                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1039
                              Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA COOK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      Joshua Cook appeals from his conviction for escape from custody.

AFFIRMED.




      Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                            2


DANILSON, Chief Judge.

       Joshua Cook appeals from his conviction following a bench trial for escape

from custody, a class “D” felony, in violation of Iowa Code section 719.4(1) (2016).

Cook contends there is insufficient evidence to show he “intentionally escape[d], .

. . from a . . . community-based correctional facility.” Iowa Code § 719.4(1). Cook

argues instead he should have been prosecuted for absence from custody under

section 719.4(3).1 Because we conclude substantial evidence supports Cook’s

conviction, we affirm.

       In 2016, after being convicted for sponsoring a gathering where controlled

substances were unlawfully used,2 Cook was sentenced to probation at the

Residential Corrections Facility (RCF) in Davenport—a community-based

correctional facility. Cook was charged with escape from custody after fleeing from

the facility on November 25, 2016. In its order and ruling entered following an April

10, 2017 bench trial, the district court summarized the facts:

              Murphy Simms testified he was a Residential Officer at the
       RCF on Friday, November 25, 2016. Part of his duty was to log in
       and log out residents who come and go on passes. In the evening
       of November 25, 2016, Cook returned from an approved [Alcoholics
       Anonymous] meeting. When Cook checked in, Simms directed him
       to provide a urine sample which tested positive for opioids. Simms
       directed Cook to sit in the dining room while he contacted a
       supervisor to determine what to do about the failed drug test. State’s
       Exhibit 1 is a video from inside the RCF on the night in question. This
       video shows [Cook] seated at a table in the dining room near the
       Residential Officer kiosk which is near the front door. The video
       shows Cook get up from the table where he was directed to sit and
       walk out of the dining room into the courtyard. Cook can be seen
       breaking into a jog as he continues out of the courtyard into the

1
  Section 719.4(3) provides, “A person who has been committed to . . . a community-based
correctional facility, . . . who knowingly and voluntarily is absent from a place where the
person is required to be, commits a serious misdemeanor.”
2
  See Iowa Code § 124.407.
                                           3


       fenced smoking area at the rear of the RCF. Here, Cook can be seen
       jogging to the rear gate, opening same and then running at full tilt
       away from the RCF. . . .
               Simms stated that Cook violated Rule 4 of the RCF when he
       left the dining area, that rule being that he disobeyed a lawful
       order. . . . [The manager of the RCF, Kevin] Rommel testified the
       front door and rear gates must be unlocked at all times per the fire
       code. However, residents are never allowed to arrive or depart the
       RCF except through the front door. The only exceptions to this rule
       are that a resident may leave through the back gate to take trash to
       the dumpster in the alley and immediately return, but only [if] they
       are part of the pre-approved cleaning crew. Cook has been a part of
       the cleaning crew in the past. Residents may also leave through the
       back gate in the company of the RCF manager if they are requested
       to assist the manager in carrying groceries from a nearby grocery
       store. Other than these two exceptions, residents are never allowed
       to arrive to the center or depart therefrom except through the front
       door.

       In order to find Cook guilty of escape from custody, the State must establish

he “intentionally depart[ed] without authority from a detention facility or institution

to which [he] has been committed . . . whether the departure is accomplished

through ‘stealth, guile, or violence.’” State v. Burtlow, 299 N.W.2d 665, 669 (Iowa

1980) (citation omitted). As opposed to absence from custody, escape from

custody is “intended to apply [to] unauthorized departures from physical restraint.”

Id. This is because “[i]n those cases a danger of injury to persons or property

exists.” Id. However, physical restraint does not require “actual physical contact

with the arrestee. Instead, ‘physical restraint,’ . . . is necessarily involved whenever

an individual either is or would be subjected to immediate physical restraint if an

attempt to flee from authorities was made.” State v. Breitbach, 488 N.W.2d 444,

449 (Iowa 1992).

       In a case nearly identical to this matter, this court held that an individual

escaped from a facility pursuant to section 719.4(1) when he left the building
                                          4

through a fire exit that was not locked or equipped with an alarm.         State v.

Paarmann, No. 10-0862, 2013 WL 541631, at *1 (Iowa Ct. App. Feb. 13, 2013).

In Paarmann, the court stated:

               The question is whether Paarmann’s departure from the
      [Department of Corrections (DOC)] facility subjected him to
      immediate physical restraint. See State v. Smith, 690 N.W.2d 75, 77
      (Iowa 2004). The district court was correct in concluding it did; ‘the
      defendant certainly knew or should have known that when
      permission was required to be absent from the facility, by leaving the
      facility without permission, he was escaping from it. To accept the
      defendant’s argument would essentially nullify subsection one
      except in escapes from actual physical contact.’             After his
      unauthorized departure from the work release center on December
      30, 2009, the DOC placed Paarmann on ‘escape status,’ and he was
      arrested six days later. When he walked out of the fire exit, even in
      the absence of a guard or an alarm, Paarmann was subject to
      immediate physical restraint because he had been committed to the
      DOC facility and did not have permission to be at any other location.

Paarmann, 2013 WL 541631, at *2. Here, although the back exit through which

Cook left the RCF was not locked or equipped with an alarm, Cook did not have

permission to leave the building. Rommel stated Cook was subject to immediate

arrest upon leaving the RCF without permission. Simms explained after Cook

violated Simms’s direct order to remain in the dining room and left the RCF through

the back door, he was placed on “escape” status. This matter is not similar to State

v. Oponski-Sims, No. 13-1784, 2014 WL 3511894, at *4 (Iowa Ct. App. July 16,

2014), as Cook asserts, because the record here clearly explained the rules and

security measures of the RCF facility and established Cook was required to obtain

permission before leaving the building.

      We acknowledge Cook could have been prosecuted for absence from

custody under section 719.4(3). See State v. Miller, 841 N.W.2d 583, 593 (Iowa

2014) (concluding absence from custody may be a lesser-included offense of
                                          5


escape from custody under section 719.4(1) because “a person who leaves a

correctional facility without authority is necessarily a person who is absent from a

place the person is required to be”). However, if a defendant has intentionally left

the facility, he may be prosecuted for the greater offense of escape from custody.

Id. at 591. Here, Cook jogged out the facility and, once out of the facility, sprinted

away.

        On our review for correction of errors at law, State v. Thomas, 847 N.W.2d

438, 442 (Iowa 2014), we find substantial evidence3 establishing Cook intentionally

left the facility without authority, thus supporting Cook’s conviction for escape from

custody under section 719.4(1). We therefore affirm.

        AFFIRMED.




3
 “Evidence is considered substantial if, when viewed in the light most favorable to the
State, it can convince a rational jury that the defendant is guilty beyond a reasonable
doubt.” Thomas, 847 N.W.2d at 442 (citation omitted).
