State v. Denny

Justice TIMMONS-GÓODSON

concurring in part and dissenting in part.

I agree with the majority’s conclusion that there was insufficient evidence to support defendant’s conviction pursuant to N.C.G.S. § 7A-456 for making a false statement under oath. I would also hold that there was insufficient evidence to support defendant’s perjury conviction. Therefore, I respectfully dissent.

“In accord with the common law definition and the statutes extending its application, it has been uniformly held that the elements essential to constitute perjury are substantially these: a *669false statement under oath, knowingly, wilfully, and designedly made . . . concerning a matter wherein the affiant is required ... to be sworn. . . .” State v. Smith, 230 N.C. 198, 201, 52 S.E.2d 348, 349 (1949) (emphasis added) (citations omitted). This heightened mens rea requirement comports with the additional burden placed on the State, best stated in State v. Rhinehart, 209 N.C. 150, 154, 183 S.E. 388, 391 (1935): “In prosecutions for perjury, it is required that the falsity of the oath be established by two witnesses, or by one witness and adminicular circumstances sufficient to turn the scales against the defendant’s oath.” These unique safeguards are necessary “[b]ecause of the special nature of a perjury charge, pitting as it does the oath of one person against that of another.” 60A Am. Jur. 2d Perjury § 74 (2006). Indeed, the only crime in which the requirements of proof are greater is treason. Id.

In the instant case, defendant appeared in civil court for failure to pay child support. He applied for a court-appointed attorney by completing an affidavit of indigency. In the affidavit, defendant wrote a zero on the line asking for information about real estate assets. The affidavit did not require defendant to state whether he owned or had title to real property. It simply asked him for a “description of’ his “assets and liabilities.” The meaning of the term “assets” is subject to multiple interpretations, but the term generally implies some value in the object in question. See, e.g., Black’s Law Dictionary 125 (8th ed. 2004) (defining “asset,” inter alia, as “[a]n item that is owned and has value”).

It should also not be lost on us that the purpose of the affidavit was to determine defendant’s ability to pay for counsel. While the State presented testimony from one witness indicating that defendant’s name appeared on the title to the property at issue, the State presented no evidence that defendant had any financial interest in the property or that the property contained any value at the time defendant signed the affidavit in question. Thus, the evidence presented at trial was also insufficient to establish the element of falsity.

The insufficiency of the evidence supporting defendant’s conviction is particularly troubling in light of the heightened burden of proof required by our laws in perjury cases. “The law [of perjury] was intended to afford the defendant a greater protection against the chance of unjust conviction than is ordinarily afforded in prosecuting for crime.” State v. Hill, 223 N.C. 711, 716, 28 S.E.2d 100, 103 (1943).

*670Because the evidence that defendant committed perjury is insufficient to sustain his conviction, I would affirm the Court of Appeals. Therefore, I respectfully dissent.

Justice HUDSON joins in this dissenting opinion.