State v. Strand, 20344

• Decision Date: 30 May 1986
• Docket Number: No. 20344,20344
• Citation: 720 P.2d 425
• Parties: STATE of Utah, Plaintiff and Respondent, v. Jerry V. STRAND, aka Jerry Verne Strand, Defendant and Appellant.
• Court: Utah Supreme Court

Page 425

720 P.2d 425

STATE of Utah, Plaintiff and Respondent, v. Jerry V. STRAND, aka Jerry Verne Strand, Defendant and Appellant.

No. 20344.

Supreme Court of Utah.

May 30, 1986.

Daniel L. Berman, Ross C. Anderson, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Paul M. Warner, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant Jerry V. Strand appeals his second degree felony conviction for making a false material statement under oath at an official proceeding. U.C.A., 1953, § 76-8-502(1) (1978 ed.).

On January 18, 1978, defendant testified at a supplemental order proceeding in a civil case in which he was the defendant/debtor. The judgment against defendant was approximately $23,000. On August 24, 1981, an information was filed charging defendant with having made a false material statement at that proceeding. An amended information was filed on February 26, 1982. ¹ Count II of the information charged defendant as follows:

On or about January 18, 1978, in Salt Lake County, State of Utah, said Jerry V. Strand, having duly taken an oath to testify truthfully and completely before the Third Judicial District Court, did intentionally, willfully, knowingly and contrary to that oath make false material statements in violation of section 76-8-502(1), Utah Code Ann.1953, as amended, a felony of the second degree, to wit: that on or about January 18, 1978, he had no assets wherewith he could satisfy existing judgments.

The probable cause statement attached to the information stated in pertinent part with regard to count II:

Bank and securities brokerage records demonstrate that on or about January 18, 1978, Jerry V. Strand had assets wherewith he could satisfy existing judgments, to wit: brokerage records demonstrate that Strand owned or controlled negotiable securities which would satisfy existing judgments and Strand had sufficient assets in savings accounts which would serve to satisfy existing judgments.

Defendant argues that he did not make precisely the statement charged and was thus deprived of fair notice sufficient to enable him to prepare his defense. Defendant also argues that the variance between the evidence produced at trial and the statement charged was so substantial that he was not given fair notice of the charges against him.

The law does not require that a perjury information set forth the exact words of the perjured testimony. ² The information need only set out such testimony in substance. ³ It is undisputed that defendant did not testify verbatim that he "had no assets wherewith he could satisfy existing judgments." However, defendant did in fact testify in substance that he had no assets. In addition to testifying that he had no money to satisfy the judgment against him and that he was not in a position to make payment on the judgment, defendant testified that he owned no real estate; had no interest in any real estate and did not own his own home; had no foreign investments; had no negotiable securities; had no nominee accounts; had no active security trading accounts; had no personal checking accounts except a lawyer's trust account; had no savings accounts and was not a signatory on any savings account; owned no automobile, art, or valuable jewelry; had no cash money on him at the supplemental proceeding; had no accounts receivable; had no dividends due him or anticipated in the future; had no active credit cards; did not own a boat or sporting goods; had no shared use of recreational property; and had no salary or income generated from various corporate activities. Defendant did not identify one single asset which he owned, with the exception of nonnegotiable securities.

The information in this case did set out the substance of the testimony that the State alleged was false, i.e., defendant testified that he had no assets with which he could satisfy the judgment against him. The probable cause statement attached to the information in this case then went on to identify those assets the State would focus on in attempting to prove that defendant did indeed have assets which could have been used to satisfy the judgment against him, that is, negotiable securities and savings accounts.

Thus, defendant was not left to guess at what part or parts of the supplemental order proceeding the State would rely upon. It is clear from the tenor of the information that the "assets" terminology was not intended to be a direct quote. ⁴ Further, the attached probable cause statement identified the assets the State would try to prove defendant possessed. ⁵ Thus, the information was sufficient to notify defendant of the charge against him and enable him to prepare his defense.

