Fiona Elizabeth Marsh v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia
FIONA ELIZABETH MARSH
OPINION BY
v. Record No. 3005-98-4 JUDGE WILLIAM H. HODGES
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Julie Gossman, Assistant Public Defender, for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted appellant, Fiona Elizabeth Marsh, of
feloniously making false representations to obtain credit in
violation of Code § 18.2-186(B). On appeal, appellant contends:
(1) the evidence was insufficient to support the conviction; (2)
the trial court erred in refusing to grant a jury instruction on
a lesser-included offense; and (3) the trial court erred in
refusing to allow appellant to provide a voice exemplar to the
jury without being placed under oath and without being subject
to cross-examination. Finding no reversible error, we affirm.
BACKGROUND
On January 5, 1998, Kenddrie Utuk, a salesperson at
Stohlman Volkswagen, sold a white Volkswagen Jetta to a customer
calling herself Fatou Kpan (the person who acquired the car from
Utuk will be referred to hereafter as "Fatou"). Before gaining
possession of the car, Fatou spoke with Utuk for four hours.
Utuk recalled that Fatou spoke with a West African accent, a
vocal trait he recognized because he was from Nigeria. In order
to lease or purchase the car, Fatou had to offer proof of
insurance and place a down payment on the car. In acquiring the
car that day, Fatou offered a GEICO auto insurance policy number
and paid $1,000. In order to be extended credit for the
purchase of the car, she completed a credit application. As
proof of identification, she offered a photocopy of a driver's
license, depicting her photograph, listing her name as Fatou
Kpan and a "former" address in Reston. Claiming to be a college
graduate, she said she currently lived in Falls Church and
worked as an office manager in Alexandria. As proof, she
produced a phone bill for her private residence and a pay stub
from her "employer." Because of Fatou's claims that she was
employed and possessed a college degree, the dealership extended
credit totaling $16,879 towards the purchase of the car, pending
approval by the dealership's bank. After signing a temporary
certificate of title, Fatou drove the car from the dealer's lot.
Some later time, Utuk contacted the purported insurance
company. As a result of that contact, Utuk knew "something was
wrong," so he attempted to contact Fatou in order to recover the
car. No one answered the phone at any of the numbers Fatou had
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listed on her application form. About two weeks after obtaining
the car, Fatou contacted Utuk to see if the financing had been
arranged for the car. After being asked to bring the car back,
Fatou told the salesman she would visit the dealership that
afternoon. A few hours later, she called to say she was on her
way. Fatou never appeared or returned the car.
Stohlman Volkswagen contacted the police to investigate the
matter, supplying investigators with the photocopied license
Fatou had supplied with her credit information. On February 6,
1999, having driven to the address on the photocopied driver's
license, Detective Greg Holloway found appellant, who matched
the picture on the license, leaving the residence in a black
Mitsubishi. Startled upon seeing the officer, appellant drove
away quickly. Holloway followed and pulled her over at a gas
station. When asked to produce identification, appellant gave
Holloway a driver's license containing a photograph of the same
person depicted on the photocopy provided to Utuk but with the
name Fiona Elizabeth Marsh and with an address in Ashburn,
Virginia.
When questioned by Holloway in the parking lot, appellant
denied knowing Fatou Kpan. When questioned about the Jetta, she
became evasive and attempted to flee on foot. Holloway
apprehended her and placed her under arrest.
During subsequent questioning by the police, appellant
initially denied knowing about the car. Though she would not
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confess to completing the credit application, appellant
eventually admitted to having the car in her possession and
giving it to "someone in Maryland"; however, she refused to
provide the current location of the car. When asked about Fatou
Kpan, appellant told Holloway "that she knew of her as a distant
relative or something like that, and that she didn't know where
she was living and didn't know how [she] could get a hold of
her." Later that day, with no assistance from appellant, the
police located and recovered the Jetta in Maryland.
At trial, Fatou Kpan testified that appellant had lived in
her house for a couple of months from December 1998 through
January 1999. Kpan recalled an incident during that time in
which she discovered that her state identification card was
missing from her purse. Later that day, appellant gave the card
to Kpan, saying that she had found it in the grass outside the
house. Kpan recalled that the identification card was dry
despite the fact that it had been raining all day. When
examining the photocopied identification card, Kpan testified
that the name and social security number on the card were hers,
but the person depicted in the photograph was appellant.
