MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:    2016 ME 73
Docket:      Pen-15-228
Submitted
  On Briefs: April 21, 2016
Decided:     May 17, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.



                                 STATE OF MAINE

                                          v.

                                TRACY DORWEILER


HUMPHREY, J.

         [¶1] Tracy Dorweiler appeals from a judgment of conviction for escape

from arrest (Class D), 17-A M.R.S. § 755(1-D)(A) (2015), entered in the Unified

Criminal Docket (Penobscot County, R. Murray, J.) following a bench trial. She

contends that her conviction cannot stand because there was insufficient evidence

that she was arrested before she fled the custody of a police officer by climbing out

a bedroom window. Concluding that there was sufficient evidence to support the

conviction, we affirm.

                                 I. BACKGROUND

         [¶2] Viewed in the light most favorable to the State, the record establishes

the following facts. See State v. Cote, 2015 ME 78, ¶ 2, 118 A.3d 805. On

May 5, 2014, around 11:30 p.m., an officer with the Bangor Police Department
2

went to the home of Dorweiler’s boyfriend to arrest Dorweiler on an outstanding

warrant. After the boyfriend opened the door, Dorweiler appeared in the doorway.

The officer told her that he had a warrant for her arrest, and she “advised [him] she

was aware.” At that point, the officer told Dorweiler that she was under arrest.

The officer then asked Dorweiler “if there was anything she would like to take

with her to the jail,” and she told him “that she wanted to put on a bra.” The

officer and Dorweiler walked through the living room and the kitchen to the

doorway of the bedroom.        They “discussed some paperwork she had,” and

Dorweiler asked the officer “what was going to happen.” The officer responded

that they “were going to go down to the [Penobscot County Jail].”

      [¶3] Dorweiler went into the bedroom and closed the door behind her.

After some time, the officer could not hear any noise coming from the bedroom, so

he opened the door and discovered that the bedroom window was open and

Dorweiler was gone.        The officer learned from Dorweiler after she was

apprehended that she had exited through the bedroom window, gone to a friend’s

house, called her father, and had him drive her to Madawaska.

      [¶4] Dorweiler was charged by criminal complaint with escape from arrest

on July 15, 2014. She pleaded not guilty at her arraignment and waived her right

to a jury trial.   A bench trial was held on April 17, 2015.        The officer and

Dorweiler’s boyfriend were the only witnesses who testified.
                                                                                    3

      [¶5] At the close of trial, the parties disputed whether the evidence was

sufficient to show that the officer had actually arrested Dorweiler before she fled.

The court described the four elements of an arrest as (1) an intention on the part of

the arresting officer to make an arrest; (2) a communication of that intent to the one

whose arrest is sought; (3) an understanding of the officer’s intention by the person

who is to be arrested; and (4) the actual or constructive seizure or detention of the

person to be arrested by the one having the present power to control that person.

The court stated that “the first three elements . . . have been clearly established

beyond a reasonable doubt.” As to the fourth element, the court noted that “there

is no evidence with regard to a physical seizure [of Dorweiler by the officer], so

the focus is on whether or not there’s been proof by the State of . . . constructive

seizure.” The court found that there was a constructive seizure because Dorweiler

had submitted to the officer’s power and authority when the officer asked her if she

wanted to bring anything to jail and she responded that she wanted to put on a bra.

The court therefore adjudged Dorweiler guilty and sentenced her to fourteen days

in jail. Dorweiler timely appealed to us.

                                 II. DISCUSSION

      [¶6] Dorweiler contends there was insufficient evidence that she committed

the crime of escape from arrest because the State did not prove beyond a

reasonable doubt that she was “arrested” before she fled out the bedroom window.
4

When a defendant challenges the sufficiency of the evidence supporting a

conviction, we determine, viewing the evidence in the light most favorable to the

State, “whether a trier of fact rationally could find beyond a reasonable doubt

every element of the offense charged.” State v. Saucier, 2015 ME 144, ¶ 6,

126 A.3d 1159 (quotation marks omitted).

          [¶7] The offense of escape from arrest occurs when a person “without

official permission . . . intentionally . . . [l]eaves following arrest prior to being

transported.” 17-A M.R.S. § 755(1-D)(A). Thus, the State had to prove that

Dorweiler had been arrested before she fled. We have established that there are

four elements to a valid arrest1 for the purposes of the offense of escape from

arrest:

          (1) an intention on the part of the arresting officer then and there to
          make the arrest under a real or pretended authority; (2) a
          communication of that intention by the arresting officer to the one
          whose arrest is sought; (3) an understanding of that intention by the
          person who is to be arrested; and (4) the actual or constructive seizure
          or detention of the person to be arrested by the one having the present
          power to control him.

State v. Donahue, 420 A.2d 936, 937 (Me. 1980) (emphasis added) (quotation

marks omitted). A constructive seizure occurs when “the person to be arrested is

in the presence and power of the officer and in consequence of the


    1
     It is a defense to escape from arrest that the arresting officer acted unlawfully in making the arrest,
17-A M.R.S. § 755(2) (2015), but Dorweiler is not contending that this officer acted unlawfully.
                                                                                                              5

communication” by the officer that the person is under arrest, “submits to the

officer’s restraint.” State v. Powers, 386 A.2d 721, 728 (Me. 1978). Dorweiler

contends that the court erred by finding that the officer constructively seized her

before she fled because she did not submit to the officer’s restraint.

          [¶8] On this record, we conclude that the trier of fact rationally could have

found beyond a reasonable doubt that Dorweiler had submitted to arrest:

Dorweiler acknowledged that the officer was there on a warrant for her arrest,

heard the officer’s statement that she was under arrest, and said that she wanted to

put on an item of clothing in response to the officer asking her if there was

anything she would like to take with her to jail. Based on Dorweiler’s show of

submission, the officer “asserted as much control over [Dorweiler] as the situation

reasonably permitted or necessitated,” Donahue, 420 A.2d at 937, and did not need

to accompany Dorweiler into the bedroom while she changed in order to effect the

arrest.

          [¶9] We are not persuaded by Dorweiler’s argument that the court could not

have found that she had submitted because she did not subjectively intend to

submit and instead “manipulated” the officer in order to carry out her flight.2 To


   2
      Dorweiler suggests that she committed, at most, the offense of refusing to submit to arrest,
17-A M.R.S. § 751-B (2015), because the officer did not effect an arrest. That statute provides that a
person is guilty of the offense of refusing to submit to arrest “if, with the intent to hinder, delay or prevent
a law enforcement officer from effecting the arrest” the person “[r]efuses to stop on request or signal of a
law enforcement officer,” uses physical force against the officer, or creates a substantial risk of bodily
6

accept Dorweiler’s argument that her subjective intent controls the determination

of whether she submitted to arrest would add a factor to the arrest analysis not

previously considered by us or required by the escape statute and could lead to

increased use of physical force by law enforcement to arrest defendants no matter

their demonstrations of acquiescence.3

        [¶10] We conclude that Dorweiler committed the crime of escape from

arrest because there was sufficient evidence to prove that she was under arrest

before she fled out the bedroom window of her boyfriend’s home. We therefore

affirm the judgment.

        The entry is:

                        Judgment affirmed.




injury to the officer. 17-A M.R.S. § 751-B(1). None of these scenarios fits the facts of this case; refusal
to stop on request is most clearly applicable to a police chase or situations in which a person drives away
from a vehicle stop. See State v. LaPlante, 2011 ME 85, ¶ 20 n.5, 26 A.3d 337.
    3
      While we do not now express any opinion on post–arrest procedures or tactics, we observe that,
although Dorweiler proved unworthy of the gesture, the arresting officer showed understandable restraint
and tact by giving her the opportunity to put on an item of clothing before taking her to jail.
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On the briefs:

        Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant
        Tracy Dorweiler

        R. Christopher Almy, District Attorney, and Susan J. Pope,
        Asst. Dist. Atty., Prosecutorial District V, Bangor, for appellee
        State of Maine



Penobscot County Unified Criminal Docket docket number CR-2014-2568
FOR CLERK REFERENCE ONLY
