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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 HAWAII

                            ---oOo---
________________________________________________________________

           STATE OF HAWAII, 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 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 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 Hawaii 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 Hawaii

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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii

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 Hawaii

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 Hawaii 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

Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii at 21, 313 P.3d at 710; State v. Kalaola, 124 Hawaii

43, 62, 237 P.3d 1109, 1128 (2010); State v. Mainaaupo, 117

Hawaii 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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