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Electronically Filed
Supreme Court
SCWC-14-0000427
08-AUG-2016
07:51 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
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________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
EUGENE PARIS, JR., also known as
EUGENE J.E. RIVERA, JR., Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-14-0000427
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000427; CR. NO. 12-1-0191)
AUGUST 8, 2016
McKENNA, POLLACK, AND WILSON, JJ.,
WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
At issue in this appeal is whether
Petitioner/Defendant/Appellant Eugene Paris, Jr. (“Paris”), a
furloughee on extended furlough in the community, who failed to
check in with his case manager at Laumaka Work Furlough Center
(“LWFC”), can be convicted of escape in the second degree, in
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violation of Hawaii Revised Statutes (“HRS”) § 710-1021 (2014).
We hold that, under the facts of this particular case, failure
to check in while on extended furlough is not punishable as
escape in the second degree.
HRS § 710-1021 states, “A person commits the offense of
escape in the second degree if the person intentionally escapes
from a correctional or detention facility or from custody.
Escape in the second degree is a class C felony.” The State
proceeded on a theory that Paris escaped from “custody” (i.e.,
not from a correctional or detention facility). HRS § 710-1000
(2014) defines “custody” as “restraint by a public servant
pursuant to arrest, detention, or order of a court.”
On certiorari, Paris contends that the ICA gravely erred in
affirming his conviction and rejecting his arguments that (1)
the charge was deficient for failing to define “custody”; (2)
insufficient evidence supported his conviction; and (3) the
Circuit Court of the First Circuit1 (“circuit court”) erroneously
instructed the jury on “custody.”2 We agree.
Central to this appeal is what constitutes “custody” for
the purpose of the offense of escape in the second degree. We
1
The Honorable Rom A. Trader presided.
2
Paris also argues that the ICA gravely erred in rejecting his arguments
that (1) the prosecutor committed misconduct by misstating the requisite
state of mind for the offense; and (2) the circuit court abused its
discretion by failing to apply the doctrine of judicial estoppel. In light
of our disposition of this case, we find it unnecessary to address these
arguments.
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agree with Paris that the meaning of “custody” shifted
throughout the proceedings below. First, the circuit court
defined “custody” with reference to our case law; next, the
circuit court nevertheless concluded that the term “custody” was
a term susceptible to common understanding; lastly, the circuit
court stated “custody” meant “confinement.” We have accepted
certiorari in this case to clarify that, for purposes of escape
in the second degree, “custody” means “restraint by a public
servant pursuant to arrest, detention, or order of a court.”
HRS § 710-1000.
“Custody,” thus defined, is not “an unmistakable term
readily comprehensible to a person of common understanding”;
therefore, the statutory definition of “custody” should have
been included in the charging instrument. Further, the State
was required to prove, beyond a reasonable doubt, that Paris
intentionally escaped from custody, as defined in HRS § 710-
1000, not just that he violated the terms of his furlough
agreement and extended furlough agreement by failing to check in
with his LWFC case manager. Lastly, although the circuit court
properly instructed the jury on the statutory definition of
custody, it also submitted another jury instruction on custody
that was inconsistent with the statutory definition, erroneous,
and misleading. Due to the insufficiency of the evidence
adduced at trial, we reverse the ICA’s September 22, 2015
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judgment on appeal and the circuit court’s January 14, 2014
judgment of conviction and sentence.
II. Background
A. The Furlough Agreement
In June 2011, Paris and his case manager, Noel Villanueva;
his unit manager, Wendel Yoda; and the Oahu Center Warden,
Francis Sequeira, signed and entered into a Furlough Agreement.
The Furlough Agreement “define[d] mutual responsibilities and
provide[d] an opportunity for [Paris] to demonstrate readiness
for parole and to prepare for successful parole or release by
establishing or re-establishing family and community ties.”
Paris’s Furlough Site was listed as his parents’ Wahiawa home.
Under the heading “Part I- Rules and Regulations of the Furlough
Agreement,” Paris initialed 35 items (some of which included
sub-items).
Complicating our review of whether a furloughee’s
failure to check in constitutes a crime are provisions in
the Furlough Agreement that are unclearly worded but that
seem to call for administrative, rather than criminal,
consequences for escape. The Furlough Agreement term the
State relies upon as the basis for Paris’s escape charge
and conviction is Item 9, which provides for “process[ing]”
or “list[ing]” as an “escapee” upon a furloughee’s failure
to return to LWFC:
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9. I understand and agree that I shall be processed as an
escapee if I fall into one or more of the following
stipulations:
a. Fail to return to the Laumaka Work Furlough Center
(LWFC) or OCCC [Oahu Community Correctional Center] at the
designated day and time as stated in this Agreement or on
my pass and/or fail to seek permission for an extension of
the designated return time.
b. Fail to return to LWFC or OCCC in a timely manner when
I am directed to do so regardless of the expiration time
stated on the pass.
