State v. Brantner

³¹⁶ BELL, Chief Judge. The issue this case presents is whether a photocopy of a letter, written by a judge and sent to the parties to the case over which the judge was presiding, is, while in the possession, lawfully obtained, of the defendant, a public record, the willful and unauthorized alteration of which is proscribed by Maryland Code (1957, 1996 Repl.Vol.) Art. 27, § 45A (b). 1 Concluding that it is not, the Circuit Court for Washington County dismissed that charge against John E. Brantner, the appellee, who had altered such a letter, and the State noted its appeal. We granted certiorari on our own motion while the case was pending in the Court of Special Appeals. We agree with the Circuit Court and, therefore, affirm the judgment of that court.

I. On August 21, 1997, the appellee was a defendant in the case of State v. Brantner, No. 19914, a criminal case which was then pending in the Circuit Court for Washington County. By letter of that date, the Honorable John H. McDowell, a ³¹⁷ judge of that court, wrote to Gordon A. Lynn, the attorney representing appellee in the case, with respect to scheduling in that case, sending copies of the letter to the State’s Attorney’s Office, the appellee, the Sheriffs Department, the Assignment Clerk, and the Clerk of the Court. As written by Judge McDowell, the letter read: “Please note that the Court has scheduled a modification hearing on September 8, 1997, at 9:00 a.m., for the above-captioned case. Please make arrangements to be in court on that date and time.

Thank you for your cooperation.” On the copy he received, appellee deleted the date and the text of the letter, replacing the text with the following: “As per the case scheduled for September 1997, a Stay was placed on the charges, and the probation, due to extenuating circumstances. As of October 15, 1998, Mr. John E. Brant-ner, Jr. was completely exonerated of all charges, pertaining to case No: 19914 CT.” As a result, the appellee subsequently was charged with violation of Article 27, § 45A (b). That section prohibits any wilful alteration, defacement, destruction, removal, or concealment of any public record. Following trial, the Circuit Court expressed dismay that the appellee “presumably altered one of its colleague’s letters for his own personal benefit” and found that the appellee’s actions were “immoral, fraudulent and downright childish in nature.” Nevertheless, the court agreed with appellee that a photocopy of a judge’s letter did not constitute a “public record” within the ambit of § 45A (a)(1) and, thus, its alteration “simply [does] not constitute a violation of Article 27, section 45A.” It reasoned: “The definition of public record in Article 27, section 45A is somewhat modified and limited by the adjective ‘official’.

It says ‘official books, papers or records.’ And the term ‘official’ relates to someone holding office. In this case, the official public record is the copy of Judge McDowell’s letter maintained by the clerk of court. Interestingly, the definition of public record in Article 27, section 45A does not ³¹⁸ include photocopies. However, in section 10 — 611(f) of the State Government Article, the General Assembly specifically included photocopies in the definition of public record in that article.

In Article 27, section 45A, the legislature chose not to .include ‘photocopy’ within the definition of public record. In this case, if the allegations are true, the defendant would presumably be guilty of uttering a willfully altered or defaced public record if such a crime existed in Maryland. The term uttering means to circulate as if authentic or genuine. However there is no such crime as uttering forged public records in Maryland, although there is such a crime in Virginia[ 2 ] and some other jurisdictiona.[ 3 ]” ³¹⁹ II The State challenges the Circuit Court’s premise, that § 45A (a)(1) 4 does not include within its reach copies or photocopies of official documents.

