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Lenzy v. State11/18/1993
The opinion of the court was delivered by: LEON LENZY, appellant, was tried by a judge for the crime of Perjury in violation of^^^^^JOHNSON, Vice Presiding Judge.
LEON LENZY, appellant, was tried by a judge for the crime of Perjury in violation of 21 O.S. 1981 § 491 [21-491], in Case No. CF-88-4952 in the District Court of Tulsa County before the Honorable Joe Jennings, District Judge. Judge Jennings returned a verdict of guilty and set punishment at two (2) years imprisonment. From this Judgment and Sentence, appellant has perfected this appeal.
Appellant filed a lawsuit against the K-Mart Corporation in the District Court of Tulsa County, Case No. CJ-86-3195, in which he claimed that he slipped and fell in a K-Mart store and suffered personal injury . On August 1, 1986, K-Mart's attorney, Mr. Dan Rogers, deposed appellant concerning this civil lawsuit. During the deposition, appellant testified under oath that he had never been involved in a lawsuit before or filed any claims against an employer. Mr. Rogers knew appellant's testimony was incorrect, but he chose not to say anything until the case came closer to trial.
Just prior to trial, appellant and his attorney dismissed the civil suit against K-Mart, with prejudice, after being confronted with evidence which demonstrated that he had previously instituted nine (9) other personal injury suits against various parties. In testimony before the Honorable Donald C. Lane, taken in chambers and transcribed, appellant admitted that he had perjured himself during the deposition.
On December 12, 1988, appellant was formally charged with the offense of Perjury in the Tulsa County District Court. A preliminary hearing was held on May 30, 1990, before the Honorable J. Bradford Griffith, Special Judge. The only evidence presented was the testimony of Mr. Rogers, the transcript from the deposition and the transcript from the hearing conducted before Judge Lane. At the conclusion of the preliminary hearing, Judge Griffith sustained appellant's demurrer and dismissed the case finding that the perjury offense had not been completed as the deposition had not been delivered to the civil court. Judge Griffith based his decision upon this Court's ruling in Graham v. Lanning, 698 P.2d 25 (Okl.Cr. 1985).
Pursuant to 22 O.S. 1989 § 1089.1 [22-1089.1] et seq., the State appealed this decision. On approximately June 18, 1990, the Honorable Clifford E. Hopper, District Judge, reversed the dismissal and remanded the case back to the preliminary hearing level with instructions to bind appellant over on the charge of Perjury. Thereafter, on October 4, 1990, a non-jury trial was held before Judge Joe Jennings. The evidence consisted of a transcript from the preliminary hearing, a transcript of the deposition and a transcript of the proceedings before Judge Lane.
In his sole proposition of error, appellant contends the trial court erred in finding that as a matter of law there was sufficient evidence adduced to support a conviction of Perjury. Appellant asserts that the crime of perjury was never completed as a transcript of the deposition was never used or delivered to the trial court handling the civil lawsuit. We disagree.
The statutory definition of "perjury" is unambiguous. Title 21 O.S. 1981 § 491 [21-491] provides in pertinent part:
Whoever, in a trial, hearing, investigation, deposition, certification or declaration, in which the making or subscribing of a statement is required or authorized by law, makes or subscribes a statement under oath, affirmation or other legally binding assertion that the statement is true, w
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