I further understand that should I be listed, as an escapee
under any of the aforementioned conditions, my pass will be
deemed null and void.
(Emphasis added.) Under Item 9, the clear consequence for
failure to return to LWFC is that the furlough pass is
deemed null and void. That is an administrative, not
criminal, consequence. Less clear is what occurs when a
furloughee is “processed” or “listed” as an “escapee.”
Other items in the Furlough Agreement suggest an “escape”
is merely an “absen[ce] without authorization” rather than
a criminal act, the consequences for which are
administrative, rather than criminal:
29. I understand and agree that I will not hold the State
of Hawaii, Department of Public Safety, and Oahu Community
Correctional Center liable or accountable for any of my
property when I am declared absent without authorization
(escape).
30. I further understand that my property will be disposed
of on the 31st day that I am declared absent without
authorization (escape).
(Emphasis added.) Underscoring the interpretation that “escape”
is not a criminal act is Item 32, which defines “escape” as
presence in off-limits areas of LWFC. The consequence for
that type of escape is an “administrative[] charge[] as an
escapee”:
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32. I understand that should I be observed in the inner
perimeter of LWFC, I will be administratively charged as an
escapee. This is defined as the area from the LWFC’s fence
line to the backside of the Modules, the cabled/chained off
areas or the landing directly outside of the escape doors.
These areas are clearly marked.
(Emphasis added.) In short, the items in the Furlough
Agreement expressly referencing escape define escape in
administrative, not criminal, terms, and provide for
administrative, not criminal, consequences. Further, Item
35, which does not expressly reference escape, reiterates
that deviation from the terms of a furlough pass will
result in administrative consequences, as follows:
35. I understand and agree that any deviation from the
following: date of validity, time expiration, destination,
and purpose/intent of any furlough pass will result in the
processing of a high misconduct violation and referred to
the Adjustment Hearing process. This may jeopardize
continued participation in the furlough program and may
result in transfer from OCCC.
(Emphasis added.)
By contrast, the only item threatening criminal prosecution
is Item 2, which reads
2. I understand and agree that my failure to comply with
furlough conditions shall result in disciplinary action by
the Adjustment Committee, forfeiture of furlough privileges
and/or possible assignment to a greater control status by
the Program Committee, and/or criminal prosecution for the
commission of any illegal act.
(Emphasis added.) Criminal prosecution, however, is listed
as the most severe consequence, following a list of
escalating administrative consequences, and it appears to
be limited just to the commission of “any illegal act.”
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Lastly, this appeal hinges upon the definition of “custody”
in the escape statute. Relevant to this appeal, items 1, 8, and
26 seem to contradict each other as to whether Paris, while on
furlough, was in the “custody” of the Department of Public
Safety (“DPS”) and/or the State. Those items read:
1. I understand that I remain under the jurisdiction of
the Department of Public Safety, Oahu Community
Correctional Center (OCCC), Community Based Section, and
will comply with all R&R, Policies and Procedures governing
said agency. I further understand and agree upon furlough
release to comply with all County Ordinances, State
Statutes, and Federal Laws.
. . . .
8. I understand and agree that the Program Committee of
the Oahu Community Correctional Center may cancel this
agreement at any time if I fail to fulfill any terms and
conditions of furlough or fail to obey institutional, State
and Federal Laws or regulations. All cancellations are
grounds for my immediate return to the custody of the
Department of Public Safety.
. . . .
26. I will submit urine samples for drug testing whenever
requested to do so. I understand that my failure to do so
will be considered a positive finding and action will be
taken accordingly. Furthermore, as a custody of the State
[sic] I understand that my person, property or room maybe
[sic] subject to search by the Corrections/Law Enforcement
personnel at any time.
(Emphasis added.) Specifically, Items 1 and 26 consider
Paris to be “under the jurisdiction” of DPS and “a custody
of the State [sic],” respectively, while Item 8 states that
the cancellation of the Furlough Agreement is grounds for
Paris’s “immediate return to the custody” of DPS,
suggesting that, while on furlough, Paris is not in the
custody of DPS. These unclear and contradictory provisions
in the Furlough Agreement make it difficult to conclusively
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state that noncompliance with the check-in term constitutes
criminal “escape” from “custody.”
