People v. Fueston
| Decision Date | 25 January 1988 |
| Docket Number | No. 86SC50,86SC50 |
| Citation | 749 P.2d 952 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, Cross-Respondent, v. Steve FUESTON, Respondent, Cross-Petitioner. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for petitioner, cross-respondent.
Don Meinhold, Colorado Springs, Joseph (Sib) Abraham, Jr., Charles Louis Roberts, El Paso, Tex., for respondent, cross-petitioner.
We granted certiorari to consider the decision of the court of appeals in People v. Fueston, 717 P.2d 978 (Colo.App.1985), which affirmed the conviction of the defendant, Steve Fueston, for perjury in the first degree and reversed his conviction for offering a false instrument for recording. The questions raised in this case are (1) whether in a perjury prosecution documentary evidence originating from the defendant is sufficient to establish the falsity of the defendant's sworn statement, and (2) whether the court of appeals erred when, in reversing the defendant's conviction for the crime of offering a false instrument for recording because the information failed to properly allege that offense, it ordered the trial court on remand to dismiss the charge with prejudice. We affirm in part, reverse in part, and remand with directions.
The defendant was charged by information with the class 5 felony of offering a false instrument for recording, § 18-5-114, 8B C.R.S. (1986), and the class 4 felony of perjury in the first degree, § 18-8-502, 8B C.R.S. (1986). The count of offering a false instrument alleged, in pertinent part, that on or about October 1, 1982, the defendant feloniously presented to a public office "a written instrument, to-wit: State of Colorado Renewal Application for Malt Vi[n]ous, and Spirituous Liquor License, relating to and affecting real and personal property and directly affecting contractual relationships, knowing that it contained a materially false statement and materially false information," with intent to defraud and with knowledge that the instrument would be filed and become part of the records of the public office. The perjury count alleged that on or about June 17, 1983, the defendant
feloniously and knowingly ma[d]e a materially false statement, to-wit: in an official proceeding, to-wit: Liquor and Beer Li[c]ences Board Renewal Hearing, City of Colorado Springs, which he did not believe to be true and which was made under an oath required and authorized by law....
The prosecution's evidence, much of which was documentary in nature, established that the defendant first applied for and obtained a Colorado liquor license in August 1975. He has owned the Peppermint Lounge in Colorado Springs since that time, and had renewed his liquor license each year through 1982 by filing a renewal application with the city clerk's office. The renewal application filed on October 1, 1982, was for the period ending on November 19, 1983. This renewal application contained the following question: "Has any person, as applicant, partner, officer, director, stockholder or employee, ever ... had an alcoholic beverage license suspended or revoked?" The defendant answered "no" to this question. The renewal application also contained an affidavit, signed by the defendant in the presence of a notary, stating that the contents of the application were true to his own knowledge. 1
In 1982, Colorado Springs hired a liquor license enforcement officer. This officer, Matt Cook, testified that in reviewing the Peppermint Lounge file he uncovered a letter from the Washington State Liquor Control Board indicating that the defendant had been the manager of a lounge known as "the Tiki Restaurant" in Tacoma, Washington, in the early 1970s and was listed as a corporate officer in ARM, Inc., which held the liquor license to the lounge. The letter also indicated that the corporate name of ARM, Inc. was later changed to Howven, Inc., and that a series of liquor violations led to the cancellation of the liquor license held by Howven, Inc. as of October 16, 1974. 2 A subsequent investigation by Cook disclosed that on March 2, 1973, the defendant was elected to the board of directors of Howven, Inc. and was also elected as vice president, secretary, and treasurer. Another corporate record of Howven, Inc. disclosed that on April 2, 1973, the defendant held 412 shares of the 1,250 shares of outstanding corporate stock in Howven, Inc. Clark's investigation led to the public hearing before the Colorado Springs Beer and Liquor License Advisory Board on June 17, 1983.
