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LIPEZ, J., with whom CLIFFORD, J. joins, dissenting.

	[¶14]  I must respectfully dissent.  The Court imposes an unduly
restrictive meaning on 17-A M.R.S.A. § 456(1)(A)  because of its misreading
of the words "received" and "tampering."
	[¶15]  The Court observes that section 456 addresses documents
"received or kept by" the government, and construes these words to mean
that Spaulding could only be charged with a violation of section 456 if the
application she completed was already a public record in the possession of
the government.  By its terms, section 456 is not limited to tampering with
"any record, document or thing" that is already a public record.  The statute
proscribes knowingly making "a false entry in, or false alteration of any
record, document or thing belonging to, or received or kept by the
government . . . ."  The words "belonging to" and "kept" describe a "record,
document or thing" that is already a public record in the possession of the
government.  If the word "received" also refers to such a "record, document
or thing," it is redundant.  No word in a statute may be treated as surplusage
if a reasonable construction supplying meaning and force is otherwise
possible.  See Struck v. Hackett, 668 A.2d 411, 417 (Me. 1995).  The word
"received" only has independent meaning in a case such as this, where the
false entry is made on an application for a government service, and the
application with a false entry is then given to the government.  Knowingly
making the false entry is not a crime until the document is "received" by
the government.  The Court's redundant reading of the word "received" is
contrary to a basic principle of statutory interpretation and finds no support
in the plain language of the statute.
	[¶16]  In its discussion of the word "tampering" in section 456, the
Court states that "the defining element of 'tamper' is the alteration or
change of an existing document.  Spaulding did not alter or change
information on a document; she incorrectly represented that she had no
prior criminal convictions on her CNA Registry application."  In reaching
this conclusion about the significance of the word "tampering," the Court
relies on the 1898 case of Keefe v. Donnell, 92 Me. 151, 42 A. 312, and a
dictionary definition.  Those sources offer scant support for the Court's
conclusion.
	[¶17]  In Keefe v. Donnell, the Court decided that a town clerk faced
with a recount challenge could open a package of sealed ballots in his
possession without offending an 1891 election statute that forbade a clerk
and all other persons to "abstract from or in any manner tamper with" such
packages.  The Court's reference to the word "tampering" in a criminal
statute was an aside to emphasize that the word "tamper" as used in the
1891 election statute deals with improper interference rather than the
legitimate "tampering" requested of the clerk for the purpose of a ballot
recount.  The Court's point was a simple one.  Tampering suggests
wrongdoing.  The Court's discussion of the word "tamper" as used in this
1891 election statute is irrelevant to the import of the word in a criminal
code adopted in 1975.
	[¶18]  The dictionary definition cited by the Court is only one of many
dictionary definitions of tamper.  For example, the American Heritage
Dictionary contains these definitions:  "to interfere in a harmful manner . . .;
to meddle rashly or foolishly . . .; to bring about an improper situation or
condition by clandestine means . . . ."  American Heritage Dictionary 1241
(2d college ed. 1985).  "To alter improperly," in the sense of the alteration
of the information on a document or text, is only one of many meanings of
the word tamper.
	[¶19]  Moreover, by asserting that the defining element of "tamper" is
the alteration or change of an existing document, the Court ignores that
portion of 17-A M.R.S.A. § 456(1)(A) which states that "a person is guilty of
tampering with public records or information if he . . . knowingly makes a
false entry in . . .  any record, document or thing belonging to, or received or
kept by the government, . . . ."  (emphasis added).  That "false entry"
language is the language relied upon by the State in its criminal complaint
against Spaulding:

On or about March 20, 1995, in the City of Augusta, County of
Kennebec, State of Maine, DONNA M. SPAULDING, did
knowingly make a false entry, specifically by placing a check
mark beside the word "no" in response to the question "Have
you ever been convicted of a crime?"

