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.
1
¶ 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
2
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
3
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.
4
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
5
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.
6
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,
7
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
9
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.)
10
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
business purpose, the jury could properly infer that the defendant
lacked the intent to defraud as to that check, and because the
11
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
12
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
13
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).
14
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
15
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
16
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).
17
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
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.
