STATE OF IOWA, Plaintiff-Appellee, vs. THOMAS DURON WHITE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-935 / 09-0526
Filed December 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THOMAS DURON WHITE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
A defendant appeals his conviction for escape in violation of Iowa Code
section 719.4(3) (2007). AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Michael J. Walton, County Attorney, and Alan Havercamp, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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MANSFIELD, J.
Although framed as a challenge to a jury instruction, this case presents a
question of legal interpretation of a criminal statute. The issue is whether Iowa
Code section 719.4(3) (2007) criminalizes the situation where an inmate who is
on work release fails to return to the residential correctional facility after leaving
his worksite. Because we believe it does, we affirm Thomas White’s conviction.
White was in the custody of the Iowa Department of Corrections in June
2008 when he began a work release program.
His employer was Premier
Cleaning. Under the rules of the program, an inmate is to report to his or her
employer, and then is required to return to the facility within two hours of the
completion of his or her job shift.
On September 29, 2008, White left the Davenport Residential Correctional
Facility (RCF) at 2:15 p.m. to go to Jumer’s Casino in Rock Island, where he had
been assigned to work that day. At this point, White had less than a month to go
before being discharged from the RCF.
White told the residential officer he
would be returning at 1:00 a.m. the next morning, after his work shift was over.
That day, White was asked by his employer to leave the worksite.
According to the report, he was not following directions, he was loud and out of
control, and he was refusing to perform tasks. White, however, did not return to
the RCF at 1:00 a.m., and was placed on “escape” status. The RCF had two
staff members check White’s mother’s residence, but they did not find him. The
next day, White called the same residential officer and said he was not coming
back. He also told the officer he had been dropped off somewhere else and, in
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effect, advised the RCF staff not to look for him at his mother’s any more.
Showing some bravado, White later called the same residential officer again and
inquired about the funds in his accounts at the RCF. On December 2, 2008,
White was apprehended.
White was charged with the offense of escape within the meaning of Iowa
Code section 719.4(3). That section provides:
A person who has been committed to an institution under the
control of the Iowa department of corrections, to a communitybased correctional facility, or to a jail or correctional institution, who
knowingly and voluntarily is absent from a place where the person
is required to be, commits a serious misdemeanor.
Iowa Code § 719.4(3).
At the conclusion of the evidence, the district court
proposed to instruct the jury:
The State must prove all of the following elements of the
crime of Escape:
1. That the defendant had been previously committed to the
Residential Correctional Facility.
2. The Residential Correctional Facility was a correctional
institution under the jurisdiction of the Department of
Corrections.
3. While in custody, the defendant was required to be at the
Residential Correctional Facility or at his employers,
Premier Cleaning, Rock Island Jumer’s Casino.
4. On or about the 29th day of September, 2008, the
defendant knowingly and voluntarily was absent from the
place he was required to be and failed to voluntarily
return to the Residential Correctional Facility.
If the State has proved all of the elements, the defendant is guilty of
Escape. If the State has failed to prove any one of the elements,
the defendant is not guilty.
White timely objected to this instruction, arguing that the words after “Residential
Correctional Facility” should be omitted from the third element and the words
after “required to be” should be omitted from the fourth element. In essence,
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White maintained that he could not be convicted under section 719.4(3) for
absenting himself from an employment site. The district court overruled White’s
objection, and the jury returned a guilty verdict. White was sentenced to one
year imprisonment and now appeals.
We review White’s challenge to the jury instruction for correction of errors
at law. We must determine whether the instruction correctly states the law. Iowa
R. App. P. 6.907; State v. McCall, 754 N.W.2d 868, 871 (Iowa Ct. App. 2008).
We believe the district court’s instruction was an accurate statement of the
law. Section 719.4(3) has two distinct components. The defendant must have
been “committed to an institution under the control of the Iowa department of
corrections, to a community-based correctional facility, or to a jail or correctional
institution,” and he or she must be “knowingly and voluntarily . . . absent from a
place where the person is required to be.” However, there is no requirement that
the “place where the person is required to be” must be a jail, correctional facility,
or correctional institution. Thus, in State v. Burtlow, 299 N.W.2d 665, 667 (Iowa
1980), our supreme court held that section 719.4(3) applied where an inmate
“while committed on a felony sentence, failed to return to a state work release
center after a seven-day furlough.” The “furlough,” of course, was not a penal
institution or detention facility. As the Burtlow court put it, “Subsection three of
[Iowa Code section 719.4(3)] obviously applies when a prisoner is absent without
authority from a place he is required to be, even if he has not left the premises of
the institution or detention facility.” Burtlow, 299 N.W.2d at 669.
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In this case the evidence showed White was required to be either at his
worksite, or back at the RCF. He chose not to return to the RCF after being
dismissed from the job site.
conviction and sentence.
AFFIRMED.
For the foregoing reasons, we affirm White’s
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