B. The Extended Furlough Agreement
In mid-November 2011, Paris’s Program Committee determined
that Paris “ha[d] not demonstrated any problems while in the
community.” The Committee also determined that Paris “ha[d] an
appropriate residence,” namely his parents’ Wahiawa home. The
Committee recommended placing Paris on Extended Furlough,
provided that he comply with the following condition: “Check in
once a week with Case Manager Noel Villanueva every Wednesday at
0600 hours.” Therefore, at the end of the month, Paris,
Villanueva, Yoda, and Sequeira signed and entered into an
Extended Furlough Contract. Relevant to this appeal, the
Extended Furlough Contract stated:
The Furloughee agrees to comply with these conditions:
1. To adhere to all the rules, regulations, and as stated
in the Furlough Agreement, Work Furlough Contract, and set
by the Corrections Division.
. . . .
4. To report in person every week to [Case Manager
Villanueva or Unit Manager Yoda] for feedback.
5. To report in person once a week to obtain a new weekly
pass.
The escape charge was predicated on Paris’s non-compliance with
the weekly reporting requirement of the Extended Furlough
Contract.
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C. Trial Proceedings
1. The Charge
On February 10, 2012, the State filed an Amended Felony
Information that stated the following:
The Department of the Prosecuting Attorney charges:
On or about the 11th day of January, 2012, to and
including, February 2, 2012, in the City and County of
Honolulu, State of Hawaii, EUGENE PARIS, Jr. also known as
Eugene J.E. Rivera, Jr., did intentionally escape from a
correctional or detention facility or from custody, thereby
committing the offense of Escape in the Second Degree, in
violation of Section 710-1021 of the Hawaii Revised
Statutes.
If convicted of this offense or any included felony
offense, EUGENE PARIS, Jr. also known as Eugene J.E.
Rivera, Jr., may be subject to sentencing in accordance
with Section 706-661 and Section 706-662(1) of the Hawaii
Revised Statutes where he is a persistent offender in that
he has previously been convicted of two or more felonies
committed at different times when he was eighteen years of
age or older, and an extended term of imprisonment is
necessary for the protection of the public.
2. Pre-Trial Motion to Dismiss
Paris filed a Motion to Dismiss Complaint for Failure to
State an Offense. He argued that the escape charge in the
complaint failed to define custody; therefore, “the Complaint
fail[ed] to allege essential elements of the offense and must be
dismissed for lack of subject matter jurisdiction.” In its
memorandum in opposition to Paris’s motion, the State counter-
argued that the term “custody” is “readily comprehensible to a
person of common understanding.”
The circuit court held a hearing on the motion. The
circuit court began the hearing by quoting the following holding
on the meaning of “custody” for second degree escape from State
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v. Smith, 59 Haw. 456, 463-64,
583 P.2d 337, 343 (1978): “While
[Hawaii Youth Correction Facility] did not have actual physical
control over the appellant at the time he is alleged to have
escaped [by not returning at the end of his furlough], it had
control and custody in the sense that appellant was released on
furlough not as a free person but as one legally bound by
restrictions.” The circuit court denied the motion and issued
findings of fact and conclusions of law. Although the circuit
court discussed Smith’s holding on “custody” at the hearing, the
circuit court issued a conclusion of law regarding the statutory
definition of “custody,” concluding “that the term ‘custody,’ as
defined in HRS § 710-1000, is an unmistakable term readily
comprehensible to a person of common understanding,” and that
the “statutory definition of ‘custody’ does not create any
additional essential elements to the offense of Escape in the
Second Degree.” In other words, the circuit court concluded
that the “Information provided fair notice to Defendant Paris as
to all the essential elements of the offense of Escape in the
Second Degree.”
3. Trial
During opening statements, the State’s theory of the case
was that Paris committed escape by failing to meet with his case
manager as required under the furlough agreement and extended
furlough work contract. The State explained to the jury that
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furlough is “sort of a minimum security.” The defense objected,
arguing at the bench that the State was “getting really close to
talking about how furlough is still custody, when that’s a legal
conclusion, which is argument and not what a witness can testify
to.” During the bench conference, the circuit court overruled
the objection, stating, “Well, there’s the legal term custody.
There’s also custody in a general sense, which means
confinement. So I understand what you’re saying.” Thus, it
appears that the circuit court considered “custody” to mean
“confinement” at this stage of the trial. During opening
statements, Paris’s main defense was that his parents’ home was
the place of detention he was alleged to have escaped from, and
the State would present no evidence that he was not at his
parents’ home.
