Crawford v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia

ANTHONY DALE CRAWFORD
OPINION BY
v. Record No. 1194-07-2 JUDGE ROBERT J. HUMPHREYS
DECEMBER 29, 2009
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge

Samantha Freed Bolton (Steven D. Rosenfield; Snook & Haughey,
P.C., on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.

BACKGROUND 1

On Thursday, November 18, 2004, John and Irene Powers (“the Powers”) had dinner

with their thirty-three-year-old daughter, Sarah Crawford (“Sarah”) at a local restaurant in

Manassas, Virginia. When they left the restaurant that night at about 8:30 pm, it would be the

last time that they would see their daughter alive. Twelve hours later Sarah would be dead, and

her husband, the appellant, Anthony Dale Crawford (“Crawford”) would be wanted for her

murder.

The Powers had a “very close” relationship with their daughter and saw her frequently.

Sarah and her mother talked on the phone often. During dinner, Sarah told her parents of the

1
On appeal, we view the facts established at trial in the “light most favorable” to the
prevailing party below, in this case the Commonwealth, Commonwealth v. Hudson, 265 Va.
505, 514, 578 S.E.2d 781, 786 (2003), and we grant to that party all fair inferences flowing from
those facts. Coleman v. Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).
latest events in her life, including her job as an office manager for a television production

company. Sarah mentioned to her mother that she had a hair appointment on Saturday and that,

on Saturday afternoon, she had plans to go to a concert with a man she recently met. Sarah was,

according to her mother, “really very happy” that night.

Sarah had every reason to be happy. She had a good job with a small, close-knit

company that she enjoyed and found fulfilling. She had gastric bypass surgery in the summer of

2002 and reached her goal of losing one hundred and fifty pounds. In addition, Sarah had just

gotten a raise and moved into her own apartment. And, most significantly, Sarah had recently

decided to end her relationship with her abusive husband, Crawford.

Sarah and Crawford had been married since 1999, and had been together for several years

before that. The couple had a troubled history, and Sarah was growing increasingly fearful of

her husband. In October of 2004, Sarah and Crawford separated. Following their separation,

Sarah expressed to a number of friends and co-workers that she was afraid that Crawford might

physically harm her. This concern caused Sarah to make a number of significant changes in her

life. Sarah found a new apartment in a rural area that her mother described as “wooded,

desolate,” and “well-hidden.” Sarah chose the apartment because it had a long driveway, so that

she could “make a phone call” or “get out” if she saw someone coming.

On October 29, 2004, Sarah and the Powers went to Crawford’s apartment to pick up a

few of Sarah’s things. 2 Sarah tried to get Crawford tickets to a sporting event to get him out of

the apartment because she was “afraid of an incident” arising from her move. However,

Crawford was present in the apartment when Sarah and the Powers arrived. As Sarah expected,

Crawford was hostile toward her, refused to allow her to take any of her belongings, and,

ultimately, called the police. When the police arrived, they asked Crawford to calm down and to

2
Before they separated, Sarah shared the apartment with Crawford.

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allow Sarah to take her things. However, despite the police officer’s request, Crawford’s hostile

behavior toward Sarah continued. According to the police officer, as Sarah packed up her

belongings, Crawford approached her and whispered something in her ear. The officer could not

determine what Crawford said to Sarah, but the officer testified that “it was something that

obviously upset [Sarah],” because she “immediately stood up and stepped back away from

[Crawford].” Sarah then asked Crawford to repeat what he said and asked if Crawford was

threatening her. The officer ordered Crawford to back away from Sarah; however, he had to

repeat this command several times before Crawford complied. At one point, Mrs. Powers heard

Crawford tell Sarah, “You’ll pay for this.”

Eventually, the police officers left the apartment, but, sensing that things might not

remain peaceful, they remained nearby. After the officers left, Sarah mentioned that she wanted

a side table that her parents had given her, and she asked Crawford to unlock the bedroom door

so she could retrieve it. Instead of unlocking the door, Crawford said that he would get the table.

Mr. Powers was packing up some of Sarah’s belongings, when he heard Crawford say, “Here’s

your god-damned table” and the table “came flying over [Mr. Powers’] right shoulder and . . .

landed near the sofa and broke . . . .” At that point, the Powers called the police and the same

officers immediately responded. The police stayed until Sarah and her family finished packing

her things, and then followed them for about a mile to make sure that they got away safely.

Following her encounter with Crawford at the apartment, Sarah went to the Prince

William County Juvenile and Domestic Relations District Court (the “JDR court”) and requested

a preliminary protective order in order to prevent Crawford from having any further contact with

her. In the affidavit for preliminary protective order (hereinafter “the affidavit”), which Sarah

signed, she recounted past incidents in which Crawford forcibly raped her, threatened her life,

and physically and verbally abused her. In the affidavit, Sarah also stated

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 [o]n October 30, 2004, [Crawford] called me and told me that I
must want to die. He also said he understands why husbands kill
their wives. He told me that he would find me and would come to
my work. . . . I am afraid of [Crawford]. I fear he may physically
hurt me or even kill me. I want him to stay away from me and my
family.

The JDR court granted Sarah’s request for a preliminary protective order. 3 In the few weeks that

the protective order was in effect, Sarah continued to have contact with Crawford. Telephone

records revealed that Crawford and Sarah communicated on several occasions between

November 1 and November 18, 2004. Sarah also paid for Crawford to attend a trade school in

Kentucky.

As Sarah began to settle into her new life, she tried to take precautions for her own

safety. Sarah chose the location of her desk at work because it overlooked the parking lot and

allowed her to see if Crawford’s vehicle was parked there. In addition, Sarah took a new route

home every night after work. According to her supervisor, “[Sarah] would never go home the

same way two days in a row because she didn’t want someone to be able to follow her or know

where she was going to be at any particular time, so she would always choose a new way.”

Sarah also spoke to her parents several times each day. On November 1, 2004, Sarah sought

help from Acts Turning Points, a domestic violence intervention program in Prince William

County.

On Thursday November 18, 2004, Sarah apparently sought to sever her last remaining

ties with Crawford. On that day Sarah prepared a document that purported to release her father

from any liability on the lease for the apartment that she previously shared with Crawford. Due

to Crawford’s credit problems, Mr. Powers co-signed the lease for their apartment. Sarah now

3
The protective order prohibited Crawford from having any contact with his wife. At a
court hearing on November 16, 2004, Sarah appeared in the JDR court and asked that the
protective order be dismissed. The record does not establish why she made this request.

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wanted her father’s name removed from the lease. Because her printer was broken, Sarah asked

one of her supervisors to print out the release form on his printer that afternoon. A copy of that

release was later recovered from her supervisor’s computer. Before Sarah left work on

November 18, she informed her supervisor that she would be late the following morning, but she

expected to be at the office by 1:00 p.m.

Sarah never made it to work on Friday, November 19, 2004. That morning, a hunter in

Fauquier County found a box along the road that belonged to Sarah’s employer. Sarah’s

supervisor testified that she was supposed to ship that box for him. The box had a small amount

of Sarah’s blood on it. Later that day, the Powers received a telephone call from a person who

found Sarah’s cell phone lying in the grass near his driveway in Manassas. 4 Worried for their

daughter’s well-being, the Powers made the first of several trips to Sarah’s apartment that

evening. When they arrived, Sarah and her car were gone, and the apartment was dark. The

only sign of life in the apartment was Sarah’s pet cat, which came to the glass door and cried.

On the morning of Saturday, November 20, 2004, the Powers went back to Sarah’s

apartment. Sarah’s car was still missing, and her cat was still at the door, crying. Mrs. Powers

called Sarah’s salon to see if she had arrived at her hair appointment on Saturday morning and

was told she had not. The Powers made the fifty-minute round trip from their home to Sarah’s

apartment three more times on Saturday. Each time they returned, Sarah’s cat cried and clawed

at the door. The last time the Powers went to Sarah’s apartment on Saturday evening was around

8:00 p.m. They found a bottle of wine at the door with a note that said, “Sarah, sorry I missed

you. Call me to let me know you’re okay.” Sarah had missed her Saturday afternoon date.

On Sunday, November 21, 2004, the Powers were finally able to reach Sarah’s landlord,

who let them into her apartment. The first thing the Powers noticed was that her cat had no food

4
Records from Sarah’s cell phone revealed that Sarah called Crawford twice on
November 19, 2004, once at 7:52 a.m. and again at 8:51 a.m.
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or water. The Powers had taken care of Sarah’s cat when she had gone out of town before, and it

was uncharacteristic for Sarah to leave her pet unattended and without food or water. After

taking care of the cat, the Powers began looking around Sarah’s apartment to try to determine

what had happened. Mrs. Powers noted that all of Sarah’s luggage was still in the apartment and

that the clothes she had worn to dinner on Thursday were on the floor in front of her washing

machine. Mrs. Powers went to Sarah’s bedroom and noticed that there was a book open to page

fifty-nine lying face down on Sarah’s bedside table entitled, It’s My Life Now: Starting Over

After an Abusive Relationship or Domestic Violence.

In the early morning hours of November 22, 2004, the night manager of a motel in

Charlottesville, Virginia found Sarah dead in one of the motel’s rooms, her body positioned in a

particularly gruesome and suggestive manner. Stripped naked, Sarah was placed on the bed in a

“frog-like position.” A motel towel concealed a fatal gunshot wound to the right side of her

chest. An assistant chief medical examiner for the Commonwealth determined that the bullet

passed through Sarah’s right lung and severed her spinal cord, rendering Sarah paralyzed, unable

to walk or struggle. The medical examiner testified that, without medical treatment, Sarah could

have lived up to an hour following such an injury. Investigators found seminal fluid in Sarah’s

vagina and spermatozoa in Sarah’s mouth and anus. DNA recovered from the seminal fluid

matched that of Crawford. In addition, investigators found Crawford’s clothing, personal

belongings, and fingerprints in the motel room. Cigarette butts in the motel room’s ashtray

contained Crawford’s DNA, and a pill bottle bearing Crawford’s name was also found in the

room. The motel’s clerk testified that Crawford arrived at the motel at 11:00 a.m. on November

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19, 2004. Crawford was driving Sarah’s car at the time 5 and parked in the farthest spot from the

front desk. Crawford told the clerk that he had been driving all night and asked for a quiet room,

which he paid for with a $100 bill.

Given the abundance of evidence linking him to the murder scene, the Charlottesville

police began to search for Crawford. As part of that investigation, the police contacted

Crawford’s relatives. Crawford’s adult daughter, who lived in South Carolina, reported that her

father had contacted her recently and asked her to wire him money. With this information, the

police then learned that Crawford was staying with his extended family in Jacksonville, Florida.

The Charlottesville police informed their Jacksonville colleagues that they had reason to

believe Crawford was in their area and that there was an outstanding warrant for his arrest for the

murder of Sarah. The Charlottesville police also advised the Jacksonville authorities that

Crawford was likely driving Sarah’s car, a maroon Hyundai. The Jacksonville police located

Crawford and arrested him; they also seized Sarah’s car (which Crawford was driving at the time

of his arrest) and sealed it for evidentiary purposes. The Charlottesville police later processed

the car for evidence. The driver’s window of the vehicle was broken, and police found Sarah’s

blood on both the driver’s and rear seats. The police found gunshot residue in the car and a box

of ammunition in the trunk.

Crawford waived his Miranda rights and made a statement to the Florida police during a

custodial interview. The interview was videotaped, and the recording was admitted into

evidence at trial. Crawford claimed that Sarah had picked him up early Friday morning at his

house. He said they had planned to go to Charlottesville for the weekend to attempt to reconcile.

After an hour to an hour and a half drive, they arrived in Charlottesville at about 8:30 in the

5
Although characterized by the Powers and other witnesses as “Sarah’s car,” the
evidence adduced at trial established that the vehicle Crawford was driving actually belonged to
Mr. Powers.

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morning. Sarah was driving, and he was in the passenger’s seat. Crawford said they drove

directly to a McDonalds and got breakfast. 6 Without any explanation as to why, Crawford then

stated that he pulled out his .38 revolver 7 planning to commit suicide. Crawford said he had the

gun cocked and his finger on the trigger when Sarah grabbed for the weapon. While they were

wrestling over the gun, it went off and the bullet hit Sarah. Crawford claimed the shooting was

an accident, telling the police “she basically did it to herself.”

Crawford then said that he pulled Sarah into the back seat and drove to a nearby hotel and

rented a room. He left Sarah’s body on the bed and her clothing in the room and “took off and

headed south.” Significantly, Crawford never offered any explanation for leaving Sarah’s body

undressed in the position in which it was found, nor for failing to seek medical help for Sarah.

Likewise, he offered no explanation as to why his semen was found in her vagina and his sperm

was found in her mouth and anus. 8

Prior to trial, Crawford made a motion to suppress the affidavit executed by Sarah in

support of the protective order, arguing that the document was testimonial hearsay and, therefore,

inadmissible under Crawford v. Washington, 541 U.S. 36 (2004). During the suppression

hearing, the Commonwealth did not dispute that the affidavit was testimonial hearsay. Instead,

the Commonwealth argued that under the doctrine of forfeiture by wrongdoing, the trial court

should find that Crawford forfeited his right to confrontation. The trial court agreed with the

6
The autopsy report, which was admitted into evidence, described the contents of Sarah’s
stomach as “a scant amount (20 cc) of thin yellow fluid.”
7
The police learned that on November 6, 2004, Crawford purchased a .38 Smith &
Wesson revolver. He later purchased a box of .38 caliber ammunition on November 13, 2004.
Although Crawford disposed of his revolver, police found a box of ammunition in his possession
after Sarah was shot and killed. Two cartridges were missing from the box.
8
Appellant’s brief states “[d]uring the course of their travel [from Manassas to
Charlottesville] they engaged in consensual intercourse.” The record is totally devoid of any
evidence to support this assertion.

-8-
Commonwealth and admitted a redacted copy of the affidavit on those grounds. A jury

subsequently convicted Crawford of capital murder, abduction with intent to defile, rape, grand

larceny, use of a firearm in the commission of a murder, and use of a firearm in the commission

of abduction. Crawford appealed his convictions to this Court.

On appeal, Crawford contends that the trial court erred in (1) denying his motion to

suppress an affidavit made by Sarah Crawford, which was submitted to the JDR court in

conjunction with her application for a preliminary protective order 9 and (2) failing to grant his

motion to strike the charges of abduction with intent to defile and rape, “since there was

insufficient evidence to permit these issues to go to the jury.”

On December 23, 2008, a divided panel of this Court reversed all of Crawford’s

convictions with the exception of his conviction for grand larceny. See Crawford v.

Commonwealth, 53 Va. App. 138, 670 S.E.2d 15 (2008). The panel majority held that the trial

court’s admission of the affidavit violated Crawford’s rights under the Confrontation Clause.

The majority further held that the evidence was insufficient to support Crawford’s convictions

for rape, abduction with intent to defile, and use of a firearm in the commission of abduction.

The majority also reversed Crawford’s conviction for capital murder, since it reversed the

convictions on which the capital murder charge was based. The panel dissent disagreed with the

majority only in its sufficiency analysis as to the charge of abduction with intent to defile.

The Commonwealth petitioned the full Court for rehearing en banc, and on January 27,

2009, we granted the Commonwealth’s petition and stayed the mandate of the panel opinion. 10

9
Because this issue before us involves only a constitutional question, we do not address
the applicability of the rules of evidence with respect to the admissibility of the affidavit, either
as a whole, or in redacted form.
10
Crawford’s brief contains a third question presented: “Did the trial court err in
admitting non-testimonial statements of the decedent made to several friends and co-workers?”
However, the Commonwealth’s petition for rehearing en banc, which we granted in full, did not
include this question presented. As counsel for Crawford conceded at oral argument, this issue is
-9-
For the following reasons, we disagree with Crawford and the analysis of both the panel majority

and dissent, and we affirm Crawford’s convictions.

ANALYSIS

I. The Confrontation Clause and the Admissibility of the Affidavit

In denying Crawford’s motion to suppress the statements contained in the affidavit, the

trial court found that Crawford “ha[d] forfeited his Sixth Amendment right to confront [Sarah’s]

testimony because he intentionally procured her unavailability to testify.” In reaching this

conclusion, the trial court stated that, “[t]o apply the forfeiture by wrongdoing doctrine, this

[c]ourt must find by a preponderance of the evidence . . . that [Crawford] is responsible for

[Sarah’s] unavailability as a witness and therefore forfeited his right to assert the Confrontation

Clause to suppress the statements contained in the affidavit[].”

Crawford contends that the trial court misapplied the “forfeiture by wrongdoing doctrine”

and, therefore, under the United States Supreme Court’s analysis in Crawford v. Washington,

541 U.S. 36 (2004), the trial court’s admission of the challenged affidavit violated his rights

under the Confrontation Clause of the Sixth Amendment. The Commonwealth responds that the

trial court did not err in applying the forfeiture doctrine to the affidavit and also alternatively

argues, for the first time on appeal, that the Confrontation Clause does not bar the admission of

the affidavit because it is not “testimonial” in nature. Although we conclude that the trial court

failed to make the factual findings required as a prerequisite for the application of the forfeiture

by wrongdoing doctrine, we hold that the affidavit was admissible nonetheless.

“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

not before this Court upon rehearing en banc. See Ferguson v. Commonwealth, 51 Va. App.
427, 658 S.E.2d 692 (2008). Therefore, we reinstate the mandate issued in connection with the
panel opinion with respect to this issue.

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him.’” Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting U.S. Const. amend. VI). In

Crawford, the Supreme Court of the United States held that the Confrontation Clause barred “the

admission of testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541

U.S. at 53-54. That said, the Supreme Court has acknowledged two common law exceptions to a

defendant’s right of confrontation, which were well established and known to the framers of the

Sixth Amendment: dying declarations and forfeiture by wrongdoing. Id. at 56 n.6, 62.

While this appeal was pending, the Supreme Court decided Giles v. California, ___ U.S.

___, ___, 128 S. Ct. 2678, 2683 (2008). 11 In Giles, the Court discussed both the history and

applicability of the doctrine of forfeiture by wrongdoing as it pertains to a defendant’s Sixth

Amendment right to confrontation. “Forfeiture by wrongdoing” is a common-law doctrine that

“permitted the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the

‘means or procurement’ of the defendant.” Id. at ___, 128 S. Ct. at 2683 (citations omitted). In

other words, where a defendant has caused a witness to be unavailable to testify, he forfeits his

constitutional right to confront that witness. After a careful and thorough examination of the

history of forfeiture by wrongdoing, the Supreme Court made clear in Giles that the doctrine

only applied “when the defendant engaged in conduct designed to prevent the witness from

testifying.” Id. (emphasis in original). Thus, under the doctrine of forfeiture by wrongdoing,

“unconfronted testimony would not be admitted without a showing that the defendant intended to

prevent a witness from testifying.” Id. at ___, 128 S. Ct. at 2684 (emphasis in original).

