CO Code § 18-8-208 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 8 - Offenses - Governmental Operations|Part 2 - Escape and Offenses Relating to Custody|§ 18-8-208. Escapes

  A person commits a class 2 felony if, while being in custody or confinement following conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.    A person commits a class 3 felony if, while being in custody or confinement following conviction of a felony other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.    A person commits a class 4 felony if, while being in custody or confinement and held for or charged with but not convicted of a felony, he knowingly escapes from said custody or confinement.    [ ] A person commits a class 3 misdemeanor if, while being in custody or confinement following conviction of a misdemeanor or petty offense or a violation of a municipal ordinance, he or she knowingly escapes from said place of custody or confinement. (4.5) [ ] A person commits a class 3 misdemeanor if the person has been committed to the division of youth services in the department of human services for a delinquent act, is more than eighteen years of age, and escapes from a staff secure facility as defined in section 19-2.5-102 , other than a state-operated locked facility. (4.5) [ ] A person commits a class 2 misdemeanor if the person has been committed to the division of youth services in the department of human services for a delinquent act, is more than eighteen years of age, and escapes from a staff secure facility as defined in section 19-2.5-102 , other than a state-operated locked facility.    [ ] A person commits a class 1 petty offense if, while being in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense or violation of a municipal ordinance, he or she knowingly escapes from said custody or confinement.    [ ] A person who knowingly escapes confinement while being confined pursuant to a commitment under article 8 of title 16, C.R.S.:   [ ] Commits a class 1 misdemeanor if the person had been charged with a misdemeanor at the proceeding in which the person was committed;    [ ] Commits a class 1 misdemeanor if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person does not travel from the state of Colorado;    Commits a class 5 felony if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person travels outside of the state of Colorado.       In a prosecution for an offense under subsection (6) of this section, it shall be a defense for any person who, while being confined pursuant to a commitment under article 8 of title 16, C.R.S., escapes and who voluntarily returns to the place of confinement.    A person commits a class 5 felony if he knowingly escapes while in custody or confinement pursuant to the provisions of article 19 of title 16, C.R.S.    The minimum sentences provided by sections 18-1.3-401, 18-1.3-501, and 18-1.3-503, respectively, for violation of the provisions of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407. The provisions of this subsection (9) do not apply to subsection (4.5) of this section.    Repealed.    If a person is serving a direct sentence to a community corrections program pursuant to section 18-1.3-301, or is transitioning from the department of corrections to a community corrections program, or is placed in an intensive supervision program pursuant to section 17-27.5-101, or is participating in a work release or home detention program pursuant to section 18-1.3-106 (1.1), intensive supervision program or any other similar authorized supervised or unsupervised absence from a detention facility as defined in section 18-8-203 (3), is housed in a staff secure facility as defined in section 19-2.5-102, or is placed in a community corrections program for purposes of obtaining residential treatment as a condition of probation pursuant to section 18-1.3-204 (2.2) or 18-1.3-301 (4)(b), then the person is not in custody or confinement for purposes of this section.    Editor's note: This version of subsection (4) is effective until March 1, 2022.  (4) [ ] A person commits a class 2 misdemeanor if, while being in custody or confinement following conviction of a misdemeanor or petty offense or a violation of a municipal ordinance, he or she knowingly escapes from said place of custody or confinement.  Editor's note: This version of subsection (4) is effective March 1, 2022. Editor's note: This version of subsection (4.5) is effective until March 1, 2022. Editor's note: This version of subsection (4.5) is effective March 1, 2022. Editor's note: This version of subsection (5) is effective until March 1, 2022.  (5) [ ] A person commits a petty offense if, while being in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense or violation of a municipal ordinance, he or she knowingly escapes from said custody or confinement.  Editor's note: This version of subsection (5) is effective March 1, 2022. Editor's note: This version of the introductory portion to subsection (6) is effective until March 1, 2022.  (6) [ ] A person who knowingly escapes confinement while being confined pursuant to a commitment under article 8 of title 16:  Editor's note: This version of the introductory portion to subsection (6) is effective March 1, 2022. Editor's note: This version of subsection (6)(a) is effective until March 1, 2022.  (a) [ ] Commits a class 2 misdemeanor if the person had been charged with a misdemeanor at the proceeding in which the person was committed;  Editor's note: This version of subsection (6)(a) is effective March 1, 2022. Editor's note: This version of subsection (6)(b) is effective until March 1, 2022.  (b) [ ] Commits a class 2 misdemeanor if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person does not travel from the state of Colorado;  Editor's note: This version of subsection (6)(b) is effective March 1, 2022.  History. Source: L. 71: R&RE, p. 459, § 1. C.R.S. 1963: § 40-8-208 . L. 75: (6) and (7) added, p. 638, § 1, effective May 22. L. 77: (8) added, p. 988, § 1, effective May 26; (1) to (5) and IP(6) amended, p. 966, § 43, effective July 1. L. 78: (8) amended, p. 263, § 50, effective May 23. L. 81: (1), (2), and (4) amended, p. 1008, § 1, effective June 12. L. 95: (9) added, p. 1255, § 16, effective July 1. L. 96: (9) amended, p. 1843, § 10, effective July 1; (10) added, p. 1682, § 7, effective January 1, 1997. L. 2000: (4) and (5) amended, p. 692, § 1, effective July 1. L. 2002: (9) amended, p. 1516, § 202, effective October 1. L. 2013: (4.5) added, (9) amended, and (10) repealed,(SB 13-229), ch. 272, p. 1430, § 9, effective July 1; (11) added,(SB 13-250), ch. 333, p. 1925, § 34, effective October 1. L. 2017: (4.5) amended,(HB 17-1329), ch. 381, p. 1972, § 26, effective June 6. L. 2020: (11) amended,(HB 20-1019), ch. 9, p. 26, § 8, effective March 6. L. 2021: (4.5) and (11) amended,(SB 21-059), ch. 136, p. 723, § 51, effective October 1; (4), (4.5), (5), IP(6),(6)(a), and (6)(b) amended,(SB 21-271), ch. 462, p. 3198, § 289, effective March 1, 2022.    Editor's note:    Amendments to subsection (4.5) by SB 21-059 and SB 21-271 were harmonized, effective March 1, 2022.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     Cross references:    For absence from supervision constituting escape by a defendant conditionally released after verdict of not guilty by reason of insanity or by reason of impaired mental condition, see § 16-8-115 (3)(c); for failure to remain at or return to a community correctional facility constituting escape, see § 17-27-106.    For the legislative declaration contained in the 2002 act amending subsection (9), see section 1 of chapter 318, Session Laws of Colorado 2002.     ANNOTATION   Law reviews. For article, “Highlights of the 1955 Legislative Session -- Criminal Law and Procedure”, see 28 Rocky Mt. L. Rev. 69 (1955).   Annotator's note. Since § 18-8-208 is similar to former § 40-7-53 , C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.   For a discussion of the legislative history of this section, see People v. Williams, 199 Colo. 515 , 611 P.2d 973 (1980).   Purpose of statute. The fundamental purpose of the statute is to prevent the evasion of the due course of justice. People v. Velarde, 657 P.2d 953 (Colo. 1983).   The purpose of the felonious escape statute is to deter and punish an escape while a defendant is being held for another felony. People v. Velarde, 657 P.2d 953 (Colo. 1983).   Not constitutionally required that punishment based on nature of escape. There is no constitutional requirement that the classification of an escape and its punishment be based solely or even partially on the nature of the escape. People v. McKnight, 626 P.2d 678 (Colo. 1981).   Classifications set forth in this section are not arbitrary or unreasonable but are founded on rational distinctions. It does not deny equal protection of the law. People v. McKnight, 626 P.2d 678 (Colo. 1981).   Section 18-8-210.1 does not reclassify adjudicated delinquents as felons for purposes of this section. Rather, § 18-8-210.1 allows the prosecution to bring felony escape charges under this section against a sub-set of juveniles who commit an act that, if committed by an adult, would be a felony. Therefore, there is no conflict with art. XVIII, § 4, of the Colorado Constitution.People v. M.B., 90 P.3d 880 (Colo. 2004).   Section 18-1-105 (9)(a)(V) does not require the imposition of a sentence beyond the presumptive range upon conviction of the crime of escape under this section. People v. Jackson, 703 P.2d 618 (Colo. App. 1985); People v. Russell, 703 P.2d 620 (Colo. App. 1985).   Subsection (9) does not legislatively overrule state supreme court holding in People v. Andrews, 871 P.2d 1199 (Colo. 1994), that the legislature did not intend to punish escape and attempted escape through application of the enhancement provision. People v. Scott, 2019 COA 174 , 456 P.3d 97.   The change to subsection (11) in 2020 applies retroactively. Defendant committed the offense prior to the change in law but was not charged until after the change went into effect. The change in the law is plainly ameliorative in nature, so the defendant is entitled to the benefit of the change. People v. Pennington, 2021 COA 9 , 481 P.3d 1186.   Court does not have the authority to amend defendant's charge from felony escape to misdemeanor unauthorized absence. The court's action violated the separation of powers between the executive and judicial branches; the court had no valid reason to interfere with the prosecution's discretion to charge the defendant. People v. Pennington, 2021 COA 9 , 481 P.3d 1186.   