Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 14-CF-1375

                          CARLOS DAVIS, APPELLANT,

                                         V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF2-21764-13)

                        (Hon. John McCabe, Trial Judge)

(Argued June 7, 2016                                   Decided August 10, 2017)

       Daniel S. Harawa, Public Defender Service, with whom James Klein and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

      Ryan M. Malone, with whom Vincent H. Cohen, Jr., Acting United States
Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne G. Curt,
and Nebiyu Feleke, Assistant United States Attorneys, were on the brief, for
appellee.

      Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.

      FISHER, Associate Judge: Appellant Carlos Davis claims the evidence was

insufficient to support his conviction for escape, arguing that he was not in the

“lawful custody of an officer” when he ran away to avoid being handcuffed. We

agree, and thus we reverse and remand.
                                        2



                               I.     Background



      Around 12:30 a.m. on December 12, 2013, Officer Phillip McHugh and his

partner were patrolling in their marked police car when they spotted appellant, who

appeared to be urinating against a dumpster near the intersection of Florida Avenue

and Trinidad Avenue, N.E. Officer McHugh stopped the car and turned on its

flashing lights and spotlight, exited the vehicle, and approached appellant.

Appellant turned to face the officer, with his jeans still “unbuttoned and flapped

open.” Officer McHugh told appellant to button his pants “and then to put his

hands on the railing” “in front of” an adjacent market. He did not announce that

appellant was under arrest.



      McHugh testified that he then “walked behind” appellant and



            with my left hand, grabbed the back of his pants, his belt
            and his pants[,] to hold onto him. I then unsnapped my
            handcuff case on my duty belt and began removing the
            handcuffs with the intention of arresting Mr. Davis for
            urinating in public. When I told Mr. Davis to put his
            hands behind his back, he did not comply. Instead, he
            turned around, shoved me[,] and then took off running.
                                         3

After a chase, appellant was arrested.



      At the ensuing trial, the jury was instructed: “A Defendant is under lawful

custody when he is physically restrained by an officer pursuant to a lawful arrest or

when he submits to a lawful arrest. To escape means to knowingly or deliberately

leave physical confinement without permission.” The jury convicted appellant of

escape from the custody of an officer and other offenses not challenged on appeal.



                                  II.    Analysis



      Appellant asserts that “the government did not prove that [he] was in the

lawful custody of an officer and thus, there was insufficient evidence to convict

[him] of escape.” Faced with a challenge to the sufficiency of the evidence, “we

view the evidence in the light most favorable to the government.” McCray v.

United States, 133 A.3d 205, 227 (D.C. 2016) (citation omitted).           However,

appellant also raises an issue of statutory interpretation, which we review de novo.

District of Columbia v. Reid, 104 A.3d 859, 866 (D.C. 2014). “At bottom, we are
                                          4

called upon to determine the reach of the statute which prohibits [escape].” Wynn

v. United States, 48 A.3d 181, 188 (D.C. 2012).1



                                   A. The Statute



      The section of the District of Columbia Code at issue here is entitled

“Escape from an Institution or Officer.” D.C. Code § 22-2601 (a) (2016 Supp.). It

reads in relevant part:



             (a) No person shall escape or attempt to escape from:

                 (1) Any penal or correctional institution or facility in
                     which that person is confined pursuant to an
                     order issued by a court of the District of
                     Columbia;

                 (2) The lawful custody of an officer or employee of
                     the District of Columbia or of the United
                     States[;] or

      1
         Citing Noaks v. United States, 486 A.2d 1177, 1178-79 (D.C. 1985), the
government asserts that appellant waived his right to our review of the evidence for
sufficiency when he failed to renew his motion for judgment of acquittal after
presenting his evidence at trial. However, as we have pointed out, it is Washington
v. United States, 475 A.2d 1127, 1128-29 (D.C. 1984), not Noaks, that governs.
Wheeler v. United States, 494 A.2d 170, 171-72 (D.C. 1985); see also, e.g., Brown
v. United States, 128 A.3d 1007, 1014 & n.6 (D.C. 2015); Sutton v. United States,
988 A.2d 478, 482 & n.5 (D.C. 2010). Thus, we review the sufficiency of the
evidence to support appellant‟s conviction by considering all of the evidence
presented at trial. Sutton, 988 A.2d at 482.
                                          5


                 (3) An institution or facility, whether located in the
                     District of Columbia or elsewhere, in which a
                     person committed to the Department of Youth
                     Rehabilitation Services is placed.