11
Giles was a plurality opinion of the Supreme Court. Therefore, “‘the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds . . . .’” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). By “join[ing] all but Part II-D-2 of [Justice
Scalia’s] opinion,” Justices Souter and Ginsburg’s concurrence provided a clear majority on the
remaining portions of the opinion. Giles, __ U.S. at __, 128 S. Ct. at 2694 (Souter, J.,
concurring). Thus, Justice Scalia’s opinion, minus Part II-D-2, constitutes the holding of Giles,
as it is the narrowest position of at least five Justices concurring in the result.
- 11 -
 Significantly, in that portion of Justice Scalia’s opinion in Giles supported by a clear

majority of the justices, the Supreme Court left open the possibility that a defendant’s intention

to prevent testimony might be inferred from the surrounding circumstances, such as in a case of

ongoing domestic violence:

Acts of domestic violence often are intended to dissuade a victim
from resorting to outside help, and include conduct designed to
prevent testimony to police officers or cooperation in criminal
prosecutions. Where such an abusive relationship culminates in
murder, the evidence may support a finding that the crime
expressed the intent to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal
prosecution--rendering her prior statements admissible under the
forfeiture doctrine. Earlier abuse, or threats of abuse, intended to
dissuade the victim from resorting to outside help would be highly
relevant to this inquiry, as would evidence of ongoing criminal
proceedings at which the victim would have been expected to
testify.

Id. at ___, 128 S. Ct. at 2693 (emphasis added). In his concurrence, Justice Souter expounded

upon the Court’s rationale with respect to situations of domestic violence.

Examining the early cases and commentary, however, reveals two
things that count in favor of the Court’s understanding of forfeiture
when the evidence shows domestic abuse. The first is the
substantial indication that the Sixth Amendment was meant to
require some degree of intent to thwart the judicial process before
thinking it reasonable to hold the confrontation right forfeited;
otherwise the right would in practical terms boil down to a
measure of reliable hearsay, a view rejected in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). The second is the absence from the early material of any
reason to doubt that the element of intention would normally be
satisfied by the intent inferred on the part of the domestic abuser in
the classic abusive relationship, which is meant to isolate the
victim from outside help, including the aid of law enforcement and
the judicial process. If the evidence for admissibility shows a
continuing relationship of this sort, it would make no sense to
suggest that the oppressing defendant miraculously abandoned the
dynamics of abuse the instant before he killed his victim, say in a
fit of anger.

Id. at ___, 128 S. Ct. at 2695 (Souter, J., concurring) (emphasis added).

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 In the case at bar, the Commonwealth presented no direct evidence that Crawford acted

with the intent to prevent Sarah from testifying against him, nor did the trial court find that the

circumstantial evidence of domestic abuse was sufficient to support an inference that Crawford

intended to prevent Sarah from seeking redress for, or protection from, such abuse through the

courts. By not considering Crawford’s intent, the trial court incorrectly applied the forfeiture by

wrongdoing doctrine, as it was defined in Giles. Thus, the trial court erred in its analysis for

admitting the affidavit on that basis.

If this were the end of our analysis, we would remand this case back to the trial court for

it to determine on retrial whether an intent on the part of Crawford “to isolate the victim and to

stop her from reporting abuse to the authorities or cooperating with a criminal prosecution” can

be reasonably inferred from the facts and circumstances of the case. 12 Id. at ___, 128 S. Ct. at

12
In Giles, the Supreme Court vacated the appellant’s conviction and remanded the case
“for further proceedings not inconsistent with [the] opinion.” ___ U.S. at ___, 128 S. Ct. at
2693. Like Giles, the trial court in this case “did not consider the intent of [Crawford] because
[it] found that irrelevant to application of the forfeiture doctrine. This view of the law was error,
but the [trial] court is free to consider evidence of the defendant’s intent on remand.” Id.
Judge Elder’s dissent takes the position that such a remand is unnecessary given the
prosecutor’s “concession” that the Commonwealth lacked evidence that Crawford killed Sarah
for the sole purpose of preventing her from testifying against him. However, his position ignores
the fact that the holding of Giles is that the forfeiture doctrine is broader than simply killing a
witness to prevent that witness from testifying in a pending case. As noted above, Giles holds
that the forfeiture doctrine also applies in domestic violence situations where there is evidence of
“the intent to isolate the victim and to stop her from reporting abuse to the authorities or
cooperating with a criminal prosecution.” Id. at ___, 128 S. Ct. at 2693 (emphasis added). As
discussed more fully below, the prosecutor’s statement can hardly be read to concede the lack of
such intent given the record in this case.
Judge Elder’s dissent also takes the position that the Commonwealth has “approbated and
reprobated” by taking inconsistent positions at trial and on appeal. The context for our
disagreement with Judge Elder on this point is the query from the trial court to the prosecutor
that “the evidence is not likely to show that there was some proof of intent . . .” and “that it’s a
two-prong and not a three-prong test. Is that right?” The prosecutor’s response is “That’s
correct, Your Honor . . . .” Judge Elder views the answer from the prosecutor as a concession by
the Commonwealth that it lacks proof of Crawford’s intent. However, it is equally as likely that
the prosecutor simply agreed with the trial court as to the number of prongs in the test. In any
event, even if the prosecutor’s agreement with the trial court’s statement is viewed as a
concession that the Commonwealth cannot meet an evidentiary standard, it is not inconsistent
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2693. However, our analysis is not yet complete because, as the Commonwealth argues on brief,

although the trial court admitted the affidavit based upon the applicability of the forfeiture by

wrongdoing doctrine, another rationale for its admissibility is reflected in the record before us,

and we find that rationale sufficient to affirm the decision of the trial court in admitting the

affidavit.

In its ruling on Crawford’s motion to suppress, the trial court found that the statements

contained in the affidavit “do fall within the scope of Crawford.” The trial court reached this

conclusion because, in Crawford, the Supreme Court specifically included affidavits in its

non-exhaustive list of the types of testimonial statements. 541 U.S. at 51. At the suppression

hearing, the Commonwealth neither conceded nor disputed the trial court’s analysis with respect

to this issue. However, on appeal, the Commonwealth explicitly takes the position that the

and/or contradictory for the Commonwealth to say in effect “We may not have evidence of
intent, but we don’t need it because it’s not required.”
Furthermore, the uniquely independent constitutional roles of the Attorney General and
the Commonwealth’s Attorney must be distinguished from each other. As our Supreme Court
has noted, because of this distinction, unlike other parties in a case on appeal, the Attorney
General may expressly “repud[iate] the earlier position erroneously taken by the
Commonwealth’s Attorney . . . .” In re: Department of Corrections, 222 Va. 454, 465, 281
S.E.2d 857, 863 (1981); see also Cross v. Commonwealth, 49 Va. App. 484, 494, 642 S.E.2d
763, 768 (2007). Judge Elder’s reliance on In re: Commonwealth, 278 Va. 1, 13, 677 S.E.2d
236, 241 (2009), is misplaced. In re: Commonwealth was not a criminal appeal. Therefore, the
Commonwealth was not represented by the Attorney General, but rather by the Commonwealth’s
Attorney. Our Supreme Court held that the Commonwealth was estopped because the
Commonwealth’s Attorney, the sole representative of the Commonwealth, took inconsistent
positions before the trial court and on appeal. Significantly, In re: Commonwealth in no way
overrules or limits the Supreme Court’s analysis in In re: Department of Corrections, which
allows the Attorney General to repudiate a position previously taken by the Commonwealth’s
Attorney.

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affidavit was not “testimonial,” and thus, not “within the scope of Crawford.” 13 Initially, we

note that the mere fact the Commonwealth did not dispute the testimonial character of the

statements during the motion to suppress does not necessarily preclude us from addressing the

issue on appeal.

An appellate court cannot vacate a criminal conviction that violates
no recognizable legal principle simply on the ground that the
prosecutor (or, for that matter, the trial judge) did not articulate the
proper legal basis for it. Thus, an appellee may argue for the first
time on appeal any legal ground in support of a judgment so long
as it does not require new factual determinations, [Harris v.
Commonwealth, 39 Va. App. 670, 676, 576 S.E.2d 228, 231
(2003) (en banc)], or involve an affirmative defense that must be
“asserted in the pleadings,” Eason v. Eason, 204 Va. 347, 352, 131
S.E.2d 280, 283 (1963), or serve as a subterfuge for a
constitutionally prohibited cross-appeal in a criminal case, Hart v.
Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980).

Blackman v. Commonwealth, 45 Va. App. 633, 642-43, 613 S.E.2d 460, 465 (2005); 14 see also

Wright v. Commonwealth, 278 Va. 754, 760 n.3, __ S.E.2d __, __ n.3 (2009) (noting that

13
The record of the suppression hearing reflects that, following the argument of counsel
for Crawford that the affidavit was testimonial and before hearing any argument in response
from the Commonwealth, the trial court observed sua sponte that the affidavit was testimonial
but arguably admissible under the forfeiture by wrongdoing doctrine. The arguments of counsel
then focused on whether that rationale applied. The letter opinion of the trial court states that the
Commonwealth “does not dispute” that the affidavit was testimonial.
14
It is important to note that the decision before us on appeal is the trial court’s decision
to deny Crawford’s motion to suppress and to admit the affidavit as evidence. Because the trial
court ruled in the Commonwealth’s favor and admitted the affidavit, the Commonwealth had
nothing to appeal. Thus, contrary to the position of Judge Elder’s dissent, this is not a situation
where the Commonwealth is pursuing a constitutionally prohibited cross-appeal but rather, is
simply a case of the prevailing party below raising an alternate basis for affirming the trial court,
which we must consider if it is supported by the record in this case. Furthermore, our
consideration of whether the statements contained in the affidavit were of a testimonial character
was squarely before the trial court and our resolution of this issue requires no additional
fact-finding. See Harris, 39 Va. App. at 676, 576 S.E.2d at 231 (“In addition, the proper
application of this rule does not include those cases where, because the trial court has rejected
the right reason or confined its decision to a specific ground, further factual resolution is needed
before the right reason may be assigned to support the trial court’s decision.”); see also
Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999) (“[A]n appellate court
ought to decide cases based on the record made in the court below. The appellate court, in
- 15 -
“[a]lthough the record reflects that the Commonwealth apparently ‘conceded’ that the statute

contained a nexus requirement, the issue is a question of law which is not subject to a concession

binding on this Court”); Whitehead v. Commonwealth, 278 Va. 105, 677 S.E.2d 265 (2009),

modified, No. 080775 (Oct. 22, 2009) (agreeing with our analysis of the right result wrong

reason doctrine in Harris and Blackman); Logan v. Commonwealth, 47 Va. App. 168, 622

S.E.2d 771 (2005) (en banc).

The Confrontation Clause only applies to testimonial hearsay. That is because only those

statements that are “testimonial” in nature “cause the declarant to be a ‘witness’ within the

meaning of the Confrontation Clause.” Davis, 547 U.S. at 821. Indeed, “[i]t is the testimonial

character of the statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. (emphasis

added). In explaining the distinction between testimonial and nontestimonial statements, the

Supreme Court in Davis held as follows:

Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.

Id. at 822 (emphasis added). “[T]his holding necessarily implies that consciousness on the part

of the person reporting an emergency (or the police officer eliciting information about the

emergency) that his or her statements might be used as evidence in a crime does not lead to the

fairness to the trial judge, should not recast the evidence and put a different twist on a question
that is at odds with the question presented to the trial court.”).

- 16 -
conclusion ipso facto that the statement is testimonial.” United States v. Ellis, 460 F.3d 920, 926

(7th Cir. 2006) (emphasis added). 15

The statements at issue in this appeal are contained within an “Affidavit for Preliminary

Protective Order.” Although the Supreme Court of the United States recently stated that

affidavits “fall within the ‘core class of testimonial statements’” subject to the Confrontation

Clause, we find it significant that the Court did not go as far as to hold that all affidavits are per

se testimonial. Melendez-Diaz v. Massachusetts, ___ U.S. ___, ___, 129 S. Ct. 2527, 2532

(2009). In fact, neither Melendez-Diaz, nor any other case from the Supreme Court for that

matter, has overruled or limited the applicability of the primary purpose test set forth in Davis.

Lacking any further guidance on the matter from the Supreme Court, it becomes our task to

attempt to reconcile the language in Davis with that in Melendez-Diaz and to determine whether

the primary purpose test set forth in Davis is applicable to an affidavit unrelated to a criminal

prosecution or whether conversely, any and all affidavits are ipso facto testimonial, irrespective

of the primary purpose for their existence. 16

Justice Scalia’s majority opinion in Crawford makes it clear that the evil the

Confrontation Clause was intended to prevent was the purposeful creation and use in a criminal

case of an affidavit as a substitute for the live testimony of a witness, as he noted was the case in

15
Both dissents take the position that because an affidavit for a protective order might be
used in a criminal proceeding, all such affidavits are testimonial for Sixth Amendment purposes.
Given that the gravamen of any contempt proceeding or misdemeanor prosecution for violation
of a protective order is the violation of the order itself, it is difficult to conceive of any relevance
to the use by the Commonwealth of the underlying affidavit but in any event, the dissents’
speculation about possible future use in a criminal case is true of any out-of-court statement.
Thus, the position of the dissents necessarily emasculates any primary purpose analysis under
Davis.
16
Affidavits may be, and often are, created for purposes unrelated to a criminal
prosecution. For example, an affidavit of loss may be required by an insurance company as a
prerequisite to process an insurance claim or required by a bank in order to replace a lost or
stolen credit card, or may be required by law to obtain injunctive relief. See e.g. Code
§ 8.01-628; Code § 48-17.1.
- 17 -
the famous trial of Sir Walter Raleigh, and as was also the case in Melendez-Diaz. After

carefully reviewing the holdings of Crawford, Davis, and Melendez-Diaz, we see no principled

reason to conclude that a hearsay statement obtained for a purpose other than criminal

prosecution should be treated differently with respect to the Confrontation Clause solely because

it takes the form of an affidavit. Thus, the mere fact that the statements at issue in this case are

contained within an affidavit is not dispositive to our analysis, and we must still look to the

“primary purpose of the interrogation” to determine whether the statements are of a testimonial

or nontestimonial character. Davis, 547 U.S. at 822.

It is undisputed that Sarah made the statements contained in the affidavit for the purpose

of obtaining a preliminary protective order 17 pursuant to Code § 16.1-253.1. The statute

provides, in pertinent part, that:

Upon the filing of a petition alleging that the petitioner is or has
been, within a reasonable period of time, subjected to family
abuse, the court may issue a preliminary protective order against
an allegedly abusing person in order to protect the health and
safety of the petitioner . . . . The order may be issued in an ex parte
proceeding upon good cause shown when the petition is supported
by an affidavit or sworn testimony before the judge or intake
officer.

Code § 16.1-253.1(A) (emphasis added). From the plain language of the statute and as Judge

Elder’s dissent acknowledges, it is clear that the primary purpose of the affidavit is not to initiate

or further a criminal prosecution, but rather “to protect the health and safety of the petitioner”

from an abuser by obtaining an ex parte preliminary protective order, a proceeding that is purely

civil in nature. Id. 18

17
During oral argument, counsel for Crawford conceded that the primary purpose of the
affidavit was not in furtherance of potential criminal prosecution but for the purpose of obtaining
a protective order.
18
In other constitutional contexts, the Supreme Court of the United States has noted that
while the provisions of the Fifth and Sixth Amendments apply only to “criminal” matters, the
labels “civil” and “criminal” are not dispositive. “The critical features are the substance of the
- 18 -
 Because the primary purpose of the affidavit was not to “prove past events potentially

relevant to later criminal prosecution” but rather to obtain a civil, preliminary protective order,

we hold that the statements contained therein were nontestimonial under Davis and, therefore,

did not implicate Crawford’s Sixth Amendment right to confrontation. 547 U.S. at 822. For that

reason, the trial court’s decision to admit the affidavit was not error.

II. Abduction with Intent to Defile and Rape

Crawford further contends that the evidence adduced at trial was insufficient to sustain

his convictions for abduction with intent to defile and rape. Specifically, Crawford asserts that,

without the affidavit, the Commonwealth failed to exclude every reasonable hypothesis of his

innocence. We disagree.

“[W]hen assessing the sufficiency of the evidence on appeal, ‘we consider all admitted

evidence, including illegally admitted evidence.’” Sprouse v. Commonwealth, 53 Va. App. 488,

493, 673 S.E.2d 481, 483 (2009) (quoting Hargraves v. Commonwealth, 37 Va. App. 299,

312-13, 557 S.E.2d 737, 743 (2002)). In this case, the jury found the evidence, including the

affidavit, sufficient to sustain Crawford’s convictions. Therefore, we must also consider the

affidavit in our sufficiency analysis. However, during oral argument, counsel for Crawford

proceeding and the character of the relief that the proceeding will afford.” Hicks v. Feiock, 485
U.S. 624, 625 (1988); see also Hudson v. United States, 522 U.S. 93 (1997).
As provided by Code § 16.1-253.1, the procedure for obtaining a protective order is an ex
parte rather than an adversary proceeding and involves the restriction of conduct for the express
and sole purpose of protection. Moreover, any sanction or punishment relates solely to the
disobedience of the court order and not to any past conduct that might be reflected in the
affidavit. In short, and contrary to the position of Judge Beales’ dissent, the procedures used and
the relief provided by the statute are in the nature of those used to obtain injunctive relief and
thus are clearly civil in nature and not a criminal prosecution subject to the application of the
Sixth Amendment. Other jurisdictions share this view of protective orders. See
Katsenelenbogen v. Katsenelenbogen, 775 A.2d 1249, 1256 (Md. 2001) (observing that civil
protection orders were not designed as “punishment for past conduct,” but to “prevent further
harm to the victim”); see also Cooke v. Naylor, 573 A.2d 376, 377 (Me. 1990) (noting that a
protective order is historically an equitable remedy very similar to an injunction”); State ex rel.
S.M., 719 So. 2d 445, 453 (La. 1998).
- 19 -
conceded that, if the affidavit were admissible, the evidence was sufficient to convict him of

abduction with intent to defile and rape.