Prosecution following administrative transfer not double jeopardy. Where the defendant, as a prisoner under sentence, was administratively transferred to the penitentiary after he failed to return to a minimum security facility, subsequent prosecution on the escape charge would not constitute double jeopardy. People v. Martinez, 656 P.2d 1317 (Colo. 1983).   Punishment for escape is not double jeopardy. Administrative disciplinary action imposed for breaking rules of the prison on prisoners who have escaped or attempted to escape does not constitute punishment for the substantive crime interdicted by this section. Double jeopardy or double punishment for the same crime is therefore not involved. Silva v. People, 158 Colo. 326 , 407 P.2d 38 (1965).   Crime of “holding hostages” includes as essential element general intent crime of “escape”. People v. Williams, 199 Colo. 515 , 611 P.2d 973 (1980).   Escape definition. An escape is the voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966); Massey v. People, 649 P.2d 1070 (Colo. 1982).   The very word “escape” connotes an attitude of mind as well as an act. One does not “escape” without desire and intent to avoid confinement. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).   Under Colorado law, “escape” is defined as the voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   “Escape” is a continuing offense. Given the nature of the escape crime, an offense continues until the escapee has been returned to custody or the attempt to escape has been thwarted or abandoned. As such, the statute of limitations does not begin to run until the escapee has been returned to custody. People v. Johnson, 2013 COA 122 , 327 P.3d 305.   Term “escape” has same meaning for purposes of § 18-8-207 as this section. People v. Williams, 199 Colo. 515 , 611 P.2d 973 (1980).   Defendant who broke out of a locked building but was apprehended prior to getting over two barbed wire fences could still be guilty of escape. People v. Padilla, 113 P.3d 1260 (Colo. App. 2005).   Term “escape” is not specifically defined in the Colorado criminal code. People v. Williams, 199 Colo. 515 , 611 P.2d 973 (1980).   The general assembly added subsection (10) to clarify, rather than restrict, the circumstances under which a juvenile commits an escape. People ex rel. J.A.C., 25 P.3d 1269 (Colo. App. 2001).   The term felony, wherever it may occur in the constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other. People v. Austin, 162 Colo. 10 , 424 P.2d 113 (1967).   Escape is crime of general, not specific, intent, consisting of following essential elements: (1) A voluntary act; (2) which constitutes a departure from one of the forms of lawful custody or confinement specified in this section; (3) by a prisoner; and (4) committed “knowingly”, i.e., with an awareness on the part of the prisoner that his or her conduct is of the nature proscribed. People v. Williams, 199 Colo. 515 , 611 P.2d 973 (1980).   Mental state of “knowingly” applies only to defendant's conduct of escaping from custody or confinement. People v. Benzor, 100 P.3d 542 (Colo. App. 2004).   The intent of the accused to evade the due course of justice is a necessary element in the felony escape. If that was not present, there was no crime. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).   Thus, a defendant is entitled to adduce evidence bearing upon his capacity to form the particular intent essential to constitute the crime of felonious escape, such as evidence to the effect that he was too drunk to form the state of mind required for the commission of the offense. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).   “Conviction”, for purposes of this section, includes acceptance of a guilty plea. People v. Garcia, 720 P.2d 1003 (Colo. App. 1986).   Mandatory parolees are “in custody” for purposes of application of this section. People v. Garcia, 64 P.3d 857 (Colo. App. 2002).   For the purposes of this section, a person is not “in custody” until an arrest, in the sense of establishing physical control over the arrestee, has been effected. Physical control does not necessarily require physical restraint; the officer's presence and the suspect's submission in concert may be sufficient to establish the assurance, requisite to a determination of physical control, that the suspect will not leave. People v. Thornton, 929 P.2d 729 (Colo. 1996).   The definition of “custody” found in § 16-1-104 (9) , does not apply to the offense of escape under this section. People v. Thornton, 929 P.2d 729 (Colo. 1996).   Subsection (10) was not intended to restrict the type of facilities from which a juvenile could escape to only staff secure facilities. People ex rel. J.A.C., 25 P.3d 1269 (Colo. App. 2001).   Portions of this section require that the defendant must be shown to have been convicted of a felony. Schwickrath v. People, 159 Colo. 390 , 411 P.2d 961 (1966).   Evidence of a prior conviction is an essential element of the crime of escape after conviction. Ruark v. People, 158 Colo. 287 , 406 P.2d 91 (1965); People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   One of the essential elements of escape by a felon is that the defendant has either been convicted of a felony or that he has pled guilty to a felony. People v. Austin, 162 Colo. 10 , 424 P.2d 113 (1967).   A conviction under this section requires evidence that the defendant was convicted of and is being held for a felony. Massey v. People, 649 P.2d 1070 (Colo. 1982).   