The State called as its first witness Paris’s case manager,
Noel Villanueva. He testified that Paris was in “community
custody” at LWFC. Villanueva stated that he reviewed the June
14, 2011 furlough agreement with Paris, who initialed every term
and condition to indicate his understanding. Villanueva and
Paris discussed item 9B of the furlough agreement; Villanueva
explained to Paris that the term and condition meant,
“Regardless if [Paris] is working at that moment. . ., if I tell
him to come back to Laumaka right away, I give him enough time,
like two hours to come back, he has to come back.”
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As for the extended furlough agreement, Villanueva
explained that a furloughee on extended furlough “actually
leaves to their sponsor or to their family. . . . [He is] given
weekly passes, where when he goes home he doesn’t live at the
Laumaka anymore. I will send him home and he will only see me
once a week, and the same day, the same hour every week.”
Villanueva authorized Paris to live with his parents in Wahiawa
and report in person at Laumaka every Wednesday at 6:00 a.m.
Villanueva explained the extended work furlough agreement to
Paris, and Paris signed it.
On January 4, 2012, at 6:00 a.m., Paris met with Villanueva
as scheduled. Villanueva gave Paris a one-week pass and told
him to meet him again on January 11, 2012 at 6:00 a.m. Paris
did not report to Villanueva on January 11, 2011. Paris did,
however, call Villanueva that day; Villanueva told Paris he
could come in at 6:00 p.m. and that Villanueva would wait for
him. Villanueva waited until 9:00 p.m., but Paris did not check
in. Paris did not report to Laumaka at any time between January
11, 2012 and February 2, 2012.
On cross-examination, Villanueva testified, “I explained to
[Paris] that he’s still under the custody of the Public Safety
even if he is on extended furlough. Even if he’s not living in
the prison, he’s living with his mom, he’s still under the
custody of his – of the Public Safety.” He also agreed that
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Paris’s mother’s home was Paris’s “place of detention[.]”
Villanueva acknowledged that there were different types of
escape: criminal escape, administrative escape, absent without
authorization, violent escape, and nonviolent escape.
The State next called Moses Fonoimoana, a sergeant at
Laumaka Work Furlough Center who monitors inmates on furlough.
He testified that Paris called him on January 11, 2012, and
Fonoimoana told him to report back to Laumaka at 6:00 p.m. that
day. Paris did not report to Laumaka at 6:00 p.m. on January
11, 2012.
The State’s last witness was Honolulu Police Department
police officer Waldron Chung. He testified that on the night of
February 2, 2012, at approximately 1:30 a.m., he observed a
white Toyota Corolla driving westbound on the H-1 freeway. The
car was “weaving within its lane,” then drifted over to another
lane and then the right shoulder. Chung pulled the car over.
Paris was driving, and he had a female passenger. Paris
initially identified himself as “John J. Rivera,” and Chung
could not find any information on that name when he ran it
through dispatch and his mobile data computer. The female
passenger told Chung Paris’s real name, and Chung was then able
to ascertain through dispatch that Paris was an escapee. (The
circuit court issued a cautionary instruction that Chung’s
statement that dispatch told him Paris was an “escapee” was
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admitted to show the information Chung had available to him, not
for the truth of the matter asserted.)
The State then rested. The defense moved for a judgment of
acquittal, arguing (1) that the State had not proven that Paris
left his parents’ home, his place of detention; and (2) that a
failure to check in to LWFC is not “escape.” The circuit court
denied the motion. The defense did not put on a case in chief
and, instead, rested.
4. Jury Instructions
The following jury instruction on the offense of Escape in
the Second Degree was given by agreement:
The Defendant, Eugene Paris, Jr., is charged with the
offense of Escape in the Second Degree.
A person commits the offense of Escape in the Second
Degree if he intentionally escapes from a correctional
facility, a detention facility, or custody.
There are two material elements of the offense of
Escape in the Second Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about January 11, 2012 to and
including February 2, 2012 in the City and County of
Honolulu, State of Hawaii, the Defendant escaped from a
correctional facility, a detention facility, or custody;
and
2. That the Defendant did so intentionally.
The following jury instruction providing the statutory
definition of escape was given, as modified, over Paris’s
objection: “‘Custody’ means restraint by a public servant
pursuant to arrest, detention, or order of a court.”
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The following jury instruction on the terms “escape” and
“custody” was given, as modified, over the objection of both the
State and Paris:
An escape can be perpetrated by a person even though he is
not in actual physical custody or under immediate control
and supervision of a guard. A person may be deemed to be
in custody when released from a correctional or detention
facility on furlough and legally bound by restrictions.