[A]n appellant’s concession of law [] qualifies either as a waiver
for purposes of Rule 5A:18 or as an express withdrawal of an
appellate challenge to a trial court judgment. In either scenario, we
may accept the concession -- not as a basis for deciding the
contested issue of law, but as a basis for not deciding it.

Logan, 47 Va. App. at 173 n.4, 622 S.E.2d at 773 n.4. Given Crawford’s concession we need

not address the issue any further and hold that the evidence is sufficient to sustain convictions for

both charges. Thus, we affirm Crawford’s convictions for abduction with intent to defile and

rape.

CONCLUSION

For the foregoing reasons, we hold that the trial court incorrectly applied the forfeiture by

wrongdoing doctrine because it did not consider whether Crawford acted with the intent to

prevent Sarah from either testifying as a witness or seeking aid from the judicial process.

However, because we hold that the statements contained in the affidavit were not testimonial

under Davis, and thus, did not implicate Crawford’s Sixth Amendment right to confrontation, the

trial court’s ultimate admission of the affidavit was not error. Finally, given counsel for

Crawford’s concession that, with the affidavit, the evidence is sufficient to sustain his

convictions for abduction with intent to defile and rape, we hold that Crawford has waived his

argument with respect to this issue. Therefore, we affirm all of Crawford’s convictions. 19

Affirmed.

19
Because we affirm Crawford’s convictions for abduction with intent to defile and rape,
we also affirm his convictions for capital murder, use of a firearm in the commission of a
murder, and use of a firearm in the commission of an abduction.

- 20 -
Elder, J., with whom Felton, C.J., joins, concurring, in part, and dissenting, in part.

I concur with the en banc majority’s statement that, under the doctrine of forfeiture by

wrongdoing, evidence which is testimonial may ‘“not be admitted without a showing that the

defendant intended to prevent a witness from testifying.’” See supra at 12 (quoting Giles v.

California, ___ U.S. ___, ___, 128 S. Ct. 2678, 2684, 171 L. Ed. 2d 488, 497 (2008)). I also

concur in the majority opinion to the extent it holds that the trial court, “[b]y not considering

[appellant’s] intent, . . . incorrectly applied the forfeiture by wrongdoing doctrine, as it was

defined in Giles.” See supra at 13. However, this is where my agreement ends.

Further relying upon Giles, the majority concludes that,

[i]f this were the end of our analysis, we would remand this case
. . . to the trial court for it to determine on retrial whether an intent
on the part of [appellant] ‘to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal
prosecution’ can be reasonably inferred from the facts and
circumstances of the case.

See id. (quoting Giles, ___ U.S. at ___, 128 S. Ct. at 2693, 171 L. Ed. 2d at 506). I believe the

procedural history of this case, which stands in marked contrast to Giles, renders consideration of

the issue of intent on remand improper.

The majority also concludes that the forfeiture-by-wrongdoing doctrine did not prevent

admission of the affidavit because the affidavit was not testimonial under Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny. I continue

to adhere to the view of the panel majority that whether the affidavit was testimonial for

purposes of Confrontation Clause analysis is not before us on appeal. However, even if the issue

of whether the affidavit is testimonial is properly before us, I believe controlling authority of the

United States Supreme Court compels the conclusion that it is, in fact, testimonial. Because I

believe the victim’s affidavit was erroneously admitted and that its admission was harmless only

with respect to appellant’s conviction for grand larceny, I would reverse his convictions for

- 21 -
abduction with intent to defile, rape, capital murder, use of a firearm in the commission of

abduction, and use of a firearm in the commission of murder, and I would remand for retrial.

Thus, I respectfully dissent from the majority’s affirmance of all of appellant’s

convictions except grand larceny.

I.

A.

APPELLANT’S INTENT

Relying upon Giles, the majority concludes that if the affidavit were testimonial, the

appropriate course of action would be to remand “to the trial court for it to determine on retrial

whether an intent on the part of [appellant] ‘to isolate the victim and to stop her from reporting

abuse to the authorities or cooperating with a criminal prosecution’ can be reasonably inferred

from the facts and circumstances of the case.” See supra at 13 (quoting Giles, ___ U.S. at ___,

128 S. Ct. at 2693, 171 L. Ed. 2d at 506). I believe the procedural history of this case, which

stands in marked contrast to Giles, renders consideration of the issue of intent on remand

improper.

In Giles, trial occurred before the United States Supreme Court’s decision in Crawford v.

Washington. See People v. Giles, 152 P.3d 433, 437 (Cal. 2007). In Giles, “the issue of

forfeiture by wrongdoing was not litigated below,” and “evidence of [the declarant’s] hearsay

statements was admitted under a statutory hearsay exception that appeared to be valid at the time

[of the defendant’s trial].” Id. (involving “a hearsay exception for out-of-court statements

describing the infliction of physical injury on the declarant when the declarant is unavailable to

testify at trial and the statements are trustworthy”). Although the forfeiture issue was not

litigated below, the California Court of Appeal nevertheless “addressed the forfeiture issue [in

Giles],” concluding the exception applied “because it was undisputed that [the declarant] was

unavailable to testify because of her death and that her death was the result of [the] defendant’s
- 22 -
actions.” Id. Thus, the People had no opportunity at trial to present evidence regarding whether

the defendant killed the victim with the intent to prevent her from testifying.

In appellant’s case, by contrast, appellant filed a pretrial motion in limine to exclude the

affidavit, and the Commonwealth filed a written response in which it expressly argued the trial

court should apply the forfeiture-by-wrongdoing exception to the hearsay rule to admit Mrs.

Crawford’s statements in the affidavit. The Commonwealth argued this exception did not

require the trial court to find appellant had killed Mrs. Crawford to prevent her from testifying

and instead required only a preliminary finding that appellant did kill her. Although the

Commonwealth indicated during the motion hearing that it had “been talking with witnesses for

months” and that “the last couple of weeks have been pretty in-depth,” it did not aver in the

alternative, either in its written response to the motion or its argument to the court, that it could

offer evidence which would, in fact, support a finding that appellant killed Mrs. Crawford with

the intent to prevent her from testifying against him.

The trial court articulated the dispute as being over whether the forfeiture-by-wrongdoing

exception required proof of three elements—including proof that the defendant committed the

charged crime with the intent to prevent the victim from testifying—or only two, not including

this specific intent element. It then engaged in the following exchange with the Commonwealth:

THE COURT: . . . First of all, do you agree that we’d
have to have an evidentiary hearing? In other words, that at this
stage of the proceedings . . . roughly two weeks before trial, that as
a practical matter the way this matter will go forward assuming
that the Court finds that . . . there’s been sufficient evidence to
show a wrongful taking of the life of the victim here. That would
take place during the Commonwealth’s case-in-chief and then
there will be a point where the Commonwealth would rest and . . .
the Court would have to rule on whether the motion in limine
would be granted or not.

[THE COMMONWEALTH]: Yes, Your Honor . . . .

THE COURT: All right, and I take it, based on the proffer
of evidence . . . from preliminary hearing and from the briefs, . . .
- 23 -
 that the evidence is not likely to show that there was some proof of
intent to keep the victim from testifying, per se. That . . . the
Commonwealth’s theory is that it was . . . a wrongful killing and
that the Commonwealth believes it will be able to show by a
preponderance, and that’s all the Commonwealth needs to have[,]
. . . that it’s a two-prong and not a three-prong test. Is that right?

[THE COMMONWEALTH]: That’s correct, Your
Honor. . . .

Thus, the Commonwealth conceded it could not meet such an evidentiary standard if the court

were to hold such a standard applied.

“A party may not approbate and reprobate by taking successive positions in the course of

litigation that are either inconsistent with each other or mutually contradictory.” Cangiano v.

LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006); see also Montague v.

Commonwealth, 40 Va. App. 430, 438-39, 579 S.E.2d 667, 671 (2003) (applying this principle

where the defendant conceded at trial that the license number on the vehicle he drove was the

same as the license number of the stolen vehicle, thereby preventing him from arguing on appeal

that the license numbers were different). “The Commonwealth[, like any other litigant,] will not

be allowed to approbate and reprobate.” In re: Commonwealth, 278 Va. 1, 13, 677 S.E.2d 236,

241 (2009) (“We will not permit the Commonwealth to ask the circuit court during the remanded

hearing on mental retardation to exercise discretion and rule upon other legal issues but,

inconsistently, assert in the mandamus proceeding that the circuit court lacked legal authority to

do so.”).

Because the Commonwealth conceded at trial that it could not establish appellant killed

Mrs. Crawford to prevent her from testifying, it may not take a contrary position on remand. To

the extent the Supreme Court’s holding in In re: Department of Corrections, 222 Va. 454, 465,

281 S.E.2d 857, 862 (1981), allows the Attorney General to repudiate a factual concession

believed to have been taken erroneously by the Commonwealth’s Attorney in the trial court, this

holding does not override the result I would reach in this case. The majority references this
- 24 -
portion of my analysis as averring that the Commonwealth approbates and reprobates “by taking

inconsistent positions at trial and on appeal.” See supra at 13 n.12. The majority, however,

misconstrues my analysis. Whether or not the Attorney General, on appeal, disavows the

Commonwealth’s Attorney’s position at trial, if this case is remanded to the trial court for

additional findings of fact on the issue of intent, it is the Commonwealth’s Attorney, not the

Attorney General, who will be allowed to present evidence on an issue he has already conceded.

This is precisely the sort of approbating and reprobating the Supreme Court held in In re:

Commonwealth that the Commonwealth’s Attorney will not be permitted to engage in.

Further, the majority implies that the Court in Giles created a whole new test for

establishing forfeiture by wrongdoing in the domestic context. See id. I disagree. As the

majority articulates in the text prior to that footnote, the Supreme Court indicated merely that “in

a case of ongoing domestic violence,” “a defendant’s intention to prevent testimony might be

inferred from the surrounding circumstances.” See supra at 12. Under well established

principles, in any case in which proof of intent is required, intent may and often must be

established with circumstantial evidence, and evidence probative of that intent may include the

accused’s statements and conduct, see, e.g., Howard v. Commonwealth, 207 Va. 222, 228, 148

S.E.2d 800, 804 (1966) (citing Merritt v. Commonwealth, 164 Va. 653, 662, 180 S.E. 395, 399

(1935)), including prior bad acts of the accused toward the victim, see, e.g., Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Thus, the Court’s discussion in

Giles of the fact that intent supporting admissibility may be proved with evidence of “[e]arlier

abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help” or

“evidence of ongoing criminal proceedings at which the victim would have been expected to

testify” hardly breaks new legal ground.

In any event, because the majority concludes the affidavit was not testimonial and, thus,

that it was properly admitted regardless of whether appellant killed Mrs. Crawford with the
- 25 -
intention of preventing her from testifying against him, the majority’s rationale regarding how

the Commonwealth might go about proving a defendant in a domestic violence case intended to

prevent a witness from testifying in order to invoke the forfeiture-by-wrongdoing doctrine is

dictum.

B.

TESTIMONIAL NATURE OF THE AFFIDAVIT

1. Whether the affidavit contains testimonial hearsay is not before us in this appeal.

The trial court held the affidavit was testimonial but that its admission did not violate the

Confrontation Clause because the forfeiture-by-wrongdoing doctrine applied. The

Commonwealth had no right to appeal the ruling that the affidavit was testimonial, and it would

have had no right to appeal even if the trial court had excluded the affidavit on the grounds

appellant alleged. Code § 19.2-398, which governs the Commonwealth’s right of appeal,

provides in relevant part as follows:

A. In a felony case a pretrial appeal from a circuit court
may be taken by the Commonwealth from:

1. An order of a circuit court dismissing a warrant,
information or indictment, or any count or charge thereof on the
ground that (i) the defendant was deprived of a speedy trial in
violation of the provisions of the Sixth Amendment to the
Constitution of the United States, Article I, Section 8 of the
Constitution of Virginia, or § 19.2-243; or (ii) the defendant would
be twice placed in jeopardy in violation of the provisions of the
Fifth Amendment to the Constitution of the United States or
Article I, Section 8 of the Constitution of Virginia; or

2. An order of a circuit court prohibiting the use of
certain evidence at trial on the grounds such evidence was obtained
in violation of the provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United States or Article I,
Section 8, 10 or 11 of the Constitution of Virginia prohibiting
illegal searches and seizures and protecting rights against
self-incrimination, provided the Commonwealth certifies that the
appeal is not taken for purpose of delay and that the evidence is
substantial proof of a fact material in the proceeding.

- 26 -
 B. A petition for appeal may be taken by the
Commonwealth in a felony case from any order of release on
conditions pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9
of this title.

C. A petition for appeal may be taken by the
Commonwealth in a felony case after conviction where the
sentence imposed by the circuit court is contrary to mandatory
sentencing or restitution terms required by statute.

D. Nothing in this chapter shall affect the
Commonwealth’s right to appeal in civil matters or cases involving
a violation of law relating to the state revenue or appeals pursuant
to § 17.1-411 or subsection C of § 19.2-317.

E. A pretrial appeal may be taken in any criminal case
from an order of a circuit court dismissing a warrant, information,
summons, delinquency petition, or indictment, or any count or
charge thereof, on the ground that a statute or local ordinance on
which the order is based is unconstitutional.

Manifestly, subsections (A)(1), (B), (C), (D) and (E) would not apply to permit an appeal of a

ruling that admission of the affidavit the victim completed to accompany her earlier protective

order request violated appellant’s Confrontation Clause rights. Further, subsection (A)(2)

applies only to evidence alleged to have been “obtained in violation of the provisions of the

Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section

8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and

protecting rights against self-incrimination.” Code § 19.2-398(A)(2) (emphases added); see

Commonwealth v. Hawkins, 10 Va. App. 41, 43-44, 390 S.E.2d 3, 4-5 (1990) (interpreting the

statute to hold that all appeals under the subsection (A)(2) language are limited to “those

involving illegal searches and seizures and violations of rights against self-incrimination”).

Here, there is no allegation that the victim’s protective order affidavit was “obtained” in a way

delineated in the statute.

Thus, the Commonwealth lacked the right to ask this Court to revisit that issue in

appellant’s appeal because to do so would “serve as a subterfuge for a constitutionally prohibited

- 27 -
cross-appeal.” See White v. Commonwealth, 37 Va. App. 658, 665, 561 S.E.2d 12, 16 (2002)

(noting that although we may, under appropriate circumstances, “affirm the decision of the trial

court when it has reached the right result for the wrong reason[,] . . . ‘the Commonwealth cannot

use [this principle] as a subterfuge for a constitutionally prohibited cross-appeal’” (quoting

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992))); see also Hart v.

Commonwealth, 221 Va. 283, 289-90, 269 S.E.2d 806, 810-11 (1980).

2. Even if we properly may consider the nature of the affidavit, its contents are testimonial.

Even if we were not bound by the trial court’s ruling regarding the nature of the

affidavit’s contents, the Supreme Court’s pronouncements in this area compel the conclusion that

the statements in the affidavit are, in fact, testimonial hearsay. The majority’s reliance on the

“primary purpose” language in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165

L. Ed. 2d 224 (2006), is flawed, as a careful analysis of the Supreme Court’s decisions in

Crawford, Davis, and Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174

L. Ed. 2d 314 (2009), reveals.

In Crawford, the Court noted the existence of “[v]arious formulations of th[e] core class

of ‘testimonial’ statements”:

“ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially,” Brief for Petitioner 23; “extrajudicial statements
. . . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,” White v.
Illinois, 502 U.S. 346, 365[, 112 S. Ct. 736, 747, 116 L. Ed. 2d
848, 865] (1992) (Thomas, J., joined by Scalia, J., concurring in
part and concurring in judgment); “statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use
at a later trial,” Brief for National Association of Criminal Defense
Lawyers et al. as Amici Curiae 3.

Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. Declining to adopt a

- 28 -
specific definition, the Court held that “[r]egardless of the precise articulation, some statements

qualify under any definition,” and it gave as examples “ex parte testimony at a preliminary

hearing,” “before a grand jury, or at a former trial,” and “[s]tatements taken by police officers in

the course of interrogations.” Id. at 52, 68, 124 S. Ct. at 1364, 1374, 158 L. Ed. 2d at 193, 203.

It noted that “[a]n accuser who makes a formal statement to government officers bears testimony

in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124

S. Ct. at 1364, 158 L. Ed. 2d at 192.

In Davis, the Court distinguished between types of statements made to law enforcement

officers. It held that answers to questions posed by law enforcement officers for the purpose of

addressing an ongoing emergency during a 911 call were non-testimonial, whereas answers to

questions given “when the circumstances objectively indicate that there is no such ongoing

emergency and that the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution” are testimonial. 547 U.S. at 822, 126 S. Ct. at

2273-74, 165 L. Ed. 2d at 237. It noted it did not hold “that statements made in the absence of

any interrogation are necessarily nontestimonial” because “[t]he Framers were no more willing

to exempt from cross-examination volunteered testimony or answers to open-ended questions

than they were to exempt answers to detailed interrogation.” Id. at 822 n.1, 126 S. Ct. at 2274

n.1, 165 L. Ed. 2d at 237 n.1. In support of this assertion, it cited the fact that part of the

evidence used to prosecute Sir Walter Raleigh for treason, and which served as part of the

impetus for reform, was a letter from his alleged accomplice, Lord Cobham, “which was plainly

not the result of sustained questioning.” Id.; see Crawford, 541 U.S. at 44, 124 S. Ct. at 1360,

158 L. Ed. 2d at 188. It noted that

[m]ost of the American cases applying the Confrontation Clause or
its state constitutional or common-law counterparts involved
testimonial statements of the most formal sort—sworn testimony in
prior judicial proceedings or formal depositions under oath—
which invites the argument that the scope of the Clause is limited
- 29 -
 to that very formal category[,] [b]ut [that] the English cases that
were the progenitors of the Confrontation Clause did not limit the
exclusionary rule to prior court testimony and formal depositions.

Davis, 547 U.S. at 826, 126 S. Ct. at 2275-76, 165 L. Ed. 2d at 239. Finally, it observed,

The question before us in Davis, then, is whether, objectively
considered, the interrogation that took place in the course of the
911 call produced testimonial statements. When we said in
Crawford, [541 U.S.] at 53[, 124 S. Ct. at 1365, 158 L. Ed. 2d at
194], that “interrogations by law enforcement officers fall squarely
within [the] class” of testimonial hearsay, we had immediately in
mind (for that was the case before us) interrogations solely directed
at establishing the facts of a past crime, in order to identify (or
provide evidence to convict) the perpetrator. The product of such
interrogation, whether reduced to a writing signed by the declarant
or embedded in the memory (and perhaps notes) of the
interrogating officer, is testimonial. It is, in the terms of the 1828
American dictionary quoted in Crawford, “‘[a] solemn declaration
or affirmation made for the purpose of establishing or proving
some fact.’” 541 U.S.[] at 51[, 124 S. Ct. at 1364, 158 L. Ed. 2d at
192].

