                                 Illinois Official Reports

                                        Appellate Court



                           People v. Lawson, 2015 IL App (2d) 140604



Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    KATHLEEN NEELY LAWSON, Defendant-Appellant.


District & No.             Second District
                           Docket No. 2-14-0604


Filed                      March 3, 2015


Held                       Where defendant was convicted of two counts of forgery in
(Note: This syllabus connection with a letter of diminished capacity purportedly written by
constitutes no part of the a treating psychologist in order to transfer assets from her father’s trust
opinion of the court but to her mother, the appellate court held the letter was made with the
has been prepared by the intent to defraud and delivered, regardless of the fact that no one was
Reporter of Decisions defrauded and the letter was unsuccessful.
for the convenience of
the reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 12-CF-2065; the
Review                     Hon. John A. Barsanti, Judge, presiding.



Judgment                   Affirmed.



Counsel on                 Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for
Appeal                     appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Sally A. Swiss, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.
     Panel                     PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                               court, with opinion.
                               Justices Zenoff and Burke concurred in the judgment and opinion.




                                                OPINION

¶1         Defendant, Kathleen Neely Lawson, appeals her convictions of two counts of forgery
       (720 ILCS 5/17-3(a)(1), (a)(2) (West 2012)). She contends that the State failed to prove
       beyond a reasonable doubt that, with the intent to defraud, she knowingly made and delivered
       a false document that was apparently capable of defrauding another. We affirm.

¶2                                            I. BACKGROUND
¶3         Defendant was indicted on two counts of forgery in connection with a letter of
       diminished capacity purportedly written by a treating psychologist. The letter was provided
       in order to facilitate the transfer of assets from the trust of defendant’s father, Harry Neely, to
       her mother, Donna Neely. It was alleged that the letter was made with the intent to defraud
       (count I) and was delivered (count II). On March 17, 2014, a bench trial was held.
¶4         Mark Neely, defendant’s brother, testified that Harry suffered a series of strokes in
       October 2011. As a result, Harry was transferred to The Tillers Nursing and Rehabilitation
       Center (The Tillers) in Oswego, where he remained until he passed away 18 to 20 months
       later. During Harry’s time there, he could not get up and walk on his own, he was always
       sleepy, and he was unable to speak for very long. Over time, his condition improved only
       slightly.
¶5         Early in Harry’s stay at The Tillers, a dispute arose over his care. Mark and his wife
       wanted to bring Harry to their home, while defendant and Donna wanted him to remain at
       The Tillers. In November 2011, Mark filed a petition for guardianship but, after a discussion
       with Donna, he agreed to drop the matter if he and other family members were kept advised
       of Harry’s medical care. Mark agreed with the view that Harry was unable to properly
       administer his trust or make decisions.
¶6         Barry Killian, Harry’s financial advisor, testified that, in September 2010, he opened a
       traditional individual retirement account and a personal trust account for Harry. He also
       helped set up similar accounts for Donna. When Harry suffered the strokes, there was about
       $1.3 or $1.4 million among the accounts. Harry was both the trustee and the beneficiary of
       his own trust, with Donna’s trust as the successor beneficiary. Mark and defendant were
       successor trustees.
¶7         Killian met with defendant and Donna on March 11, 2012, because defendant wanted to
       make changes to the accounts quickly to get them in Donna’s name. Killian advised
       defendant that they would need a doctor’s letter certifying that Harry was incapacitated to
       manage his financial affairs. Defendant’s initial response was that she would be unable to do
       that, and Killian reiterated that a doctor’s letter was required.