Defense counsel objected to the initial form of the instruction
on the basis that “it takes two sentences which are not only out
of order but out of context [from Smith, 59 Haw. 456,
583 P.2d
337].” The court modified the instruction so that the second
sentence of the instruction read, “a person may be deemed to be
in custody when released from a correctional or detention
facility on furlough and legally bound by restrictions.” The
State objected to the modification. It is this instruction that
Paris challenges on certiorari.
5. The State’s Closing Argument
During closing argument, the State told the jury the
following:
I want to point your attention to the elements
instruction. . . . Escape in the Second Degree, number 1,
that on or about January 11, 2012, in the city and county
of Honolulu, state of Hawaii, to and including February
2nd, 2012, the defendant escaped from a correctional
facility, a detention facility, or from custody; and two,
that the defendant did so intentionally.
I want to point your attention to the word “or.” The
State does not need to prove all three, that the defendant
escaped from a correctional facility, detention facility,
and from custody. State is going to prove this by focusing
on the defendant escaped from custody. So we can cross out
correctional facility, detention facility, and we’re just
going to look at the defendant escaped from custody.
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(Emphasis added.) Thus, the State confirmed that its entire
theory of Paris’s liability for Escape in the Second Degree
rested on one prong of the offense: escape from custody.
6. Verdict
The jury found Paris guilty as charged. The circuit court
sentenced Paris to five years’ incarceration, with credit for
time served, with the sentence to run concurrently with any
other term currently being served. Paris appealed.
D. ICA Appeal
The ICA affirmed the circuit court’s judgment of conviction
and sentence in a memorandum opinion, rejecting Paris’s
arguments that (1) the charge was deficient for failing to
include the statutory definition of “custody”; (2) insufficient
evidence supported his conviction; and (3) the jury instruction
on “custody” drawn from Smith was erroneous. State v. Paris,
CAAP-14-0000427 (App. Jul 31, 2015) (mem.). The ICA quoted
Smith, 59 Haw. at 463-64,
583 P.2d at 343, for the proposition
that a correctional facility maintains “control and custody
[over a furloughee] in the sense that [the furloughee] was
released on furlough not as a free person but as one legally
bound by restrictions.” Paris, mem. op. at 6. The ICA also
cited State v. Kealoha,
71 Haw. 251, 253,
787 P.2d 690, 691
(1990), for the proposition that “a prisoner who failed to
return at the expiration of her furlough, without a legitimate
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excuse, was guilty of escape.” Paris, mem. op. at 7. Paris now
seeks review of the ICA’s memorandum opinion.
III. Standards of Review
A. Sufficiency of a Charge
“Whether an indictment or complaint sets forth all the
essential elements of a charged offense is a question of law,
which [the appellate court reviews] under the de novo, or
right/wrong, standard.” State v. Young, 107 Hawaii 36, 39, 109
P.3d 677, 680 (2005) (internal quotation marks, citation,
brackets, and ellipsis omitted).
B. Sufficiency of the Evidence
“‘Substantial evidence’ as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable [a person] of reasonable
caution to support a conclusion.” State v. Matavale, 115 Hawaii
149, 158, 166 P.3d 322, 331 (2007)(citation omitted).
C. Jury Instructions
An appellate court reviews whether the jury instructions
given by the trial court, “when read and considered as a whole
. . . are prejudicially insufficient, erroneous, inconsistent,
or misleading.” State v. Locquiao, 100 Hawaii 195, 205, 58 P.3d
1242, 1252 (2002) (citation omitted). “If there is . . . a
reasonable possibility in a criminal case [that an erroneous
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jury instruction contributed to conviction], then the error is
not harmless beyond a reasonable doubt, and the judgment of
conviction on which it may have been based must be set aside.”
State v. Getz, 131 Hawaii 19, 27, 313 P.3d 708, 716 (2013)
(citations omitted).
IV. Discussion
A. Sufficiency of the Charge
On certiorari, Paris contends that the ICA “gravely erred
in concluding that the charging language for Escape in the
Second Degree was sufficient.” Paris first argues that the
Felony Information did not provide fair notice to Paris of the
offense he was charged with because the statutory definition of
“custody” was not included. His argument then focuses on the
multiple definitions of “custody” used throughout the trial to
show that he was not given fair notice in the Felony Information
of precisely what type of custody he was alleged to have escaped
from. Paris argues that the circuit court denied his motion to
dismiss the felony information on the basis that the term
“custody” was unmistakable and readily comprehensible to a
person of common understanding. At the hearing on the motion,
Paris points out, the circuit court introduced another
definition of custody found in Smith: that, while LWFC “did not
have actual physical control over the [furloughee] at the time,
he is alleged to have escaped and had control and custody in the
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sense that the [furloughee] was released on furlough, not as a
free person but one legally bound by restrictions.” He then
points out that, during opening statements, the circuit court
acknowledged there was a distinction between the legal
definition of custody and its general sense meaning of
“confinement.” This alone, to Paris, indicates that there were
multiple meanings of custody at issue in the case, and Paris’s
Felony Information should have specified which definition of
custody he was accused of escaping from.