Id. at 826, 126 S. Ct. at 2276, 165 L. Ed. 2d at 239-40.

Davis in no way purported to narrow the definition of “testimonial” provided in Crawford

and specifically stated it did not reach the issue of “whether and when statements made to

someone other than law enforcement personnel are ‘testimonial.’” Id. at 823 n.2, 126 S. Ct. at

2274 n.2, 165 L. Ed. 2d at 238 n.2. Thus, Davis unequivocally does not stand for the proposition

that a prior statement, regardless of its form, nature or context, is testimonial only upon proof

that its “primary purpose” was “to establish or prove past events potentially relevant to a later

criminal prosecution.” 547 U.S. at 822, 126 S. Ct. at 2274, 165 L. Ed. 2d at 237.

Most recently, in Melendez-Diaz, the Court considered the character, for Confrontation

Clause purposes, of “statements” not made in response to any sort of direct police questioning—

those contained in a certificate “reporting the results of forensic analysis which showed that

material seized by the police and connected to the defendant was cocaine.” In the course of

holding the certificate at issue contained testimony subject to the requirements of the

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Confrontation Clause, the Court provided clarification concerning what types of statements are

testimonial. ___ U.S. at ___, 129 S. Ct. at 2531-32, 174 L. Ed. 2d at 321. It quoted the three

“formulations of this core class of testimonial statements” it had recited in Crawford. Id. at ___,

129 S. Ct. at 2531, 174 L. Ed. 2d at 321. The Court had noted in Crawford that these

descriptions “share[d] a common nucleus and then define[d] the Clause’s coverage at various

levels of abstraction around it,” but it declined in Crawford to adopt one test over the others. 541

U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193.

In Melendez-Diaz, however, the Court quoted all three tests as “describ[ing] the class of

testimonial statements covered by the Confrontation Clause” and held “[t]here is little doubt that

the documents at issue [here] fall within the ‘core class of testimonial statements’ thus

described” because “the description of that category mentions affidavits twice.” ___ U.S. at ___,

129 S. Ct. at 2532, 174 L. Ed. 2d at 321; see id. at ___, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333

(Thomas, J., concurring in part and concurring in the judgment) (writing separately to note his

continued adherence to the position that the Confrontation Clause is implicated by extrajudicial

statements “only insofar as they are contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions” and opining that the certificates of

analysis “at issue in this case ‘are quite plainly affidavits’” under this definition). Thus, among

the core class of testimonial statements covered by the Confrontation Clause, the Court in

Melendez-Diaz included “‘extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions,’” without requiring any

separate showing that these materials were prepared in anticipation that they were likely to be

used prosecutorially. Id. at ___, 129 S. Ct. at 2531-32, 174 L. Ed. 2d at 321 (quoting Crawford,

541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193). It held that although the documents

at issue were “denominated . . . ‘certificates’” by the relevant state law, they were

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 quite plainly affidavits: “declaration[s] of facts written down and
sworn to by the declarant before an officer authorized to administer
oaths[,]” Black’s Law Dictionary 62 (8th ed. 2004)[,] . . . “‘made
for the purpose of establishing or proving some fact[,]’” Crawford,
[541 U.S.] at 51[, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192]
(quoting 2 N. Webster, An American Dictionary of the English
Language (1828)).

Id.

The Court made the following additional observations but did not hold that such proof

was required to establish the certificates of analysis were testimonial:

Here, moreover, not only were the affidavits “‘made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial,’” Crawford, [541 U.S.] at 52, [124 S. Ct. at 1364, 158
L. Ed. 2d at 193], but under Massachusetts law the sole purpose of
the affidavits was to provide “prima facie evidence of the
composition, quality, and the net weight” of the analyzed
substance.
In short, under our decision in Crawford the analysts’
affidavits were testimonial statements, and the analysts were
“witnesses” for purposes of the Sixth Amendment.

Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321-22 (citation omitted) (first emphasis added);

see id. at ___, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J., concurring in part and

concurring in the judgment).

In sum, when the document at issue is an “‘extrajudicial statement[] . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony or

confessions,’” a majority of the Court has not required proof that the “declarant[] would

reasonably expect [the statement] to be used prosecutorially” or would reasonably expect “the

statement would be available for use at a later trial.” Id. at ___, 129 S. Ct. at 2532, 174 L. Ed. 2d

at 321 (quoting Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193); id. at

___, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J., concurring in part and concurring in

the judgment). Such knowledge is inherent in the nature of making a sworn statement, thereby

- 32 -
obviating the need for separate proof. Here, the affidavit Mrs. Crawford signed under oath was

testimonial under this definition.

Even under a narrower definition, Mrs. Crawford was “[a]n accuser who [made] a formal

statement [about appellant] to [a] government officer[]” and, thus, “[bore] testimony” against

him. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192. She completed the

affidavit to support her request for a protective order against appellant, her alleged domestic

abuser. Because the affidavit was a sworn statement designed to protect Mrs. Crawford from her

husband’s potentially criminal harassment, it is clear that the declarant, Mrs. Crawford, would

reasonably expect the statement would be “potentially relevant to [and available for use in a]

later criminal prosecution” on the subject if one should arise. See Davis, 547 U.S. at 822, 126

S. Ct. at 2274, 165 L. Ed. 2d at 237.

Contrary to the majority’s claim, a proceeding for a protective order is not wholly or even

primarily civil. As the majority recognizes, although the Confrontation Clause “appl[ies] only to

‘criminal’ matters,” the United States Supreme Court has held in other contexts that “the labels

‘civil’ and ‘criminal’ are not dispositive.” See supra at 19 n.18. As the majority also recognizes,

“‘[t]he critical features are the substance of the proceeding and the character of the relief that the

proceeding will afford.’” See id. (quoting Hicks v. Feiock, 485 U.S. 624, 632, 108 S. Ct. 1423,

1429, 99 L. Ed. 2d 721, 731 (1988)). Although the procedure for obtaining a preliminary

protective order is ex parte and focuses on protecting the person who sought the order, this does

not compel the conclusion that the order is purely civil or injunctive in nature. Pursuant to the

statutory scheme, violation of a protective order is punishable as contempt. Contempt may be

civil or criminal:

“The distinction between refusing to do an act commanded, --
remedied by imprisonment until the party performs the required
act; and doing an act forbidden, -- punished by imprisonment for a
definite term; is sound in principle, and generally, if not
universally, affords a test by which to determine the character of
- 33 -
 the punishment.” Gompers [v. Buck Stove & Range Co.], 221
U.S. [418,] 443[, 31 S. Ct. 492, 499, 55 L. Ed. 797, 807 (1911)].

Hicks, 485 U.S. at 632, 108 S. Ct. at 1430, 99 L. Ed. 2d at 732. Because a protective order, by

its very nature, forbids certain conduct, the punishment for violating it most closely resembles

criminal contempt. Further reinforcing this inference is that, pursuant to the express terms of the

statutory scheme, once a protective order has been issued and served on the party against whom

it was entered, any violation of the order subjects the party both to liability for contempt of court

and to the explicit “penalty” of being found “guilty of [at least] a Class 1 misdemeanor.” Code

§§ 16.1-253.1, -253.2 (also providing heightened “punishment[s]” for repeat offenses where the

original or subsequent offense “was based on an act or threat of violence”).

Finally, even assuming characterization of the proceeding as civil is proper, the affidavit

alleged appellant committed numerous serious criminal offenses against Mrs. Crawford,

including “forcibly rap[ing] her, threaten[ing] her life, and physically and verbally abus[ing]

her.” See supra at 3-4. Thus, when Mrs. Crawford executed the affidavit, she clearly was an

accuser making a formal testimonial statement to the government officer who entered the order

within the meaning of the Confrontation Clause, even if the primary purpose of the order was an

attempt to protect her from future harm caused by appellant rather than to punish appellant for

past behavior.

C.

HARMLESS ERROR

Because I would conclude the trial court committed constitutional error by admitting

Mrs. Crawford’s affidavit to prove the truth of its contents, I would also consider whether the

introduction of this evidence affected the jury’s decision, i.e., if this error was harmless. For the

reasons set out in Part II(A)(2) of the panel majority in this case, see Crawford v.

Commonwealth, 53 Va. App. 138, 152-62, 670 S.E.2d 15, 22-26 (2008), I would conclude the

- 34 -
erroneous admission of this evidence was harmless only as to appellant’s conviction for grand

larceny and was not harmless as to his remaining convictions, thereby requiring their reversal

and remand for retrial. 20

II.

In sum, I concur in the en banc majority opinion only to the extent it holds the trial court

incorrectly applied the forfeiture-by-wrongdoing doctrine because it did not require a showing

that appellant intended to prevent the victim from testifying against him. Based on the principle

that a party may not approbate and reprobate, I would hold the Commonwealth is bound by its

concessions at trial that appellant did not kill the victim to prevent her from testifying and may

not seek to prove otherwise on remand. I would also hold that controlling precedent of the

United States Supreme Court compels the conclusion, as the trial court held, that the affidavit

was testimonial. Thus, I would hold the trial court’s admission of the affidavit violated the

Confrontation Clause. Finally, I would conclude that this erroneous admission was not harmless

20
Appellant also challenges the sufficiency of the evidence to support his convictions for
rape and abduction with intent to defile. If an appellate court concludes the evidence including
any improperly admitted evidence is insufficient to support a defendant’s convictions, remand
for retrial on those charges violates double jeopardy principles. See Hargraves v.
Commonwealth, 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002); Parsons v.
Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812-13 (2000). In appellant’s case, I
conducted this double jeopardy analysis on behalf of the panel majority, which held the evidence
including the affidavit was insufficient to support appellant’s convictions for rape and abduction
with intent to defile. Crawford, 53 Va. App. at 155-57, 160-61, 670 S.E.2d at 23-24, 26. As a
result, the panel majority held that dismissal of these indictments and the indictments which
depended upon them—capital murder and use of a firearm in the commission of abduction—was
required. Id.
Despite this analysis at the panel stage, counsel for appellant took the position in oral
argument on rehearing en banc that the evidence including the affidavit is, in fact, sufficient to
prove rape and abduction with intent to defile. Because appellant conceded the legal sufficiency
of the evidence on this point, I conclude remand is appropriate without reaching the issue
regarding whether double jeopardy principles would require dismissal of these indictments. See
Logan v. Commonwealth, 47 Va. App. 168, 172 n.4, 622 S.E.2d 771, 773 n.4 (2005) (en banc)
(reasoning that where an appellate court accepts a concession on a legal issue, that concession
provides “not . . . a basis for deciding [the earlier] contested issue of law, but . . . a basis for not
deciding it” (emphasis added)).

- 35 -
except as to appellant’s grand larceny conviction, thereby requiring reversal of his other

convictions and remand for retrial in a proceeding in which the affidavit is not admitted. Thus, I

respectfully dissent.

- 36 -
Beales, J., with whom Alston, J., joins, concurring, in part, and dissenting, in part.

The facts presented in this appeal are tragic and disturbing, as the majority opinion aptly

describes. However, disturbing as they are, we, nevertheless, as judges on this Court, are

required, of course, to follow the binding precedent of the United States Supreme Court and the

Supreme Court of Virginia, and, therefore, we must determine whether this case, despite the fact

of a tragic killing, also presents legal error of a constitutional nature. After reviewing the

relevant law, I find that I must reach a different conclusion than the majority opinion on several

issues in the analysis of this case, although I also would ultimately conclude that most of

appellant’s convictions should be affirmed.

I. The Affidavit

The majority opinion finds that the trial prosecutor “neither conceded nor disputed” the

trial court’s, and appellant’s, position that Mrs. Crawford’s affidavit was testimonial hearsay and

that, even if the prosecutor did concede that the affidavit was testimonial, he was wrong. I must

disagree with both of these positions.

A. The Commonwealth’s Concession and Right Result/Wrong Reason

The majority opinion states, “[T]he Commonwealth neither conceded nor disputed the

trial court’s analysis” on the issue of testimonial hearsay. I disagree. An analysis of the record

in this case clearly establishes that the Commonwealth conceded this point, even if the

prosecutor did not take the ultimate step and explicitly state that he agreed with appellant’s

characterization of the evidence as testimonial hearsay. Therefore, because of the facts the trial

court found (and did not find) and presumed in reaching this legal conclusion, I do not believe

this case presents an appropriate situation for the application of the “right result/wrong reason”

doctrine. See Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009),

modified, No. 080775 (Oct. 22, 2009).

- 37 -
 Appellant filed a written motion in limine, asking the trial court to exclude the 2004

affidavit that Mrs. Crawford filed with the JDR court as part of a preliminary protective order

petition. He argued that the document was testimonial and that its introduction into evidence

would violate the Confrontation Clause. The motion also asked that the trial court exclude other

“non-testimonial” statements that the Commonwealth intended to introduce at trial. The

Commonwealth filed a written response to this motion, which labeled the affidavits

“testimonial.” In its response to appellant’s arguments about the affidavit, the Commonwealth

argued only that the affidavit was admissible under the “Forfeiture by Wrongdoing” doctrine,

which the Supreme Court mentioned in Crawford v. Washington, 541 U.S. 36, 62 (2004), as an

exception to the Confrontation Clause’s requirements for the handling of testimonial hearsay.

The Commonwealth’s response also addressed, in a separate section, appellant’s request to

exclude what both the Commonwealth and appellant described as various “non-testimonial”

statements.

At the beginning of the hearing on appellant’s motion in limine, the trial court

acknowledged receipt of briefs by the parties and stated, “I have read the briefs.” Thus, the trial

court clearly knew before the oral argument had even begun that the Commonwealth had

consistently described the affidavit as “testimonial.” During his argument, appellant’s counsel

said that he did not “see in the Commonwealth’s response that there’s any disagreement that

those statements are, in fact, testimonial.” Appellant’s counsel then proceeded to explain why

the two-pronged forfeiture by wrongdoing doctrine advocated by the Commonwealth was not

applicable here. When the prosecutor interrupted to ask if only the affidavit was under

discussion at that moment, the court answered, “I think we’re all agreeing that the testimonial

part of it is what he’s arguing at the moment.”

When the prosecutor began his argument, the prosecutor agreed that the evidence would

not show “some proof of intent to keep the victim from testifying, per se,” asking the court to
- 38 -
apply a “two-pronged,” rather than the traditional “three-pronged” forfeiture by wrongdoing

doctrine. At the conclusion of the argument, appellant and the trial court discussed whether the

state-of-mind exception to the general prohibition on the introduction of hearsay might allow the

presentation of the affidavit to the jury for some limited purposes.

Eight days later, the trial court issued a letter opinion that, inter alia, denied appellant’s

motion in limine to exclude the 2004 affidavit. In this letter, the court noted, “there is much

confusion in the courts over the scope of the testimonial category of hearsay,” but Crawford v.

Washington lists affidavits as an example of a type of testimonial statement. The court

concluded, “[I]t is clear, and the Commonwealth does not dispute, that these statements do fall

within the scope of Crawford.” The trial court then used the two-pronged forfeiture by

wrongdoing doctrine advocated by the Commonwealth to rule that the affidavit was admissible

for the truth of the matters asserted therein.

Given these proceedings, I believe that we must conclude that the Commonwealth

conceded to appellant’s, and the trial court’s, characterization of the affidavit as testimonial

hearsay. The prosecutor never argued that the affidavit was non-testimonial. Instead, he opted

to argue that an exception to the Confrontation Clause applied, an exception that was relevant

only if the affidavit was testimonial. Indeed, the Commonwealth’s response to the motion in

limine labeled the affidavit “testimonial” and never called it “nontestimonial,” yet the response

did discuss other statements that it labeled “nontestimonial.” As a result, the Commonwealth

had the burden at trial to establish an exception that would allow the jury to hear the evidence,

given the Confrontation Clause’s bar on the use of testimonial hearsay in criminal trials. The

Commonwealth at trial relied on only one exception – a two-pronged forfeiture by wrongdoing

doctrine. The trial court applied that doctrine as advocated by the Commonwealth and admitted

the affidavit under what it believed to be an exception to the Confrontation Clause, an exception

later struck down by the Supreme Court in Giles v. California, __ U.S. __, 128 S. Ct. 2678
- 39 -
(2008). In short, the trial court here took the very action recommended by the Commonwealth,

applying the two-pronged forfeiture by wrongdoing doctrine in the exact manner advocated by

the prosecutor in both his briefing and his oral argument.

Given this posture and the fact finding that the trial court did and did not make in

reaching this conclusion, I must respectfully disagree with the majority opinion’s application of

the “right result/wrong reason” doctrine to this case. I would find that this doctrine does not

apply here.

The Supreme Court of Virginia recently noted with approval the following explanation of

this doctrine:

An appellate court may affirm the judgment of a
trial court when it has reached the right result for
the wrong reason. However,

[t]he rule does not always apply. . . .
[T]he proper application of this rule
does not include those cases where,
because the trial court has rejected
the right reason or confined its
decision to a specific ground, further
factual resolution is needed before
the right reason may be assigned to
support the trial court’s decision.

Harris v. Commonwealth, 39 Va. App. 670, 675-676, 576 S.E.2d
228, 231 (2003), Blackman v. Commonwealth, 45 Va. App. 633,
642-643, 613 S.E.2d 460, 465 (2005) (“an appellee may argue for
the first time on appeal any legal ground in support of a judgment
so long as it does not require new factual determinations.”) We
agree with these holdings by the Court of Appeals.

Whitehead, 278 Va. at 115, 677 S.E.2d at 270. Here, I would find that the doctrine should not be

applied because additional facts, beyond those that the trial court was asked to consider, must be

reviewed in order to determine whether Mrs. Crawford’s affidavit was non-testimonial hearsay.

Therefore, I believe that the majority opinion errs in its consideration of the Commonwealth’s

new argument – that the affidavit is non-testimonial hearsay – on appeal.

- 40 -
 The trial court rejected the grounds now advocated by the Commonwealth on appeal. As

the majority points out, the trial court explicitly found that the affidavit was testimonial hearsay.

