concurring.
The majority rejects defendant’s argument that he was entitled to an acquittal, because the notary public failed to orally administer an oath or affirmation to him when he *414executed the hen claim form. I concur in that holding, because ORS 162.055(4) defines “sworn statement” as “any statement knowingly given under any form of oath or affirmation attesting to the truth of what is stated.” That wording reheves the prosecution of any burden to prove that an oral oath or affirmation occurred, because “any form” of oath or affirmation is sufficient.
The majority also rejects defendant’s argument that the testimony of the notary public, that she failed to administer an oral oath or affirmation, rebuts the statutory presumption that an “[o]fficial duty has been regularly performed.” ORS 40.135(l)(j). The majority’s position is correct. The trial court was not required to find that that testimony overcame any presumption.
I am less certain of the majority’s suggestion that the signing of the hen form was the making of a sworn statement. Whether a signed statement constitutes an oath or affirmation under ORS 162.055(4) is governed by its words and not, as the majority implies, by the maker’s undisclosed fraudulent intentions, his delivery of the signed statement to a notary public for verification, or other circumstances external to the text. ORS 162.095(2) underscores the point. It provides:
“It is no defense to a prosecution for perjury or false swearing that:
<<jje * * * *
“(2) The oath or affirmation was taken or administered in an irregular manner [.]”
That wording deprives a defendant of the opportunity to quibble about irregularities in the way in which an oath or affirmation is administered. It also suggests that, notwithstanding irregularities of form, a sworn statement must be accompanied by the administration and taking of an oath or affirmation in some form. That is the substance of the definition of “sworn statement” in ORS 162.055(4).
The hen form recites, as material:
“I, Brian L. Carr, being first duly sworn, depose and say: that I am the contractor claimant named in the foregoing instrument; that I have knowledge of the facts therein set
*415forth; that all statements made in said instrument are true and correct as I verily believe.
/s/ Brian L. Carr”
(Underlined matters were filled in on an otherwise preprinted form.)
Those words do not make the lien form a sworn statement. The phrase “being first duly sworn,” recites that defendant had been sworn before making his written statement, not that his written statement is his oath or affirmation. The state acknowledges that its case rests on the argument that the lien form is a sworn statement under ORS 162.055(4). The uncontradicted evidence is that the notary public did not administer an oath or affirmation to defendant and that defendant did not take an oath or affirmation before or after he signed the hen form. Because the quoted phrase in the hen form does not state a present form of oath or affirmation,1 it does not satisfy ORS 162.055(4).
The recital that the statements in the instrument “are true and correct as I verily believe” says that the facts stated are true, not that the signer states the facts under oath or affirmation. Saying “I verily believe” certain facts adds an archaic form of emphasis, but it does not make the statement a sworn statement.
I conclude, however, that we need not determine whether the hen form is a sworn statement within the meaning of ORS 162.055(4). Defendant argues that the hen form is a sworn statement, but that its legal sufficiency as evidence is undermined by the testimony of the notary public that she administered no oral oath or affirmation to defendant.2 If the *416lien form was a sworn statement, the record did not lack evidence of that required element of the crime of perjury, and the trial court correctly denied the motion for judgment of acquittal.
I concur.
The present assumption of the burden of an oath is a key characteristic of a sworn statement. Annot, 80 ALR 3rd 278, 286 (1977) collects cases that apply
“the often enunciated and widely recognized principle or rule to the effect that in order to constitute a valid oath, for the falsity of which perjury will lie, there must be, in some form, and in the presence of an officer authorized to administer it (the oath), an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.”
The following colloquy occurred at oral argument in this court:
Justice Unis: “[Y]ou were asked a question whether a written statement alone can be a sworn statement. And you answered the question, I think to Justice Graber, yes. The question that is being put to you, essentially, is this. Is the language of what was signed here a sworn statement? Putting aside what the *416notary said, is the language which was signed here, is that a sworn statement?” [Defense Counsel:] “I would have to say yes.”
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Justice Unis: “* * * I am just trying to understand your position.”
[Defense Counsel:] “The assignment of error here is that the trial judge erred when he denied the motion for judgment of acquittal. My argument here is there are insufficient facts to support a conviction of perjury here, because of what the notary said, which rebutted the presumption of due administration found in the language on the form.”