Peo v. Mathews

Opinion

19CA2139 Peo v Mathews 12-16-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2139

City and County of Denver District Court No. 18CR749

Honorable Kenneth M. Laff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Laura Ann Mathews,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE J. JONES

Tow and Casebolt*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 16, 2021

Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Craig L. Truman, P.C., Craig L. Truman, Denver, Colorado; Wheeler Trigg

O’Donnell LLP, Dean Neuwirth, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.

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¶ 1 Defendant, Laura Ann Mathews, appeals the judgment of

conviction entered on a jury verdict finding her guilty of forgery

under section 18-5-102(1)(c), C.R.S. 2021. We affirm.

I. Background

¶ 2 Mathews is a Colorado lawyer who practiced elder and

disability law from 2002 until shortly after a jury convicted her of

forging the signatures of Stephen Leathers and Mary Pasquini

Leathers (the Leathers) on a fee agreement.

¶ 3 In July 2016, Mathews met the Leathers following a

presentation she gave on estate planning for children with

disabilities. Shortly after the presentation, the Leathers met with

Mathews and decided to hire her to prepare a trust and related

documents for their child who has a disability. The parties entered

into a verbal agreement with Mathews, who agreed to provide her

legal services at a discounted rate of $275 an hour. Three months

later, in October 2016, Mathews presented the trust documents to

the Leathers and they signed them.

¶ 4 Following the creation of the trust, Mathews continued to

perform legal work for the Leathers, including answering various

questions, helping the Leathers apply for certain benefits for their

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child, and addressing realty issues relating to the Leathers’ house

in South Carolina.

¶ 5 After about a year of working together, the Leathers became

frustrated with Mathews because there were ongoing issues with

the trust. They decided to get a second opinion and met with

another estate planning lawyer, Brad Frigon. Frigon believed that

Mathews’ estate plan was too complex and, after the Leathers

retained Frigon as counsel, he created a new, more simplified trust.

¶ 6 The Leathers terminated Mathews in November 2017. A

couple days later, Mathews sent them an invoice for $10,614.50.

The invoice told the Leathers that they must pay in full within thirty

days of Mathews’ termination “per [the] engagement agreement.” At

trial, the Leathers testified that this was the first invoice they had

ever received and the first they had heard about a written fee

agreement with Mathews.

¶ 7 Mathews pushed for a quick payment, telling the Leathers

they had two options: (1) pay within thirty days to avoid incurring

interest or (2) in the alternative, schedule a fee arbitration. Both

options, Mathews asserted, were required under the terms of the fee

agreement. Prior to the thirty-day mark, Mathews sent the

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Leathers a second invoice increasing the amount owed to $16,900,

based on a nondiscounted hourly rate. She also initiated a legal fee

arbitration request through the Colorado Bar Association. The

Leathers told Mathews they would respond to the invoice within

thirty days.

¶ 8 Just shy of the invoice’s deadline, Ms. Leathers emailed

Mathews asking her to “[p]lease send a copy of this engagement

agreement you believe was signed by us.” Mathews emailed the

Leathers a fee agreement purporting to bear the Leathers’

signatures and initials. But because the Leathers knew they had

never signed the document, they sought help and contacted the

Office of Attorney Regulation Counsel, and then the district

attorney. After an expert confirmed that the document had been

tampered with — specifically, the signatures on the fee agreement

had been photoshopped thereon from another document — the

district attorney charged Mathews with a single count of forgery.

¶ 9 After a two-day trial, the jury convicted her of forgery and the

district court, finding “there was ample evidence to support [the

conviction],” sentenced Mathews to eighteen months of probation.

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II. Discussion

¶ 10 Mathews contends that (1) the district court reversibly erred

by denying her motion for judgment of acquittal because there was

insufficient evidence to support the forgery charge and (2)

cumulative error during opening statement and closing argument

deprived her of her constitutional rights to a fair trial and an

impartial jury. We address and reject both of Mathews’ contentions

in turn.

A. Sufficiency of the Evidence

¶ 11 Mathews first contends that the district court erred by denying

her motion for judgment of acquittal because there wasn’t any

evidence presented at trial showing that she intended to cause the

Leathers a pecuniary loss, as required under section 18-5-102(1)(c).

We disagree.

1. Standard of Review and Applicable Law

¶ 12 We review de novo a district court’s denial of a motion for

judgment of acquittal based on insufficient evidence. People v.

Harrison, 2020 CO 57, ¶ 31. In doing so, we consider “whether the

relevant evidence, both direct and circumstantial, when viewed as a

whole and in the light most favorable to the prosecution, is

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substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.” People v. Perez, 2016 CO 12, ¶ 24 (quoting People v.

Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). In

applying this test, we must “give the prosecution the benefit of every

reasonable inference which might be fairly drawn from the

evidence.” Id. at ¶ 25 (quoting People v. Gonzales, 666 P.2d 123,

128 (Colo. 1983)).

¶ 13 We may not serve as a thirteenth juror and consider whether

we might have reached a different conclusion. See Clark v. People,

232 P.3d 1287, 1293 (Colo. 2010). And we neither reweigh the

evidence nor substitute our judgment for that of the jury. Harrison,

¶ 33. Thus, “[i]f there is evidence upon which one may reasonably

infer an element of the crime, the evidence is sufficient to sustain

that element.” People v. Grant, 174 P.3d 798, 812 (Colo. App.

2007).

¶ 14 “To the extent that the resolution of this issue requires

interpretation of the forgery statute, we conduct that review de

novo.” People v. Carian, 2017 COA 106, ¶ 8.

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A person commits forgery, if, with intent to

defraud, such person falsely makes,

completes, alters, or utters a written

instrument which is or purports to be, or

which is calculated to become or to represent if

completed . . . [a] . . . contract . . . which does

or may evidence, create, transfer, terminate, or

otherwise affect a legal right, interest,

obligation, or status.

§ 18-5-102(1)(c). “As a matter of law, the crime of forgery is

complete when the act and guilty knowledge coincide with the

intent to defraud.” People v. Cunefare, 102 P.3d 302, 307 n.4 (Colo.

2004). The intent to defraud may be inferred “where the defendant

passed an instrument [she] knows to be false.” Id. (citing People v.

Brown, 193 Colo. 120, 122, 562 P.2d 754, 755 (1977)).

2. Analysis

¶ 15 We conclude that there was sufficient evidence for the jury to

find that Mathews intended to defraud the Leathers into believing

they were bound by a contract they had never signed.

¶ 16 The elements of the crime of forgery under section 18-5-

102(1)(c) are (1) that a person; (2) with intent to defraud; (3) falsely

made, completed, or uttered a written instrument; (4) which was, or

which purported to be, or which was calculated to become, or to

represent if completed; (5) a deed, will, codicil, contract,

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assignment, commercial instrument, promissory note, check, or

other instrument which did or might evidence, create, transfer,

terminate, or otherwise affect a legal right, interest, obligation, or

status. § 18-5-102(1)(c). Mathews doesn’t dispute that the

Leathers’ signatures were falsely affixed to the fee agreement. (Nor

does she challenge the sufficiency of the evidence that she altered

the document.) Rather, she contends that she didn’t intend to

defraud the Leathers because she didn’t intend to cause a loss to

the Leathers; she merely sought payment for past services, and the

Leathers acknowledged that they owed her something for her work.

¶ 17 Implicit in Mathews’ argument is the notion that a qualifying

loss under section 18-5-102(1)(c) can only be a pecuniary loss. But

the Colorado Supreme Court has held otherwise. In Cunefare, the

court concluded that “[t]he language of the statute does not apply

only to instruments affecting financial, property, or legal matters

but rather applies to any legal right, interest, obligation or status.”

Cunefare, 102 P.3d at 309-10; see also Connecticut v. Dickman, 75

A.3d 780, 793 (Conn. App. Ct. 2013) (falsifying a doctor’s signature

on a work status report was forgery under a similarly worded

statute because it affected the defendant’s legal right to receive

8

worker’s compensation benefits — specifically, prescription drugs or

devices); People v. Gordon, 121 N.Y.S.3d 484, 485 (App. Div. 2020)

(a forged certificate of insurance that was necessary for the

defendant to conduct business as a contractor affected a legal right,

interest, obligation, or status and qualified as forgery under a

similarly worded statute); In re Conduct of Kirkman, 830 P.2d 206,

207 (Or. 1992) (forging a dissolution of marriage judgment qualified

as forgery because the attorney sought to affect a legal right or

status). The court determined that “[b]ecause the reach of the

statute is broad and includes instruments that affect or may affect

a legal right, interest, obligation or status, we construe the statute

liberally.” Cunefare, 102 P.3d at 309 (emphasis omitted). Thus, the

Cunefare court concluded that a defendant’s forged letter to a

prosecutor fell under subsection (1)(c) because the letter had an

intended legal effect “to influence the prosecutor and thereby

impact or affect the pending case.” Id. at 310. So although causing

a monetary loss may be one of the more common objectives of

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forgery, the forgery statute’s application isn’t limited to such

losses.

