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Gervais v. State

Court of Appeals of Arkansas, Division IV

February 28, 2018



          King Law Group PLLC, by: Natalie S. King, for appellant.

          Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.


         Appellant Isabell Gervais was charged in the Washington County Circuit Court with five counts of theft of property by deception and one count of fraudulent use of a credit card. A Washington County jury convicted her on all six charges and sentenced her to pay $33, 600 in fines, which were converted to restitution. On appeal, Gervais contends that the circuit court erred in denying her motion for directed verdict. We disagree and affirm.

         I. Standard of Review

         On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429; Harris v. State, 2014 Ark.App. 264. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Armour v. State, 2016 Ark.App. 612, 509 S.W.3d 668. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Castrellon v. State, 2013 Ark.App. 408, 428 S.W.3d 607. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Armour, supra. We do not, however, weigh the evidence presented at trial, as that is a matter for the fact-finder, nor will we weigh the credibility of the witnesses. Donovan v. State, 71 Ark.App. 226, 32 S.W.3d 1 (2000).

         II. Theft by Deception

         Gervais was charged with five counts of theft of property by deception. To sustain this charge, the State had to prove that she knowingly obtained the property of another person by deception with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2013). "Deception" means, among other things, "[e]mploying any other scheme to defraud." Ark. Code Ann. § 5-36-101(3)(A)(v). The felony or misdemeanor classification of the offense of theft by deception depends on the value of the property obtained. At trial, Gervais made a two-prong directed-verdict motion on the theft-by-deception charges, arguing that the State failed to prove (1) that she knowingly deceived the victims in order to deprive them of property and (2) the dollar amount of the property obtained.

         A. Scheme to Defraud

         We first examine the evidence that supports the jury's conclusion that Gervais employed a scheme to defraud. Gervais, who is not licensed to practice medicine in Arkansas, operated what she purported were naturopathic medical clinics in Fayetteville and Johnson. Gervais offered various treatments and "medicines" to her patients. Law enforcement began an investigation that included sending samples of the "medications" that Gervais had provided to her patients to the Arkansas State Crime Lab for testing; however, none of the liquids or powders that were tested contained any medically useful substances. Based on the complaints of five of her patients, the State filed the charges herein.

         At Gervais's trial, the State produced the testimony of the patients who initially contacted the police-Chelsea Krohn-Cully, Barry Langford, Margaret Taylor, and Lia Danks.[1] Each witness offered similar accounts of his or her experience with Gervais. Gervais described her "extensive training" in England to her patients and introduced herself as "Dr. Bell." Gervais presented business cards that indicated that she possessed a number of credentials, including an M.B.B.S., O.M.D., H.M.D., and N.M.D. Gervais explained that these initials stood for, respectively, a bachelor of medicine and bachelor of science, oriental medicine doctor, homeopathic medical doctor, and naturopathic medical doctor. She asserted that the M.B.B.S. was a "medical degree in England" that is "similar to an M.D. in England." Krohn-Cully testified that Gervais told her that she was a doctor in England; Langford testified that Gervais represented herself as a doctor; Danks testified that Gervais told her that she had been credentialed as a doctor in London; and Taylor stated that Gervais told her she was a doctor, and Taylor assumed that she was because her business card said "Dr. Isabell Gervais and all those letters." Despite the impression that she left with her patients, however, Gervais had no medical training or credentials from any school or institution in the United States. She specifically admitted that she is not licensed to practice medicine in Arkansas.

         The State also presented evidence that Gervais engaged in other practices as part of her scheme to defraud. For example, Gervais took samples of the blood, saliva, and hair of Langford[2] and Danks with the explanation that she would send the samples to Germany for a "DNA test, " charging them between $450 and $600 for each "test." Gervais refused to show the actual results of the alleged tests to the patients. Instead, she read to them what she purported were the results. In both cases, Gervais related to them that the reports contained dire diagnoses and gave them "medicine, " which contained no medicinal value, for their conditions.

         Krohn-Cully and Taylor presented another example of Gervais's scheme to defraud. Gervais affirmatively represented to both Krohn-Cully and Taylor that their expenses would be reimbursed by insurance or Medicare, which was not true.[3] Taylor additionally testified that at one point, she received a billing statement from Gervais with a handwritten notation that read, "Margaret, I am sending in your claim this week. I am writing you a check back from escrow until you receive payment from Medicare." The check was for $9, 100. Taylor explained that she had written Gervais a check for $9, 100, and Gervais wrote her the check "to take care of what I was giving to her until my ...

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