State v. Levasseur , 2020 UT App 118 ( 2020 )

2020 UT App 118THE UTAH COURT OF APPEALS
STATE OF UTAH
Appellee,
v.
CHAD ROLAND LEVASSEUR,
Appellant.
Opinion
No. 20190299-CA
Filed August 13, 2020
Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 171912673
Teresa L. Welch, Wendy Brown, Maren E. Larson,
and Heidi Buchi, Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Chad Roland LeVasseur appeals his conviction on one
count of second-degree-felony insurance fraud. He argues that
the evidence was insufficient to convict him. We affirm.
State v. LeVasseur
BACKGROUND 1
¶2 On the night of March 27, 2016, LeVasseur and his best
friend at the time (Friend) were “driving around, just hanging
out” in Provo, Utah. After they separated, Friend went home,
but received a phone call from LeVasseur “around
midnight-ish” as she pulled into her driveway. In that phone
call, LeVasseur related that “he had been in an accident,” and
Friend “offered to go help him.” Because she “didn’t know
exactly how to get” to LeVasseur’s location, she called him for
additional directions as she was en route.
¶3 When Friend arrived at the scene, LeVasseur’s car was
“parked by the curb in pieces kind of,” with “impact damage to
the left front.” LeVasseur was the only person there. After Friend
helped LeVasseur “pick[] everything up” off the side of the road,
LeVasseur, acting “[a] little stressed out” and “a little worried,”
told her that the accident occurred as he “was making a drift
video[2] and he lost control,” causing him to hit a concrete
barrier. LeVasseur showed Friend the video, which depicted him
“going up the road, turning,” when the camera “fell onto the
floor.” While the video did not show the crash itself, Friend was
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Bond, 2015 UT 88, ¶ 3 n.2, 361
P.3d 104 (cleaned up).
2. See Drifting, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/drifting [https://perma.cc/5CF4-HFWD]
(defining “drifting” as “the act or activity of steering an
automobile so that it makes a controlled skid sideways
through a turn with the front wheels pointed in a direction
opposite to that of the turn”).
20190299-CA 2 2020 UT App 118State v. LeVasseur
able to “hear him crash into the barrier” before the video
stopped.
¶4 Once the two began “talking about what he was going to
do,” LeVasseur said that he “didn’t have full coverage” on his
car, mentioning that “he needed to switch it before we did
anything else.” LeVasseur then called his car insurance company
(Insurance Company) to make changes to his policy, asking that
his comprehensive deductible be decreased from $2,000 to $500
and that collision coverage be added with a $500 deductible.
That call took place at approximately 12:25 a.m. on March 28,
with the policy changes “locked in” at nearly the same time.
¶5 After calling Insurance Company, LeVasseur “waited a
little while” before calling the police to report the accident,
which Friend attributed to LeVasseur’s desire to “show time
between everything happening.” While waiting, LeVasseur told
Friend he was going to tell the police that, upon coming to the
corner, he swerved to miss a deer and crashed. LeVasseur
wanted Friend to say that she had not seen the crash but had
been following “a little behind.”
¶6 LeVasseur called the police at 12:57 a.m., and an officer
(Officer) responded around 1:00 a.m. LeVasseur told Officer that
“a deer had run out in front of him and that he had swerved to
avoid” it, causing the crash. Friend, wanting to support
LeVasseur, told Officer she had not seen the crash, which was
true, and she had been following behind him at the time, which
was not true. Officer completed a report, which included
LeVasseur’s statement about the deer.
¶7 Shortly before 2:00 a.m., LeVasseur reported the accident
to Insurance Company and made a claim on his policy for it. He
reported that the time of loss was 1:00 a.m. The claim report also
included Friend’s name and phone number. Because of the
timing of the policy changes and the claim, Insurance Company
20190299-CA 3 2020 UT App 118State v. LeVasseur
flagged the claim as potentially fraudulent and referred it to one
of the company’s investigators (Investigator).
¶8 As part of the investigation, Investigator obtained
LeVasseur’s cell phone call log for March 27 and 28. The phone
log showed phone calls between Friend and LeVasseur at 12:11
a.m., 12:25 a.m., and 12:30 a.m. It also showed calls placed to
Insurance Company at 12:19 a.m., 1:22 a.m., and 1:41 a.m.
¶9 Investigator also interviewed Friend some nine months
after the accident. Friend told Investigator that she had “lied to
the police” about the night’s events and that, rather than
swerving to avoid a deer, LeVasseur had been making a drift
video at the time of the accident. She also told Investigator that
she was present for the policy-change phone call and that the
accident preceded the call.
