State v. Womack

• Court: Arizona Court of Appeals
• Writing for the Court: TAYLOR; CONTRERAS; LANKFORD
• Citation: State v. Womack, 174 Ariz. 108, 847 P.2d 609 (Ariz. App. 1992)
• Decision Date: 29 September 1992
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Wesley Alan WOMACK, Appellant. 89-753.

Page 609

847 P.2d 609

174 Ariz. 108

STATE of Arizona, Appellee, v. Wesley Alan WOMACK, Appellant.

No. 1 CA-CR 89-753.

Court of Appeals of Arizona Division 1, Department A.

Sept. 29, 1992.

Review Denied March 30, 1993. ^*

[174 Ariz. 109] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, and Mark E. Dwyer, Asst. Atty. Gen., Phoenix, for appellee.

Apache County Public Defender by David A. Brown, St. Johns, for appellant.

OPINION

TAYLOR, Presiding Judge, Retired.

In our review of this case, we focus upon the distinction between avoiding arrest and resisting arrest.

Pursuant to a plea agreement, Wesley Alan Womack ("defendant") pled guilty to three charges: flight from a pursuing law enforcement vehicle, a class 5 felony; possession of marijuana, a class 6 felony; and resisting arrest, a class 6 felony. The trial court suspended defendant's sentence and imposed three years intensive probation on each count. As a condition of probation, defendant was ordered to serve one year in the county jail.

Defendant's plea of guilty to the charge of resisting arrest was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant appeals only from his conviction on this charge, contending that the State failed to set forth a sufficient factual basis for his conviction under the resisting arrest statute, Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-2508. We agree and reverse defendant's conviction.

FACTS

The charges against defendant arose out of an incident occurring in St. Johns, Arizona, on December 11, 1987. The facts, as given by the prosecutor at the time of defendant's change of plea, are as follows:

[BY MR. WING]: If th[is] matter were to proceed to trial, the evidence would be ... that on 7/11 ... 1987, Officer Lloyd Wolfe, a police officer with the City of St. Johns Police Department, observed the defendant driving a red Honda motorcycle in the area of Cleveland and 13th West, here in St. Johns. The motorcycle did not have a taillight, so this officer attempted to stop the motorcycle. As he did so, the driver of the motorcycle, which was later identified to be the defendant, looked back at the police officer and then sped the motorcycle up to move away from the police officer.

Officer Wolfe was in a fully marked police vehicle. As he pursued the defendant's motorcycle, he activated his emergency lights and his siren over a distance of several miles. The defendant fled from the police officer with his equipment in full operation, the emergency equipment.

At times, the motorcycle went between 70 and 80 miles-per-hour in a residential district. At one location, he made a turn and lost partial control of the motorcycle, going up in the yard of a residence.

At two locations, those being at 5th South 13th West and at 7th South and 13th West, the defendant ran two stop signs during the commotion, the chase. A second fully marked police vehicle of the St. Johns Police Department with its emergency equipment in operation was also in pursuit.

After a distance of miles, the officers were able to locate the defendant and take him into custody.

At the time that he was arrested, he had in his possession, a small quantity or usable quantity of marijuana, which was submitted to DPS laboratory and analyzed to be a usable amount of marijuana.

THE COURT: Tom, did he resist the arrest?

MR. WING: That was driving a motorcycle in the manner likely to cause injury to [the] officer or to others along the route of the chase.

Additional facts contained in the police reports and made a part of the record prior to sentencing reveal that a total of four police officers and at least three police vehicles participated in the chase, that the stop and arrest occurred "without further incident" in a farming area adjacent to the community, and that the defendant was booked by the arresting officers for "flight from a law enforcement vehicle and possession of marijuana." The reports also indicate that Officer Wolfe's initial effort to effect a traffic stop of defendant was by use of his emergency lights and siren.

Defendant entered a plea agreement whereby he pled guilty to the charges of flight from a pursuing law enforcement vehicle, possession of marijuana, and resisting arrest. At the change of plea hearing, however, defense counsel argued that there was an insufficient factual basis to find defendant guilty of resisting arrest. Defendant timely appealed following the trial court's acceptance of his plea and the imposition of sentence.