Paris’s argument is persuasive. Article I, Section 14 of
the Hawaii Constitution states, “In all criminal prosecutions,
the accused shall enjoy the right . . . to be informed of the
nature and cause of the accusation. . . .” A charging
instrument provides fair notice to the defendant if “it contains
the elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be prepared
to meet. . . .” State v. Wheeler, 121 Hawaii 383, 391, 219 P.3d
1170, 1178 (2009) (citations omitted).
In Wheeler, this court held that an OVUII charge failed to
provide fair notice to the defendant of the offense he was
accused of committing. 121 Hawaii at 395, 219 P.3d at 1182.
The charge was deficient because, while it was drawn from the
statutory language of the offense, it failed to include a
definition of “operate,” found in another statutory section,
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that geographically limited the “operation” of a vehicle to
“public way[s], street[s], road[s], or highway[s].” 121 Hawaii
at 393, 219 P.3d at 1180. This court concluded that “the
operation of a vehicle on a public way, street, road, or highway
is an attendant circumstances of the offense of OVUII, and is
therefore an element of the offense.”
Id. The failure of the
charge to include this essential element rendered it deficient.
Id. Further, this court held that the charge failed to provide
the defendant fair notice, because the term “operate” as used in
HRS § 291E-61 was neither “unmistakable” nor “readily
comprehensible to persons of common understanding.” 121 Hawaii
at 393, 394,
219 P.3d at 1180, 1181.
In this case, the Felony Information alleged that Paris
intentionally escaped from a “correctional or detention facility
or from custody.” Relevant to this appeal, “custody” is defined
as “restraint by a public servant pursuant to arrest, detention,
or order of a court.” HRS § 710-1000. This definition creates
the additional attendant circumstances of (1) who is exercising
restraint (“a public servant”); and (2) the bases for such
restraint (“arrest, detention, or order of a court.”) In that
sense, the common understanding of “custody” as “confinement”
has been limited in a manner not unmistakable or readily
comprehensible to a person of common understanding. The Felony
Indictment in this case did not allege any of the attendant
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circumstances found in HRS § 710-1000’s definition, and the
omission of these essential elements resulted in a charge that
did not provide fair notice of Paris of the offense he was
alleged to have committed. Therefore, the ICA erred in
concluding that the Felony Information provided fair notice to
Paris.
Were this the only error expressly alleged on appeal, we
would vacate the ICA’s judgment on appeal and the circuit
court’s judgment, and remand this case to the circuit court with
instructions to dismiss the information without prejudice. See
Wheeler, 121 Hawaii at 386, 219 P.3d at 1173. In this case,
however, Paris expressly challenges the sufficiency of the
evidence supporting his conviction, as well as a jury
instruction on “custody.” We find merit in both of these
challenges, which are addressed in turn below, and reverse
Paris’s conviction for insufficiency of the evidence.
B. Sufficiency of the Evidence
On certiorari, Paris contends that insufficient evidence
supported his conviction for Escape in the Second Degree. Paris
argues, “No where [sic] in the law or in the documents provided
to Petitioner is it ever suggested that if he misses a check-in
appointment, it will be treated as if he escaped the prison
facility.” We agree. Under the particular facts of this case,
we do not believe that non-compliance with the check-in
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provisions of the furlough agreements is punishable as criminal
escape in the second degree. It appears in this case that the
State relied upon the fact that Paris was a party to the
furlough agreements to substitute for proof of “custody,” and
the fact that Paris did not comply with the check-in term to
allow the jury to infer “escape.” The instant furlough
agreements, however, contained unclear and contradictory
provisions regarding Paris’s custodial status. Therefore,
merely referencing the furlough agreement terms cannot satisfy
the State’s burden of proving an element of escape: custody.
Rather, HRS § 710-1021, the escape in the second degree statute,
must be strictly construed. See Smith, 59 Haw. at 461,
583 P.2d
at 341 (“[W]e have consistently adhered in this jurisdiction to
the rule of strict construction of penal statutes.”) (citations
omitted); see also HRS § 701-104 (2014) (“The provisions of [the
Hawaii Penal Code] cannot be extended by analogy so as to create
crimes not provided for herein. . . .”).