1

¶ 18 The jury could properly have inferred that Mathews intended

to convince the Leathers that they were obligated to pay the amount

she sought, that they would otherwise owe her the interest

authorized by the fee agreement, and that they were required to

arbitrate the dispute. By seeking to impose these obligations on the

Leathers, Mathews sought to alter the parties’ respective legal

rights.

¶ 19 Mathews’ reliance on two Colorado Supreme Court cases to

support her position that intent to defraud requires an intent to

cause a pecuniary loss is misplaced.

¶ 20 In Sharer v. People, 96 Colo. 483, 493, 44 P.2d 914, 917

(1935), the supreme court reversed the defendant’s forgery

1

In any event, the jury could reasonably have found that Mathews

intended to cause a pecuniary loss. Her objective was to convince

the Leathers that they were bound by the written fee agreement,

pursuant to which she sought more in fees than the Leathers

thought she was entitled to. (Though the Leathers agreed they

owed Mathews something for her work, they disputed the amount

Mathews sought, and Mathews never explained satisfactorily why

she was entitled to be paid at a non-discounted rate.)

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conviction because it concluded that there was no evidence that the

defendant intended to defraud the victim. But in that case, the

victim, “under his own testimony[,] did not know of the [forged]

checks, made no claim to them, and lost nothing to which he

claim[ed] or admit[ed] he was entitled.” Id. at 492, 44 P.2d at 917.

In this case, in contrast, Mathews provided the forged document to

the Leathers intending to affect their legal rights, and the amount

owed was disputed.

¶ 21 In People v. Billington, 191 Colo. 323, 325, 552 P.2d 500,

501-02 (1976), the defendant admitted that he signed his bosses’

names on certain checks without their knowledge but said that he

had been authorized to do so for business purposes. Ultimately,

the jury acquitted the defendant of one forgery count, convicted him

of another forgery count, and didn’t reach verdicts on the other

forgery counts. Id. The supreme court upheld the conviction,

concluding that the defendant’s intent to defraud as to each count

was different because separate transactions were involved. Id. at

327, 552 P.2d at 503. Because one check was used for a legitimate

business purpose, the jury could properly infer that the defendant

lacked the intent to defraud as to that check, and because the

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proceeds of the other check were used to buy drinks after a party,

the jury was entitled to conclude that the defendant had the intent

to defraud as to that check. Id. These facts bear no resemblance to

the facts in this case. And we reject Mathews’ suggestion that

Billington stands for the proposition that evidence of intent to

defraud must concern a pecuniary loss.

¶ 22 Alternatively, Mathews argues that because she was entitled to

quantum meruit compensation even without a fee agreement, the

Leathers couldn’t have experienced a loss.

2

This argument, too,

misses the mark.

¶ 23 Though Mathews would, indeed, have been entitled to

payment under quantum meruit, the amount to which she would

have been entitled wouldn’t necessarily have equated to the amount

she sought through the invoices.

3

As well, as discussed, Mathews

2

Under the doctrine of quantum meruit, when a client discharges

an attorney, the client remains obligated to pay the reasonable

value of the services rendered even in the absence of a valid fee

agreement. See In re Matter of Gilbert, 2015 CO 22, ¶ 22.

3

Ms. Leathers testified that she expected the fees for the trust to

total around $4,000 based on Mathews’ estimates. Mr. Leathers

testified that he “didn’t even know what a . . . fee agreement was

until [he] met with [his] second attorney in 2017.” He also said he

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also sought to alter the Leathers’ legal rights by convincing them

that, because they had signed the fee agreement, full payment was

due within thirty days of termination, specified interest would be

charged if they didn’t pay the full amount within thirty days, and

any disputes would be subject to arbitration.

¶ 24 In sum, we conclude that the evidence was sufficient to

support the forgery conviction.

B. Prosecutor’s Statements

¶ 25 We next reject Mathews’ contention that her conviction was

the product of cumulative error based on the prosecutor’s remarks

in opening statement and closing argument that, she asserts, (1)

misstated the law of intent to defraud; (2) misstated the law of fee

agreements; (3) were speculative; and (4) personally denigrated her.

1. Standard of Review

¶ 26 Mathews doesn’t argue that any of the prosecutor’s

statements, individually, warrant reversal.

4

Instead, she argues

couldn’t call the invoice accurate and felt uncomfortable going to

arbitration under a forged contract.

4

Because defense counsel didn’t object to any of the prosecutor’s

statements, we would review any challenge to them individually for

plain error. By eschewing any such challenge and invoking

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that the doctrine of cumulative error applies. Under that doctrine,

reversal is required if “the cumulative effect of [multiple] errors and

defects substantially affected the fairness of the trial proceedings

and the integrity of the fact-finding process.” Howard-Walker v.