                                                    -2-
¶8          Later that day, defendant called Killian and said that she had secured a doctor’s letter.
       Killian then met defendant, who gave him a letter written on letterhead from The Tillers. The
       letter stated: “As diagnosed November 11, 2011[,] hereby certifying that, Harry Clifford
       Neely is unable to properly administer the Trust for his benefit and is not able to make
       decisions.” It was purportedly signed by Samuel Robert Rest, Ph.D. Killian testified that he
       knew upon viewing it that it would be insufficient because such letters are ordinarily written
       on medical professional stationery and not on a memo pad or loose paper from a nursing
       home. Killian expressed concern about the letter to defendant, who said that it was as good as
       it was going to get.
¶9          Regardless of any suspicions, Killian always sent any letters of diminished capacity to the
       compliance department of his company. That would set off a series of further protocols
       before any disbursements could be made. The compliance department rejected defendant’s
       letter, stating that she needed a letter on medical stationery. Killian recalled that defendant
       was not happy about that. No funds or authority over Harry’s accounts was transferred.
¶ 10        Within a week or two of the rejection of the letter, defendant or Donna submitted a
       second letter, from Dr. Michael Marzec, made on Dreyer Medical Clinic letterhead. That
       letter was accepted, and Killian submitted paperwork to transfer assets from Harry’s trust to
       Donna’s trust.
¶ 11        Rest testified that he had been a licensed clinical psychologist for 20 years and served as
       a consultant at The Tillers. Rest assessed Harry in November 2011 and concluded that his
       level of functioning was fairly low. Harry suffered from dementia and exhibited anxiety.
       However, a comprehensive diagnosis was difficult to perform because it was hard to get a
       good deal of information from him. Rest evaluated Harry again in January 2012 and
       concluded that he was not completely oriented. Harry’s responses to basic yes-or-no
       questions were not accurate and he was unable to maintain any level of arousal. Rest believed
       that Harry had a moderate to significant level of cognitive impairment. Rest told defendant
       that he believed that Harry needed 24-hour assistance and would be unable to function
       independently. Rest agreed that Harry was unable to manage his own physical and financial
       affairs and was unable to make his own decisions.
¶ 12        Rest stated that a letter of diminished capacity indicates that, based on an individual’s
       current level of cognitive and emotional functioning and the resulting diagnostic impression,
       the individual would need assistance making basic decisions and would be unable to care for
       his or her own well-being. Rest had written such letters before, but never on The Tillers
       letterhead, as he was not an employee of The Tillers.
¶ 13        Rest recalled that, around March 2012, defendant asked him to write a letter of
       diminished capacity regarding Harry. Rest refused and never wrote one. He also never signed
       a predrafted letter of diminished capacity regarding Harry. Rest learned of defendant’s letter
       when a person at The Tillers showed it to him. He said that the signature was not an accurate
       representation of his own signature. Defendant later told him that she wrote the letter and she
       apologized for doing so.
¶ 14        After Rest testified, the State rested. Defendant moved for a directed finding, arguing that
       the letter was not capable of defrauding anyone and that it was without legal efficacy. She
       argued that there was no intent to defraud since, shortly later, a valid diminished-capacity
       letter was presented. The court denied the motion, and the defense rested without presenting


                                                   -3-
       evidence. The court found defendant guilty, her motion to reconsider was denied, and she
       appeals.

¶ 15                                           II. ANALYSIS
¶ 16       Defendant contends that the evidence was insufficient to prove her guilty beyond a
       reasonable doubt. She argues that the letter was not apparently capable of defrauding another
       and that she lacked the intent to defraud.
¶ 17       Defendant argues error both with the court’s denial of her motion for a directed finding
       and with its determination of guilt. A motion for a directed finding asserts only that, as a
       matter of law, the evidence is insufficient to support a finding of guilty. People v. Connolly,
       322 Ill. App. 3d 905, 915 (2001). In moving for a directed finding, the defendant admits the
       truth of the facts stated in the State’s evidence for purposes of the motion. Id. The trial judge
       does not pass upon the weight of the evidence or the credibility of the witnesses. Id. In other
       words, such a motion asks whether the State’s evidence could support a finding of guilty
       beyond a reasonable doubt, not whether the evidence does in fact support that finding. Id.
¶ 18       In regard to the finding of guilt, a reviewing court will not set aside a criminal conviction
       unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the
       defendant’s guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). In reviewing a challenge to
       the sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in
       original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Here, the court
       reviewed the same evidence and heard the same arguments when making both
       determinations. Thus, our analysis of the sufficiency of the evidence to support the finding of
       guilt is identical to the analysis of the sufficiency of the evidence at the close of the State’s
       case. See Connolly, 322 Ill. App. 3d at 919.
¶ 19       A person commits forgery when, with the intent to defraud, he or she knowingly makes a
       false document and that document is apparently capable of defrauding another or the person
       issues or delivers such a document knowing it to have been falsely made or altered. 720
       ILCS 5/17-3(a)(1), (a)(2) (West 2012).
¶ 20       Defendant first argues that the letter was not apparently capable of defrauding another,
       because it was just one step in a process of transferring funds, because Killian recognized
       that it was not valid, and because it ultimately lacked legal efficacy.
¶ 21       “A document apparently capable of defrauding another includes, but is not limited to, one
       by which any right, obligation or power with reference to any person or property may be
       created, transferred, altered or terminated.” 720 ILCS 5/17-3(c) (West 2012). A “ ‘false
       document’ *** includes, but is not limited to, a document whose contents are false in some
       material way, or that purports to have been made by another or at another time, or with
       different provisions, or by authority of one who did not give such authority.” 720 ILCS
       5/17-3(c-5) (West 2012).
¶ 22       “[T]he State must prove beyond a reasonable doubt that a defendant, with the intent to
       defraud, knowingly made or altered a document such that it is capable of defrauding
       another.” People v. Brown, 2013 IL 114196, ¶ 39 (citing 720 ILCS 5/17-3(a)(1) (West
       2006)). To be apparently capable of defrauding another, a document need not be in due legal