Id. (emphasis added). The scope of this statute has broadened over the eighty-plus

years since Congress first enacted it in 1932.



      By its terms, the initial version penalized only the escape or attempted

escape of persons “confined in a penal institution.” Pub. L. No. 287, § 8, 47 Stat.

698 (1932).    After the District Court of the United States for the District of

Columbia held that the statute did not cover “the case of a prisoner escaping from

the custody of an officer of the District of Columbia penal institutions” if “the

escape took place outside of the institution‟s boundaries,” Congress amended it in

1940. H.R. Rep. No. 76-1994, at 3 (1940). As modified, the statute still applied

only to the escape of persons who had been “committed to a penal institution of the

District of Columbia,” but was broadened to cover such a person‟s escape or

attempted escape “from the custody of any officer [of the penal institution] or any

other officer or employee of the District of Columbia.” Pub. L. No. 561, sec. 6 (a),

§ 8, 54 Stat. 243 (1940).
                                         6

      Following several amendments not relevant here, in 1994 the Council of the

District of Columbia “redefine[d] the crime of prison escape” so that it also applied

to an escape before “a person has been committed.” D.C. Council, Report on Bill

10-98 at 16 (Jan. 26, 1994).      The Council appears to have been particularly

concerned that under the then-existing version of the statute, “a person sent to a

halfway house before sentencing is not committed and thus cannot escape.” Id.

The Council addressed this concern by making it clear that the new statute applied

to an escape from “[a]ny penal institution or facility in which that person is

confined pursuant to an order issued by a court, judge, or commissioner of the

District of Columbia.” D.C. Code § 22-2601 (a)(1) (2001). However, the Council

went further and also prohibited an escape from “[t]he lawful custody of an officer

or employee of the District of Columbia or of the United States.” Id. § 22-2601

(a)(2). Thus, “[t]he new definition of escape includes all escapes from lawful

custody, before and after sentencing.” Report on Bill 10-98 at 16.2




      2
         The federal escape statute, see 18 U.S.C. § 751 (2012), expanded in a
similar fashion. It first applied only to persons who had been “properly committed
to the custody of the Attorney General or his authorized representative” or
“confined in any penal or correctional institution.” Pub. L. No. 218, § 8, 46 Stat.
327 (1930). Congress later amended the federal statute to prohibit escape by a
person who was in the “custody of an officer of the United States pursuant to
lawful arrest.” Pub. L. No. 233, 49 Stat. 513 (1935).
                                        7

                             B. Mack v. United States



      Only one published decision in this jurisdiction has interpreted how § 22-

2601 applies to circumstances like those presented here. See Mack v. United

States, 772 A.2d 813 (D.C. 2001) (affirming appellant‟s conviction for “escape

from an officer”). In that case, an officer approached Mr. Mack, intending to place

him under arrest, and “told him to get on his knees.” Id. at 815. It appears that

Mack complied with the order, but then “sprung up and started going wild” before

the officer reached him. Id. at 815, 817. When the officer first tried to restrain

Mack by “grab[bing] him around the shoulders, Mack took his jacket off.” Id. at

815 (alteration in original) (internal quotation marks omitted).    After a “brief

struggle,” id. at 817, during which Mack “started throwing punches,” the officer

“grabbed ahold of him and picked him up and . . . kind of threw him to the

ground,” then “proceeded to place him under arrest.” Id. at 815 (internal quotation

marks omitted). However, Mack broke free and “absconded without pursuit.” Id.

He was arrested later. Id.



      The question before the court in Mack was the meaning of the phrase

“lawful custody of an officer.” 772 A.2d at 817. The court rejected Mack‟s

argument that “„custody‟ under § 22-2601 requires commitment „to a facility by a
                                          8

judicial order,‟” id. at 816, instead holding that “where an officer physically

restrains a person pursuant to a lawful arrest, or where the person has submitted to

a lawful arrest, lawful custody exists within the meaning of § 22-2601 (a)(2).” Id.

at 817.



