Opinion
No. 91-F-18435.
Decided March 3, 1992.
Kenneth W. Oswalt, for plaintiff.
William H. Peoples, for defendant.
This matter came on for consideration upon the motion in limine filed by the defendant on February 18, 1992 and upon the memorandum contra filed by the plaintiff on February 21, 1992. The motion in limine requests a pretrial ruling on the issue of whether the facts of this case which have been agreed to are sufficient to present a case to the jury on the charge of escape. The defendant argues that the facts as presented do not constitute a violation of the escape statute. The plaintiff maintains that the acts of the defendant provide a sufficient basis to proceed to trial.
The state of Ohio intends to establish at trial through the use of two witnesses that the defendant, Rick M. Hughes, was stopped by a store employee while the defendant was inside a grocery store. The defendant was detained on suspicion of shoplifting. He was escorted by two store employees to a private office which is not available to the public. While inside the office, questioning took place and the items alleged to have been stolen from the store were recovered from the defendant. The defendant persuaded the store employees that a relative was in the store and one employee left the office to summon the relative. While the one employee was absent from the office, the defendant attempted to leave the office, but was prevented from doing so by the remaining employee. The door to the office was closed at the time the defendant attempted to leave. Police arrived and the defendant was subsequently charged with theft and escape.
The issue is whether the attempt by a person who is suspected of a shoplifting offense to break away or to leave the closed room in which he is placed by the storekeeper can ever constitute the offense of escape. It is the position of the plaintiff that the store employees had, for a period of time, lawfully established control over the defendant in such a manner that he was under "detention" as that term is used in connection with R.C. 2921.34.
The applicable portion of the escape statute, R.C. 2921.34, provides that:
"(A) No person, knowing he is under detention or being reckless in that regard, shall purposely break or attempt to break such detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited period, or at the time required when serving a sentence in intermittent confinement." (Emphasis added.)
R.C. 2921.01(E) defines "detention" in the following manner:
" `Detention' means arrest, or confinement in any facility for custody of persons charged with or convicted of crime or alleged or found to be delinquent or unruly, or detention for extradition or deportation. For a person confined in a county jail who participates in a county jail industry program pursuant to section 5147.30 of the Revised Code, `detention' includes time spent at an assigned work site and going to and from the work site. Detention does not include supervision of probation or parole, nor constraint incidental to release on bail." (Emphasis added.)
It is agreed by the parties that the language of the statute which refers to confinement in a detention facility is not germane to this case. The focus must be on the use of the word "arrest." Arrests by private citizens are authorized by statute. Specifically, R.C. 2935.041 provides the authority for storekeepers to detain individuals suspected of theft. R.C. 2935.041 states, in part:
"(A) A merchant, or his employee or agent, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.
"* * *
"(C) An officer, agent, or employee of a library, museum, or archival institution pursuant to division (B) of this section or a merchant or his employee or agent pursuant to division (A) of this section may detain another person for any of the following purposes:
"(1) To recover the property that is the subject of the unlawful taking, criminal mischief, or theft;
"(2) To cause an arrest to be made by a peace officer;
"(3) To obtain a warrant of arrest."
The obvious intent of this statute is to permit merchants to detain suspected shoplifters for the purpose of obtaining a warrant for the arrest of those apprehended. It would appear to this court that merchants and their employees should have the same protection provided by the escape statute as police officers who apprehend suspects and detain them for the purposes of obtaining an arrest warrant. This court fails to discern any distinction between the two factual situations. Arguably, the shopkeeper is in a position to require more protection than the law enforcement officer and the deterrent effect of the statute should be applied to the merchant situations.
This is apparently a case of first impression in Ohio. No Ohio cases have been cited by either party and this court could locate no cases on point. However, the Nevada Supreme Court was faced with this issue in Johnson v. Sheriff, Clark Cty. (1974), 90 Nev. 19, 518 P.2d 161. In that case, the court concluded that a similarly worded escape statute did apply to a situation involving the forcible detention of a shoplifter. The court found that:
"Where grocery store employee observed petitioner taking steaks and hiding them under his coat, where the employee, after petitioner left the store without paying for the merchandise, apprehended him and returned him to the store manager, who advised him that he was under arrest and that the police had been summoned, and where a confederate of the petitioner then entered the store and, with the aid of a small calibre revolver, effected petitioner's release, the petitioner was subject to prosecution for escape, despite the fact that, at the time in question, his freedom had not been curtailed by formal judicial proceedings."
This court finds that the facts of this matter as presented are sufficient to proceed to trial on the charge of escape. The motion in limine is overruled and the same is hereby denied.
So ordered.