The complaint does not refer to the alternative "or false alteration" language
of the statute.  By knowingly making a false entry in the application that she
submitted for placement on the Maine Registry of Certified Nursing
Assistants, Spaulding violated the "false entry" prohibition of 17-A M.R.S.A.
§ 456(1)(A). 
	[¶20]  In concluding that section 456 does not apply to the conduct of
Spaulding, the Court also relies unduly on the provision of 17-A M.R.S.A.
§ 453(1)(A) that punishes for "unsworn falsification" an individual who
makes a written false statement on "a form conspicuously bearing
notification authorized by statute or regulation to the effect that false
statements made therein are punishable."  It is true that the application
submitted by Spaulding did not contain such a notification.  Therefore, she
could not be prosecuted for a violation of section 453(1)(A).{4}  By its terms
(the requirement of a form bearing a notification authorized by statute or
regulation), the scope of section 453(1)(A) is much narrower than the scope
of section 456(1)(A), which applies broadly to a person who "knowingly
makes a false entry in . . . any record, document or thing . . . ." (emphasis
added).  There is no inharmonious or inconsistent result in the application
of the broader statute to Spaulding's conduct, even though that conduct
involved a government form which might have borne the notification
required by section 453(1)(A).  The Court essentially reads into the broad
language of section 456(1)(A) a "government forms" exception on the basis
of section 453(1)(A).  There is no justification for that rewriting of the
statute.
	[¶21]  Indeed, a further analysis of section 453(1)(B) emphasizes that
an overlap between section 453 and section 456 is basic to the statutory
scheme.  Section 453(1)(B)(1) punishes the making of any written false
statement with the intent to deceive a public servant in the performance of
his official duties.  Section 453(1)(B)(2) punishes anyone who, with the
intent to deceive a public servant in the performance of his official duties,
"knowingly creates, or attempts to create, a false impression in a written
application for any pecuniary or other benefit by omitting information
necessary to prevent statements therein from being misleading."  Section
456(1)(A) requires a different culpable mental state by punishing a person
who "knowingly" makes a false entry in any record, document or thing
belonging to, or received or kept by the government.  The State could have
prosecuted Spaulding pursuant to section 453(1)(B)(1) or (1)(B)(2).   The
availability of these options did not preclude the State from proceeding
pursuant to section 456(1)(A) which, by its plain terms, also applies to the
conduct of Spaulding.  
	[¶22]  There is nothing unfair or illogical in the applicability of more
than one criminal statute to the conduct of an individual.   Where different
proof is required for each offense, a single act may violate more than one
criminal statute.  See Rosenberg v. United States, 346 U.S. 273, 294 (1953)
(Clark, J., concurring) ("Where Congress by more than one statute
proscribes a private course of conduct, the Government may choose to
invoke either applicable law:  'At least where different proof is required of
each offense, a single act or transaction may violate more than one criminal
statute.'") (quoting United States v. Beacon Brass Co., 344 U.S. 43, 45
(1952)); accord Kindred v. State, 258 N.E.2d 411, 412-13 (Ind. 1970)
(citing State v. Von Hauger, 251 N.E.2d 116, 118 (Ind. 1969)); State v.
Evans, 456 P.2d 842, 843 (Mont. 1969) (citing State v. Lagerquist, 445 P.2d
910, 915 (Mont. 1968)).  In this case, the same conduct may violate both
section 453 and section 456, and the State is entitled to prosecute under
either statute at its discretion in the absence of a clear and manifest
legislative intent to the contrary.  See State v. Booke, 583 P.2d 405, 408
(Mont. 1978);  State v. Moore, 570 P.2d 580, 584 (Mont. 1977).  There is
no such clear and manifest contrary intent.{5}  I would affirm the judgment of
the court.
 
Attorneys for State: Andrew Ketterer, Attorney General Mary M. Sauer, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Joseph R. Hunt, Esq. 199 Cedar Street Bangor, ME 04401
FOOTNOTES******************************** {1} Sections 453 and 456 are Class D crimes. {2} In Keefe v. Donnell, 92 Me. 151, 42 A. 312 (1898), we considered the term "tamper" in the context of a charge of ballot tampering. We stated that: the word "tamper" in a criminal statute at least, has the limited meaning of improper interference "as for the purpose of alteration; and to make objectionable or unauthorized changes." Id. at 159 (citations omitted). The relevant definition of "tamper" in Webster's New International Dictionary reads, "[t]o meddle so as to alter a thing; esp., to make corrupting or perverted changes; as, to tamper with a document or a text; to interfere improperly." Webster's New International Dictionary 2575 (2d ed. 1960); see Town of Freeport v. Brickyard Cove Assocs., 594 A.2d 556, 558 (Me. 1991) (use of dictionary definition to assist Court in statutory construction). {3} The 1975 Comment to section 453 states that: This section continues the pattern of the first two sections of this chapter by providing a lesser penalty for falsity that is neither sworn nor in any official proceeding. The deception of a public servant is penalized here in narrow circumstances. There need not be any oath or affirmation when these circumstances occur. The provisions concerning available and unavailable defenses contained in the first two sections are continued here as well. 17-A M.R.S.A. § 453 comment (1975). {4} There is the suggestion in the Court's opinion that it is unfair to punish Spaulding criminally in the absence of a notification on the application that she could be prosecuted criminally for any false entry. Although it is true that the application filled out by Spaulding did not warn of possible criminal penalties, the document did advise her of the importance of honest answers: The Maine Registry of Certified Nursing Assistants shall deny any application for placement on the "Registry" that contains misrepresentation(s) or in any way attempts to obtain placement on the "Registry" by deceitful or fraudulent means. Any applicant who is found to have gained placement on the "Registry" based upon an application containing known misrepresentation(s) or fraudulent or deceitful means shall be removed from the "Registry." After this warning, the following language appears above the signature line on the application: "I understand the above paragraph and state the information provided is accurate to the best of my knowledge." The application unmistakably advised Spaulding of her obligation to provide accurate information, and of the State's reliance on that accuracy. {5} The Court finds such an intent in a 1972 note of the Massachusetts Revision Commission which proposed a section of the Massachusetts Criminal Code which became the model for section 456. That note reflects a concern for the protection of public records already apparent in the plain language of section 456. That note does not limit the applicability of section 456 to false entries in documents that are already public records, and the note cannot preclude the applicability of a statute whose plain language proscribes knowingly making a false entry in a document received by the government. The Court's analysis continues to reflect the faulty premise that there is a lack of harmony in a legislative scheme if two criminal statutes involving different elements are applicable to a set of facts. There is no such lack of harmony. The Court uses scanty legislative history to resolve a nonexistent problem.

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