It argues that the statute is not under-inclusive, as it clearly covers “all” official papers, “whether kept on a manual or automated basis,” thus including copies. The only limitation § 45A (a)(1) imposes, the State asserts, is that the public records be “created, received, or used by the State or any agency thereof....” Therefore, it submits, unlike Md.Code (1957, 1996 Repl.Vol.) § 10-611(f) of the State Government Article, 5 upon which the court and the appellee rely and which specifically includes the term “copy” in its definition of “public record,” given the use of the term “all,’’encompassing both categories, there was no need to specify in § 45A (a)(1) that it covered originals as well as copies. Contrary to the appellee’s argument, the State argues that if the Legislature had wanted to limit § 45A (a)(1) to the ³²⁰ originals of public records, it would have so stated explicitly or, at least, more clearly. Noting the purpose of the statute, to criminalize the alteration, defacement, removal, or destruction of any public record and the necessity for the court, in the fulfillment of its duties, to communicate with all parties, the accomplishment of which frequently requires that copies or photocopies of official documents be sent to those parties, the State maintains that the appellee’s removal of the official text of the letter, replacing it with his own, was an attempt to pass off as official a false statement exonerating himself.

Thus, it asserts, though quickly found out, the appellee’s use of the official letterhead, found on the court generated document, as well as his misappropriation of Judge McDowell’s signature, illustrates an intent, i.e. a wilfulness, to: make a false entry in a public record; alter a public record; and intentionally access a public record. Consequently, as the State sees it, the appellee’s actions violated not some, but all three of the actions prohibited by § 45A (a)(1). It also urges that, if the Court were to hold that the appellee was immune from punishment because the document he altered was a copy and not an original, anyone who would alter a document created and issued by the State would simply copy it before making the alterations and, thereby, avoid the reach and the penalties of § 45A. Ill The issue this Court must resolve involves statutory interpretation.

We approach that task by seeking to discern the intent of the Legislature in enacting the statute. Handy v. State, 357 Md. 685, 704 , 745 A.2d 1107, 1117 (2000) (Court’s paramount objective is to ascertain and effectuate intent of legislature when it enacted statute.) This requires reading and interpreting the entire statute, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Harris v. State, 331 Md. 137, 145 , 626 A.2d 946, 950 (1993); Bd. of Educ. of Garrett County v. Lendo, 295 Md. 55, 63 , 453 A.2d 1185, 1189 (1982); Smelser v. Criterion Ins. Co., 293 Md. 384, 389 , 444 A.2d 1024 , 1027 ³²¹ (1982).

The search for legislative intent begins by looking first at the words of the statute. Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 115 , 753 A.2d 41, 49 (2000) ( Legislative intent must be sought first in actual language of statute.). If, giving the words used by the Legislature their ordinary and common meaning, see Derry v. State, 358 Md. 325, 335 , 748 A.2d 478, 483 (2000) ( As a rule, the Court of Appeals views the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood), the statute is clear, we need look no further. Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 251 , 753 A.2d 501, 508 (2000) (If the Legislature’s intentions are evident from the text of the statute, a court’s inquiry will normally cease and the plain meaning of the statute will govern); Williams v. Mayor & City Council of Baltimore, 359 Md. at 116, 753 A.2d at 49 (2000) (Where statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, court normally does not look beyond words of statute to determine legislative intent) Only if the words of the statute are ambiguous need we seek the Legislature’s intent in the legislative history or other extraneous sources.

Marsheck v. Board of Trustees of Fire & Police Employees’ Retirement System of City of Baltimore, 358 Md. 393, 403 , 749 A.2d 774, 779 (2000) (If statute’s language is ambiguous, court will look towards other sources, such as relevant case law and legislative history, to aid in determining legislature’s intentions); Resper v. State, 354 Md. 611, 619 , 732 A.2d 863, 867 (1999) (If a statute contains an ambiguity, the court must look to not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment in order to find a construction that best realizes the legislative intent) Moreover, construction requires that the statute be given a reasonable interpretation, not one that is illogical or incompatible with common sense. D & Y, Inc. v. Winston, 320 Md. 534, 538 , 578 A.2d 1177, 1179 (1990); Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195, 1196 (1985); Erwin and ³²² Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 315 , 498 A.2d 1188, 1194 (1985). Section 45A (a)(1) is clear and unambiguous in the statement of the requirements of a public record. To be a public record as defined by that section, the “official books, papers, or records” must have been “created, received, or used by the State or any agency thereof’ and kept, “whether ... on a manual or automated basis,” by the State or the governmental agency creating, receiving or using them.