At the defendant's perjury trial, the prosecution presented testimony from the chairman of the Colorado Springs Beer and Liquor License Advisory Board that at the board hearing the defendant testified under oath to the truth of the statements made on his renewal application filed in October 1982. The prosecution also elicited testimony from the liquor license enforcement officer that the defendant stated under oath during the hearing that, although he served as a member of the board of directors of the Washington corporation and was elected vice president, secretary, and treasurer in 1973, he was never issued any stock or stock certificates by the corporation.
The trial court admitted into evidence various public records offered by the prosecution, two of which are of central importance to the conviction for perjury. One document, which was admitted to prove the falsity of the defendant's sworn testimony before the Colorado Springs Beer and Liquor License Advisory Board, was a sworn statement signed by the defendant as secretary of Howven, Inc. on April 2, 1973, and filed with the Washington State Liquor Control Board. In this document the defendant declared under penalty of perjury that its contents were true and listed Howard V. Krewson as the president of Howven, Inc. and the defendant as vice president, secretary, and treasurer, and further stated that Krewson and the defendant were the sole stockholders, with the defendant holding 412 of the 1,250 outstanding shares. Also admitted to prove the falsity of the defendant's sworn testimony before the Colorado Springs Beer and Liquor License Advisory Board were the corporate minutes of March 2, 1973. The minutes, which were also filed with the Washington State Liquor Control Board, were signed by the defendant as secretary of Howven, Inc. and stated that at a meeting of the board of directors on that date the corporate name was changed from ARM, Inc. to Howven, Inc., and that the defendant was elected to the board of directors and also was elected as vice president, secretary, and treasurer of the corporation. The corporate minutes contained the following resolution:
RESOLVED That the Secretary-Treasurer shall issue 75% percent of the outstanding stock to Howard V. Krewson [the president of the corporation], and 25% percent of the outstanding stock to Steven M. Fueston. 3
The defendant testified in his defense that he signed these documents at the direction of his supervisor's attorney, that he had been unaware of their contents, and that he never issued or received any stock. The jury returned a guilty verdict on both counts, and the defendant was subsequently sentenced to a probationary term of five years.
The defendant appealed his convictions to the court of appeals, claiming that the evidence was insufficient to support either conviction and that the allegations in the information relating to the charge of offering a false instrument for recording were fatally infirm. The court of appeals affirmed the perjury conviction, concluding that the evidence was sufficient to satisfy the "two witness" rule of section 18-8-506, 8B C.R.S. (1986), since "the requirements of the rule can be satisfied by independent documentary evidence, if that evidence is of sufficient weight." Fueston, 717 P.2d at 980. The court of appeals reasoned that for purposes of the "two witness" rule the corporate record of April 2, 1973, signed by the defendant and stating that he held 412 of the 1,250 outstanding shares, was the "equivalent of the testimony of a witness directly contradicting defendant's sworn testimony in all respects," 717 P.2d at 980 and that the corporate minutes of March 2, 1973, also signed by the defendant, although not by themselves conclusive proof of the falsity of the defendant's sworn statement, nonetheless were "equal in weight to the testimony of another witness and [were] inconsistent with the innocence of defendant." Id. In the court of appeals' view, therefore, these documents considered together were "the documentary equivalent of a contradicting witness and the independent corroboration required by the 'two-witness rule.' " Id. at 980-81.
The court of appeals reversed the defendant's conviction for the crime of offering a false instrument for recording, holding that allegations in the information failed to allege which of the many statements contained in the defendant's 1982 liquor license renewal application were false. Id. at 982. Since, in the court of appeals' view, the charge was fatally defective, it remanded the case to the district court with directions to dismiss that charge with prejudice.
Both the defendant and the People subsequently filed petitions for certiorari. We granted the defendant's petition to consider whether the court of appeals erred in upholding the defendant's conviction for perjury when the falsity of the sworn testimony was established by documentary evidence which originated from the defendant himself. We also granted the People's petition to consider whether the court of appeals, in reversing the defendant's conviction for the crime of offering a false instrument for recording due to a fatal defect...
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