      In adopting this two-pronged test for determining when a person is in

custody, Mack followed the “physical restraint” principle articulated in cases from

Arizona, Texas, and Virginia. 772 A.2d at 817 (citing and quoting from State v.

Cole, 838 P.2d 1351 (Ariz. Ct. App. 1992); Medford v. State, 21 S.W.3d 668 (Tex.

App. 2000); and Cavell v. Commonwealth, 506 S.E.2d 552 (Va. Ct. App. 1998)

(en banc)). A close examination of these cases illuminates the premises of our

holding in Mack. Taken together, they reveal that “lawful custody” within the

meaning of the escape statute is not established merely because officers tell a

suspect he is under arrest or seize him for investigative purposes. There must be a

completed arrest. As the jury was instructed in this case, a defendant “is under

lawful custody when he is physically restrained by an officer pursuant to a lawful

arrest or when he submits to a lawful arrest.”3




      3
         Here, appellant makes no claim that he was detained unlawfully, only that
the detention did not constitute “custody.”
                                         9

      In Medford, the court made clear that seizure of a suspect is insufficient to

place him in custody. 21 S.W.3d at 669-70. An officer frisked Medford, felt

objects in his pocket, and received his consent to remove them. Id. at 669. After

discovering a matchbox containing crack cocaine, the officer “told Medford he was

under arrest and instructed him to place his hands behind his back.” Id. The

officer had “touched Medford‟s left arm . . . and was about to handcuff him when

Medford lunged free and began running.” Id. at 669-70 (citation omitted). The

court held that “[a]n arrest must be complete in order to distinguish the offense of

escape from the offense of evading arrest.” Id. at 669.



      “For purposes of the escape statute, an arrest is complete when a person‟s

liberty of movement is successfully restricted or restrained, whether this is

achieved by an officer‟s physical force or the suspect‟s submission to the officer‟s

authority.” Medford, 21 S.W.3d at 669 (internal quotation marks omitted). In

other words, “an arrest is complete only if a reasonable person in the suspect‟s

position would have understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal arrest.” Id. (internal

quotation marks omitted). Drawing the line even more clearly, the court said, “a

reasonable person‟s belief that he is not free to leave is not enough to constitute

„arrest‟ or „custody‟ under the escape statutes.” Id. at 670. Applying this standard,
                                            10

the court vacated Medford‟s escape conviction because the officer was “unable to

complete the arrest by successfully restricting or restraining Medford‟s liberty of

movement before Medford fled.” Id.



      Nevertheless, as Cole illustrates, the restraint does not have to be entirely

successful for the suspect to be “in custody.” An officer told Cole he was “under

arrest” on an outstanding warrant, and then two officers “clutched” his arms.

838 P.2d at 1352. Cole “began waving his arms and physically dragged the two

officers approximately 25 feet.” Id. Seeking to gain control, “[t]he officers then

grabbed [Cole‟s] shirt, but it tore and he fled.” Id.



      Under Arizona law, “a person must be under arrest either by actual restraint

or having submitted to the custody of the person making the arrest before he can

escape.” Cole, 838 P.2d at 1353. Defendant Cole moved to dismiss, arguing that

“because he did not submit to the custody of the officers and they did not have

physical control over him[,] as proven by his escape, his flight did not amount to

the criminal offense of escape.” Id. at 1352. The trial court dismissed the charge,

but the Court of Appeals reinstated it because, after being “verbally informed . . .

that he was under arrest,” Cole “escaped from actual restraint by using physical

force against the officers.” Id. at 1353.
                                        11



      Finally, in Cavell, the court reversed a defendant‟s escape conviction where

the officer told him, “Don‟t run. You are under arrest[,]” but was never close

enough to “grab” him before he ran. 506 S.E.2d at 552. The court followed the

common law principle that “an arrest is made by the actual restraint of the person

of the defendant or by his submission to the custody of an officer.” Id. at 553. As

we emphasized in Mack, Cavell “did not submit, in any respect, to [the officer‟s]

show of authority and [ ] was not detained by the exercise of any physical restraint