The latter requirement is not stated as directly as the former, but it is nevertheless clear beyond cavil that it is prescribed by the statute. The reference to “manual or automated basis,” addressing the manner in which the governmental entity retains the official document, not the manner in which it is generated, a meaning that is confirmed by the Legislature’s use of the term, “kept,” in connection with the phrase, is necessary only if the keeping or retention of the records is an essential requirement of the definition. This is further confirmed by the fact that, to read the statute as the State proposes would render the phrase, “whether kept on a manual or automated basis,” meaningless and mere surplusage. Moreover, under the State’s interpretation, not only the record retained by the official or agency, but all copies generated and disbursed by the official or agency pursuant to the official’s or agency’s official duties would be “public records.” Taking that interpretation to its logical conclusion, any copy of any public record in the hands of the recipient would be subject to the proscriptions of § 45A (b), so that any such recipient who wilfully alters the copy in possession would be guilty of a violation of that section, notwithstanding that the copy in the hands of the governmental agency remains fully intact and in no way compromised.

This is so because, logically, the violation would occur at the moment the alteration is made and notwithstanding the intent with which the alteration was made or whether the altered document is published or circulated. There simply is no requirement in § 45A (a)(1) that the accused have an intent to defraud by ³²³ means of the alteration or even that the altered document be circulated or published. Recognizing, apparently, that an interpretation of the statute to mean that the mere alteration of a copy of a public record in the hands of a third party is actionable 6 defies common sense, the State at oral argument made clear that its argument is not so limited. Rather, acknowledging the importance to the proper functioning of the government of having accurate copies of government-related records, it maintained that it is the manner in which the altered record is used or attempted to be used that is dispositive.

That argument was rejected by the Circuit Court. We do, as well. By its very terms, which, as we have seen, are not ambiguous, § 45A (a)(1), as we have also observed, prohibits the wilful alteration of a public document. It does not prescribe the purpose for which the alteration must be made to be actionable or the manner in which the altered document must be used.

We shall not add an element to the statute to make criminal what otherwise would not be, or to give to the statute a meaning that it does not have. The legislative history of section 45A and the interpretation other courts have given similar, although admittedly not identical, statutes confirm our interpretation. Section 45A was enacted in 1979, in response to the decision by the Court of Special Appeals in Reese v. State, 37 Md.App. 450 , 378 A.2d 4 (1977). 7 At issue in that case was the sufficiency of the ³²⁴ evidence to sustain the conviction of the accused pursuant to Maryland Code (1951, 1976 Repl.Vol.) Art. 27, § 44 of forgery of an “acquittance or receipt for money or property,” which that séction proscribed. Although it was clear that accused was shown to have been responsible for some of the false entries made in the tax rolls, the court reversed the accused’s conviction, holding that, “The actions imputable to the [accused], even if fraudulent, did not constitute forgery generally and did not constitute forgery of acquittances or receipts specifically.

Forgery, in its most fundamental character, is not an offense involving false and fraudulent writing generally but is a very specific offense in the nature of counterfeiting. It involves not the making of false entries for fraudulent purposes in an otherwise genuine document but the very manufacturing of a false or spurious document itself.” Reese, 37 Md.App. at 454 , 378 A.2d at 6 , citing Clark and Marshall, The Law of Crimes (Sixth Wingersky Edition) at 845-846, noting, LaFave and Scott, Criminal Law (1972) at 671 and Perkins, Criminal Law (2nd Ed., 1969) at 345. Thus, the court reasoned: “that in this case the making of false entries in the tax rolls may well have been fraudulent but was not a forgery. There was no manufacturing or counterfeiting of a spurious or non-genuine tax roll; there was merely the making of false statements in a genuine document.” Reese at 458 , 378 A.2d at 8 .

