from the Iowa District Court for Scott County, Stuart P.
Cook appeals from his conviction for escape from custody.
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
DANILSON, Chief Judge.
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). Because we conclude substantial
evidence supports Cook's conviction, we affirm.
2016, after being convicted for sponsoring a gathering where
controlled substances were unlawfully used,  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 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.
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).
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 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
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 Statev. Oponski-Sims,
No. 13-1784, 2014 WL 3511894, at *4 (Iowa Ct. App. July 16,
2014), as Cook asserts, because the record here clearly