Opinion
No. 65325-3-I.
March 28, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 10-8-00077-3, Michael J. Trickey, J., entered March 12, 2010.
Reversed and remanded with instructions by unpublished opinion per Spearman, J., concurred in by Grosse and Becker, JJ.
The question that must be addressed in this appeal is whether removal of an electronic home monitoring bracelet alone is sufficient to prove a person knowingly escaped from "custody" as it is defined in the escape statute, RCW 9A.76.010(2). Holding it is not, we reverse T.E.D.'s adjudication for second degree escape and remand for dismissal.
FACTS
T.E.D. pled guilty to second degree theft on August 3, 2009. His disposition included six months community supervision and the condition that he live in a juvenile probation counselor (JPC) approved residence. In October 2009, T.E.D. was arrested for and charged with second degree robbery. At a detention hearing for the robbery, the court authorized electronic home monitoring (EHM) pending trial. Under the terms of the EHM contract, T.E.D. was to remain in his mother's custody at her house. Additionally, T.E.D. agreed not to tamper with the monitoring equipment, and he acknowledged that "[f]ailure to remain at my designated residence, or failure to return from an authorized leave or pass may result in ESCAPE charges being filed. . . ."
On December 7, 2009 T.E.D. cut off the electronic monitoring ankle bracelet and left his mother's home. The JPC filed a notice of modification of disposition in the theft case, alleging that T.E.D. "[f]ailed to have parent's permission regarding whereabouts by leaving home[.]" The court issued an arrest warrant on the same grounds. The State joined the JPC's request for modification, and on December 28, 2009, the court modified T.E.D.'s theft disposition, imposing six days of detention with credit for six days previously served. The order indicated the reason for modification was that T.E.D "failed to reside in JPC approved residence."
On January 6, 2010, the State charged T.E.D. with second degree escape, RCW 9A.76.120(1)(b). The information alleged:
That the respondent . . . after having been charged with the felony of Robbery in the Second Degree did escape from the custody of King County Department of Adult and Juvenile Detention Alternatives to Secure Detention (ASD) Program, Electronic Home Monitoring.
T.E.D. moved to dismiss the escape charge, arguing that under RCW 13.40.070(3), the State was not permitted to pursue both modification of community supervision and filing new charges, but was instead required to elect only one. The court denied the motion. T.E.D. stipulated to the facts as presented in various reports, including the police report, warrant summary, and jail incident reports, and the court adjudicated T.E.D. guilty on the escape charge. T.E.D. appeals.
DISCUSSION
T.E.D. argues that under RCW 13.40.070(3), his escape adjudication must be reversed because "the State already moved to modify his community supervision based on his escape." T.E.D. is correct that if the modification and the escape charge were both based on T.E.D. leaving his mother's home, reversal would be required. Where an adjudicated juvenile offender serving a term of community supervision allegedly commits a new offense, the State must elect between filing a motion to modify community supervision and filing an information charging the new crime. RCW 13.40.070(3); State v. Murrin, 85 Wn. App. 754, 755, 934 P.2d 728 (1997) ("the State is prohibited from both seeking modification of community supervision and filing an information based on the same conduct").
The State acknowledges that the modification of the theft adjudication was based on T.E.D. leaving his mother's home. The State contends, however, that the escape charge was based on an entirely different conduct, namely, that T.E.D. cut off his electronic monitoring bracelet. Id. T.E.D. responds that to the extent his escape conviction was based solely on removal of the monitoring bracelet, the evidence is insufficient to sustain his escape conviction. We agree with T.E.D. and reverse.
Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). To convict T.E.D of second degree escape as charged, the court was required to find that T.E.D. "knowingly escape[d] from custody[.]" RCW 9A.76.120(1)(b). The question here is whether T.E.D., by cutting off his electronic monitoring bracelet, escaped from "custody" as that term is defined by statute. RCW 9A.76.010(2) defines "custody" as "restraint pursuant to a lawful arrest or an order of a court[.]" Although the escape statute does not define "restraint," the State contends State v. Ammons, 136 Wn.2d 453, 963 P.2d 812 (1998), is on point.
In Ammons, the Supreme Court adopted the following dictionary definition of restraint in the context of the escape statute:
1 a: an act of restraining, hindering, checking, or holding back from some activity or expression . . . b: a means, force, or agency that restrains, checks free activity, or otherwise controls.
Ammons, 135 Wn.2d at 457 (quoting webster's third new international dictionary 1937 (1986)). Applying this definition, the court held that the defendants' judgments and sentences, which ordered the defendants to serve 30 days on work crews, amounted to "restraints" such that they were in "custody" when they escaped. Id. But as T.E.D. points out, the court order in Ammons requiring the defendants to go to and participate in work crews actually restrained their movement by requiring them to be in a specific place at a specific time. The order requiring T.E.D. to wear the ankle bracelet, by contrast, does no such thing. The ankle bracelet in no way prevented or restrained T.E.D.'s movement; T.E.D. could have fled his mother's residence without removing the bracelet. Rather, the bracelet merely alerted the State to T.E.D.'s whereabouts. Moreover, if the legislature had wanted to define wearing an electronic monitoring bracelet as "custody" it could have; indeed, the legislature did just that in the Juvenile Justice Act. See RCW 13.40.020(9) ("`Detention facility' includes county group homes, inpatient substance abuse programs, juvenile basic training camps, andelectronic monitoring") (emphasis added).
In sum, removal of an electronic home monitoring bracelet alone is not enough to prove second degree escape under RCW 9A.76.010(1)(b), and the evidence here was insufficient to convict T.E.D.
Reversed and remanded for dismissal.
WE CONCUR