Appellant sought to show she was the victim of a
misidentification. Holloway said he did not ask Utuk to
identify appellant from a police lineup because
when you do a line-up, you're dealing with
unknowns. And I already had a suspect.
And, actually, when I had [appellant] in
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front of me [at the police station], I
talked to [Utuk] on the phone, he told me "I
know exactly who she is." He described her
to a tee. He gave me a picture of her. He
sent me this picture. I had it sitting in
front of me. There was no doubt who it was.
At the conclusion of the Commonwealth's evidence, appellant
moved to strike the evidence, claiming that the Commonwealth had
failed to prove she had failed to pay for the car because there
had never been a demand for payment pursuant to Code
§ 18.2-186(B). The trial court denied the motion.
Appellant's counsel then sought the court's permission to
allow appellant to admit a voice exemplar into evidence without
being put under oath. Defense counsel claimed that such an
exemplar would go to Utuk's claims that the person with whom he
spoke had a West African accent. Appellant argued as follows:
And I think it's proper, just as in the O.J.
case or any other case, where they made him
put on gloves, it's not something that I
could object to, certainly, to make
innocuous statements as a voice example are
the same as hand, hair, handwriting samples,
or putting on a glove, or anything else.
And I'd like to put that on so that the
jury can hear my client talk. She's not
going to take the stand at this point. And
that goes to whether or not this was the
same person. I mean, if you have two people
who look alike and one of them sounds like a
Southern belle and one of them sounds like
they're from Massachusetts, like JFK, I
think that's relevant to the jury.
[Utuk] said it was a West African
accent. And I think that's something
clearly within the bounds of what a jury,
like weight, height, drunkenness, things
like that, speech, that the jury can do
- handwriting, that a jury can look at.
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Appellant's counsel then suggested that he and the
prosecutor be allowed to think of some statements that appellant
could say on the stand for the jury. He also argued that the
prosecution should not be allowed to cross-examine her.
The Commonwealth objected, noting that such a voice sample
would be unreliable because anyone could fake an accent. In
defense of the request, appellant noted that handwriting samples
are admitted without cross-examination. Appellant then
suggested that, after providing the voice exemplar, Utuk be
recalled so the Commonwealth could ask him whether appellant's
voice was the same voice he heard. The court ruled that the
voice exemplar evidence would be testimonial and denied
appellant's request to take the stand and speak without being
put under oath.
SUFFICIENCY OF THE EVIDENCE
Appellant contends there was insufficient evidence that the
car dealer demanded payment and that appellant failed to pay.
Code § 18.2-186(B) provides, in pertinent part:
Any person who knows that a false
statement has been made in writing
concerning the financial condition or
ability to pay of himself or of any person
for whom he is acting, . . . and who, with
intent to defraud, procures, upon the faith
thereof, for his own benefit, . . . any such
delivery, payment, loan, credit, extension,
discount making, acceptance, sale or
endorsement, and fails to pay for such loan,
credit or benefit so procured, shall, if the
value of the thing or the amount of the
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loan, credit or benefit obtained is $200 or
more, be guilty of grand larceny . . . .
On appeal, when the sufficiency of the evidence is
challenged, "we review the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.
248, 250, 356 S.E.2d 443, 444 (1987). So viewed, the evidence
proved that, on January 5, 1998, Stohlman's Volkswagen extended
credit to appellant based on information she supplied and a
$1,000 down payment.
The information supplied by appellant was entirely
fraudulent, consisting of false addresses, false telephone
numbers, a non-existent insurance policy and a falsified
identification card. Having tricked Utuk and the dealership
into trusting her, appellant signed a temporary registration
certificate and took possession of the Jetta, driving it off the
lot.
The record established that the dealership extended an
amount of credit to appellant to aid in the purchase of the
Jetta. It gave appellant credit totaling $16,879 in exchange
for truthful information about her financial situation and a
monetary down payment. By refusing to give the required
accurate information as to her financial situation, appellant
intentionally failed to give proper consideration for the
extension of credit. As such, the evidence showed that she
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failed to pay for the $16,879 in credit extended to her by the
dealership.
