by Mark Wilson

The Hawaii Supreme Court reversed an escape conviction, finding that failing to report to a caseworker while on extended furlough is not escape.

In June 2011, Hawaii prisoner Eugene Paris Jr. was released on an extended furlough. His parents' home was listed as his furlough site. The furlough agreement was unclearly worded, but seemed to suggest that failure to report would result in administrative rather than criminal sanctions.

By mid-November 2011, Paris was only required to check in with case manager Noel Villanueva, every Wednesday. He met with Villanueva as scheduled on January 4, 2012, at 6:00 a.m. and Villanueva gave him a one-week pass and told him to check in again on January 11, 2012, at 6:00 a.m.

Paris did not report to Villanueva on January 11, 2012, but called in. Villanueva told Paris he could come in at 6:00 p.m. and that he would wait for Paris. Villanueva waited until 9:00 p.m., but Paris failed to report.

On February 2, 2012, a Honolulu police officer pulled over a vehicle he had seen "weaving within its lane." Paris was driving. He initially gave the officer a false identity but his passenger revealed his true name.

Dispatch then alerted the officer that Paris was an escapee. He was arrested and charged with second degree escape under HRS § 710-1021, which provides: "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."

Paris moved to dismiss the charge, arguing that it failed to define custody, and therefore, failed to allege an essential element of the offense. The trial court denied the motion, finding that the indictment gave Paris fair notice of all the essential elements of the offense.

The case proceeded to trial and Paris moved for judgment of acquittal after the State rested. The trial court denied the motion. The defense then rested without putting on a case-in-chief.

Over a defense objection, the trial court instructed the jury that "an escape can be perpetuated 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."

The jury returned a verdict against Paris, finding him guilty of second-degree escape. The court then sentenced him to five years in prison.

The Hawaii Supreme Court reversed, finding that the Indictment did not provide fair notice of the charge. Observing that HRS § 710-1000 defines "custody" as "restraint by a public servant pursuant to arrest, detention, or order of a court," the Court concluded that "the Felony Indictment in this case did not allege any of the attendant circumstances found in HRS § 710­1000's definition, and the omission of these essential elements resulted in a charge that did not" give Paris "fair notice . . . of the offense he was alleged to have committed."

The Court also agreed that the prosecution's evidence was insufficient to support a second degree escape conviction and the court's jury instruction misstated the law.

See: Hawaii v. Paris, SCWC-14-0000427 (Hawaii 2016)

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