¶10 Insurance Company ultimately estimated the total
damage to LeVasseur’s car as $3,536.97, minus the $500
deductible, and LeVasseur additionally claimed medical
damages of $4,515.08. But Insurance Company did not pay the
claim.
¶11 The State charged LeVasseur with one count of
committing a fraudulent insurance act, claiming that LeVasseur
submitted the claim knowing it was fraudulent. See generally
Utah Code Ann. § 76-6-521 (LexisNexis 2017). 3 The case
proceeded to a jury trial.
3. The State charged LeVasseur under section 76-6-521(1)(b)(i) of
the Utah Code, which provided at the time that “[a] person
commits a fraudulent insurance act if that person with intent to
defraud . . . presents . . . any oral . . . statement or representation
as part of or in support of a claim for payment or other benefit
pursuant to an insurance policy, certificate, or contract . . .
(continued…)
20190299-CA 4 2020 UT App 118State v. LeVasseur
¶12 At trial, the main issue was whether LeVasseur provided
a “statement or representation knowing that the statement or
representation contains false or fraudulent information
concerning any fact material” when filing his insurance claim—
specifically, whether LeVasseur knowingly misrepresented the
circumstances surrounding his accident. See id. § 76-6-521(1).
Three witnesses testified for the State to the events described
above: Investigator, Officer, and Friend.
¶13 During his testimony, Investigator described, among
other things, the reasons LeVasseur’s claim was flagged as
potentially fraudulent, the extent of his investigatory efforts, and
his interactions with both LeVasseur and Friend in relation to
the claim. Investigator also testified about his observations of
LeVasseur’s vehicle, stating that it appeared to be specially
outfitted for drifting and that his vanity license plate matched a
website address for a site dedicated to drifting.
¶14 In conjunction with Investigator’s testimony, the audio
recordings of the policy-change phone call and the claim-report
phone call were played for the jury. In particular, during the first
few seconds of the policy-change phone call, LeVasseur can be
heard describing what seems to have been the accident to
someone, stating that he “hopped it” and “whacked into”
(…continued)
knowing that the statement or representation contains false or
fraudulent information concerning any fact or thing material to
the claim.” Utah Code Ann. § 76-6-521(1)(b)(i)(A), (1)(b)(ii)
(LexisNexis 2017). And because the value LeVasseur attempted
to claim on his policy exceeded $5,000, it was charged as a
second-degree felony. See id. §§ 76-6-521(2)(b), 76-10-1801(1)(d)
(providing that a violation is a second-degree felony if the value
of the “property, money, or thing obtained or sought to be
obtained is or exceeds $5,000”).
20190299-CA 5 2020 UT App 118State v. LeVasseur
something. The State also introduced the phone call log, which
showed the timing of calls LeVasseur placed to Friend and
Insurance Company.
¶15 After the State rested, LeVasseur moved for a directed
verdict on two grounds. First, he argued that Friend’s testimony
was inherently improbable based on perceived discrepancies in
the evidence between the phone call timeline and Friend’s
testimony about which calls she was present for. Second, he
argued that, without Friend’s testimony, the evidence was
insufficient to show that he “fabricated” information.
¶16 The district court denied the motion. The court first
explained that it did not find Friend’s testimony to be inherently
improbable, and that, in its view, the potential discrepancies in
Friend’s testimony presented “a credibility question . . . that’s
best left to the jury.” In this respect, the court noted that the
jurors would be instructed that they “can disbelieve all or
disbelieve part of” Friend’s testimony. The court then concluded
that the State had met its burden of proof and that “a reasonable
jury could . . . convict [LeVasseur] based on the evidence
presented.”
¶17 The jury convicted LeVasseur as charged. LeVasseur
timely appeals.
ISSUE AND STANDARD OF REVIEW
¶18 LeVasseur argues that the district court erred by denying
his motion for directed verdict, claiming that the evidence
supporting his conviction was insufficient. We review a district
court’s ultimate ruling on a motion for directed verdict for
correctness. State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. But
we will not “reverse a jury verdict if we conclude that some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
20190299-CA 6 2020 UT App 118State v. LeVasseur
doubt.” State v. Rivera, 2019 UT App 188, ¶ 19, 455 P.3d 112(cleaned up).
ANALYSIS
¶19 LeVasseur challenges the sufficiency of the evidence
supporting his conviction on two grounds. First, he claims that
Friend’s testimony was “too inherently improbable” to be
considered by the jury. Second, he asserts that the verdict was
“based on speculation” and unreasonable inferences and the
evidence therefore was not sufficient to support the verdict.
I. Inherent Improbability
¶20 LeVasseur argues that Friend’s testimony was inherently
improbable and therefore could not support his conviction.