Evidence of prior conviction is an essential element of the offense of escape. People v. McKnight, 626 P.2d 678 (Colo. 1981).   Evidence of prior conviction. If it be shown that an individual is the person held under a particular mittimus for the commission of a felony, the requirement of this section is necessarily fulfilled. Schwickrath v. People, 159 Colo. 390 , 411 P.2d 961 (1966).   The criminal offense of larceny, to which the defendant pled guilty, was punishable by imprisonment in the penitentiary, and this statement in the mittimus, considered with the statement of sentence of not less than two and not more than five years, is prima facie evidence of the fact the defendant was being punished for a felony for purposes of defining the term felony in the crime of escape. People v. Austin, 162 Colo. 10 , 424 P.2d 113 (1967).   The district attorney may introduce a minute order and other materials to establish the defendant's previous conviction. People v. McKnight, 626 P.2d 678 (Colo. 1981).   Specific underlying offense must be shown. In addition, since the classification of the offense of escape is determined by the nature of the underlying crime for which the defendant was held, it is essential that the specific offense upon which the confinement is premised be shown. Massey v. People, 649 P.2d 1070 (Colo. 1982).   Judicial notice of class of felony for which defendant confined. The trial court may take judicial notice that the mittimus under which the defendant is confined concerned crimes which were felonies other than class 1 or 2 felonies. Massey v. People, 649 P.2d 1070 (Colo. 1982).   Requirements for conviction under subsection (3). For a conviction under subsection (3) to be sustained, there must be evidence that a felony was committed and that defendant was being held for that felony when he escaped. People v. Velarde, 630 P.2d 100 (Colo. 1981), rev'd on other grounds, 657 P.2d 953 (Colo. 1983).   Plea of nolo contendere constitutes conviction within the meaning of this section. People v. Wines, 43 Colo. App. 8, 597 P.2d 1056 (1979).   Error in conviction no justification for escape. An alleged error or irregularity in judicial proceedings leading to conviction and confinement does not so invalidate the judgment and the confinement as to justify escape. The prisoner's remedy is to seek judicial relief from the claimed illegal incarceration. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   Nor reversal of conviction subsequent to escape. It was not a defense to an escape charge that the Colorado supreme court had reversed defendant's conviction, on the merits, regarding the charge for which he was confined, and that such reversal had occurred before defendant's trial on the escape charge. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   A parolee may be convicted of escape even if there is a legal defect in the process of confinement. Such defects are to be challenged through appropriate legal means rather than through unauthorized departure from a custodial facility. People v. Lanzieri, 25 P.3d 1170 (Colo. 2001).   Subsection (3) conviction upheld despite acquittal on underlying felony. Even where a defendant may later be found not guilty of the underlying felony, his conviction for escape under subsection (3) would be upheld. People v. Velarde, 657 P.2d 953 (Colo. 1983).   An escape by a prisoner being held for extradition does not constitute the crime of escape as that offense is defined in this section. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   The Colorado statute on escape does not apply to a prisoner held in custody for extradition pursuant to an out-of-state conviction or charge. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   Failure to return to a work release facility upon the expiration of a 10-hour pass is punishable as escape under this section. People v. Lucero, 654 P.2d 835 (Colo. 1982).   Person who absconds from a non-residential community corrections placement commits the crime of escape in violation of this section and § 17-27-106 . By its plain language, § 17-27-106 applies to all types of community corrections placements, including non-residential community corrections programs. People v. Forester, 1 P.3d 758 (Colo. App. 2000).   Section applicable to person committed as result of insanity adjudication in past criminal proceeding. There is nothing in the due process clause to prohibit the application of the escape statute or other criminal statutes to those committed to a state facility as a result of a prior insanity adjudication in relation to past criminal charges. People v. Giles, 662 P.2d 1073 (Colo. 1983).   Even though inapplicable to person committed civilly. Given the state's obvious interest in protecting the public from those who previously have engaged in overt criminal conduct but have been relieved of criminal responsibility by reason of legal insanity, there is no difficulty in finding a rational basis for legislation that proscribes as criminal a knowing escape by a person committed to an institution as a result of an insanity adjudication in a criminal case, but does not impose a similar sanction upon a person who escapes from a facility to which he has been civilly committed. People v. Giles, 662 P.2d 1073 (Colo. 1983).   