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State v. Terri Day
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 192
Docket:	Pen-00-214
Submitted
on Briefs:	October 26, 2000
Decided:	November 2, 2000

Panel:		WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
		CALKINS, JJ.


STATE OF MAINE v. TERRI L. DAY


RUDMAN, J.

	[¶1]  Terri L. Day appeals from a judgment entered in the Superior
Court (Penobscot County, Mills, J.) following a jury verdict of guilty of
operating without a license.  29-A M.R.S.A. § 1251 (Class E).  Day contends,
inter alia, that the complaint charging her with operating without a license
was defective.  We disagree and affirm the judgment.
	[¶2]  Day was charged with one count of operating without a license.
29-A M.R.S.A. § 1251(1)(1996).  The complaint against Day charged that:
[O]n or about the 23rd day of September, 1999, in the Town of
Bangor, County of Penobscot, and State of Maine, TERRI DAY
did: operate a motor vehicle on a public way or parking area
without being licensed to do so.
The relevant section of the statute provides:
A person commits an offense of operating a motor vehicle
without a license if that person operates a motor vehicle on a
public way or parking area without being licensed or in violation
of a condition or restriction on the license.  For a resident, that
license must be issued by this State.
29-A M.R.S.A. § 1251(1) (1996) (emphasis added).

	[¶3]  Day asserts that the complaint charging her with operating
without a license was defective because it did not allege that she was a
resident of the State of Maine, pursuant to the last sentence of the statute. 
The State argues that the complaint was not defective because the State did
not need to allege that Day was a resident of the State of Maine as the last
sentence in the statute does not set out an element of the offense, but rather
is an "'exception, exclusion or authorization' which the State is not required
to negate unless the issue is generated by the evidence at trial." (citing 17-A
M.R.S.A. §101(1) (1983 & Supp. 1999)).  Section 101(1) provides, in
pertinent part:
The state is not required to negate any facts expressly
designated as a "defense," or any exception, exclusion or
authorization that is set out in the statute defining the crime by
proof at trial, unless the existence of the defense, exception,
exclusion or authorization is in issue as a result of evidence
admitted at the trial that is sufficient to raise a reasonable doubt
on the issue, in which case the State must disprove its existence
beyond a reasonable doubt.  This subsection does not require a
trial judge to instruct on an issue that has been waived by the
defendant. 
17-A M.R.S.A, § 101(1) (1983 & Supp. 1999). 
	[¶4]  An indictment must allege every element of the offense charged. 
State v. Weese, 662 A.2d 213, 214 (Me. 1995) (citing State v. Levasseur, 538
A.2d 764, 766 (Me. 1988)).  The omission of one element of the offense
from a charging instrument voids it. Weese, 662 A.2d at 214 (citation
omitted).  The sufficiency of an indictment is jurisdictional. Id.  The failure
of an indictment to charge an offense may be noticed and acted upon by the
court at any time during the proceedings.  Id.
	[¶5]  To determine the elements of the offense of operating without a
license, we look to the statute defining the offense.  A criminal statute must
be strictly construed.  State v. King, 371 A.2d 640, 643 (Me. 1977).  The
interpretation of a statute is a question of law subject to de novo review. 
State v. Raymond, 1999 ME 126, ¶ 6, 737 A.2d 554, 555 (citation omitted). 
To construe the statute in question and to give effect to the Legislature's
intent, we will look to the statute's plain meaning.  Id.  When construing
29-A M.R.S.A. § 1251, we must "'consider the whole statutory scheme for
which the section at issue forms a part so that a harmonious result,
presumably the intent of the Legislature, may be achieved.'" Id. (quoting
Estate of Whittier, 681 A.2d 1, 2 (Me. 1996)).
	[¶6]  When considering the whole statutory scheme, it is plainly
evident that the last sentence in section 1251(1) is simply an "'exemption,
exclusion or authorization'" which the State is not required to negate.  See
17-A M.R.S.A. § 101(1).  The sentence is, as the State correctly argues,
"simply § 1251(6)'s explicit exemption stated conversely: if a person is a
resident of Maine, then she must have a Maine license; if she is not, then
the nonresident exemption may apply."
	[¶7]  Day did not produce any license.  The State had no need either
to allege or prove residency.  Had Day produced an out of state license, the
State would have had to allege and prove that Day was a Maine resident.
	[¶8]  Day's other contentions do not merit comment.
	The entry is:
Judgment affirmed.

Attorneys for State: R. Christopher Almy, District Attorney C. Daniel Wood, Asst. Dist. Atty. Darcie McElwee, Asst. Dist. Atty. 97 Hammond Street Bangor, ME 04401 Attorneys for defendant: Arthur J. Greif, Esq. Julie D. Farr, Esq. Gilbert & Greif, P.A. Bangor, ME 04402-2339