In addition to proscribing failure to pay for credit, Code
§ 18.2-186 also proscribes the failure to pay for a "sale."
Here, the evidence also proved that a sale occurred.
When attempting to define terms in one part of the Code,
courts should read a statute with "a view toward harmonizing it
with other statutes. Because the Code of Virginia is one body
of law, other Code sections using the same phraseology may be
consulted in determining the meaning of a statute." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 425 (1992)
(citations omitted). The term "sale" means the "passing of
title from the seller to the buyer for a price." Code
§ 8.2-106. The price in question can be "payable in money or
otherwise." Code § 8.2-304. Title passes at the time of
"physical delivery of the goods." Code § 8.2-401. Absent a
valid agreement to the contrary, "payment is due at the time and
place at which the buyer is to receive the goods." Code
§ 8.2-310(a).
Even though appellant still owed the dealer $16,879 for the
Jetta, the sale was completed when she took possession of the
car. Before leaving the dealership, appellant signed a
temporary certificate of registration for the car, thereby
vesting ownership of the car in her. See Code § 46.2-1542
(stating that the issuance of a temporary certificate of
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ownership "shall have the effect of vesting ownership in the
purchaser for the period that the certificate remains
effective"). By taking the car from the dealership, appellant
completed the sale of the car, having acquired both title and
possession of the automobile. See State v. Small, 873 S.W.2d
895, 898 (Mo. App. 1994) (holding that because defendant had
used false information to gain the car, a failure to breach a
financing contract did not matter because "the crime was
completed when defendant drove the car off [the] lot").
In Lewis v. Commonwealth, 28 Va. App. 164, 503 S.E.2d 222
(1998), the defendant, who was convicted of grand larceny,
claimed that a temporary certificate of ownership did not give
him sufficient title to satisfy the elements of grand larceny.
See id. at 168, 503 S.E.2d at 223. In rejecting that argument,
we stated that possession of the car and a conditional title
were enough to justify a conviction for grand larceny. See id.
at 168-69, 503 S.E.2d at 223-24. To decide otherwise would
"'reward the industrious and designing thief who, having
perpetrated the proper fraud by making false representations,
could escape criminal liability as long as the official title
remained with the owner in security.'" Id. at 169, 503 S.E.2d
at 224 (quoting State v. Meado, 472 N.W.2d 567, 571 (Wisc. Ct.
App. 1991)). Therefore, grand larceny of a car acquired by the
giving of false information occurs not after the first missed
payment, but at the moment the car leaves the dealership.
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The dealer gave appellant the opportunity to return the
car, but appellant refused to act accordingly. After police
apprehended appellant, she admitted possessing the car, but
refused to cooperate in its recovery. In essence, appellant
failed to pay for the sale of the car or the extension of credit
despite having acquired possession and title to the car.
Accordingly, there was sufficient evidence of a failure to pay
to sustain appellant's conviction.
REFUSED JURY INSTRUCTION
On appeal, appellant claims the trial court erred "by
failing to instruct on the lesser-included misdemeanor offense"
described in Code § 18.2-186(A). On August 6, 1998, when the
parties presented jury instructions, the trial court addressed
arguments relating to the parties' proposed instruction
describing the elements of the offense. Appellant submitted
proposed Instruction G, and the Commonwealth's attorney proposed
Instruction 1.
Instruction G informed the jury that, in order to convict
appellant of violating Code § 18.2-186(B), the Commonwealth was
required to prove that appellant made a false statement in
writing knowing it was false, that the statement concerned her
financial condition or ability to pay, that she procured
delivery, credit or sale, that she did so with intent to defraud
and that she failed to pay for the benefit so procured.
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Instruction 1 included most of those elements and added
that the value of the payment, loan credit or sale was $200 or
more.
Appellant's attorney argued that he "tracked the exact
statute" and he did not "see how that should be objectionable."
The only objections made by defense counsel to the
Commonwealth's Instruction 1 were the omission of the element
that the defendant failed to pay and the inclusion of the
heading from the Code describing the crime, namely, "that the
Defendant was charged with the crime of making a false statement
in writing to obtain property or credit." (Emphasis added.)