Citing inconsistencies and contradictions in Friend’s testimony,
he contends that Friend’s statements and testimony regarding
“the events and timing of the car crash were materially
inconsistent, patently false, and lacked corroboration.”
¶21 A court must “ordinarily accept the jury’s determination
of witness credibility.” State v. Robbins, 2009 UT 23, ¶ 16, 210
P.3d 288; see also State v. Cady, 2018 UT App 8, ¶ 23, 414 P.3d 974(“There is perhaps no more axiomatic statement when reviewing
jury verdicts than this: The choice between conflicting testimony
is within the province of the jury.” (cleaned up)). But “a
conviction not based on substantial reliable evidence cannot
stand,” Robbins, 2009 UT 23, ¶ 14 (cleaned up), and “when the
witness’s testimony is inherently improbable, the court may
choose to disregard it,” id. ¶ 16; see also id. ¶ 18 (stating that “the
court may choose to exercise its discretion to disregard
inconsistent witness testimony only when the court is convinced
that the credibility of the witness is so weak that no reasonable
jury could find the defendant guilty beyond a reasonable
doubt”).
20190299-CA 7 2020 UT App 118State v. LeVasseur
¶22 “[W]itness testimony is inherently improbable and may
likewise be disregarded if it is (1) physically impossible or
(2) apparently false.” Id. ¶ 16. “Testimony is physically
impossible when what the witness claims happened could not
have possibly occurred.” Id. ¶ 17. Testimony is apparently false
“if its falsity is apparent, without any resort to inferences or
deductions,” or it is “incredibly dubious.” Id. ¶¶ 17–18 (cleaned
up).
¶23 LeVasseur challenges Friend’s testimony as apparently
false. Availability of relief under this theory is narrow. State v.
Skinner, 2020 UT App 3, ¶ 31, 457 P.3d 421 (explaining
the “narrowness” of the inherent improbability doctrine); State
v. Rivera, 2019 UT App 188, ¶ 23 n.6, 455 P.3d 112 (“A case
which actually falls within the Robbins–Prater rubric is
exceedingly rare.”). Our supreme court has explained that when
the apparent falsity prong is invoked, a district court may
“reevaluate the jury’s credibility determinations only in those
instances where (1) there are material inconsistencies in the
testimony and (2) there is no other circumstantial or direct
evidence of the defendant’s guilt.” Robbins, 2009 UT 23, ¶ 19.
Indeed, in Robbins, “[i]t was the inconsistencies in the child’s
testimony plus the patently false statements the child made
plus the lack of any corroboration that allowed [the supreme
court] to conclude that insufficient evidence supported
Robbins’s conviction.” State v. Prater, 2017 UT 13, ¶ 38, 392 P.3d
398. Thus, LeVasseur’s claim will “necessarily fail where any
evidence corroborates [Friend’s] testimony.” See Skinner, 2020
UT App 3, ¶ 31.
¶24 Here, the district court denied LeVasseur’s directed
verdict motion because it determined that Friend’s testimony
was not inherently improbable and that the inconsistencies and
contradictions identified by LeVasseur presented a “credibility
question . . . that’s best left to the jury.” We conclude the district
court did not abuse its discretion in declining to find Friend’s
20190299-CA 8 2020 UT App 118State v. LeVasseur
testimony inherently improbable and to disregard it on that
basis. See Robbins, 2009 UT 23, ¶ 18.
¶25 To begin with, LeVasseur is correct that, in providing two
different versions of the accident’s events, Friend’s testimony
contained inconsistencies. But we disagree that, without more,
the inconsistencies were of a kind that would have allowed the
district court to disregard Friend’s testimony. See id. ¶¶ 18–19.
Indeed, the inconsistency argument made by LeVasseur is
similar to the inconsistency argument our supreme court rejected
in Prater.
¶26 There, the appellant argued that three witnesses’
testimonies were inherently improbable because their
testimonies “changed substantially” after accepting deals with
the State. Prater, 2017 UT 13, ¶ 30. For example, the “jury learned
that [the three witnesses] all made statements to police
shortly after the shooting that contradicted their trial
testimony.” Id. ¶ 39. But in rejecting the appellant’s inherent
improbability argument, the supreme court found it significant
that “each witness admitted at trial that he or she initially lied to
police” and that one of the witnesses in particular testified “that
she withheld information at the preliminary hearing only
because she was afraid” of retaliation. Id. The court explained
that the fact that the three witnesses “den[ied] their involvement
[in the crime] when initially interviewed by the police does not
run so counter to human experience that it renders their
testimony inherently improbable.” Id. Rather, the court
determined, “[t]he question of which version of their stories was
more credible is the type of question we routinely require juries
to answer.” Id.