In doing so, the trial court implicitly rejected any factual findings upon which to base an

argument that the affidavit was non-testimonial hearsay. The trial court was never asked to make

any explicit findings of fact or consider the evidence regarding the creation or “primary purpose”

of the affidavit, as the Commonwealth did not object to the characterization of the affidavit as

testimonial hearsay. No evidence was specifically presented to address this issue. In addition,

the evidence that was before the trial court, such as the fact that the affidavit was given under

oath, supported the trial court’s finding that the affidavit was testimonial hearsay especially in

light of the fact that the Commonwealth did not object to that finding. Thus, the right

result/wrong reason analysis cannot be applied here, as the trial court rejected the argument that

the evidence is non-testimonial hearsay and implicitly rejected factual findings that are necessary

to conclude that the affidavit was non-testimonial hearsay. 21

The majority opinion concedes that at least some affidavits are testimonial hearsay, but

then attempts to distinguish affidavits that are not testimonial from those affidavits that are

testimonial by arguing that the Court must examine the “primary purpose” for the creation of the

document. However, the majority opinion fails to acknowledge that, in determining the “primary

purpose” for the creation of the affidavit, the Court must consider the evidence and the facts

surrounding the creation of the affidavit in order to establish such a purpose. Although the legal

question of whether evidence is inadmissible testimonial hearsay may be reviewed de novo, as

the majority opinion contends, the question presented in this case requires that various facts be

determined to support the majority opinion’s assertion that “the primary purpose of the affidavit

was not to ‘prove past events potentially relevant to later criminal prosecution.’”

21
The Commonwealth does not argue that the affidavit is admissible under some other
evidence rule or exception to the Confrontation Clause’s bar on testimonial hearsay.
- 41 -
 I believe that the primary purpose of the affidavit can only be discovered by examining

the factual situation surrounding the creation of the affidavit. Here, the trial court found that the

document at issue was an affidavit, but the trial court did not consider (and was not asked to

consider) any evidence or circumstances regarding the creation of the affidavit. “[C]ases in

which the party seeking affirmance failed to present the argument in the trial court, such that the

trial court did not have an opportunity to rule on the argument, are not ‘proper cases’ for the

application” of the “right result/wrong reason” doctrine. Whitehead, 278 Va. at 114, 677 S.E.2d

at 270 (citing Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963)). Pursuant to the

Supreme Court’s instructions in Whitehead, therefore, this Court should not apply the “right

result/wrong reason” doctrine here, as addressing this question necessarily requires consideration

of facts and evidence that were not presented to the trial court and upon which the trial court was

never actually asked to rule. See Blackman, 45 Va. App. at 642-43, 613 S.E.2d at 465; see also

Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999) (noting that appellate

courts should not “recast” evidence to support an argument that was not made at trial).

In a footnote, the majority claims that appellant conceded during oral argument that the

primary purpose for the affidavit was obtaining a protective order. I have two concerns with this

basis for the majority opinion’s assumption that no new facts or evidence need be considered in

applying the “right result/wrong reason” doctrine. First, the Commonwealth conceded the

opposite position at trial when it effectively agreed with appellant that the affidavit was

testimonial hearsay. Second, at oral argument, when asked by the Court sitting en banc whether

appellant was “willing to concede” that the primary purpose for the affidavit was not a criminal

prosecution, appellant’s counsel responded, “That’s not necessarily the case. We don’t know

whether or not there may have been further, if the affidavit was to have been used in a further

. . . .” At this point, appellant’s counsel was asked another question by the Court, one suggesting

that the burden of proof regarding the primary purpose fell on appellant as the person who
- 42 -
appealed this case. Appellant’s counsel then essentially conceded that the evidence, such as it

existed in the record, established only that the affidavit was created in order to obtain the

protective order. However, appellant was not asked to concede, and did not concede, that no

new factual findings or additional evidence from outside the record were necessary to consider

whether the trial court had reached the right result, but for the wrong reason. Cf. Whitehead, 278

Va. at 115, 677 S.E.2d at 270 (“Because the Commonwealth limited its method of proof at trial,

Whitehead was not on notice to present evidence to rebut any other method of proof possible.”).

Because the trial court rejected the position now presented by the Commonwealth – that

the affidavit was not testimonial – and because the trial court was not asked to make and did not

explicitly make any factual findings that would support the Commonwealth’s new position on

appeal, I would find that this appeal does not present an appropriate situation in which to apply

the “right result/wrong reason” doctrine. This Court, therefore, should assume that the affidavit

is testimonial hearsay. 22

22
It is interesting to note that the United States Supreme Court in Giles, which also
considered the admissibility of an affidavit under the two-pronged forfeiture by wrongdoing
doctrine, “accept[ed] without deciding” the concession that the affidavit was testimonial. Giles,
__ U.S. at __, 128 S. Ct. at 2682.

- 43 -
 B. Testimonial Hearsay

While I do not believe it is appropriate for this Court to address the Commonwealth’s

argument presented in this appeal, now claiming that the affidavit was actually non-testimonial

hearsay, for the reasons stated supra, I find that I must address this issue because I believe that

the majority opinion incorrectly concludes that the affidavit here is not testimonial hearsay.

Based on the law as established by the United States Supreme Court, I must agree with the trial

court, with appellant, and with the trial prosecutor that this affidavit is testimonial hearsay.

1. The Definition of Testimonial Hearsay

The United States Supreme Court explained in Crawford v. Washington:

The text of the Confrontation Clause reflects this focus. It applies
to “witnesses” against the accused—in other words, those who
“bear testimony.” 2 N. Webster, An American Dictionary of the
English Language (1828). “Testimony,” in turn, is typically “[a]
solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Ibid. An accuser who makes a
formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does
not. The constitutional text, like the history underlying the
common-law right of confrontation, thus reflects an especially
acute concern with a specific type of out-of-court statement.

541 U.S. at 51 (brackets in originial) (emphasis added). The Court listed “[v]arious formulations

of this core class of ‘testimonial’ statements,” including affidavits, in that list. Id.

Two years later, the Supreme Court refined the definition of testimonial hearsay in Davis

v. Washington, 547 U.S. 813 (2006), which consolidated two criminal cases – Davis’s and

Hershel Hammon’s. The Supreme Court found that the statement presented at Davis’s trial was

not testimonial hearsay, but the affidavit presented at Hammon’s trial was testimonial. Id. at

828, 834. In comparing these two fact patterns, the Supreme Court developed a refinement of

Crawford that is particularly relevant here, although it is overlooked by the majority opinion.

The statement involved in Davis’s case was a recording of a 911 call. Michelle McCottry

informed the 911 operator that Davis was assaulting her, and the operator began asking
- 44 -
McCottry questions. Id. at 817-18. The statement in Hammon’s case was an affidavit filled out

by his wife at the request of the police after they arrived to investigate a reported assault. Id. at

819-20. As the Supreme Court explained, the question presented by these convictions was

“which police interrogations produce testimony.” Id. The Court then answered this question:

Without attempting to produce an exhaustive classification of all
conceivable statements—or even all conceivable statements in
response to police interrogation—as either testimonial or
nontestimonial, it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.

Id. at 822 (footnote omitted).

The Court also explained in a footnote that “the absence of any interrogation” will not

automatically define a statement as non-testimonial. Id. at 822 n.1. The Supreme Court noted in

its discussion of Davis’s case that most cases applying the Confrontation Clause “involved

testimonial statements of the most formal sort – sworn testimony in prior judicial proceedings or

formal depositions under oath,” but concluded that “the English cases that were the progenitors

of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and

formal depositions.” Id. at 826.

In considering the particular facts of Davis’s case, the Court noted as important the fact

that McCottry faced “an ongoing emergency” and that the operator’s questions were necessary to

resolve that emergency. Id. at 827. The Court then found that McCottry

simply was not acting as a witness; she was not testifying. What
she said was not “a weaker substitute for live testimony” at trial,
United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct. 1121 (1986),
like Lord Cobham’s statements in Raleigh’s Case, 2 How. St. Tr. 1
(1603), or Jane Dingler’s ex parte statements against her husband
in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or

- 45 -
 Sylvia Crawford’s statement in Crawford [v. Washington]. In each
of those cases, the ex parte actors and the evidentiary products of
the ex parte communication aligned perfectly with their courtroom
analogues. McCottry’s emergency statement does not. No
“witness” goes into court to proclaim an emergency and seek help.

Id. at 828. The Court found McCottry’s statements to the 911 operator were not testimonial, but

it also noted that later parts of the conversation might indeed be testimonial hearsay, but those

later statements were not the subject of the appeal. Id. at 828-29.

The Supreme Court found Amy Hammon’s statement presented “a much easier task,”

given the ruling in Crawford v. Washington. Id. at 829. The Court explained:

What we called the “striking resemblance” of the Crawford
statement to civil-law ex parte examinations, 541 U.S., at 52, 124
S. Ct. 1354, 158 L. Ed. 2d 177, is shared by Amy’s statement here.
Both declarants were actively separated from the defendant—
officers forcibly prevented Hershel [Hammon] from participating
in the interrogation. Both statements deliberately recounted, in
response to police questioning, how potentially criminal past
events began and progressed. And both took place some time after
the events described were over. Such statements under official
interrogation are an obvious substitute for live testimony, because
they do precisely what a witness does on direct examination; they
are inherently testimonial.

Id. at 830. The Court also pointed out, in comparing the Davis and Hammon statements, that

The statements in Davis were taken when McCottry was alone, not
only unprotected by police (as Amy Hammon was protected), but
apparently in immediate danger from Davis. She was seeking aid,
not telling a story about the past. McCottry’s present-tense
statements showed immediacy; Amy’s narrative of past events was
delivered at some remove in time from the danger she described.

Id. at 831-32.

- 46 -
 2. Mrs. Crawford’s Affidavit

The affidavit here is certainly more similar to the affidavit in Hammon’s case than to the

statements to the 911 operator in Davis’s case. Both Mrs. Crawford’s and Amy Hammon’s

statements were made after the emergency had passed, unlike McCottry’s statement. Both

Mrs. Crawford’s and Amy Hammon’s statements were in the form of an affidavit made without

the presence of the accused, whereas McCottry’s statement was made while defendant was

actually present. Both Mrs. Crawford’s and Amy Hammon’s statements described past criminal

behavior, while McCottry’s statement described events as they were occurring. In addition, the

affidavit here was specifically prepared for presentation in a courtroom, as was the affidavit in

Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 2532 (2009), which was also

found to violate the Confrontation Clause.

The majority argues that the affidavit here was part of a civil proceeding and that,

therefore, it was not intended for “prosecution” and cannot be testimonial, pointing to the

“primary purpose” language in Davis. However, this position ignores the context of the Supreme

Court’s “primary purpose” language. As the discussion above illustrates, the Supreme Court was

comparing two specific examples of hearsay, one in which the declarant clearly was not

concerned about future prosecution, but instead was concerned about an immediate emergency.

In the contrasted case involving Hammon, the statement was given to police officers, but the

record does not indicate that it was prepared with the understanding that the statement would be

presented at trial. The Supreme Court stated that if the primary purpose is “to enable police

assistance to meet an ongoing emergency,” 547 U.S. at 822, then the statement is not testimonial.

Nothing in the record here indicates that Mrs. Crawford was under assault when she signed the

affidavit. Therefore, her affidavit clearly does not fall into the non-testimonial category under

this part of the Davis test. However, the Supreme Court also indicated that, if no ongoing

emergency existed and “the primary purpose of the interrogation is to establish or prove past
- 47 -
events potentially relevant to later criminal prosecution,” then the statement is testimonial.

Mrs. Crawford’s affidavit clearly falls into this category. 23

Mrs. Crawford apparently gave her affidavit, at minimum, to obtain a preliminary

protective order, under Code § 16.1-253.1. The preliminary protective order that was issued

indicates that, as part of an ex parte proceeding, the affidavit was presented to the court. The

affidavit itself is typed on a sheet of paper with “31st Judicial District” and “Juvenile and

Domestic Relations Court” printed at the top. The record does not indicate who typed the order

or if the intake officer who notarized the affidavit asked questions of Mrs. Crawford to elicit the

information. However, the affidavit is very organized and clearly is not a

stream-of-consciousness statement like McCottry’s statement in Davis.

In the affidavit, Mrs. Crawford made a formal statement to prove that past criminal acts

had occurred – exactly the type of statement that Crawford v. Washington and Davis prohibit as

admission of testimonial hearsay. 24 Although not all of the alleged acts taken by appellant

contained in the affidavit are criminal, most of the acts clearly are criminal and “potentially

relevant to later criminal prosecution.” Davis, 547 U.S. at 822. The incidents include battery

(possibly malicious wounding), rape, destruction of private property, assault, and harassing

telephone calls, all acts that are criminal under the Virginia Code. See Code §§ 18.2-51

23
I believe that the following analysis discussing the facts regarding creation of the
affidavit should have and would have been conducted by the trial court, with testimony or
proffers to support these evidentiary findings, if this issue had been contested by the
Commonwealth. An appellate court should review this type of evidentiary analysis, not conduct
it. However, as the majority opinion has determined that we should address this issue, I feel
obligated to address the flaws that I find in that analysis, to the extent that I can, based on the
record before us.
24
Even in protective order proceedings, such affidavits are admitted only as evidence to
allow the issuance of a 14-day preliminary protective order. For a permanent protective order
(which lasts for two years in Virginia), the court must conduct a full hearing with the respondent
present (or at least noticed) so that he or she can hear the evidence and defend against it. See
Code § 16.1-253.1(B); Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594 (2008).

- 48 -
(malicious wounding); 18.2-57 (assault and/or battery); 18.2-57.2 (assault and battery on a

family member); 18.2-61 (rape); 18.2-137 (destruction of private property); 18.2-429 (calling

with the intent to annoy). The affidavit also indicates that, the day before she signed the

document, Mrs. Crawford spoke to a policeman about her problems with appellant and that the

policeman “gave [her] several safety tips and told [her] to get a Protective Order.”25 In addition,

under Code § 16.1-253.1, the affidavit’s clear “primary purpose” was to prove past events so that

the court would have sufficient evidence to issue a preliminary protective order.

The affidavit was explicitly prepared for presentation to a judge as part of an ex parte

proceeding to obtain a protective order. It was an explicit substitute for testimony, the exact type

of evidence excluded by the Confrontation Clause. Pursuant to Code § 16.1-253.1, Mrs.

Crawford’s affidavit in support of a protective order petition needed to establish that she had

been subjected to “family abuse,” which includes “any act involving violence, force, or threat

including, but not limited to, any forceful detention, which results in bodily injury or places one

in reasonable apprehension of bodily injury.” Code § 16.1-228. Once a preliminary protective

order here was granted, appellant faced conviction, at minimum, of a Class 1 misdemeanor for

having any contact with his wife. See Code § 16.1-253.2 (listing the penalties for violation of a

protective order, ranging from a Class 1 misdemeanor to a Class 6 felony). To say that such a

proceeding is “entirely civil in nature” and effect, as the majority opinion does, is simply not

25
In this case, we do not know the circumstances surrounding the creation of Mrs.
Crawford’s affidavit. We do not know the functions or motivations of the “intake officer” who
notarized the affidavit, and, therefore, we cannot compare this person’s purposes to the purposes
of a police officer or a 911 operator, or someone else, a consideration that the United States
Supreme Court addressed in Davis. 547 U.S. at 822. Therefore, it is very difficult to determine
the “primary purpose” of the affidavit from the intake officer’s perspective. However, as the
trial court found that the affidavit was testimonial, and the Commonwealth at trial conceded that
the affidavit was testimonial hearsay, this Court should conclude the trial court made all
appropriate factual findings to support that conclusion. See Harris v. Commonwealth, 133 Va.
700, 705, 112 S.E. 753, 754 (1922) (“The ruling[s] of the trial court are presumed to be correct,
unless the contrary appears from the record.”).

- 49 -
accurate. While all the due process protections of a criminal proceeding do not apply to petitions

for a protective order, obtaining a protective order requires that the petitioner establish “family

abuse” and, once granted, a protective order allows an individual to use the criminal law to

enforce and prosecute a violation of that order. Code § 16.1-253.2 (establishing criminal

penalties for protective order violations). Therefore, for all of the reasons stated supra, I cannot

conclude, as the majority opinion does, that the affidavit here – submitted to a JDR court as part

of a petition for the issuance of a protective order – was not created in expectation of future use

in court and was not “potentially relevant” to possible future criminal proceedings. See Davis,

547 U.S. at 822.

I would find that the prosecutor conceded that the affidavit was testimonial, which would

include conceding any factual basis for finding that the affidavit was testimonial. Therefore, I

believe this Court should not second-guess the trial court’s finding that the affidavit was

testimonial. And, even if, as the majority contends, this Court can address the question of

whether the affidavit is testimonial, I would continue to disagree with the majority and would

find that the affidavit must be testimonial, given the United States Supreme Court’s analysis and

holdings in Crawford v. Washington and in Davis.

Thus, I would find that it was constitutional error for the trial court to admit the affidavit

into evidence for the truth of the matter stated therein. The two-pronged forfeiture by

wrongdoing doctrine, which the Commonwealth advocated at trial and initially on appeal, is not

an exception that would allow admission of the affidavit in this particular case – although the

trial court did not have the benefit of reading the United States Supreme Court’s decision in

Giles prior to its ruling because this decision was not handed down until after appellant’s trial

had concluded. See Giles, ___ U.S. at ___, 128 S. Ct. at 2683-88 (discussing the two-pronged

version of forfeiture by wrongdoing and finding that this version of the doctrine is not an

- 50 -
exception to the Confrontation Clause that permits introduction of testimonial hearsay at criminal

trial). 26

II. Harmless Error

Although I would find the trial court erred in admitting the affidavit for the truth of the

matters asserted therein, I would conclude that this error was harmless, except in the case of the

rape conviction. Thus, I concur with the final holding of the majority opinion that affirms all of

the convictions here, with the exception of the holding regarding the rape conviction, from which

I respectfully dissent.

The Supreme Court, in Chapman v. California, 386 U.S.
18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), held that “before a
federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable
doubt.” As the Supreme Court stated in Delaware v. Van Arsdall,
475 U.S. 673, 681, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), “an
otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.” See
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 1837, 144
L. Ed. 2d 35 (1999).

A court, when determining whether federal constitutional
error is harmless, must consider several factors, including the
importance of the tainted evidence in the prosecution’s case,
whether the evidence was cumulative, the presence or absence of
evidence corroborating or contradicting the tainted evidence on
material points, and, of course, the overall strength of the
prosecution’s case.

Dearing v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000). In short, the

Commonwealth bears the burden of proving that any constitutional error is harmless beyond a

26
As the majority notes, the trial court here did not consider and was not asked to
consider the third prong of the “traditional” forfeiture by wrongdoing doctrine – appellant’s
intent to prevent the declarant from testifying. See Giles, __ U.S. at ___, 128 S. Ct. at 2684. The
applicability of that doctrine was never advocated by the Commonwealth in this case, at any
level of these proceedings.

