an arrest. In emphasizing that 

the term “custody” is intended to apply to circumstances 

in which confinement has not yet actually occurred, the 

comment also appears to confirm that the statute applies 

to an escape that occurs before physical restraint has been 

imposed; rather, it applies when escape occurs while the 

person was under constructive restraint in the course of an 

arrest or in carrying out authority to arrest.

With that in mind, we turn to our second task, that 

is, to determine whether the trial court erred in denying 

defendant’s motion for a judgment of acquittal. The evidence 

in this case shows that, when officers located defendant, one 

of them got out of his patrol car and identified himself as a 

police officer. Defendant ran away. The officer chased him 

and yelled “Stop, police!” The other officer pursued defendant in his patrol car, activating its overhead emergency 

lights and siren. Defendant kept running and continued to 

run from the officers until they apprehended him.

A reasonable trier of fact certainly could conclude 

from that evidence that the officer had, by yelling “Stop, 

police!,” placed defendant in constructive restraint. The 

officer asserted authority to restrict defendant’s freedom to 

move about. What is missing, however, is any evidence that 

the officer did so “pursuant to an arrest” in any of the senses 
210 

that we have identified. There is no evidence that the officer yelled for defendant to stop as part of an effort to place 

him under arrest. There is no evidence that the officer told 

defendant to stop in accordance with the officer’s authority 

to arrest him. The evidence, taken in the light most favorable to the verdict, shows only that, at the time defendant 

ran away, the officer had told him to stop. An order to stop is 

not necessarily equivalent to placing a person under arrest. 

The former entails a “temporary restraint on a person’s liberty,” while, as we have noted above, the latter involves a 

more significant “restraint[] on an individual’s liberty that 

[is a] step[] toward charging that individual with a crime.” 

Ashbaugh, 349 Or at 308-09; see also State v. Rodgers/

Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010) (explaining 

distinctions between different police encounters, including 

“stops” and “arrests”).

The state insists that defendant does not dispute 

the fact that the officer intended to arrest him. Cited in support of that assertion is a page from defendant’s brief before 

this court. What defendant said at that point in his brief, 

however, is that “the officer did not actually restrain defendant as part of a formal arrest.” Defendant acknowledged 

that, by yelling “Stop, police!,” the officer “intended to or 

attempted to restrain defendant.” Thus, defendant conceded 

that the officer intended to restrain him. But nowhere in 

his brief do we see a concession that the officer intended to 

arrest him.

Given a complete absence of evidence that the officer commanded defendant to stop in the course of making 

an arrest or pursuant to the officer’s authority to arrest him, 

the state failed to establish all the required elements of the 

offense of third-degree escape. It necessarily follows that the 

trial court erred in denying his motion for a judgment of 

acquittal on that charge.

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.