¶27 Here, as LeVasseur asserts, Friend originally reported to
Officer that she was following LeVasseur at the time of the
accident, then came upon him afterward. But at trial, Friend
testified that she had not been following LeVasseur at the time of
20190299-CA 9 2020 UT App 118State v. LeVasseur
the accident and instead was pulling into her driveway when he
called her about the crash. But like the witnesses in Prater, Friend
testified that she lied to Officer when she told him that she had
been following LeVasseur immediately before the crash. She also
provided an explanation for her lie, testifying that at the time,
LeVasseur was her “best friend,” that the lie was “what [her]
best friend . . . wanted [her] to do,” and that she therefore “went
ahead” with the lie because she “wanted to defend [her] best
friend.” And she explained that she later told the truth to
Investigator because she “didn’t want to keep covering it with a
lie” and that she “just wanted the truth to be out there because
[she] didn’t want to make it worse.”
¶28 In our view, it “does not run so counter to human
experience” that a person initially would lie to police about
events surrounding a car accident at her best friend’s request,
motivated by a desire to protect him. See id. As in Prater, we
think that, given the entirety of Friend’s testimony about the
varying accounts, the inconsistencies identified are not of a kind
to render Friend’s testimony inherently improbable. Rather, we
agree with the district court that the “question of which version
of [Friend’s] stories was more credible is the type of question”
best left to the jury to answer. See id.¶29 Moreover, LeVasseur’s inherent improbability challenge
fails for the additional reason that there was other evidence
corroborating Friend’s testimony that LeVasseur knowingly
submitted a fraudulent insurance claim. See Robbins, 2009 UT 23,
¶ 19 (“The existence of any additional evidence supporting the
verdict prevents the judge from reconsidering the witness’s
credibility.”); Skinner, 2020 UT App 3, ¶¶ 31, 34 (stating that
“under Robbins and Prater, an inherent improbability claim will
necessarily fail where any evidence corroborates the witness’s
testimony,” and explaining that “[c]orroborating evidence
sufficient to defeat a Robbins claim does not have to corroborate
the witness’s account across the board, in every particular,” but
20190299-CA 10 2020 UT App 118State v. LeVasseur
instead “just has to provide a second source of evidence for at
least some of the details of the witness’s story”).
¶30 For example, the jury had before it the phone log of calls
LeVasseur placed the night of the accident, as well as
Investigator’s testimony about the logs, which corroborated
Friend’s testimony that LeVasseur informed her of the accident
before calling Insurance Company to increase his insurance
coverage. The recordings of his various phone calls with
Insurance Company were also admitted; in particular, during
the first seconds of the original phone call to increase coverage,
LeVasseur can be heard making statements that could be
understood as a description of the accident, stating that he
“hopped it” and “whacked into” something.
¶31 Testimony about LeVasseur’s vehicle, while
circumstantial, also supported Friend’s testimony that LeVasseur
crashed while making a drift video (as opposed to avoiding a
deer); Investigator testified that LeVasseur’s vehicle was
specially outfitted for drifting and that his vanity license plate
matched a website address for a site dedicated to drifting. And
the circumstantial evidence surrounding the timing of the phone
calls to increase coverage, to report the accident to the police,
and to make a claim with Insurance Company—all occurring in
the middle of the night within a two-hour period—also fairly
supported the aspects of Friend’s testimony that suggested the
accident preceded LeVasseur’s call to increase his insurance
coverage. 4
4. LeVasseur also argues that Friend’s testimony is inherently
improbable because it is patently false, contending that her
testimony about the timeline of events was contradicted by the
cell phone data and her testimony about that data. However,
because we have concluded that aspects of Friend’s testimony
(continued…)
20190299-CA 11 2020 UT App 118State v. LeVasseur
¶32 For these reasons, the inconsistencies in Friend’s
testimony did not render it “so weak” as to afford the district
court the discretion to reject Friend’s testimony as inherently
improbable. See Robbins, 2009 UT 23, ¶¶ 18–19. LeVasseur’s
inherent improbability challenge therefore fails.
II. Sufficiency of the Evidence
¶33 LeVasseur additionally challenges the overall sufficiency
of the evidence supporting the jury’s verdict. Specifically, he
claims that the State’s evidence “did not prove that [he]
knowingly provided false or fraudulent information to
Insurance [Company] regarding the timing and specifics of the
crash.”