People, 2019 CO 69, ¶ 24 (quoting People v. Lucero, 200 Colo. 335,

344, 615 P.2d 660, 666 (1980)).

5

Because multiple errors must be

established (not merely alleged) for this doctrine to apply, People v.

Daley, 2021 COA 85, ¶ 141, we must first assess each alleged error

individually to determine whether there were, indeed, multiple

errors. To do this, we determine whether the statements were

improper, taking into account the totality of the circumstances.

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

2. Allegedly Improper Statements

¶ 27 Mathews challenges four categories of statements.

cumulative error, Mathews makes an end run around that

standard.

5

To be clear, the “error” in this context is the court’s failure to

intervene sua sponte when the prosecutor commits misconduct.

See Wend v. People, 235 P.3d 1089, 1096-97 (Colo. 2010).

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a. Intent to Defraud

¶ 28 Mathews contends that, during closing argument, the

prosecutor misstated the law when he said one could defraud

someone out of money already owed, even if “that money was going

to be paid” anyway, and by analogizing Mathews’ conduct to taking

property from a person behind on car payments when the remedy is

repossession of the car. But this argument ignores the relevant

context. As discussed, the Leathers didn’t concede that they owed

Mathews the entire sum she sought; the amount owed was

disputed. Viewed in this context, the prosecutor’s comments could

be viewed as saying that a person’s agreement to pay something

doesn’t get the creditor off the hook for any amount the creditor

seeks to collect. That would, of course, be a correct statement of

the law.

¶ 29 Nonetheless, we will assume that the prosecutor’s first

comment was improper.

b. Law of Fee Agreements

¶ 30 Mathews next contends that the prosecutor misstated the law

of fee agreements during opening statement and closing argument.

Specifically, the prosecutor said during opening statement that

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Mathews “knew that . . . by not having an agreement in place at the

onset [of her engagement with the Leathers], that she was violating

the Rules of Professional Conduct that attorneys are governed by.”

And during closing argument, the prosecutor said,

[Mathews] wanted to possibly retroactively

come into compliance with the Colorado Rules

of Professional Conduct. Because . . . the rule

for fees . . . states that you have to have a fee

agreement if you have not worked with a

person regularly or something — that’s a

summary, or I’m paraphrasing. But if you

haven’t worked with someone regularly you

have to have a fee agreement either before you

start the work or shortly thereafter.

¶ 31 Because Mathews was retained on an hourly basis rather than

a contingency basis, Colo. RPC 1.5(b) applied. It provides, “[w]hen

the lawyer has not regularly represented the client, the basis or rate

of the fee and expenses shall be communicated to the client, in

writing, before or within a reasonable time after commencing the

representation.” Colo. RPC 1.5(b).

¶ 32 Mathews contends she was only required to provide the basis

or rate of her fee in writing within a reasonable time, and she

maintains that she did that by (she says) presenting a copy of the

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fee agreement to the Leathers, along with the trust documents, in

October 2016.

¶ 33 But there was substantial evidence that Mathews didn’t

provide her fee structure to the Leathers in writing until November

2017, more than one year after she began representing them. That

was not within a reasonable time. Though the prosecutor was

technically incorrect in that he referred to the necessity of a fee

agreement, the gist of his argument was correct.

c. Speculative Statements

¶ 34 Third, Mathews contends that the prosecutor made

unreasonable and speculative arguments that she forged the fee

agreement because she was “scared,” “freaked out,” and “panicked”

about not having a signed, written fee agreement. We conclude,

however, that these were inferences that the jury could reasonably

have drawn from the evidence. See People v. Maloy, 2020 COA 71,

¶ 61 (a prosecutor has wide latitude to argue based on facts in

evidence and reasonable inferences drawn from those facts).

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d. Denigrating Statements

¶ 35 Last, Mathews contends that during closing argument the

prosecutor improperly attacked her testimony by using the phrase

“nice try, chicken thigh.”

¶ 36 We agree with Mathews that the prosecutor’s flippant

comment was inappropriate.

3. No Cumulative Error

¶ 37 As noted, to reverse based on cumulative error, we would have

to conclude that “the cumulative effect of [multiple] errors and

defects substantially affected the fairness of the trial proceedings

and the integrity of the fact-finding process.” Howard-Walker, ¶ 24

(quoting Lucero, 200 Colo. at 344, 615 P.2d at 666). We have

identified two possibly improper remarks. We aren’t persuaded that

these remarks deprived Mathews of a fair trial.

III. Conclusion

¶ 38 The judgment is affirmed.

JUDGE TOW and JUDGE CASEBOLT concur.