- 51 -
reasonable doubt. See Chapman, 386 U.S. at 24; Joyner v. Commonwealth, 192 Va. 471, 477,

65 S.E.2d 555, 558-59 (1951).

Appellant admitted that he shot Mrs. Crawford, but he claimed it was an accident. He

told the police that he was attempting to kill himself while they were in Mrs. Crawford’s car.

Mrs. Crawford supposedly reached for the gun, and it went off accidentally. The blood patterns

in the car suggest that Mrs. Crawford was sitting in the driver’s seat and that someone sitting in

the passenger’s seat shot her. Appellant also admitted that he then took his wife to the motel and

left her there.

The affidavit was admitted to prove that appellant was violent towards Mrs. Crawford,

rebutting his claim that he shot her accidentally. The affidavit described one incident in which

appellant threw her against a door and also threw a glass at her. The affidavit described another

incident during which appellant hit his wife three times with a belt and then forced her to have

sexual intercourse with him. The affidavit also mentioned an incident that occurred while

Mrs. Crawford and her parents attempted to take her things out of the marital home, when

appellant threw a table.

This affidavit was admitted without limitation. Therefore, the document was improperly

admitted for the truth of the matters asserted within the affidavit, but it nevertheless was properly

admitted for other purposes, such as evidence of the victim’s state of mind. See Hodges v.

Commonwealth, 272 Va. 418, 436-37, 634 S.E.2d 680, 689-90 (2006) (discussing the

state-of-mind exception to the general rule excluding hearsay evidence). During discussion of

the motion in limine, appellant acknowledged that the Commonwealth offered the document as

proof of Mrs. Crawford’s state of mind as well as for the truth of the matters asserted therein. 27

27
Appellant did argue that some statements in the affidavit were too “remote” for the
state-of-mind exception to apply or were irrelevant to Mrs. Crawford’s state of mind. In
response, the trial court redacted some content from the 2004 affidavit and completely excluded
an earlier affidavit.
- 52 -
 I would find that the affidavit was properly admissible under the state-of-mind exception

to the hearsay rule. See Elliot v. Commonwealth, 30 Va. App. 430, 437-38, 517 S.E.2d 271, 275

(1999) (discussing the state-of-mind exception to the hearsay rule). As the Court explained in

Hanson v. Commonwealth, 14 Va. App. 173, 188-89, 416 S.E.2d 14, 23 (1992):

For the state of mind of the victim to be relevant to prove the state
of mind of the accused, some nexus must exist which inferentially
implicates the accused, such as by showing “previous threats made
by the defendant towards the victim, narrations of past incidents of
violence on the part of the defendant or general verbalizations of
fear of the defendant.”

(quoting United States v. Brown, 490 F.2d 758, 765-66 (D.C. Cir. 1973)). The affidavit clearly

showed previous threats that appellant had made, past incidents of violence by him, and

generally expressed Mrs. Crawford’s fear of him. If the affidavit had been admitted solely for

use as evidence of the victim’s state of mind, rather than also for the truth of the statements that

it contained, then the trial court would not have committed error. Therefore, while this harmless

error analysis must consider any impermissible influence of the affidavit on the jury, we must be

careful to also allow for the jury’s proper use of the document as evidence of the victim’s state of

mind.

A. Rape Conviction

Although the jury could use the affidavit as evidence of Mrs. Crawford’s state of mind, I

cannot find beyond a reasonable doubt that admission of the affidavit was harmless in relation to

the rape conviction.

The affidavit did specifically allege that appellant had raped his wife only a few months

prior to her murder, describing in detail an incident on August 14, 2004. As rape was the only

crime with which appellant was charged that was specifically described and alleged by

Mrs. Crawford in the affidavit, this document would have had more impact on the jury’s decision

- 53 -
to convict appellant of rape than on the decision to convict him of the other charges. 28 See Lilly

v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (“In making that

determination [of harmless error beyond a reasonable doubt], the reviewing court must consider

a host of factors, including the importance of the tainted evidence in the prosecution’s case

. . . .”); Young v. Commonwealth, 47 Va. App. 616, 634, 625 S.E.2d 691, 700 (2006) (noting

that the evidence of other crimes that was improperly admitted included several robberies, the

crime for which Young was on trial), rev’d on other grds., 273 Va. 528, 643 S.E.2d 491 (2007);

Boney v. Commonwealth, 29 Va. App. 795, 801-02, 514 S.E.2d 810, 813 (1999) (discussing the

factual similarity between the erroneously admitted evidence of Boney’s prior bad acts and the

appealed convictions).

In addition, the Commonwealth’s evidence, which proved Mrs. Crawford and appellant

had recently had sexual intercourse, did not prove when or where this act of sexual intercourse

occurred, nor did it prove whether the act was under duress or was consensual. Mrs. Crawford

had not sustained any injuries to her genitalia. The police did not find any sperm or bodily fluids

on the bed where they found Mrs. Crawford’s body nor did they find any indication that the

sexual intercourse had occurred in the car. None of the Commonwealth’s evidence proved the

age of the sperm found in Mrs. Crawford’s vagina or elsewhere in her body. Appellant never

confessed to having sexual intercourse with his wife, although he did admit that he shot her and

took her to the motel room. The Commonwealth’s evidence did prove that Mrs. Crawford had

talked to appellant the night before her murder and that she appeared happy when her parents

saw her just after that conversation. She also called appellant twice the next morning. Appellant

claimed the parties were attempting to reconcile.

28
Although the affidavit mentions that appellant placed a sofa against the Crawfords’
apartment door during one incident, it is doubtful that the jury would have perceived this act as
an “abduction,” especially given the act of abduction that the jury was asked to consider.
- 54 -
 While the evidence taken as a whole without the affidavit certainly creates a strong

suspicion that appellant did in fact rape his wife, I cannot find that the introduction of the

affidavit for the truth of the matter therein was harmless beyond a reasonable doubt on the rape

conviction. Given the many questions regarding the sexual intercourse between appellant and

Mrs. Crawford that remained unanswered by the Commonwealth’s evidence, I believe that the

affidavit’s allegation that appellant previously raped his wife must have had a significant impact

on the jury’s decision to convict appellant of rape.

B. The Remaining Convictions

I would find that the admission of the affidavit in relation to appellant’s other

convictions, excluding the rape conviction, was harmless beyond a reasonable doubt. The

affidavit did not specifically allege that appellant had abducted, attempted to kill, or stolen from

his wife previously, nor that he had previously threatened her with a gun. The affidavit was not

the only evidence of appellant’s previous violence. In addition, appellant admitted that he shot

his wife and that he took her to the motel room after shooting her.

Generally, the record contained many sources of information regarding appellant’s

violence toward his wife. The affidavit, therefore, was merely cumulative of the other proof that

rebutted appellant’s contention that he would not hurt his wife and actually intended to hurt

himself. For example, the preliminary protective order itself, admitted without objection, stated

that a court had previously found “evidence sufficient to establish probable cause that family

abuse, including forceful detention, resulting in physical injury to [Mrs. Crawford] or placing

[her] in reasonable apprehension of serious bodily injury,” had “recently occurred.”

Mrs. Crawford’s father testified that appellant threw a table into the room and broke it when he

accompanied his daughter to the marital home to remove her belongings. Her father also

testified that appellant threatened his daughter. A police officer, who had responded to the

couple’s home when Mrs. Crawford was moving out, testified that appellant’s manner was
- 55 -
intimidating and overbearing and that Mrs. Crawford asked appellant if he was threatening her.

Mrs. Crawford’s boss and a co-worker both testified about their knowledge of her fear of

appellant. Her boss testified that he was not surprised to learn about the protective order against

appellant, given the “history between them.” 29 Thus, the affidavit’s allegations of general

violence and threats were merely cumulative of the other evidence presented by the

Commonwealth.

In addition, appellant admitted that he shot his wife, although he claimed he shot her

accidentally. However, appellant then covered up this “accident.” He threw both her cell phone

and a box that had her blood on it out of the car. Rather than taking his wife to a hospital, he left

her alone in a motel room in Charlottesville, Virginia, many miles from her home and family. If

she was alive when appellant left her in that room, Mrs. Crawford would not have been able to

move or call anyone for help, according to the expert testimony. After leaving her alone and

immobile in the motel room, appellant did not call someone and get help for Mrs. Crawford.

Instead, he drove to Florida in her car to visit relatives whom he had not seen in many years and

who did not know he was coming. He did not mention the “accident” to them, and he appeared

happy and untroubled to them. In addition, he had purchased a gun just days before the murder

of Mrs. Crawford.

In the context of this evidence, the incidents mentioned in the affidavit were cumulative

evidence of appellant’s violent history. Some witnesses actually testified about incidents

described in the document, such as appellant throwing a table. Given this record, I find any error

in admitting the affidavit was harmless in relation to the murder.

29
Appellant did not object to this conclusion by the witness.

- 56 -
 This same evidence supports a finding that the admission of the affidavit was harmless in

relation to the abduction with intent to defile 30 conviction, a predicate offense for the capital

murder conviction. 31 Appellant admitted to the police in Florida that he took Mrs. Crawford to

30
Under Fitzgerald v. Commonwealth, 223 Va. 615, 632, 292 S.E.2d 798, 808 (1982),
“defile” and “sexually molest” are “interchangeable within the meaning of” abduction with intent
to defile.
31
The capital murder indictment charged that appellant committed the premeditated
murder of Mrs. Crawford while abducting her with the intent to defile her or while raping her.
At trial, the jury was presented with Verdict Form No. A, which stated the choices before the
jury on this indictment as follows:

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, guilty of the willful, deliberate and premeditated
killing of Sarah Crawford in the commission of abduction with
intent to defile Sarah Crawford and in the commission of the rape
of Sarah Crawford.

OR,

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, guilty of the willful, deliberate and premeditated
killing of Sarah Crawford in the commission of abduction with
intent to defile Sarah Crawford.

OR,

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, guilty of the willful, deliberate and premeditated
killing of Sarah Crawford in the commission of rape of Sarah
Crawford.

OR,

We, the jury find the defendant, ANTHONY DALE
CRAWFORD, guilty of first degree murder of Sarah Crawford.

OR,

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, guilty of the second degree murder of Sarah
Crawford.

OR,

- 57 -
the motel and left her there alone after the shooting. At that point, according to the assistant

medical examiner, Mrs. Crawford could not move her body due to the severing of her spine.

Given appellant admitted that he shot her — and given her urgent need for medical attention –

the evidence, independent of the affidavit, proved overwhelmingly that Mrs. Crawford certainly

did not go willingly to the motel with appellant after he shot her. As strong evidence supported

the inference that Mrs. Crawford did not want appellant to take her to Charlottesville, 32 the jury

could properly find on this evidence alone that appellant abducted his wife when he put her in

the back seat of the car after shooting her and took her to a motel room rather than to a hospital.

The evidence of appellant’s intent to defile Mrs. Crawford was also sufficiently strong,

even without the affidavit. After he took her to the motel, the evidence proved that appellant

completely undressed Mrs. Crawford and placed her on the bed, as she was unable to move

according to the medical expert. He then positioned her now totally nude body in a sexually

suggestive manner and left her in the motel room in that position. This evidence clearly and

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, guilty of the second degree felony homicide of
Sarah Crawford.

OR,

We, the jury, find the defendant, ANTHONY DALE
CRAWFORD, not guilty.

Each of these findings was followed by a line for the signature of the jury foreman. The
jury foreman signed under the first finding, indicating that the jury found appellant guilty of
committing the premeditated murder of Mrs. Crawford while committing both abduction with
the intent to defile and rape. Thus, the jury clearly made the factual finding that appellant
committed capital murder based on the predicate offense of abduction with intent to defile as
well as on the predicate offense of rape. Therefore, on appeal, if the trial court’s error was
harmless in relation to either predicate offense, this Court may affirm appellant’s capital murder
conviction.
32
The medical examiner testified that Mrs. Crawford could have lived for an hour after
she was shot. Appellant has never argued that Mrs. Crawford was already dead when he drove
to the motel.

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sufficiently indicated an intention to defile at the time of the abduction, independent of any

allegations in the affidavit. 33

In addition, regarding the use of a firearm during the commission of murder conviction,

the use of a firearm during the commission of an abduction conviction, and the grand larceny

conviction, the affidavit contained no information directly relevant to these charges. The

document did not mention guns or the vehicle. The evidence proved that appellant purchased a

gun just prior to the killing, and he admitted that he had a gun on the day of the shooting. He

was found in possession of the stolen vehicle and admitted in his statement to the police that he

drove it to Florida. Clearly the affidavit did not improperly influence the jury on these charges.

Overall, the evidence, considered as a whole, did not overwhelmingly support the rape

conviction – independent of the affidavit’s accusations of appellant’s previous rape of

Mrs. Crawford. Given this record, and the clear accusation in the affidavit that appellant

previously raped his wife, I cannot find that the admission of the affidavit for the truth of the

matter therein was harmless in relation to the rape conviction beyond a reasonable doubt.

However, I would find that the affidavit was harmless in relation to all of appellant’s other

convictions, as the affidavit was repetitive of other evidence in the record and since evidence

independent of the affidavit supported the appropriateness of these convictions beyond a

reasonable doubt.

33
This evidence of how appellant disrobed, placed, and positioned Mrs. Crawford in the
motel room is directly relevant to the abduction with intent to defile charge, as appellant was still
in the process of abducting her as he disrobed her and placed her in a provocative, sexually
suggestive position – the position in which he left her. However, this evidence was not directly
relevant to the rape conviction because the record does not indicate when or where the sexual
intercourse between appellant and Mrs. Crawford occurred. The Commonwealth never proved
whether the sexual intercourse occurred in the motel room or somewhere else, and the
Commonwealth did not prove whether the sexual intercourse occurred before the shooting, prior
to the abduction, or after appellant’s rental of the motel room.

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 III. Sufficiency

I concur with the majority opinion that the evidence was sufficient to convict appellant of

the crimes with which he was charged. As discussed in the harmless error analysis supra, even

excluding the affidavit, I would find the evidence was sufficient to convict appellant of these

crimes, except for the rape conviction. 34 When the affidavit is considered together with the rest

of the evidence presented at trial, as it must be in a sufficiency analysis, see Sprouse v.

Commonwealth, 53 Va. App 488, 493, 673 S.E.2d 481, 483 (2009), I would also find that a

rational factfinder could conclude that the evidence was sufficient to convict appellant of rape. 35

Thus, I would reverse only the rape conviction and, rather than dismissing it, I would remand for

a new trial, solely on the rape indictment, if the Commonwealth be so inclined. See Rankins v.

Commonwealth, 31 Va. App. 352, 373, 523 S.E.2d 524, 534 (2000) (finding a Confrontation

Clause error was not harmless and remanding for a new trial). However, I concur with the

majority opinion’s conclusion that the remainder of the convictions should be affirmed, as the

trial court’s error was harmless beyond a reasonable doubt and the evidence before the jury was

sufficient to convict appellant of those crimes.

34
On appeal, appellant challenged the sufficiency of the evidence supporting only the
abduction with intent to defile conviction and the rape conviction. Therefore, the question of
whether the evidence was sufficient to support his other convictions was not presented to this
Court.
35
In oral argument before this Court on rehearing en banc, appellant’s counsel conceded
– unlike at oral argument before the panel – that, when the affidavit is considered for the truth of
the matter therein along with the other evidence admitted at trial, the evidence is sufficient for a
jury to convict appellant of both rape and abduction with intent to defile. However, appellant
continued to argue that the admission of the affidavit was error, was not harmless error, and,
therefore, the convictions must still be reversed.

- 60 -
 CONCLUSION

In conclusion, I respectfully dissent from the majority’s decision to affirm appellant’s

rape conviction, for the reasons stated supra. I concur in the majority’s overall conclusion that

the remaining convictions should be affirmed, but for the reasons stated supra.

- 61 -
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 27th day of January, 2009.

Anthony Dale Crawford, Appellant,

against Record No. 1194-07-2
Circuit Court Nos. CR05-71-2 through CR05-71-4 and CR05-71-6
through CR05-71-8

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On January 6, 2009 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on December 23, 2008, and grant a

rehearing en banc on the issue(s) raised in the petition.

On consideration whereof, the petition for rehearing en banc is granted with regard to the

issue(s) raised therein, the mandate entered herein on December 23, 2008 is stayed pending the decision

of the Court en banc, and the appeal is reinstated on the docket of this Court.

Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of

entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the

date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc

within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the

appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

-2-
 COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Beales
Argued at Richmond, Virginia

ANTHONY DALE CRAWFORD
OPINION BY
v. Record No. 1194-07-2 JUDGE LARRY G. ELDER
DECEMBER 23, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge

Samantha E. Freed (Steven D. Rosenfield; Snook & Haughey, P.C.,
on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

A jury found Anthony Dale Crawford (appellant) guilty of abduction with the intent to

defile, rape, and capital murder of Sarah Crawford, his estranged wife, and also convicted him of

use of a firearm in the commission of a murder, use of a firearm in the commission of an abduction,

and grand larceny. On appeal, appellant argues that the trial court erred when it (1) permitted the

Commonwealth to introduce into evidence an affidavit that was prepared as part of Sarah

Crawford’s request for a protective order against appellant, (2) permitted the Commonwealth to

introduce into evidence Mrs. Crawford’s non-testimonial statements to her co-workers, and

(3) found the evidence was sufficient to support the jury’s convictions for abduction with intent to

defile and rape. We hold the trial court did not err in admitting the testimony concerning

Mrs. Crawford’s statements to her co-workers. We hold, in contrast, that the court’s admission of

the challenged affidavit to prove the truth of the matter asserted violated the Confrontation Clause
and that its admission was harmless only as to appellant’s conviction for grand larceny. As a result,

we reverse all of his convictions except the conviction for grand larceny, which we affirm.

Because appellant also challenges the sufficiency of the evidence to prove rape and

abduction with intent to defile, we evaluate the sufficiency of the evidence, including the improperly

admitted affidavit, to assure that remand for retrial will not violate double jeopardy principles. We

hold the evidence was insufficient to support appellant’s convictions for rape, abduction with intent

to defile, and use of a firearm in the commission of abduction, and thus we dismiss these

indictments. Because we reverse and dismiss the convictions for rape and abduction with intent to

defile, which provided the basis for convicting appellant of capital murder rather than first-degree

murder, we also reverse the capital murder conviction. Because appellant does not challenge the

sufficiency of the evidence to prove murder, we remand for retrial on an offense no greater than

first-degree murder without considering the sufficiency of the evidence to prove this offense. For

the same reason, we remand for retrial appellant’s conviction for use of a firearm in the commission

of murder.

