State v. Levasseur

473 P.3d 204

STATE of Utah Appellee,

v.Chad Roland LEVASSEUR, Appellant.

No. 20190299-CA

Court of Appeals of Utah.

Filed August 13, 2020

Teresa L. Welch, Salt Lake City, Wendy Brown, Maren E. Larson, and Heidi Buchi, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

Opinion

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.

BACKGROUND¹

¶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 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 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.

¶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" 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 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, 210 P.3d 288 (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").

¶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. ¶...