¶34 “On a sufficiency of the evidence claim we give
substantial deference to the jury,” and the operative question is
“simply whether the jury’s verdict is reasonable in light of all of
the evidence taken cumulatively, under a standard of review
that yields deference to all reasonable inferences supporting the
jury’s verdict.” State v. Ashcraft, 2015 UT 5, ¶¶ 18, 24, 349 P.3d
664; see also Mackin v. State, 2016 UT 47, ¶ 29, 387 P.3d 986(stating that “the question” on a sufficiency challenge “is
whether the evidence was so lacking that no reasonable jury
could find the defendant guilty beyond a reasonable doubt”
(cleaned up)); Salt Lake City v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d
1067 (recognizing that a guilty verdict may be based on direct or
circumstantial evidence). “A jury’s inference is reasonable unless
it falls to a level of inconsistency or incredibility that no
reasonable jury could accept.” Ashcraft, 2015 UT 5, ¶ 18 (cleaned
(…continued)
were corroborated by other evidence, we do not address this
point further. See State v. Skinner, 2020 UT App 3, ¶¶ 31, 34, 457
P.3d 421.
20190299-CA 12 2020 UT App 118State v. LeVasseur
up). We thus will affirm the district court’s denial of LeVasseur’s
directed verdict motion and the jury’s verdict so long as “some
evidence exists” from which a jury could find beyond a
reasonable doubt that LeVasseur committed an act of second-
degree-felony insurance fraud. See State v. Gonzalez, 2015 UT 10,
¶ 27, 345 P.3d 1168 (cleaned up).
¶35 As noted above, to obtain a conviction for
second-degree-felony insurance fraud, the State was required to
prove beyond a reasonable doubt that in making his insurance
claim, LeVasseur, with intent to defraud, presented a “statement
or representation” knowing that it contained “false or fraudulent
information concerning any fact or thing material” to his
insurance claim. See Utah Code Ann. § 76-6-521(1)(b)(i)(A),
(1)(b)(ii) (LexisNexis 2017); see also id. §§ 76-6-521(2)(b),
76-10-1801(1)(d) (providing that a violation is a second-degree
felony if the value of the “property, money, or thing obtained or
sought to be obtained is or exceeds $5,000”). “A person engages
in conduct . . . knowingly, or with knowledge, with respect to his
conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or the existing
circumstances.” Id. § 76-2-103(2).
¶36 Here, we readily conclude that there was sufficient
evidence from which the jury could have determined that
LeVasseur knowingly committed insurance fraud through his
assertions about the circumstances of the accident. As discussed
above, Friend testified that despite what she initially told Officer,
LeVasseur called her around midnight to tell her he had been in
an accident, that LeVasseur told her the accident occurred
during his attempt to make a drifting video, and that he
increased his coverage after the accident had already occurred.
Nevertheless, Investigator testified (and the recording of the
claim corroborated) that in making his insurance claim,
LeVasseur informed Insurance Company that the accident
occurred about a half an hour after he called to increase his
20190299-CA 13 2020 UT App 118State v. LeVasseur
coverage. Additionally, other circumstantial evidence supported
the version of events Friend testified to and, specifically, that
LeVasseur knew at the time he made his insurance claim that the
accident had occurred before he increased his coverage,
including: LeVasseur’s phone log, the recordings of the relevant
phone calls (particularly the policy-change phone call, in which
LeVasseur can initially be heard describing what could have
been the accident), the evidence surrounding LeVasseur’s
drifting activities, and the overall timing of the night’s events.
¶37 Taken together, Friend’s testimony along with the other
circumstantial evidence constituted sufficient evidence from
which the jury could have found beyond a reasonable doubt that
LeVasseur was aware that the assertions he made in his
insurance claim surrounding the timing and details of the
accident were false. See Gonzalez, 2015 UT 10, ¶ 27; Ashcraft, 2015
UT 5, ¶¶ 18, 24; see also Utah Code Ann. §§ 76-2-103(2),
76-6-521(1)(b). See generally State v. Whitaker, 2016 UT App 104,
¶ 10, 374 P.3d 56 (recognizing that, because “proof of a
defendant’s intent is rarely susceptible of direct proof, . . . the
prosecution usually must rely on a combination of direct and
circumstantial evidence to establish” it (cleaned up)).
Accordingly, we conclude that the district court did not err
when it denied LeVasseur’s motion for directed verdict.
CONCLUSION
¶38 We affirm LeVasseur’s conviction. The district court did
not err by rejecting LeVasseur’s inherent improbability challenge
to Friend’s testimony. And in light of the evidence supporting
LeVasseur’s guilt, we conclude that the district court did not err
by denying LeVasseur’s directed verdict motion.
20190299-CA 14 2020 UT App 118