at the time he fled.” 772 A.2d at 817 (alterations in original) (quoting Cavell,

506 S.E.2d at 553). The Virginia court held that Cavell did not escape because he

“was not under arrest and, thus, was not in custody when he fled.” 4 Cavell,

506 S.E.2d at 553.


      4
         A few years later, the Supreme Court of Virginia clarified that “to the
extent that Cavell stands for the proposition that a formal arrest is necessary to
establish custody as contemplated by [Virginia‟s escape statute], it was erroneously
decided.” White v. Commonwealth, 591 S.E.2d 662, 666 n.3 (Va. 2004). Rather,
“an individual is in „custody,‟ as contemplated by [Virginia‟s escape statute], when
a law enforcement officer has lawfully curtailed the individual‟s freedom of
movement to a degree associated with a formal arrest, even when a formal
custodial arrest has not been effected.” Id. at 667 (internal quotation marks
omitted). However, the court flatly rejected the argument that when White
permitted a pat-down search, it “amounted to a curtailing of his freedom of
movement to a degree associated with a formal arrest.” Id. “Otherwise, we would
be forced to conclude that every investigative detention would transform into
custody of the individual as soon as the individual acquiesced in the officer‟s
request to permit such a search.” Id.
                                         12



      Based on these principles, we held in Mack “that where an officer physically

restrains a person pursuant to a lawful arrest, or where the person has submitted to

a lawful arrest, lawful custody exists within the meaning of § 22-2601 (a)(2).”

772 A.2d at 817. Yet, the government argues that “[n]either § 22-2601 (a)(2) nor

Mack requires an arrest to establish „custody‟ of a defendant for purposes of

escape.” We disagree. The phrase “pursuant to a lawful arrest,” central to our

holding in Mack, does not mean, as the government urged at oral argument, “while

attempting to make a lawful arrest.” The government makes no effort to argue that

appellant had been arrested before he fled.



      Suggesting that our decision in Mack supports its argument, the government

points to a passage where we found “unpersuasive” Mack‟s “argument that he was

not in lawful custody before he fled his jacket and ran away.” 772 A.2d at 817

(internal quotation marks omitted). We do not construe this comment as a legal

conclusion that custody had been established before Mack “fled his jacket.”

Indeed, such a conclusion would have been inconsistent with the ruling in

Medford, a case on which we relied. Our holding focused instead on a slightly

later point in time when the officer grabbed Mack, picked him up, and threw him

to the ground, then “proceeded to place him under arrest.” Id. at 815, 817. That
                                         13

police action constituted the physical restraint necessary to establish “lawful

custody.”



        Of course, the officer‟s action in Mack did not restrain the defendant for

long.    Nevertheless, we upheld his conviction for escape.       772 A.2d at 817.

Similarly, the conviction was upheld in Cole, where the defendant dragged two

officers for twenty-five feet before breaking free. 838 P.2d at 1352-53. These

cases illustrate the truism that an escape could never occur if the physical restraint

applied by an officer were completely effective. On the other hand, Medford and

Cavell establish that there must be more than an attempt to arrest the suspect. At

no point was Officer McHugh able to physically restrain appellant Davis to the

extent that the officers in Mack and Cole were able to restrain their arrestees.

Here, the lack of actual restraint is more comparable to the facts in Medford, where

the conviction was reversed. We hold that Officer McHugh did not have sufficient

physical control over appellant for him to be “in custody” at the time of the

purported “escape.”



        The plain meaning of the term, and the legislative history described above,

require a robust concept of “custody.”        Although we are dealing here with a

question of legislative intent, it is appropriate to note that, in Fourth Amendment
                                          14

law, we distinguish between a detention and an arrest, see, e.g., Gordon v. United

States, 120 A.3d 73, 78-79 (D.C. 2015), and in Fifth Amendment jurisprudence,

we differentiate between a seizure and custody, see, e.g., In re I.J., 906 A.2d 249,

255-61 (D.C. 2006). We see no justification for relaxing the meaning of “custody”

here. In reaching this conclusion, we are reassured by the fact that a different

statute criminalizes efforts to evade arrest. See D.C. Code § 22-405 (2016 Supp.)

(making it unlawful to resist arrest). We thus decline the government‟s invitation

to expand the statute‟s coverage so far beyond its roots. Appellant‟s conviction for

escape must be vacated because he was not in the “lawful custody of an officer” at

the time he ran.



                                 III.   Conclusion



      We reverse and remand to the trial court with instructions to vacate

appellant‟s escape conviction.



                                        It is so ordered.