In this case, to have convicted Paris for escape in the
second degree, the State was required to prove, beyond a
reasonable doubt, that Paris “intentionally escape[d] from . . .
custody,” with “custody” statutorily defined as “restraint by a
public servant pursuant to arrest, detention, or order of a
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court.” HRS § 710-1021, -1000.3 It is undisputed in this case
that Paris’s restraint was not pursuant to arrest. There is
also no court order in evidence calling for Paris’s restraint.
Therefore, at trial, the State had to prove that Paris escaped
from “restraint by a public servant pursuant to . . . detention.
. . .” Indeed, at trial, Paris’s case manager Noel Villanueva
agreed that Paris’s mother’s home was Paris’s “place of
detention[.]” The State’s evidence at trial focused only upon
Paris’s failure to check in with LWFC staff. There was no
evidence presented that Paris intentionally escaped restraint by
a public servant from his mother’s home. In fact, no one
testified about any attempts to contact or locate Paris there.
3
The Dissent argues that substantial evidence supported Paris’s
conviction for Escape in the Second Degree, because Villanueva testified that
Laumaka was the correctional facility from which Paris escaped. Dissent at
5. The conviction for Escape in the Second Degree was not based upon the
“correctional facility” prong of the offense, however. See HRS 710-1021 (“A
person commits the offense of escape in the second degree if the person
intentionally escapes from a correctional or detention facility or from
custody.”) The State consistently maintained throughout trial that it
intended to prove that Paris escaped from “custody.” In fact, the State told
the jury during closing arguments to “cross out correctional facility [and]
detention facility” from its jury instructions and to “focus[] on the
defendant escap[ing] from custody.” The State clearly abandoned the two
other theories of criminal liability at trial.
Further, the Dissent would remand this case for a new trial due to
instructional error. Dissent at 1-2. To the extent that the Dissent
suggests that the State could retry Paris on the resurrected theory that he
escaped from a correctional facility – a theory that was expressly abandoned
at trial – we note that “[t]he doctrine of judicial estoppel prevents parties
from playing fast and loose with the court or blowing hot and cold during the
course of litigation,” the requirements of which were met in this case.
State v. Fields, 115 Hawaii 503, 534, 168 P.3d 955, 986 (2007) (internal
quotation marks and citation omitted).
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As such, insufficient evidence supported Paris’s conviction,
under HRS § 710-1021 and -1000.
We therefore disagree with the ICA’s conclusion that
substantial evidence supported Paris’s conviction for escape.
Paris, mem. op. at 6. The ICA relied upon Smith, 59 Haw. 456,
583 P.2d 337, and Kealoha,
71 Haw. 251,
787 P.2d 690, for the
proposition that escape can be perpetrated by a furloughee who
fails to return at the expiration of a furlough pass. Paris,
mem. op. at 6, 7. Both cases are distinguishable from the
instant case.
In Smith, the defendant, Kenneth Allan Smith, was a minor
who had been committed to the Hawaii Youth Correctional Facility
(“HYCF”). 59 Haw. at 457-58,
583 P.2d at 339-40. He was given
a day pass that allowed him to remain off HYCF premises from
8:00 a.m. to 7:00 p.m.
59 Haw. at 458,
583 P.2d at 340. Smith
failed to return to HYCF by 7:00 p.m.
Id. Smith was charged
with, and convicted of, escape in the second degree.
59 Haw. at
457,
583 P.2d at 339. He appealed, arguing that the trial court
should have granted his motion for judgment of acquittal,
because “he could not have escaped from the facility by merely
failing to return thereto.”
59 Haw. at 460,
583 P.2d at 341.
In other words, Smith argued that he did not escape because he
was on furlough and not in the “actual custody” or “immediate
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supervision of a guard” at the time. 59 Haw. at 462,
583 P.2d
at 342.
This court rejected Smith’s argument, holding, “It is
evident to us that intentional failure to return to physical
confinement would fall within the definition of escape from
custody.” Id. (emphasis added). Thus, Smith stands for the
proposition that “custody” extends to furlough from physical
confinement. See also
id. (“[C]ontinued custody is not affected
by the temporary release from physical control over an inmate.”)
(emphasis added). In this case, LWFC did not have physical
control over Paris. Paris’s failure to check in with LWFC staff
before resuming his stay in the community is not the same as
Smith’s failure to return to physical confinement. Therefore,
Smith does not apply to this case.
