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State v. Paris

Supreme Court of Hawaii

August 8, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
EUGENE PARIS, JR., also known as EUGENE J.E. RIVERA, JR., Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000427; CR. NO. 12-1-0191)

          Marcus Landsberg IV for petitioner.

          Brian R. Vincent for respondent.

          McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

         OPINION

          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 violation of Hawai'i 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 Circuit[1] ("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 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 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:

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":

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 LWFCs 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."

         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] ...

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