There is no section within the escape statute pertaining to out-of-state convictions or charges. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   Degree of escape dependent on degree of original crime. This section establishes a standard whereby the seriousness of the crime of escape is determined by classification of the original crime for which the defendant was in custody or confinement. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   Effect of subsection (6) on application of § 18-8-201.1 . The passage of subsection (6) of this section enabled § 18-8-201.1 to be applied to a patient of a state mental institution who aids another patient's escape. People v. Cornell, 194 Colo. 211 , 572 P.2d 137 (1977).   Applicability of § 18-8-210 . Section 18-8-210 sets forth guidelines for the purpose of determining the grade and classification of an offense under this section where a person is in custody or confinement for an offense which is unclassified. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   Does not broaden this section. Section 18-8-210 appears to be a “catchall” for unclassified crimes under Colorado statutes and does not broaden the scope of this section. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975).   Burden of proof of permission to leave. It is not necessary that the people call every employee of the penitentiary to testify that no permission was given the prisoner to leave. If the prisoner did receive permission, that information is peculiarly within the knowledge of the prisoner himself, and if he would raise the issue of permission he must go forward with some evidence of it. Ruark v. People, 164 Colo. 257 , 434 P.2d 124 (1967), cert. denied, 390 U.S. 1044, 88 S. Ct. 1644, 20 L. Ed. 2d 306 (1968).   Choice of evils and duress available as defenses. In certain cases, both choice of evils, § 18-1-702 , and duress, § 18-1-708 , may be relied upon as affirmative defenses to a charge of escape. People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).   Escapee must immediately report duress, or choice of evils, which he faced to the proper authorities when a position of safety is reached. People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).   Otherwise, defense not allowed. Where this requirement is not satisfied, the defenses of duress or choice of evils may be properly refused by the trial judge because they are insufficient as a matter of law. People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).   Prima facie evidence of punishment for felony. Sentence imposed on defendant as shown in a mittimus is prima facie evidence of the fact that defendant was being punished for a felony. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   Evidence established prima facie case of escape. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975).   Evidence of escape held sufficient. People v. Cardwell, 181 Colo. 421 , 510 P.2d 317 (1973).   Proof that a regularly held prisoner was found miles outside the penitentiary walls, wearing civilian clothes, and when apprehended gave a false name, is certainly sufficient evidence from which the jury, without evidence of intent, could find that the prisoner had committed the statutory crime of escape. Ruark v. People, 164 Colo. 257 , 434 P.2d 124 (1967), cert. denied, 390 U.S. 1044, 88 S. Ct. 1644, 20 L. Ed. 2d 306 (1968).   Separate trial of escape and substantive charges necessary. Where evidence of a prior conviction was essential to the count of an information alleging the crime of escape after conviction, but would be prejudicial to defendant when applied to the other counts alleging robbery and assault, the court abused its discretion in failing to order a separate trial of the charge of escape after conviction. Ruark v. People, 158 Colo. 287 , 406 P.2d 91 (1965).   A person 18 years of age or older who escapes while serving a sentence imposed by the juvenile court may be convicted under this section. Until completing the sentence, the person continues under the jurisdiction of the juvenile court and is therefore considered a “juvenile”, subject to the provisions of § 18-8-210.1 and, therefore, this section. People v. Young, 908 P.2d 1147 (Colo. App. 1995).   For purposes of escape, there is no conflict between the home detention statute and the intensive supervision program (ISP) statute. In an escape case, the court must make a factual determination whether a defendant was placed in home detention or ISP based on the different elements of home detention and ISP. Home detention and ISP are mutually exclusive, therefore once the court determines whether the defendant was in home detention or on ISP there is no conflict. People v. Garcia, 64 P.3d 857 (Colo. App. 2002).   The court did not err when it instructed the jury on ISP escape without including the “extended limits” language of § 17-27.5-104 . People v. Sa'ra, 117 P.3d 51 (Colo. App. 2004).   The undisputed record shows defendant was in custody when he tried to escape from the police, so there was no basis for a lesser included instruction for resisting arrest. People v. Jompp, 2018 COA 128 , 440 P.3d 1166.   Applied in Nieto v. People, 160 Colo. 179 , 415 P.2d 531 (1966); People v. West, 42 Colo. App. 217, 603 P.2d 967 (1979); People v. Billips, 652 P.2d 1060 (Colo. 1982); Watkins v. People, 655 P.2d 834 (Colo. 1982).