Similarly, in Kealoha, the defendant, Lynette Lehua
Kealoha, was on a furlough from the Women’s Community
Correctional Center (“WCCC”) and failed to return at the
expiration of the furlough. 71 Haw. at 251-52,
787 P.2d at 690.
She was convicted on escape in the second degree.
71 Haw. at
251,
787 P.2d at 690. This court affirmed the conviction.
71
Haw. at 252,
787 P.2d at 691. Kealoha thus also supports the
proposition that an intentional failure to return to physical
confinement at WCCC constitutes escape from custody. Again, in
this case, Paris was on an extended furlough in the community.
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While he was required to check in to LWFC, he was not required
to return to physical confinement at LWFC. Kealoha, like Smith,
is thus inapplicable to the instant case.
Paris’s conduct falls within the escape in the second
degree statute only by analogy to Smith and Kealoha, which HRS §
701-104 forbids. (“The provisions of [the Hawaii Penal Code]
cannot be extended by analogy so as to create crimes not
provided for herein. . . .”); see also HRS § 701-102(1) (2014)
(“No behavior constitutes an offense unless it is a crime or
violation under this Code or another statute of this State.”);
commentary on HRS § 701-102 (“There are no common-law offenses
in Hawaii. . . .”) Were the legislature to have intended the
failure to check in while on extended furlough to be a crime, it
could have expressly included that within the statute defining
the crime.
The insufficiency of the evidence supporting Paris’s
conviction requires reversal of the conviction. See, e.g.,
State v. Abel, 134 Hawaii 333, 334, 341 P.3d 539, 540 (2014)
(“As insufficient evidence was adduced at trial to prove [an]
element of the offense, we reverse the Intermediate Court of
Appeals’ (ICA) Judgment on Appeal and the [trial court’s]
judgment of conviction.”) Although our analysis could end here,
we address the circuit court’s jury instruction next to provide
the bench and bar with guidance on defining “custody” in second
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degree escape cases predicated on a furloughee’s failure to
check in to LWFC.
C. Jury Instruction on “Custody”
On certiorari, Paris contends that the following jury
instruction on custody invaded the province of the jury and
directed the verdict:
An escape can be perpetrated by a person even though he is
not in actual physical custody or under immediate control
and supervision of a guard. A person may be deemed to be
in custody when released from a correctional or detention
facility on furlough and legally bound by restrictions.
He argues that the jury instruction informs the jury “that
‘terms and conditions’ may predicate an Escape in the Second
Degree conviction, instead of the elements of the charge. This
directs the verdict and redefines the necessary attendant
circumstances.” We agree.
This court reviews whether the jury instructions given by
the trial court, “when read and considered as a whole . . . are
prejudicially insufficient, erroneous, inconsistent, or
misleading.” Locquiao, 100 Hawaii at 205, 58 P.3d at 1252. In
this case, the jury instruction was erroneous, inconsistent, and
misleading. The jury instruction permitted the jury to “deem”
Paris to have been “in custody” “when released from a
correctional or detention facility on furlough and legally bound
by restrictions.” The jury instruction is drawn from Smith,
which we have already concluded is inapplicable to the facts of
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this case. The jury instruction also finds no basis in the
statutory definition of “custody,” which is “restraint by a
public servant pursuant to arrest, detention, or order of a
court.” HRS § 710-1000. Therefore, this jury instruction was
inconsistent with the court’s other jury instruction setting
forth the statutory definition of custody. Id. Further, the
jury instruction equated release pursuant to a furlough
agreement with custody. In this case, however, the furlough
agreement contained contradictory provisions regarding Paris’s
custodial status. Therefore, this jury instruction was also
erroneous and misleading. Locquiao, 100 Hawaii at 205, 58 P.3d
at 1252.
A prejudicially erroneous jury instruction can require a
remand to the circuit court for a new trial. See, e.g., Getz,
131 Hawaii at 21, 313 P.3d at 710; State v. Kalaola, 124 Hawaii
43, 62,
237 P.3d 1109, 1128 (2010); State v. Mainaaupo, 117
Hawaii 235, 252,
178 P.3d 1, 18 (2008). We need not determine
whether the erroneous jury instruction reasonably contributed to
Paris’s conviction, however, and no new trial is necessary here,
because we reverse Paris’s conviction and sentence due to
insufficiency of the evidence.
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V. Conclusion
Due to the insufficiency of the evidence adduced at trial,
we reverse the ICA’s September 22, 2015 judgment on appeal and
the circuit court’s January 14, 2014 judgment of conviction and
sentence.
Marcus Landsberg IV /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
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