Texas man faces theft charge in Aspen trial
February 5, 2014
Deputy District Attorney Andrea Bryan said the facts will show that defendant Kevin Keheley "built a pyramid of false promises." But defense attorney Laurie Schmidt told the 12-person jury that her client got caught up in a business dispute, but nothing illegal.
The Pitkin County Courthouse trial putting the spotlight on Keheley — a 33-year-old Austin, Texas, resident who allegedly bilked Aspen resident Adam Rothberg out of more than $10,000 after agreeing in 2012 to develop a smartphone application for him in less than six weeks — got underway on Tuesday. The trial resumes today and is expected to end on Friday.
The Aspen Police Department investigated the matter a year ago and obtained a warrant for Keheley's arrest in March. Keheley, a former resident of the Aspen area, turned himself over to authorities in August. He pleaded not guilty to felony theft in Pitkin County District Court in October.
Jury selection took six hours on Tuesday and was followed by opening statements at about 3 p.m.
Bryan said Keheley was working at a small company with a friend in Aspen but he got seriously behind on rent, to the tune of $6,500 by August 2012.
To cover the debt to his friend, she said, Keheley promised Rothberg that he could develop an iOS application for an iPhone — a program that would allow legal and medical professionals, as well as teens, to send and receive encrypted text messages that were immediately erasable and untraceable. The idea for the app, conceptually called "Private Text," was Rothberg's, Bryan said.
An Aug. 12, 2012, contract called for Rothberg to compensate Keheley with $17,000, of which $10,000 was to be paid up front, Bryan said.
Keheley also promised to pay two of his friends $5,000 each to write the code for the app, Bryan said. They did a little work, but never received the money required to finish it, she said.
"The defendant didn't pay his friends, he didn't build the app and he used the $10,000 that Adam Rothberg paid him for himself," Bryan said. "And his pyramid of promises came tumbling down.
"And as it came tumbling down, the defendant got more and more desperate and more and more entrenched in his own scheme, and he even went so far as to create a fake Gmail account in his own mother's name and sent emails to Adam Rothberg from that account so that he could try to convince (Rothberg) that he was sick and in the hospital."
Keheley cashed Rothberg's $10,000 check on the very day they signed the contract, Bryan said. Not long after, she said, Keheley embarked upon a series of excuses and delay tactics, and successfully obtained another check in August 2012 from Rothberg for $1,500 after telling him that his car was going to be repossessed. He also said that he was having issues with his girlfriend and was moving back to Austin, but promised to complete the job, Bryan said.
Months went by with limited communication between the two, Bryan said. By January 2013, emails purportedly sent by Keheley's mother to Rothberg claimed that her son was gravely ill and in a Texas hospital, but that the $11,500 would be repaid, the prosecutor said.
The subsequent Aspen police investigation, however, showed that at the time Keheley was supposed to be hospitalized, he was making ATM withdrawals and fast-food purchases in Austin, Bryan said.
"In the end, the defendant couldn't keep up with his own fraud," she said. "Ladies and gentlemen, this is not a contract dispute or a business dispute, as the defense would like to convince you. This is a theft."
Schmidt, whose practice is based in Denver, asked the jurors to be patient and to wait until all the evidence is heard.
"You're going to hear (Rothberg) testify that he went several months without hearing from Mr. Keheley," she said. "Wait to hear how many times he contacted Mr. Keheley and Mr. Keheley contacted him."
As for the email exchanges between the two, "these emails also show there was an intent to pay (money) by Mr. Keheley," said Schmidt. "There was a discussion there about paying back this money that may or may not have even been owed. At the bottom line, you have two adults entering into a contract, and one gets upset and one gets charged with a crime. That's what this case boils down to."
Rothberg had the idea for everything — the app, its name, its features and the contract with Keheley, she said. Halfway into the project, Rothberg found out someone else already was developing an app with the same function, Schmidt said.
"In the contract, it says (Rothberg) is responsible for this idea," she said. "You, Mr. Rothberg, you're responsible. Yet, that wasn't revealed. That's why I say, wait for all of the information. At the end of the day, this is a contract dispute. At the end of the day, it does not belong here."
Rothberg was called as a witness for the prosecution, and he spoke of how he befriended Keheley as they started the project. At one point, Keheley told him he was a cancer survivor and that he had had a bone-marrow transplant, but that the surgeons had botched the job, Rothberg said. On another occasion, Keheley confided problems he was having with his girlfriend, Rothberg said.
After Keheley moved to Austin, he would email screenshots and other pieces of information to show that work was being done on the app, Rothberg said.
But by October 2012, when Keheley sent images of icons that he was planning to use for the app, Rothberg said he knew something was fishy.
Rothberg said he previously had supplied some special designs for the icons. The ones Keheley sent him were a common type that could be found anywhere on the Internet.
"That's when I started to get suspicious and upset," Rothberg said. "My 8 year old could have gone on the Internet and pulled those icons up in a few seconds."