                  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

                                - 2 -
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

                                - 3 -
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

                                 - 4 -
          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.

                               - 5 -
     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


                              - 6 -
            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


                                - 7 -
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

                                - 8 -
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.

                                - 9 -
     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.



                             - 10 -
        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

                                - 11 -
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

                              - 12 -
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."

                              - 13 -
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.'"



                               - 14 -
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


                               - 15 -
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



                              - 16 -
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

                              - 17 -
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.




                                - 18 -