Section 45A fills the gap which Reese identified. It is significant that in Reese the documents altered were clearly public records, tax rolls. Thus, there is no indication that the General Assembly was intending to do more than that, fill that gap, or that it intended to broaden the ³²⁵ definition of public records. In that regard, it is also interesting that one of the states to which the court looked in reaching its decision was Colorado.

That State was also mentioned in the legislative history file, in the context of indicating that the Colorado statute was similar to what was proposed by § 45A. 8 The Colorado statute that is similar to § 45A is Colo.Rev. Stat. Ann. § 18-8-114. Captioned “Abuse of public records,” it provides: “(1) A person commits a class 1 misdemeanor if: “(a) The person knowingly makes a false entry in or falsely alters any public record; or “(b) Knowing the person lacks the authority to do so, the person knowingly destroys, mutilates, conceals, removes, or impairs the availability of any public record; or “(c) Knowing the person lacks the authority to retain the record, the person refuses to deliver up a public record in the person’s possession upon proper request of any person lawfully entitled to receive such record; or “(d) Knowing the person has not been authorized by the custodian of the public record to do so, the person knowingly alters any public record. “(2) As used in this section, the term “public record” includes all official books, papers, or records created, received, or used by or in any governmental office or agency.” Although not involving this statute, the Supreme Court of Colorado has addressed the issue of what constitutes a public record. In People v. Trujillo, 185 Colo. 14 , 521 P.2d 769, 770 (1974), the court construed the phrase, “of or belonging to any public office within this state.” In that case, a probation officer who submitted an application for chief probation officer containing two material misrepresentations, was charged with violating 1967 Perm. Supp., C.R.S.1968, 40-7-9, which provided: ³²⁶ “Officer purloining records — penalty.

If any judge, sheriff, coroner, clerk, recorder, or other public officer, or any person whatsoever, shall steal, fraudulently convert, alter, corrupt, withdraw, falsity, or avoid, any record, process, charter, gift, grant, conveyance, bond, or contract, or shall knowingly and willfully take off, discharge, or conceal any issue, forfeited recognizance, or other forfeiture, or shall forge, deface, or falsify any document or instrument recorded, or any registry, acknowledgment, or certificate, or shall alter, deface, of falsify any minute, document, book, or proceeding whatever, Of or belonging to any public office within this state, the person so offending upon conviction shall be punished by confinement in the state penitentiary for a term not less than one year nor more than seven years.” Affirming the dismissal of the charges, the court held: “that a violation of Section 40-7-9 occurs only where a person falsifies or otherwise corrupts a record which is in, or is required by law to be in, the custody on control of a public agency at the time of falsification. The statute does not apply to a situation like that present here, where, when falsified, the application for the position sought did not belong to any public office within this state.” This interpretation was supported by the two cases that previously had addressed the issue: Downing v. Brown, 3 Colo. 571 (1877) and Shimmel v. People, 108 Colo. 592 , 121 P.2d 491 (1942). In, Downing , the court determined that a personal book kept by a probate judge “for his own information and convenience which contained records not germane to his office was not a public record.” Trujillo, 521 P.2d at 770 . Citing Shimmel , the Trujillo court held that unused civil service examinations were not public records, reasoning that “the statute was designed to inhibit the alteration of records which were prepared by, and in, the custody of a public agency.” Id. at 770.

The Colorado “Abuse of public records statute,” § 18-8-114(2) is consistent; its definition of public records as “official ³²⁷ books, papers, or records created, received, or used by or in any governmental office or agency” evidences the same focus and rationale. Section 45A’s definition of public records is quite similar. In fact, by referencing the manner in which the records are kept, it is more precise in that regard than the Colorado law. 9 This confirms the interpretation we have given § 45A. See also Ariz.Rev.Stat. Ann. § 13-2407(B) (West 1999), defining “public record,” as used in subsection (A) of that statute, 10 to mean “all official books, papers, written instruments or records created, issued, received or kept by any governmental office or agency or required by law to be kept by others for