State v. Scott Anthoine
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 22
Docket:	Ken-01-467
Argued:	December 5, 2001
Decided:	February 8, 2002

Panel:RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Majority:	RUDMAN, ALEXANDER, and CALKINS, JJ.
Dissent:DANA, J.

STATE OF MAINE

v.

SCOTT P. ANTHOINE

CALKINS, J.

	[¶1]  Scott Anthoine appeals from a judgment of conviction of false
swearing (Class D), 17-A M.R.S.A. § 452(1)(A)(2) (1983),{1} entered after a jury
trial in the Superior Court (Kennebec County, Marden, J.).  On appeal,
Anthoine argues that the absence of direct evidence precludes his conviction
under the "two witness" rule as enunciated in State v. Farrington, 411 A.2d 396
(Me. 1980).  We affirm the judgment.

I.

	[¶2]  At trial, the State presented the following uncontroverted evidence: 
Anthoine was a legislative assistant in the Republican office in the Legislature. 
On March 14, 2000, he was given a petition for Joni Lyn Grant, a potential
Republican candidate for House District 92 (comprising Hallowell, Pittston,
Chelsea, and part of Randolph), and told to go to Hallowell and collect
signatures.  Twenty-five certified signatures of residents of the district
registered to vote as Republicans had to be filed with the Secretary of State by
March 15 to qualify Grant for the June primary.  The executive director of the
state Republican party gave Anthoine the most recent list of registered
Hallowell Republicans he had, which dated from February 1996.
	[¶3]  Anthoine collected twenty-eight signatures.  The first three names
on the petition were Julia Barlow of 47 Middle Street and Lyn and Robert Gray
of 26 Greenville Street.  Barlow, however, died in March 1996, and it is
uncontested that the Grays did not sign the petition.  The other twenty-five
signatures were genuine, although one was disqualified because the signer was
not a registered Republican and another because the signer lived in
Farmingdale. 
	[¶4]  Anthoine presented the petition to be certified at the Hallowell city
offices on the morning of March 15.  He signed the circulator's verification on
the back of the petition, stating,

I hereby declare that all of the signatures to the petition were made
in my presence and that, to the best of my knowledge and belief,
each signature is the signature of the person whose name it
purports to be, and each person is enrolled in the Republican Party
and is a resident of the electoral division named in the petition.

His signature was notarized by City Clerk Deanna Hallett.
	[¶5]  Anthoine did not testify, but he was interviewed by Detective
Richard Fairfield of the Attorney General's Office.  Fairfield testified that
Anthoine stated that after receiving the list of registered voters, he went to the
vicinity of 47 Middle Street and began knocking on doors, but nobody was
home.  He saw a woman on the street and asked her if she knew Julia Barlow. 
She said she was Julia Barlow and was a registered Republican, and he asked
her to sign the petition.  He then drove back to Route 201 and onto Greenville
Street, where he got out of his car and started knocking on doors, looking for
registered voters.  He saw a couple walking down the street and asked them if
they knew Rob and Linda Gray.  They said they were the Grays, and they
signed the petition.
	[¶6]  Fairfield testified, using a map, that all the people named on the
petition except Barlow, the Grays, the woman from Farmingdale, and Grant,
lived close to each other in a small area of downtown Hallowell.  He also
testified that 47 Middle Street, Barlow's last address, was Walter's Home for
the Elderly, an assisted living facility with a receptionist sitting at a desk just
inside the glass double doors.
	[¶7]  At the close of the evidence Anthoine moved for a judgment of
acquittal, which the court denied.  The jury found Anthoine guilty and the
court sentenced him to thirty days in jail with all but forty-eight hours
suspended. 

II.

	[¶8]  In State v. Farrington, 411 A.2d 396, 401 (Me. 1980), we held that 

Section 451(3) [perjury] and Section 452(2) [false swearing] of the
Criminal Code manifest the retention of the traditional rule that
the essential element of the falsity of the statements made by
defendant under oath must be proved by more than circumstantial
evidence.  There must be in addition to any such corroborating
circumstantial evidence at least one witness who provides direct
positive evidence of such facts as render defendant's statement of
the facts a false statement.