I. BACKGROUND

Appellant and his wife, Sarah Crawford, separated in October of 2004. Several people were

aware, based on statements made by Mrs. Crawford, that she was afraid of her husband.

Mrs. Crawford told both a co-worker and her boss that she was afraid appellant might harm her.

Prior to their separation, Mrs. Crawford even chose the location of her desk at work because it

overlooked the parking lot and she wanted to be able to see appellant if he drove up to the building.

On October 29, 2004, after their separation, Mrs. Crawford went to the apartment in

Manassas that she previously shared with appellant in order to pick up some items for her new

home. Her parents accompanied her. Appellant was hostile and overbearing toward

Mrs. Crawford, and he initially refused to let her take anything. Instead, he called the police. After

-2-
the police arrived, appellant continued his hostile behavior, even though the police instructed him

that he should allow Mrs. Crawford to take her things and asked him to calm down. At one point,

appellant whispered something to Mrs. Crawford, and she asked appellant if he was threatening her.

After the police left, when Mrs. Crawford said she wanted to take a particular table, appellant

picked up the table and threw it across the room, breaking it.

Shortly after this incident, Mrs. Crawford went to the Prince William County Juvenile and

Domestic Relations District Court (JDR court) and requested a preliminary protective order to

prevent appellant from having contact with her. She signed an affidavit in which she described

several incidents between her and appellant. The JDR court granted her request for a preliminary

protective order. On November 16, 2004, at the request of Mrs. Crawford, that protective order was

dismissed.

During and after the time that the protective order was in effect, Mrs. Crawford continued to

have contact with her husband. Prior to the dismissal of the protective order, Mrs. Crawford paid

appellant’s tuition for a trade school he wanted to attend. Between November 1 and November 18,

2004, the parties communicated by telephone on numerous occasions, with several of the phone

calls lasting ten to twenty minutes. A call that Mrs. Crawford made to appellant in the late

afternoon of November 18 lasted twelve minutes, and when Mrs. Crawford met her parents for

dinner a short time later, she appeared “really very happy.” Mrs. Crawford also called appellant

twice on the morning of November 19.

On November 18, 2004, Mrs. Crawford informed her employer that she would be late to

work the next morning but would arrive no later than 1:00 p.m. However, she never appeared for

work on November 19, which her manager described as surprising. Also, before leaving work on

November 18, 2004, she had a co-worker print a document for her because her printer was not

working. That document was a statement for appellant’s signature purporting to release

-3-
Mrs. Crawford’s father from any liability on the apartment lease Mrs. Crawford’s father had

co-signed for the two while they were still residing together.

Between 9:30 and 10:30 a.m. on November 19, a hunter discovered a box beside the road.

Inside the box was an invoice listing Mrs. Crawford’s employer and her workplace address.

Mrs. Crawford’s employer indicated he had given the box to her to mail earlier in the week. The

location where the box was found was approximately twenty miles from Mrs. Crawford’s

workplace. The box had a small amount of Mrs. Crawford’s blood on it. Late in the afternoon on

the same day, a Manassas resident found Mrs. Crawford’s cell phone in his driveway. The

following day, Mrs. Crawford was not at her home when her date arrived to pick her up, as they had

previously arranged. When she did not answer the door, after several attempts, he left without

seeing her. Mrs. Crawford’s parents, who began worrying about their daughter, did not find

anything out of place or unusual when they went into her home, except the cat’s food and water

bowls were empty. Mrs. Crawford’s mother had last spoken to her daughter on the phone at about

10:00 p.m. on November 18, and when she entered Mrs. Crawford’s apartment on November 21,

she “knew” from the shape of the bed linens that Mrs. Crawford had slept in her bed the evening of

November 18. On the nightstand beside the bed was a book titled in part, “Starting Over After an

Abusive Relationship.”

On November 22, 2004, the night manager of a Quality Inn in Charlottesville discovered

Mrs. Crawford’s body in one of the motel rooms. The room had been paid for by appellant for the

night of November 19 to November 20, but no one had officially checked out of the room.

Mrs. Crawford was lying on her back on the bed, naked and covered by bed linens. Her hands were

folded over her abdomen, and her legs were in a “frog-like position.” Although she had some

bruising, the assistant medical examiner testified at trial that the marks did not look like “grab

marks.” There was no injury to her genitalia, although appellant’s sperm was found in her

-4-
vagina, and sperm from an undetermined source was found in or around her mouth and anus. No

sperm was found on the bed or anywhere else in the room. The forensic scientist who examined

the sperm taken from Mrs. Crawford’s body could not determine its age.

A bloody motel towel was taped under Mrs. Crawford’s right armpit, covering a fatal

gunshot wound. The police did not find a gun or any clothing with a corresponding hole in the

motel room. There was no gunshot residue on the body. The motel room did not contain any

signs indicating that a struggle took place there, and nothing suggested that the shooting occurred

in the room. Women’s clothes and a purse containing Mrs. Crawford’s identification were on

the dresser, and a suitcase containing men’s clothing and a pill bottle bearing appellant’s name

were also in the room. The television was on, a “Do Not Disturb” sign was on the door, and the

air conditioning had been set so that the room was cold. Police found appellant’s fingerprint in

the bathroom.

According to the assistant medical examiner, Mrs. Crawford was shot through the right side

of her chest, so that the bullet passed through her right lung and then through her vertebra, severing

her spinal cord and lodging in her back. Upon the severing of her spinal cord, Mrs. Crawford would

have lost her ability to walk. The assistant medical examiner testified he could not say how long

Mrs. Crawford would have lived after sustaining such an injury and that he “might expect [based

on] anecdot[al evidence] that it might be minutes” but that it was possible she lived a “shorter”

amount of time and also possible that she “survived an hour.”

The motel’s clerk testified at trial that appellant had driven into the parking lot of the

Charlottesville Quality Inn at approximately 11:00 a.m. on November 19, 2004, and parked in the

spot farthest from the front desk. He told the clerk that he had been driving all night and asked

for a quiet room. He gave his name as Dale Crawford and paid with a $100 bill. He was driving

Mrs. Crawford’s car, which other evidence established actually belonged to her father.

-5-
 On November 29, 2004, the police found appellant in Florida, still driving Mrs. Crawford’s

car. The drivers’ side window of the car was broken out, and the driver’s seat and rear seat had

Mrs. Crawford’s blood on them. 1 No blood was found on the front passenger’s seat, and no

evidence was presented at trial that any other bodily fluids were found in the car. A box of

ammunition was in the trunk.

Appellant’s cousin said that appellant arrived in Florida on November 22, 2004, said he

was taking a vacation, and seemed happy. The cousin had not seen appellant in seventeen years

and had received no advance notice that appellant was coming to visit. The driver’s side window

of Mrs. Crawford’s car was broken when appellant arrived in Florida. Police were able to locate

appellant in Florida after he contacted his daughter and asked her to wire him some money.

After appellant’s apprehension in Florida, he gave a videotaped statement to police. He

claimed Mrs. Crawford came to his home on the morning of November 19, 2004, and that they

drove to Charlottesville for the weekend in an attempt to reconcile, a trip he said took one to

one-and-one-half hours. Appellant said that Mrs. Crawford drove them to a McDonald’s in

Charlottesville for breakfast. He claimed that, as they sat in the car in the parking lot, he

threatened to shoot himself and held a loaded, cocked gun over his chest. He said that

Mrs. Crawford reached over and grabbed the gun, that they wrestled over it, and that it

discharged accidentally, hitting Mrs. Crawford. Appellant said he then moved his wife to the

back seat of the car, where forensics technicians later found her blood, and drove to the motel

where her body was later found. When asked whether she said anything after he shot her, he said

she told him that she loved him. Other than appellant’s claim that Mrs. Crawford made this one

statement after she was shot, the record does not indicate that appellant made any statements

1
The blood patterns in the car and the trajectory of the bullet through Mrs. Crawford’s
body suggest that she was sitting in the driver’s seat and was shot by someone sitting in the front
passenger’s seat.
-6-
about how long Mrs. Crawford lived after she was shot or whether she was alive when he moved

her to the back seat of the car, drove her to the motel, or carried her into the motel room. 2

Before trial, appellant objected to the introduction of the affidavit that Mrs. Crawford

completed when she requested a preliminary protective order from the JDR court. Appellant

argued that the document was testimonial hearsay and, therefore, inadmissible under Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The affidavit described

several incidents when appellant had threatened or physically attacked Mrs. Crawford, including

a detailed description of an alleged rape. The Commonwealth, which sought to admit the

affidavit to prove the truth of the matters asserted therein, agreed that the affidavit was

testimonial hearsay if admitted for that purpose, but it argued the trial court should apply the

forfeiture-by-wrongdoing exception to the hearsay rule to avoid what would otherwise be a

violation of appellant’s confrontation rights. The Commonwealth argued this exception did not

require that the trial court find appellant had killed his wife to prevent her from testifying, but

instead required only a preliminary finding that appellant did kill her. The trial court ruled the

affidavit was testimonial but was admissible under the forfeiture-by-wrongdoing exception to the

hearsay rule, as explained by the Commonwealth, and, thus, that its admission did not violate

appellant’s confrontation rights.

Appellant also objected to the introduction into evidence of the statements that Mrs.

Crawford made to her boss and a co-worker. Appellant argued that the statements were hearsay

2
The quality of some portions of the digital recording of appellant’s interview by Florida
police were clear, and others were quite poor. At one point, investigators asked appellant how he
knew Mrs. Crawford was dead. Although the trial court was not required to find appellant’s
statement on this or any other subject was credible, other than the medical examiner’s testimony,
appellant’s statement was the only potential source of evidence concerning how long she lived
after she was shot. Appellant’s response during the recorded interview was either not discernible
or was, “’Cause I knew it,” neither of which provides any evidence concerning how long she
lived after being shot.

-7-
and, therefore, that they were not admissible under the state-of-mind exception to the hearsay

rule. The trial court overruled appellant’s motion to exclude this evidence and admitted the

evidence under the state-of-mind exception.

II. ANALYSIS

A. THE AFFIDAVIT

1. Appellant’s Confrontation Rights

In ruling on appellant’s motion to exclude the affidavit, the trial court held “it is clear,

and the Commonwealth does not dispute, that these statements do fall within the scope of

Crawford” because they are testimonial hearsay. On appeal, the Commonwealth contends the

statements in the affidavit were not testimonial and avers that this legal issue is subject to de

novo review on appeal in spite of the prosecutor’s concession below. See generally Michels v.

Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006) (holding that whether

statements are testimonial is a legal issue subject to de novo review).

We disagree. Whether or not the prosecutor took a position on this issue below, the trial

court expressly ruled on the issue, holding the affidavit was testimonial but that its admission did

not violate the Confrontation Clause because the forfeiture-by-wrongdoing doctrine applied. The

Commonwealth had no right to appeal that ruling, and it would have had no right to appeal even

if the trial court had excluded the affidavit on the grounds appellant alleged. See Code

§ 19.2-398. Thus, the Commonwealth also lacked the right to ask this Court to revisit that issue

in appellant’s appeal because to do so would “serve as a subterfuge for a constitutionally

prohibited cross-appeal.” See White v. Commonwealth, 37 Va. App. 658, 665, 561 S.E.2d 12,

16 (2002) (noting that although we may, under appropriate circumstances, “affirm the decision

of the trial court when it has reached the right result for the wrong reason[,] . . . ‘the

Commonwealth cannot use [this principle] as a subterfuge for a constitutionally prohibited

-8-
cross-appeal’” (quoting Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313

(1992))); see also Hart v. Commonwealth, 221 Va. 283, 289-90, 269 S.E.2d 806, 810-11 (1980).

We next consider whether the affidavit, although determined by the trial court to be

testimonial when offered for the truth of its contents, was nevertheless admissible under

forfeiture-by-wrongdoing principles. While this appeal was pending, the United States Supreme

Court decided Giles v. California, ___U.S. ___, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008),

reviewing the forfeiture-by-wrongdoing exception to the general prohibition on hearsay

evidence, the Constitution’s Sixth Amendment right to confront witnesses, and the application of

Crawford, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177. During Giles’s murder trial, the

court allowed the jury to hear testimony about statements the decedent made to police officers

when they responded to a domestic violence incident between Giles and the decedent a few

weeks before the murder. Id. at ___, 128 S. Ct. at 2681-82, 171 L. Ed. 2d at 494. The trial court

admitted this evidence based on a California law that permitted “admission of out-of-court

statements describing the infliction or threat of physical injury on a declarant when the declarant

is unavailable to testify at trial and the prior statements are deemed trustworthy.” Id. at ___, 128

S. Ct. at 2682, 171 L. Ed. 2d at 494. The California Supreme Court found the law did not violate

the Sixth Amendment’s Confrontation Clause. Id.

On appeal to the United States Supreme Court, California conceded that the decedent’s

statements to the officers were testimonial, and the Supreme Court accepted “without deciding”

that representation. Id. at ___, 128 S. Ct. at 2682, 171 L. Ed. 2d at 494-95. The Supreme Court

then considered “whether the theory of forfeiture by wrongdoing accepted by the California

Supreme Court is a founding-era exception to the confrontation right” and, thus, allowed

admission of the statements during Giles’s murder trial without violating the Sixth Amendment.

Id. at ___, 128 S. Ct. at 2682, 171 L. Ed. 2d at 495. In this discussion, the Supreme Court noted:

-9-
 Not only was the State’s proposed exception to the right of
confrontation plainly not an “exceptio[n] established at the time of
the founding,” [Crawford, 541 U.S.] at 54, 124 S. Ct. 1354, 158
L. Ed. 2d 177; it is not established in American jurisprudence since
the founding. American courts never – prior to 1985 – invoked
forfeiture outside the context of deliberate witness tampering.

* * * * * * *

If the State’s rule had an historical pedigree in the common
law or even in the 1879 decision in Reynolds [v. United States, 98
U.S. 145 (1879)], one would have expected it to be routinely
invoked in murder prosecutions like the one here, in which the
victim’s prior statements inculpated the defendant. It was never
invoked in this way. The earliest case identified by the litigants
and amici curiae which admitted unconfronted statements on a
forfeiture theory without evidence that the defendant had acted
with the purpose of preventing the witness from testifying was
decided in 1985. United States v. Rouco, 765 F.2d 983 ([11th Cir.
1985]).

Id. at ___, 128 S. Ct. at 2687, 171 L. Ed. 2d at 499-500. After reviewing the history of the

common law and the forfeiture-by-wrongdoing exception, the United States Supreme Court held

that the exception applies only where a defendant “engaged in conduct designed to prevent a

witness from testifying,” i.e., he “intended to prevent a witness from testifying.” Id. at ___, 128

S. Ct. at 2683-84, 171 L. Ed. 2d at 496-97. The Supreme Court found the California trial court

committed constitutional error, infringing Giles’s right of confrontation, by admitting the

decedent’s statements where no evidence suggested that Giles had killed the decedent to prevent

her from testifying. Id. at ___, 128 S. Ct. at 2686-88, 171 L. Ed. 2d at 498-501. 3

3
The concurring opinions in Giles do not disagree with the analysis of the majority
regarding the forfeiture-by-wrongdoing doctrine as applied to testimonial documents. Justices
Thomas and Alito wrote concurring opinions to note their disagreement with California’s
concession that the victim’s statements were testimony. ___ U.S. at ___, 128 S. Ct. at 2693-94,
171 L. Ed. 2d at 506-07 (Thomas, J., concurring); Id. at ___, 128 S. Ct. at 2694, 171 L. Ed. 2d
at 507 (Alito, J., concurring). Justice Souter, with whom Justice Ginsburg joined, concurred in
the majority’s description of the exception, but noted that equity, rather than the historical
record, defines the forfeiture-by-wrongdoing doctrine. Id. at ___, 128 S. Ct. at 2694-95, 171
L. Ed. 2d at 507-08 (Souter, J., concurring).

- 10 -
 Here, the Commonwealth concedes that appellant did not kill Sarah Crawford in order to

prevent her from testifying, as California conceded in Giles. We accept the Commonwealth’s

concession and, thus, given the Supreme Court’s holding in Giles, conclude the trial court

committed constitutional error by admitting Mrs. Crawford’s affidavit to prove the truth of its

contents under an improper formulation of the concept of forfeiture by wrongdoing.

2. Harmless Error Analysis

We next determine if the introduction of this evidence in violation of appellant’s Sixth

Amendment rights affected the jury’s decision, i.e., if this error was harmless. See Reid v.

Commonwealth, 213 Va. 790, 796, 195 S.E.2d 866, 871 (1973). We are mindful that:

[t]he Supreme Court, in Chapman v. California, 386 U.S. 18, 24,
17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), held that “before a federal
constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.”
As the Supreme Court stated in Delaware v. Van Arsdall, 475 U.S.
673, 681, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), “an otherwise
valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.” See Neder v. United
States, 527 U.S. 1, 119 S. Ct. 1827, 1837, 144 L. Ed. 2d 35 (1999).

A court, when determining whether federal constitutional
error is harmless, must consider several factors, including the
importance of the tainted evidence in the prosecution’s case,
whether the evidence was cumulative, the presence or absence of
evidence corroborating or contradicting the tainted evidence on
material points, and, of course, the overall strength of the
prosecution’s case.

Dearing v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000). Errors are

presumed harmful, and the Commonwealth bears the burden of proving that a constitutional error

was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17

L. Ed. 2d at 710-11; Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558-59 (1951);

Beverly v. Commonwealth, 12 Va. App. 160, 163, 403 S.E.2d 175, 177 (1991).

- 11 -
 The affidavit in this case was prepared by an intake officer, pursuant to Code

§ 16.1-253.1, for use before the JDR court in support of Mrs. Crawford’s request for an ex parte

preliminary protective order that would prohibit contact between her and appellant.