However, if defendant was still uncertain of the details of the charge against him after perusal of the information and the attached probable cause statement, he had a right to a bill of particulars. ⁶ A bill of particulars is used to provide more specificity of detail to supplement a sufficient information or indictment. The purposes of a bill of particulars are to enable a defendant to better understand the nature of the charge against him and to better prepare his defense. ⁷

As said before, the information filed against defendant, particularly when accompanied by the probable cause statement, was sufficient to notify defendant of the charge against him and to enable him to prepare his defense. Defendant had a course of action available to him if he desired more details of the charge against him: he could request a bill of particulars. Defendant chose not to pursue this course of action. He cannot now be heard to complain that he did not know enough about the charge against him to enable him to prepare his defense.

Defendant, however, contends that even if the information on its face was sufficient to notify him of the charge against him, there is a fatal variance between the information and the proof adduced at trial. In order for such a variance to be fatal, thus mandating reversal, it must affect the substantial rights of the accused either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense or (2) by affording him insufficient protection against reprosecution for the same offense. ⁸

There was not a fatal variance in this case. The evidence adduced at trial to prove the allegations centered around whether defendant had negotiable securities or savings accounts which could be used to satisfy the judgment against him. This evidence equates entirely with the allegations of the probable cause statement. Thus, there was no variance and therefore no prejudice to defendant on this basis.

Defendant, however, further argues that he was taken by surprise when the State, in response to a query by the trial judge, read some of the statements defendant made at the supplemental order proceeding that the State alleged to be false. Defendant contends that those statements are at variance with the information and probable cause statement and that his answers were literally true, albeit somewhat misleading. ⁹

At trial, the court asked counsel for the State to read the false statement allegedly made. The following exchange took place:

THE COURT: I want to read what you are saying, claiming he said.

MR. OLSEN: Thank you. Page 18, Line 6.

"Question. Do you have any money that is available now to satisfy this judgment?

"Answer. No."

Continuing on to Page 25....

"Question. Well, if your credit is excellent and you can purchase half a million dollars in securities, either by cash or security margin accounts, are you in a position to make payment on this judgment in this matter?

"Answer. No, I am not in a position to make payment. I don't have any money. I didn't say my credit was impaired. I said, I don't have any money."

Now, Your Honor, there may be others, but primarily those are the two statements which we submit were false and are adequately so charged in Count 2. ¹⁰

(Emphasis added.)

Based on this exchange, defendant's contention is that the State's case at trial against defendant was based on testimony that defendant said he had "no money." This contention has no merit. First of all, defendant has taken that statement out of context. The State plainly stated that there were two statements that it alleged were false: (1) defendant stated that he had no money to satisfy this judgment, and (2) defendant stated that he was not in a position to make payment on the judgment. The State had also previously stated that it intended to prove that defendant had savings accounts, assets which could have been used to satisfy the judgment against defendant. This is very different from defendant's contention that the State attempted to prove that defendant had "no money."

Second, defendant was manifestly not taken by surprise. At trial, defendant was responsible for raising, and relied in substantial part on, this "no money" theory. In fact, defendant had available and produced expert testimony at trial attempting to prove that "money" was not synonymous with "assets."

Finally, the State did adduce sufficient evidence at trial, primarily by showing that defendant had sufficient funds available to him in a savings account to pay the judgment, to prove that defendant's statements that he was not in a position to make payment were false.

In any event, money can be considered an asset. ¹¹ As the Tenth Circuit Court of Appeals noted in Salt Lake County v. Utah Copper Co., "[T]he word 'money' is popularly and correctly used as indicating property of every description." ¹² In this case, in the context of the questioning above, it is clear that neither the questioner nor defendant intended by use of the term "money" to indicate coins and currency alone. This is proved beyond a reasonable doubt by the question "are you in a position to make payment on this judgment in this matter?" and the response "No, I...