This rule, known generally as the "two witness" rule and sometimes as the
"quantitative evidence" rule, has deep common-law roots and remains in force
in the vast majority of jurisdictions.  See id. at 399-401.{2}
	[¶9]  Anthoine does not dispute that his statement was under oath or
affirmation and that it was required by law to be sworn.  See 21-A M.R.S.A.
§ 335(7)(A) (1993) (petition must be verified by circulator by oath or affirmation
before notary).  He relies on the Farrington holding, however, to argue that his
false swearing conviction cannot stand because the State adduced no direct
evidence that his statement under oath-that to the best of his knowledge and
belief the signatures on the petition were genuine-was false.  Although the
State attempts an argument to the contrary, Anthoine is correct that the State
presented no direct evidence on the element of falsity; there was no direct
evidence that he knew Barlow and the Grays did not sign the petition.  On its
face, therefore, the "two witness" rule would seem to bar Anthoine's conviction
on the evidence presented.  
	[¶10]  The Farrington opinion, however, recognizes a major exception to
the rule.  "Circumstantial evidence alone will be recognized to be sufficient, as
an exception to the general rule, only where direct observation is impossible, as
where defendant is accused of perjury as to his own mental state, e.g. 'I don't
remember.'"  Id.; see also State v. Doughty, 399 A.2d 1319, 1326 (Me. 1979)
(holding that state of mind element of perjury is provable by circumstantial
evidence).  This exception is widely recognized.  See, e.g., J.A. Bock,
Annotation, Conviction of Perjury where One or More of Elements is Established
Solely by Circumstantial Evidence, 88 A.L.R.2d 852, 877 (1963) (it is "generally
held that circumstantial evidence alone may be sufficient to establish that a
statement of belief, opinion, memory, etc., was wilfully false") (citing cases).  
	[¶11]  This exception forecloses Anthoine's reliance on the "two witness"
rule and thus disposes of his appeal.  Anthoine argues that the State's
evidence was insufficient because, although there was direct evidence that
Barlow and the Grays did not sign the petition, there was no direct evidence
that he knew that and therefore swore falsely.  The exception cited in
Farrington makes it clear that no direct evidence of Anthoine's mental state was
required; the State could and did prove his knowledge by circumstantial
evidence.  The application of the exception to this case makes sense; it would
be unreasonable to require the State, having proved beyond any doubt that
Barlow and the Grays did not sign the petition, to produce direct evidence of
Anthoine's state of mind.
	[¶12]  Anthoine does not contend that the circumstantial evidence of his
knowledge was insufficient under ordinary standards of proof, and any such
contention would be meritless.  The evidence was sufficient for a jury to
rationally find beyond a reasonable doubt that Anthoine was guilty of false
swearing.
	The entry is:
			Judgment affirmed.

DANA, J., dissenting.

	[¶13]  I respectfully dissent.  Scott Anthoine circulated a nominating
petition in the City of Hallowell.  Twenty-eight persons signed the petition. 
Scott signed an oath that:

to the best of my knowledge and belief, each signature is the
signature of the person whose name it purports to be . . . .

	[¶14]  At his trial, the State established that three of the twenty-eight
signatures were forgeries.{3}  Other than that fact, the State presented no
evidence that Scott knew, or should have known the signatures were forgeries.{4} 
If a defendant can be convicted of false swearing on this evidence, then those
who circulate petitions are now on notice that their participation in our
political process may be hazardous to their freedom.
                                                                            
Attorneys for State:

G. Steven Rowe, Attorney General
Leanne Robbin, Assist. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

Attorney for defendant:

Sean M. Farris, Esq. (orally)
Farris, Heselton, Ladd & Bobrowiecki, P.A.
P O Box 120
Gardiner, ME 04345-0120

FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 452(1)(A)(2) (1983) provides: A person is guilty of false swearing if . . . he makes a false statement under oath or affirmation or swears or affirms the truth of such a statement previously made and he does not believe the statement to be true, provided . . . the statement is one which is required by law to be sworn or affirmed before a notary or other person authorized to administer oaths . . . . {2} . In Farrington we cited subsection 2 of the false swearing statute, which provided: "It is an affirmative defense to prosecution under this section that . . . proof of falsity rested solely upon contradiction by testimony of a single witness." 17-A M.R.S.A. § 452(2) (Pamph. 1976). The same provision was found in the perjury statute, section 451. We concluded that the Legislature intended by this language to continue in effect the traditional rule set forth above and found in such cases as State v. Rogers, 149 Me. 32, 36, 98 A.2d 655, 658 (1953), and Newbit v. Statuck, 35 Me. 315, 318 (1853). See Farrington, 411 A.2d at 400-01. Since then, the Legislature has deleted the quoted portion of subsection 2 and added a new subsection 2-A. P.L. 1983, ch. 317, §§ 14, 15; P.L. 1983, ch. 430, § 3. Subsection 2-A now reads: In a prosecution under subsection 1, paragraph A, evidence that the allegedly false testimony or statement in the prior official proceeding or before a notary or other person authorized to administer oaths was contradicted by evidence in that proceeding may not be a sufficient basis by itself to sustain a conviction for false swearing. 17-A M.R.S.A. § 452(2-A) (Supp. 2001). Neither party argues that the Legislature intended this change in statutory language to alter the "two witness" rule as set forth in Farrington. {3} . The statute governing primary petitions requires the procurement of "at least 25 and not more than 40" signatures, 21-A M.R.S.A. § 335 (5)(G) (1993), presumably in recognition that some of the signatures may prove to be void, id. § 335(2). {4} . The court leaves the inference that the defendant had attempted to reach Julia Barlow at Walter's Home for the Elderly and therefore would have been informed either that she was no longer a resident or that she had died four years earlier. There was no evidence that Anthoine stopped at Julia's former residence before or after obtaining the "Julia Barlow" signature.