The trial court considered both instructions and found that
"the Commonwealth's language is far more understandable." It
then denied appellant's Instruction G and granted Commonwealth's
Instruction 1 after adding the phrases "knowingly made a false
statement" and "that she failed to pay for such loan, credit or
benefit so procured." Neither appellant nor the Commonwealth
requested or tendered a lesser-included offense instruction at
trial. The jury found appellant guilty of violating Code
§ 18.2-186(B).
In a post-trial motion, appellant's new counsel argued for
a new trial based on "the trial court's denial of [her] motion
to strike and the court's refusal to instruct the jury on the
elements of the lesser-included misdemeanor offense." The trial
court recalled it "was never asked by either the Commonwealth or
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the defense" to instruct on a lesser-included offense; instead,
the only theories presented were that appellant be found "guilty
of a felony or not guilty at all." According to the trial
court, "[t]hat was the trial tactic taken by the defense
throughout." Because the trial court "was never asked to
instruct on the basis of a lesser-included offense," it ruled
the request "comes too late at this time." We agree.
Rule 5A:18, in pertinent part, provides as follows:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
"We are bound by the principle that the accused is
entitled, on request, to have the jury instructed on a lesser
included offense that is supported by more than a 'scintilla of
evidence' in the record." Bunn v. Commonwealth, 21 Va. App.
593, 599, 466 S.E.2d 744, 746 (1996) (emphasis added). However,
the failure to proffer an instruction prevents an appellate
court from determining whether the trial court erred in failing
to grant it. See Pavlick v. Commonwealth, 27 Va. App. 219, 230,
497 S.E.2d 920, 925 (1998) (en banc) (citing Rule 5A:18). But
cf. Jimenez v. Commonwealth, 241 Va. 244, 245-46, 250, 402
S.E.2d 678, 678, 681 (1991) (holding that trial court has
"affirmative duty properly to instruct a jury" on principles of
law "vital" to case and that failure of accused to object does
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not bar consideration of issue on appeal; jury instruction
failed to include all requisite elements of crime and
Commonwealth's evidence failed to prove omitted elements);
Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401,
404 (1992) (en banc) (holding that by tendering an instruction
on lesser-included offense, defendant "fully alerted the trial
judge and the Commonwealth" to his argument in favor of the
lesser-included offense instruction in satisfaction of Rule
5A:18).
Appellant made a tactical decision not to request or
proffer a lesser-included instruction in hopes that the jury
would find that the Commonwealth failed to prove an element of
the felony charge and acquit her. Because the record fails to
show that appellant requested or tendered an instruction on Code
§ 18.2-186(A) any time before the jury rendered its verdict, her
post-conviction request was too late to be considered and is
barred under Rule 5A:18. Moreover, because the granted
instruction properly included and explained all of the elements
of Code § 18.2-186(B) and because there was sufficient evidence
to sustain the conviction, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
THE VOICE EXEMPLAR
The Fifth Amendment "offers no protection against
compulsion . . . to write or speak for identification."
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Schmerber v. California, 384 U.S. 757, 764 (1966). When used as
an identifying physical characteristic and not as a testimonial
admission, voice exemplars compelled during a lineup do not
violate the Fifth Amendment. See United States v. Wade, 388
U.S. 218, 222-23 (1967); see also Pennsylvania v. Muniz, 496
U.S. 582, 592 (1990) (videotape portraying defendant's slurred
speech after being arrested for drunk driving was not
testimonial and, thus, was admissible); United States v.
Dionisio, 410 U.S. 1, 5-7 (1972) (recorded voice exemplars
compelled by a grand jury subpoena not testimonial).
Therefore, the trial court erred in finding that the voice
exemplar was testimonial in nature requiring appellant to be
subjected to cross-examination under oath. However, an
appellate court may affirm the judgment of a trial court when it
has reached the right result for the wrong reason. See Driscoll
v. Commonwealth, 14 Va. App. 449, 451-52, 417 S.E.2d 312, 313-14
(1992) (holding that "right result, wrong reason" rule may not
be used if the correct reason for affirming the trial court was
not raised in any manner at trial or if further factual
resolution is needed before the right reason may be assigned in
support).
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.'"
