State v. Noren

MAUGHAN, Justice.

The defendant appeals his conviction for fraudulent handling of a recordable document. We modify the judgment and remand the case to the District Court for an entry of. judgment of conviction for the lesser included offense of tampering with records. All statutory references are to Utah Code Annotated, 1953, as amended.

The defendant, Lynn Dell Noren, hereinafter “Noren,” owned and operated a used car sales lot in Salt Lake County. The operation of this business included the procurement of used cars at auto auctions held in various western states. Initially, the financing of these out of state purchases was handled by a local bank. The bank would receive and hold the title of the automobiles until the defendant deposited with them the sale price.

This procedure, however, necessitated payment to the bank prior to the defendant’s sale of the automobile. After experiencing some difficulty with this pre-payment arrangement, the defendant established his own financing company. Employing the financing company the defendant could receive title to the automobiles prior to any payment to the seller. Thus, the defendant could re-sell the various automobiles before paying the out of state dealer from whom he received the cars.

After drafting Articles of Incorporation for this financing company, the defendant forged the signatures of two of the three required incorporators and filed the Articles with the Secretary of State as required by 16-10-50. To initiate operation of the new financing company, the defendant told his buying agent to ask the out of state dealers to send the titles for the purchased automobiles to the financing corporation. The testimony at trial revealed the defendant also told his agent to inform these dealers the financing corporation was created by a group of local business men and had been dealing with the defendant for a year and a half.

Following the receipt of several automobiles through this financing arrangement and the defendant’s failure to pay the various dealers for those automobiles, criminal charges were brought against him. Although four counts of a five-count indictment were subsequently dropped, Noren was tried and convicted by a jury verdict of the fraudulent handling of recordable writings. This conviction was based upon his forgery of the signatures on the financing company’s Articles of Incorporation, which were filed with the Secretary of State.

The crime of fraudulent handling of recordable writings is proscribed in 76-6-503 which provides:

“Any person who, with intent to deceive or injure anyone falsifies, destroys, removes, or conceals any will, deed, mortgage, security instrument, or other writing for which the law provides public recording is guilty of fraudulent handling of recordable writings.”

The trial court concluded Articles of Incorporation fall within the purview of the clause “other writings for which the law provides public recording.” We disagree.

Even though Articles of Incorporation become part of the public record after they are filed as required by Article XII, Sections 9 and 16-10-50, there exists no statutory or constitutional requirement that the Articles of Incorporation be “recorded.” Although the words “file” and “record” have occasionally been used somewhat interchangeably¹ they have more frequently been interpreted as implying or requiring different things.² “Recorded” has been held to signify “copied or transcribed into some permanent book” ³ while “filing” signifies merely delivery to the proper official.⁴

This distinction between the two terms is explicitly recognized by the legislature in 17-21-1, et seq. Thus, in 17-21-3, the legislature sets out the methods for recordation by the County Recorder by stating:

“He must, on the payment of the fees for the same, record in books provided for the purpose in a fair hand or by means of a typewriter, camera, microfilm or other methods, all papers, documents, records and other writings required or permitted by law to be recorded.”

Then, in recognition of the distinction between the terms “recorded” and “filed” the legislature in 17-21-20 requires:

“All papers, notices and instruments of writing required by law to be filed in the office of the County Recorder, shall be recorded unless otherwise provided.”

In requiring all writings filed with the County Recorder must also be recorded the legislature imputes a distinct and different meaning to the two terms.

This distinction must be recognized in applying 16-10-50 in which the legislature requires the filing of Articles of Incorporation with the Secretary of State. If the legislature intended to place these writings in the category of recordable instruments, they would have done it expressly as they did in 17-21-20. The court is not inclined to ignore this obvious distinction in the legislative usage of these terms and apply them as synonymous. Therefore, the filing requirement found in 16-10-50 is not equivalent to a “recording” of the Articles of Incorporation.⁵

Thus, because 16-10-50 requires Articles of Incorporation to be filed and not recorded, they are not “writings for which the law provides public recording” and do not fall within the scope of 76-6-503.

However, the writings do fall within the perimeters of 76-6-504 which prescribes the lesser offense of tampering with records. Although Noren could not lawfully be convicted of violating Section 76-6-503 due to this failure to falsify a recorded document or writing, the evidence presented at trial was sufficient to establish beyond a reasonable doubt his guilt of the lesser included offense of tampering with records in violation of 76-6-504.⁶

Pursuant to the power vested in this Court by 76-1-402(5), we modify the conviction of the defendant and remand this case for the entry of judgment of conviction for the misdemeanor of tampering with records and proper sentencing thereunder.⁷

The defendant’s other contentions on appeal are non-meritorious.

WILKINS, J., concurs. STEWART, J., dissents.

1 . See Haverell Distributors v. Haverell Manufacturing Corp., 115 Ind.App. 501, 58 N.E.2d 372 (1944).

2 . See Maryland Department of Natural Resources v. Hirsch, 42 Md.App. 457, 401 A.2d 491 (1979); see also The Washington, 16 F.2d 206 (2nd Cir. 1926); In Re Labb, 42 F.Supp. 542 (W.D.N.Y.1941).

3 . Beatty v. Hughes, 61 Cal.App.2d 489, 492, 143 P.2d 110, 111 (1943).

4 . See Maryland Department of Natural Resources, supra note 2, at 502.

5 . Merrill on Notice explains this distinction at Section 1056 which states: “Speaking generally, there are two ways of preserving instruments in the public archives as a source of notice. One is recording, that is, making a copy of a substantial abstract of the instrument as a part of the public record, the documents then being returned to the person entitled to its possession. The other is filing, that is, retaining the paper itself permanently in the files of the appropriate office. Which method is requisite depends upon the terms of the applicable statute.” See 17-21-13 and 16-10-50(2).

6 . An offense is a lesser included offense when it is established by proof of less than all the facts required to establish the commission of the offense charged. See State v. Cornish. Utah, 568 P.2d 360, 361 (1977). Violation of both 76-6-503 and 76-6-504 require intentional or knowing falsification of writings or records with an intent to deceive or injure.

7 . See People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976); People v. Serrato, 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289 (1973); State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965).