Marsh v. Com., Record No. 3005-98-4.

• Decision Date: 30 May 2000
• Docket Number: Record No. 3005-98-4.
• Citation: 530 S.E.2d 425,32 Va. App. 669
• Parties: Fiona Elizabeth MARSH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

530 S.E.2d 425

32 Va. App. 669

Fiona Elizabeth MARSH v. COMMONWEALTH of Virginia.

Record No. 3005-98-4.

Court of Appeals of Virginia, Alexandria.

May 30, 2000.

Julie Gossman, Assistant Public Defender, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Present: ANNUNZIATA, J., and DUFF and HODGES, Senior Judges.

HODGES, Senior Judge.

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 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 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 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.

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 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...