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Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409
(1994) (citation omitted).
Although this Court has never addressed the admissibility
of voice exemplars, case law from other jurisdictions is
instructive.
In United States v. Esdaille, 769 F.2d 104, 105-06 (2d Cir.
1985), an undercover officer testified about a controlled drug
purchase he made from the defendant. On cross-examination, the
officer did not recall whether the person who sold him the drugs
spoke with a distinctive accent. See id. at 106. "Esdaille
then sought to introduce an exemplar of his voice by reading a
portion of a newspaper article in order to prove that he in fact
spoke with a heavy Caribbean accent." Id. The trial court
refused to allow Esdaille to present the
exemplar as nontestimonial evidence, on the
grounds that the exemplar would have little
probative value because it was inherently
suspect, and that its probative value was
outweighed by prejudice to the government in
light of both the ease with which Esdaille
could deliberately alter his accent and the
inability of the government to test the
reliability of the accented reading.
Id.
In People v. Scarola, 525 N.E.2d 728, 730 (N.Y. 1988),
the New York Court of Appeals decided two cases in which the
trial court denied the defendants' requests to present voice
exemplars, without being subject to cross-examination, to show
they had speech impediments. The victims testified in each case
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that they heard and understood their respective assailants. The
court explained, "the fact that an exhibition of a physical
characteristic is not testimonial in nature does not necessarily
require its reception as evidence at trial." Id. at 731.
Rather, "[t]he test of whether voice exemplar evidence should be
admitted . . . [is] whether it is relevant and reliable." Id.
at 732. The court initially noted that "voice exemplar evidence
by its very nature is different from other common types of
exemplar evidence." Id. (citing cases involving scars and
tattoos, explaining requirement that defendant demonstrate that
scar or tattoo predated crime). "In contrast, voice exemplar
evidence, as the trial courts in these cases recognized, is
relatively easy to feign." Id. The court "conclude[d] that the
trial courts did not abuse their discretion" because the victims
did not rely on the defendant's voice to recognize him and "the
foundation for the admission of the evidence, in each case did
not rule out the possibility that the defendants could feign the
existence of a speech defect." Id. at 733; see also Newman v.
Hopkins, 192 F.3d 1132 (8th Cir. 1999) (even if appellate court
finds that defendant is entitled to offer a voice exemplar
without waiving privilege against self-incrimination, he is
still required to establish its reliability); State v. Watson,
707 A.2d 1278 (Conn. Ct. App. 1998) (denying the entry into
evidence of proof of plaintiff's Boston accent because such
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evidence could be easily faked and others had testified to it),
aff'd, 740 A.2d 832 (Conn. 1999).
We find that the trial court reached the correct result,
but for the wrong reason. Before the trial court erroneously
held that the voice exemplar was testimonial and could not be
admitted without cross-examination, the Commonwealth's attorney
commented on the unreliability of such an exemplar, noting that
it is easy to feign an accent. We agree with that argument and
find no evidence in the record that establishes the reliability
of the voice exemplar appellant sought to introduce. Cf.
Esdaille, 769 F.2d at 106 (noting that defendant presented
testimony from schoolmate about his accent).
Here, appellant sought to introduce a voice exemplar to the
jury to prove that she was the victim of a false identification.
However, appellant's voice identification was not the central
issue, and a great amount of evidence identified appellant as
the guilty party. Utuk spent several hours in a face-to-face
encounter with appellant and positively identified her at trial.
Moreover, appellant's photograph was on the photocopied
identification card that appellant presented to Utuk. Utuk
relied on the photograph when he negotiated with her and when he
made the sale. Holloway relied on the photocopied
identification when he located and arrested appellant at the
address used on the false identification. Moreover, when
confronted by Holloway, appellant attempted to flee from
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Holloway when he first confronted her. See Langhorne v.
Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 480 (1991)
(holding that flight may be considered as a factor in
determining guilt). After her arrest, appellant admitted having
knowledge about the car. Finally, the jury had the photocopied
identification to consider and view as a trial exhibit.
Because the trial court reached the right result for the
wrong reason and because appellant's identity did not rest
solely on her accent but on a large amount of other credible
evidence, the trial court did not abuse its discretion in
excluding the voice exemplar.
For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
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