State v. Strand ( 1986 )

HOWE, Justice

(concurring):

I concur but desire to point out that the defendant is correct in his assertion that he did not testify at the supplemental order proceeding that he had “no assets” as charged in count II of the information. To the contrary, he testified that he had several assets which he enumerated. However, at trial the State’s case against the defendant under count II was that he falsely testified that he did not have “any money.” At the close of the presentation of the State’s case, the defendant moved to dismiss count II on the ground that there was a variance between what the State had charged and what it had proved. The defendant argued that assets are not synonymous with money and that even if the court allowed the variance, money did not include funds on deposit in a savings account. He also argued that the savings account was the property of his wife. The motion to . dismiss was denied, and the defendant presented his evidence regarding the account. It is clear that the defendant was not taken by surprise nor was any advantage taken of him because of the variance.

I agree with the defendant that money is but one form of assets and that testifying that he did not have “any money” was not the same as testifying that he had “no assets.” However, in light of the development at trial, the defendant was not prejudiced by the variance and had full opportunity to present evidence and convince the jury that he indeed did not have any money. Rule 30, Utah R. Crim.P., mandates the disregard of any variance which does not affect the substantial rights of a party.