                                                   -4-
       form or be so skillfully prepared that it requires an expert to detect that it is fraudulent. Id.
       (citing Goodman v. People, 228 Ill. 154, 158 (1907)). “Rather, the test of whether a forged
       document is apparently capable of defrauding another is whether a reasonable person might
       be deceived into accepting the document as genuine.” Id. Thus, a document’s capacity to
       defraud another need be only apparent, not actual. People v. Reynolds, 85 Ill. App. 3d 549,
       553 (1980).
¶ 23        Here, there was sufficient evidence that a reasonable person might be deceived into
       accepting the document as genuine. It was presented with the name of a person who had
       evaluated Harry and it was on letterhead from the facility where he received care. A
       reasonable person could determine that it was legitimate.
¶ 24        Defendant relies on Goodman and Waterman v. People, 67 Ill. 91 (1873), for the
       argument that, because the letter ultimately lacked legal efficacy, it was not apparently
       capable of defrauding another. That argument fails. In Goodman, the defendant was
       convicted of offering a forged railroad pass. On appeal, the forgery indictment was held
       defective because it did not state extrinsic facts to show how the pass was to be used to
       defraud the railway company, whether the company had any means of transportation for
       which the pass could be used, or that the person whose name appeared on the pass as general
       manager of the company in fact held that office. The supreme court recognized that the test
       required that a reasonable and ordinary person might be deceived into accepting the
       document as genuine and that it need not be so skillfully executed as to require an expert to
       detect its falsity. But there, the potential to defraud did not appear on its face and could be
       shown only through additional facts about how it was to be used. Since the indictment failed
       to provide those facts, it was insufficient. Goodman, 228 Ill. at 163; see also Waterman, 67
       Ill. at 92-93 (finding an indictment insufficient when a similar document, if valid, would not
       have affected any legal rights). Defendant also argues that People v. Muzzarelli, 331 Ill. App.
       3d 118, 123 (2002), illustrates that a document lacking legal efficacy cannot be capable of
       defrauding a person. But Muzzarelli held that a document that “could” affect or alter a right
       or obligation can be capable of defrauding another. Id.
¶ 25        Here, the document was facially sufficient to start the process of transferring funds. That
       is, unlike in Goodman or Waterman, the document here had the potential to have a legal
       effect. It did not have to be so skillfully prepared that experts such as Killian or the
       compliance department would be unable to detect it. Thus, it was apparently capable of
       defrauding another. It did not have to actually succeed.
¶ 26        Next, defendant argues that the State failed to prove intent to defraud, since she did not
       seek the funds for herself, there was no dispute that Harry was actually incapacitated, and a
       valid letter was eventually obtained.
¶ 27        Intent to defraud does not require that defendant sought to benefit only herself. For the
       purposes of proving forgery, to act “ ‘[w]ith intent to defraud’ means to act knowingly, and
       with the specific intent to deceive or cheat, for the purpose of causing financial loss to
       another or bringing some financial gain to oneself, regardless of whether any person was
       actually defrauded or deceived.” 720 ILCS 5/17-0.5 (West 2012). It “includes intent to cause
       another to assume, create, transfer, alter, or terminate any right, obligation, or power with
       reference to any person or property.” Id. Here, defendant deliberately created a false
       document intended to cause the transfer of funds from Harry to Donna. This conduct meets


                                                   -5-
       the statutory definition. Defendant did not lack the intent to defraud simply because she
       sought the funds on behalf of another person.
¶ 28       In addition, intent to defraud “may be inferred from the circumstances of the transaction
       and, if the forged document is delivered, then the intent to defraud will be presumed.” People
       v. Hunter, 331 Ill. App. 3d 1017, 1026 (2002). Further, as previously noted, “[i]t is
       immaterial to the crime of forgery whether anyone was in fact defrauded.” People v.
       Henderson, 71 Ill. 2d 53, 57 (1978). “ ‘Forgery *** does not require that anyone be actually
       defrauded of his money or property. One who has never had a chance to pass his forged
       document, or whose forgery is spotted when he tries to pass it, is nevertheless guilty of
       forgery.’ ” Id. (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 90, at
       671-72 (1972)).
¶ 29       Here, defendant delivered the letter to Killian and thus the trial court could presume that
       defendant possessed the requisite intent. That the letter ultimately was unsuccessful, a
       different letter was later obtained, and Harry was properly found to be incapacitated were
       immaterial to that determination.

¶ 30                                     III. CONCLUSION
¶ 31       The evidence was sufficient to show beyond a reasonable doubt that defendant, with the
       intent to defraud, knowingly made and delivered a false document that was apparently
       capable of defrauding another. Accordingly, the judgment of the circuit court of Kane
       County is affirmed.

¶ 32      Affirmed.




                                                  -6-
