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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.

2 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

3 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

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