TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000427; CR.
Landsberg IV for petitioner.
R. Vincent for respondent.
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
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.
§ 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
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 ("circuit court") erroneously
instructed the jury on "custody." We agree.
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.
" 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.
The Furlough Agreement
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).
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
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
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
30. I further understand that my property will be disposed of
on the 31st day that I am declared absent without
(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.
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."
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
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