DISCUSSION

Defendant argues that his act of fleeing by motorcycle from the officers does not constitute resisting arrest under Arizona's statute defining that offense. His argument is twofold. First, he contends that his act of fleeing from the officers does not furnish a factual basis for that offense. Second, he asserts that the resisting arrest statute requires proof that he intended to place either the pursuing officers or other persons in risk of physical injury. ¹ The statute defining the offense of resisting arrest, A.R.S. § 13-2508, states in pertinent part:

A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest by:

1. Using or threatening to use physical force against the peace officer or another; or

2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.

Defendant was charged with resisting arrest under subsection (A)(2).

Our current resisting arrest statute was derived from Haw.Rev.Stat. § 710-1026. Rudolph J. Gerber, Criminal Law of Arizona § 13-2508, at 357 (1978). "A statute adopted from another state is presumed to have been adopted with a construction previously placed upon it by the courts of that state." State v. Flores, 160 Ariz. 235, 239-40, 772 P.2d 589, 593-94 (App.1989). No Hawaii court has interpreted that state's statute with facts similar to those before us. The comment to the Hawaii statute, however, offers the following insight of its purpose as perceived by the commentator.

The Code deals specifically with resisting arrest out of a desire to confine the offense to forcible resistance that involves some substantial danger to the person. Mere non-submission ought not to be an offense. One who runs away from an arresting officer or who makes an effort to shake off the officer's detaining arm might be said to obstruct the officer physically, but this type of evasion or minor scuffling is not unusual in an arrest, nor would it be desirable to make it a criminal offense to flee arrest. In this case the proper social course is to authorize police pursuit and use of reasonable force to effect the arrest. If the actor is captured, he may be convicted of the underlying offense. If conviction cannot be had, it would be a grave injustice to permit prosecution for an unsuccessful effort, by an innocent man, to evade the police.

Haw.Rev.Stat. § 710-1026 cmt. (1985) (emphasis added) (footnote omitted); accord Gerber, supra, at 358; American Law Institute, Model Penal Code and Commentaries § 242.2, at 214 (1980).

The comment is not deemed to be an expression of legislative intent. We find, however, a similar legislative intent as reflected in the specific wording of our statute. See City of Show Low v. Owens, 127 Ariz. 266, 268, 619 P.2d 1043, 1045 (App.1980) ("We consult first ... the language of the statute itself in order to determine legislative intent."). That intent, as we glean it from the statute, is to prohibit threats or any conduct that creates a substantial risk of injury to another, including the officer. As we read the statute, it prohibits assaultive behavior directed toward an arresting officer, not an arrestee's efforts to put as much distance as possible between himself and the officer. Defendant's conduct of fleeing from the officer was appropriately and adequately prohibited by A.R.S. § 28-622.01, flight from a pursuing law enforcement vehicle. To stretch the resisting arrest statute to cover defendant's act of fleeing is, in our opinion, violative of the rule that "[c]ourts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself." Collins v. Stockwell, 137 Ariz. 416, 420, 671 P.2d 394, 398 (1983).

In State v. Sanchez, 145 Ariz. 313, 701 P.2d 571 (1985) our supreme court had occasion to examine A.R.S. § 13-2502(A), escape in the third degree, as it applied to one who ran from an officer after being told he was under arrest. After pointing out the necessity of actual restraint by the officer or submission by the person before an arrest is accomplished, the court stated:

There is evidence that the legislature may never have intended these escape statutes to criminalize flight prior to arrest. The Arizona Criminal Code Commission proposed a set of escape statutes quite similar to those adopted by our legislature. In their commentary, the Criminal Code Commission writers noted:

Neither [nonviolent] nonsubmission nor flight are covered by these sections [resisting arrest and escape]. The proper course in such a case is to pursue or use reasonable force to overcome the suspect.

Arizona Criminal Code Commission, Arizona Revised Criminal Code, p. 238 (1975).

Id. at 315, 701 P.2d at 573. The court also referred to State v. Swanson, 34 Or.App. 59, 578 P.2d 411 (1978), in which that court, interpreting statutes similar to Arizona's and with similar commentaries, found that the legislature did not intend to make nonviolent flight from an attempted arrest criminal behavior.

In our opinion, the defendant's flight was conduct which prevented, without the use of resistance, the effectuation of his arrest. In other words, such conduct constituted avoiding arrest, not resisting arrest....