Mrs. Crawford signed the typed document on November 1, 2004, swearing that it was “true and

accurate to the best of [her] knowledge and belief.” The affidavit described several incidents

between the spouses that had occurred in the four months leading up to the murder. 4 The

affidavit included an incident in which appellant threw Mrs. Crawford against a door and, when

she tried to leave, he threw a glass at her and another incident in which he pushed her onto a

couch and threatened her with his fist. The affidavit also described an incident during which

appellant hit his wife three times with a belt, physically forced her to have sexual intercourse

with him, “ripped the phone out of the wall” when she tried to call the police, and “put the sofa

up against the door so [she] could not get out.” The affidavit also mentioned an incident that

occurred three days prior to her signing the affidavit, in which appellant “began . . . throwing and

breaking stuff” when Mrs. Crawford returned to the marital home with her parents to retrieve her

belongings. The affidavit further included Mrs. Crawford’s recollection that, two days prior to

her signing the affidavit, appellant “called [her] and told [her] that [she] must want to die,” that

“he understands why husbands kill their wives,” and that “he would find [her] and come to [her]

work.” The affidavit concluded, “I am afraid of Anthony. I fear he may physically hurt me or

even kill me. I want him to stay away from me and my family.”

a. Rape Conviction

We hold that admission of the affidavit was not harmless beyond a reasonable doubt in

relation to the rape conviction. Code § 18.2-61 defines rape, as relevant to these facts, as

4
The original affidavit included incidents that occurred prior to August 2004, but those
incidents were redacted at the direction of the trial court before the document was presented to
the jury.
- 12 -
occurring when “any person has sexual intercourse with a complaining witness . . . and such act

is accomplished . . . against the complaining witness’s will, by force, threat or intimidation.” 5

Therefore, the Commonwealth had to prove two elements to convict appellant of rape: (1) that

appellant and Mrs. Crawford had sexual intercourse and (2) that the act was against

Mrs. Crawford’s will through the use of force, threat, or intimidation.

The forensic scientist testified that sperm was found in Mrs. Crawford’s vagina and that

DNA testing established the sperm was appellant’s. Therefore, the physical evidence proved the

parties had sexual intercourse, and the admission of the affidavit as to this element of rape was

harmless beyond a reasonable doubt.

However, the affidavit probably affected the jury’s decision regarding Mrs. Crawford’s

willingness to engage in sexual intercourse. The affidavit contains Mrs. Crawford’s sworn

statement that appellant raped her on a prior occasion approximately three months before her

death. The record contains no evidence other than the affidavit indicating that appellant had ever

forced Mrs. Crawford to have sexual intercourse with him. The assistant medical examiner

testified that she did not observe any injuries on Mrs. Crawford’s body suggesting force had been

used to effect sexual intercourse. Although Mrs. Crawford had some bruising to her upper body,

the evidence failed to prove the age of those bruises or suggest how Mrs. Crawford became

bruised. The physical evidence that force, threats, or intimidation were used to overcome the

victim’s will was not overwhelming, especially as the spouses could have engaged in sexual

intercourse before Mrs. Crawford knew appellant had a gun.

In addition, some evidence suggested the spouses were attempting to reconcile.

Mrs. Crawford was helping her husband with his education. She had asked for the dismissal of

5
Although Code § 18.2-61 provides that sexual intercourse “through the use of the
complaining witness’s . . . physical helplessness” also constitutes rape, the jury instructions in
this case did not include this alternative element.
- 13 -
the protective order and had several telephone conversations with him that lasted ten to twenty

minutes. After a twelve-minute conversation with appellant on the afternoon of November 18,

Mrs. Crawford met her parents for dinner and appeared very happy. Telephone records also

suggest Mrs. Crawford called appellant twice on the morning of November 19, calls that

appellant claimed she made while on her way to his residence to begin their reconciliation trip.

If the evidence had proved appellant had sexual intercourse with Mrs. Crawford in the car

or the motel room after she was incapacitated by the gunshot wound, then perhaps the influence

of the affidavit on the jury’s decision would not be so important. However, no evidence

suggested where or when they had intercourse. No sperm was found in the car or in the motel

room. The forensic scientist could not determine the age of the sperm that was retrieved from

Mrs. Crawford’s body. Appellant made no statement to the police regarding having had sexual

intercourse with his wife near the time of her death. Therefore, the Commonwealth did not

prove that appellant had sexual intercourse with Mrs. Crawford against her will, through the use

of force, threat, or intimidation.

Given the lack of other evidence and the specific allegation of rape contained in the

affidavit, we conclude the admission of that document was not harmless beyond a reasonable

doubt as to the rape conviction. See Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208,

209 (1999) (“In making that determination [of harmless error beyond a reasonable doubt], the

reviewing court must consider a host of factors, including the importance of the tainted evidence

in the prosecution’s case . . . .”); Young v. Commonwealth, 47 Va. App. 616, 634, 625 S.E.2d

691, 700 (2006) (noting that the evidence of other crimes that was improperly admitted included

several robberies, the crime for which Young was on trial), rev’d on other grounds, 273 Va. 528,

643 S.E.2d 491 (2007); Boney v. Commonwealth, 29 Va. App. 795, 801-02, 514 S.E.2d 810, 813

- 14 -
(1999) (discussing the factual similarity between the erroneously admitted evidence of Boney’s

prior bad acts and the appealed convictions).

Upon finding the constitutional error is not harmless, we next determine whether the

evidence is sufficient to support the conviction, as appellant raises the sufficiency of the

evidence to prove rape in his appeal. If the evidence is insufficient, remanding for a new trial

would violate double jeopardy principles, and we must reverse and dismiss the conviction rather

than reverse and remand the conviction for a new trial. Leybourne v. Commonwealth, 222 Va.

374, 377, 282 S.E.2d 12, 14 (1981) (reversing and dismissing a conviction because mother’s

testimony was inadmissible and the evidence was insufficient to prove Leybourne’s guilt beyond

a reasonable doubt); see Parsons v. Commonwealth, 32 Va. App. 576, 529 S.E.2d 810 (2000)

(citing Burks v. United States, 437 U.S. 1, 18 (1978), and Lockhart v. United States, 488 U.S. 33,

40-42 (1988), for the proposition that, in conjunction with a ruling that reversal is required

because of improperly admitted evidence, a full sufficiency analysis is required because, “[i]f the

evidence adduced at trial was insufficient to convict [the defendant], a remand for retrial would

violate the Constitution’s prohibition against double jeopardy”). “In making this assessment, we

consider all admitted evidence,” without regard for whether it was properly admitted or is likely

to be admitted in any subsequent retrial. Hargraves v. Commonwealth, 37 Va. App. 299, 312-13,

557 S.E.2d 737, 743 (2002).

The evidence here, viewed under these standards, did not prove beyond a reasonable

doubt that appellant committed rape.

It is well settled in Virginia that to justify conviction of a crime, it
is not sufficient to create a suspicion or probability of guilt, but the
evidence must establish the guilt of an accused beyond a
reasonable doubt. It must exclude every reasonable hypothesis
except that of guilt. The guilt of a party is not to be inferred
because the facts are consistent with his guilt, but they must be
inconsistent with his innocence.

- 15 -
Cameron v. Commonwealth, 211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970); see Reese v.

Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 268 (1985) (“The evidence gives rise to

suspicion of guilt but it is not sufficient as a matter of law to establish guilt by the requisite

standard of proof beyond a reasonable doubt.”). Too many reasonable hypotheses of appellant’s

innocence on the charge of rape remain, even after reviewing all the evidence including the

affidavit. See Hargraves, 37 Va. App. at 312-13, 557 S.E.2d at 743.

The evidence, viewed in the light most favorable to the Commonwealth, see Hughes v.

Commonwealth, 18 Va. App. 510, 518, 446 S.E.2d 451, 456 (1994) (en banc) (noting the

standard of review for sufficiency questions), did not prove where or when the sexual intercourse

occurred. Although the affidavit supported a finding that appellant had raped his wife several

months earlier while they were still living together, nothing in the record indicated appellant

used force, threats, or intimidation at the time of the act of intercourse upon which his conviction

for rape was based. In the week prior to the murder, Mrs. Crawford asked that the protective

order be dismissed; she paid appellant’s tuition; she called him several times; she printed a

document for his signature; she took a half-day’s leave from work; and she purchased gasoline

near his home. The physical evidence did not exclude the possibility that the act was consensual

as the medical examiner found no injuries to Mrs. Crawford’s vagina. Because the examiner

could not determine the age of the sperm samples collected from Mrs. Crawford’s body, the

Commonwealth could not exclude the reasonable hypothesis that the intercourse occurred well

before the shooting and was consensual. Nothing found in the motel room, the car, or anywhere

else suggested where or when appellant and his wife had sexual intercourse. Therefore, a

reasonable hypothesis existed that the intercourse occurred prior to the shooting, when Mrs.

Crawford may have been a willing participant. Therefore, we reverse and dismiss the rape

conviction.

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 b. Abduction with Intent to Defile Conviction

To convict appellant of abduction with the intent to defile, the Commonwealth needed to

prove both that he intentionally abducted Mrs. Crawford by “depriv[ing] his victim of her

liberty,” Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 714 (1985), and that he

committed this act with the intention to sexually molest her, 6 see Scott v. Commonwealth, 228

Va. 519, 525 n.2, 323 S.E.2d 572, 576 n.2 (1984). See Code § 18.2-48. Here, the affidavit

contained information relevant to determining both whether appellant deprived his wife of her

liberty and whether he intended to sexually molest her. After examining the record, we conclude

that admission of the affidavit was not harmless beyond a reasonable doubt regarding either the

underlying abduction or the intent to defile.

As to proof of the underlying abduction, the evidence established Mrs. Crawford spoke

with appellant on the telephone for about ten minutes on the afternoon of Thursday, November

18, before having dinner with her parents and going home to her residence. Additional evidence

indicated that Mrs. Crawford may have planned to meet with appellant on the morning of Friday,

November 19, to get him to sign a statement releasing her father from any liability on the lease

Mrs. Crawford’s father had co-signed for the two while they were still residing together. Before

leaving her job on the afternoon of November 18, Mrs. Crawford had one of her co-workers print

the statement for her because the printer attached to her computer was not working, and

Mrs. Crawford said she was taking personal leave the next morning but would arrive at work no

later than 1:00 p.m. to disburse company funds to another co-worker who was leaving town on

business. Phone records indicated that Mrs. Crawford made two brief calls from her cell phone

to appellant’s home phone on the morning of November 19, one at 7:52 a.m. and a second one at

6
Under Fitzgerald v. Commonwealth, 223 Va. 615, 632, 292 S.E.2d 798, 808 (1982),
“defile” and “sexually molest” are “interchangeable within the meaning of” abduction with intent
to defile.
- 17 -
8:52 a.m., and credit card information indicated she purchased gasoline in the vicinity of

appellant’s residence shortly before that second telephone call. Additional evidence supported a

finding that Charlottesville was a sixty- to ninety-minute drive from appellant’s residence in

Manassas, permitting the inference that, if Mrs. Crawford was not shot until reaching

Charlottesville as appellant claimed, she could willingly have chosen to drive to Charlottesville

and back with appellant and still have returned to her job by 1:00 p.m. as she had promised.

Although the evidence tended to indicate Mrs. Crawford had not planned to spend the weekend

with appellant in Charlottesville, the evidence other than the affidavit did not compel a finding

that her trip with him was against her will, and the affidavit could have impacted the jury’s

finding regarding whether she willingly drove him to Charlottesville.

Assuming the evidence concerning the box with traces of Mrs. Crawford’s blood on it

that was found by the side of the road near Manassas between 9:30 and 10:30 a.m. would have

been sufficient to establish appellant shot Mrs. Crawford while they were still in the Manassas

area and then drove her to Charlottesville, the Commonwealth’s evidence also did not compel a

finding that appellant abducted Mrs. Crawford before or after the shooting. The evidence

indicated appellant was without a car of his own at that time, permitting the inference that

Mrs. Crawford, who went willingly to appellant’s home that morning, might also willingly have

agreed to take him on an errand before she was shot. The evidence also did not compel a finding

that appellant abducted Mrs. Crawford after she was shot because no evidence in the record

established how long she lived after being shot. Instead, the assistant medical examiner testified

he could not say how long Mrs. Crawford would have lived after sustaining such an injury and that

he “might expect [based on] anecdot[al evidence] that it might be minutes” but that it was possible

she lived a “shorter” amount of time and also possible that she “survived an hour.” (Emphases

added.) Thus, no evidence compelled a finding that appellant’s pulling Mrs. Crawford’s body into

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the back seat, driving her to the motel, or moving her inside the motel constituted a deprivation of

her liberty necessary to prove abduction.

The improperly admitted affidavit, moreover, contained Mrs. Crawford’s sworn statements

that appellant had used force and violence against her on previous occasions and that he had

previously abducted her in conjunction with the same incident in which he had raped her while

they still resided together, ripping the telephone out of the wall when she attempted to call the

police and barricading a door in their home so that she could not get out. Thus, we conclude that

the erroneous admission of the affidavit was not harmless beyond a reasonable doubt as to the

underlying abduction.

The introduction of the affidavit also was not harmless as to the intent element of

abduction with intent to defile because, as discussed above, see supra Section II(A)(2)(a), the

affidavit provided the jury with the only evidence of sexual misconduct. Although the physical

evidence proved appellant had sexual intercourse with Mrs. Crawford, the physical evidence did

not prove that contact was unwanted. See Scott, 228 Va. at 525, 323 S.E.2d at 576 (noting that

the intention to persuade someone to have sexual intercourse is not the equivalent of the intent to

defile). We conclude that introduction of the affidavit was not harmless beyond a reasonable

doubt in its effect on the jury’s consideration of the underlying abduction or the intent to defile

element.

We now conduct the necessary double jeopardy analysis by examining the sufficiency of

all the evidence, including the erroneously admitted affidavit, to support the conviction for

abduction with intent to defile. We hold that all the evidence, viewed in the light most favorable

to the Commonwealth, was insufficient to prove appellant abducted Mrs. Crawford or acted with

an intent to defile. The fact that appellant had raped and abducted Mrs. Crawford on a prior

occasion in the apartment they shared did not prove that he abducted her or acted with an intent

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to defile her on this occasion, and the remaining evidence failed to exclude the reasonable

hypothesis that she willingly engaged in sexual intercourse with him and that he did not engage

in any acts that deprived her of her personal liberty. Therefore, we reverse and dismiss the

conviction for abduction with intent to defile. Because the evidence fails to prove abduction, we

also reverse and dismiss the conviction for use of a firearm during the commission of an

abduction.

c. Capital Murder Conviction

The jury, in finding appellant guilty of capital murder, indicated that it believed appellant

killed Mrs. Crawford while in the commission of abduction with intent to defile and in the

commission of rape. Based on the foregoing analysis, however, we have reversed both these

predicate offenses. See supra Sections II(A)(2)(a) & (2)(b). Therefore, admission of the

affidavit clearly was not harmless as to the capital murder conviction. We thus reverse

appellant’s conviction for capital murder and the concomitant use of a firearm in the commission

of murder, and we remand for retrial on the lesser-included offense of first-degree murder and

the related firearm offense if the Commonwealth be so advised. See Britt v. Commonwealth,

___ Va. ___, ___, ___ S.E.2d ___, ___ (Oct. 31, 2008). Because appellant challenges the

sufficiency of the evidence to prove only rape and abduction with intent to defile, the offenses

used to elevate the charge of first-degree murder to capital murder, and does not challenge the

sufficiency of the evidence to prove the underlying murder or concomitant use of a firearm, we

need not consider the sufficiency of the evidence to prove first-degree murder and use of a

firearm before remanding for a new trial on these offenses.

d. Grand Larceny Conviction

Appellant’s conviction for grand larceny required proof that he “wrongful[ly] or

fraudulent[ly] [took] . . . another’s property [valued at $200 or more] without [the owner’s]

- 20 -
permission and with the intent to deprive the owner of that property permanently.” Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763-64 (2001). The erroneously admitted

affidavit contained no information directly relevant to appellant’s conviction for grand larceny,

and independent evidence proved appellant stole the car. Appellant was found in possession of

the vehicle and admitted in his statement to the police that he drove it to Florida.

Mrs. Crawford’s father, who actually owned the car, testified he had purchased the car for his

daughter, not appellant. We find the error in admitting the affidavit was harmless beyond a

reasonable doubt with regard to the grand larceny conviction, and therefore, we affirm this

conviction.

B. THE CO-WORKERS’ TESTIMONY

Around the time that appellant and his wife separated, Mrs. Crawford asked a co-worker

for tickets to a soccer game. The co-worker testified at trial that Mrs. Crawford said she

intended to give the tickets to appellant “because [Mrs. Crawford] plan[ned] on moving out. She

didn’t want him there while she was moving out – afraid of an incident.” Appellant objected to

the introduction of this testimony, but the trial court ruled it was admissible.

Mrs. Crawford’s boss testified that she showed him “a court protective order against

appellant,” which “wasn’t a surprise” to him given their history. Her boss also explained that

Mrs. Crawford chose to have her desk in the busy foyer of their office because she wanted to be

able to see out a window and observe the parking lot, so that she would know “whether

[appellant] was coming in the parking lot or not.” Mrs. Crawford also expressed “concern[] for

her well-being staying in the apartment” with her husband. When she finally moved out, she

moved to a home with a long driveway, so that she could see anyone coming to her house, and

she took different routes from her office to her new home, she explained to her boss. Appellant

objected to this testimony, and the trial court overruled the objection.

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 Appellant argues that none of this testimony was admissible under the state-of-mind

exception to the hearsay rule. We disagree. “The key to admissibility of evidence showing a

victim’s state of mind is . . . its relevance to a material issue in the case.” Hodges v.

Commonwealth, 272 Va. 418, 436, 634 S.E.2d 680, 690 (2006) (noting that state-of-mind

hearsay evidence is not limited to situations where “the accused has alleged [a] killing was the

result of accident, self-defense, or suicide” and that “a spectrum of victim declarations are

admissible [under the state-of-mind exception] based on relevance and probative value to a

material fact”). The testimony of Mrs. Crawford’s co-worker and her boss regarding her feelings

about appellant and her fear of him was relevant both to rebut appellant’s claim that the shooting

was accidental and to address whether Mrs. Crawford would willingly accompany or travel with

appellant or agree to have sexual relations with him. Therefore, the testimony of her boss and

her co-worker was admissible for the purpose of proving Mrs. Crawford’s state of mind about

appellant and their relationship, and the trial court did not err in denying appellant’s motion to

exclude this evidence. 7

III.

For these reasons, we hold the trial court did not err in admitting the testimony of the

victim’s boss and co-worker for the purpose of showing the victim’s state of mind. However, we

hold the trial court erred in admitting the challenged affidavit to prove the truth of its contents.

We hold further that this error was harmless only in relation to the grand larceny conviction. As

a result, we reverse appellant’s convictions except the one for grand larceny, which we affirm. As

to the convictions for rape, abduction with intent to defile, and use of a firearm in the commission of

abduction, we hold the evidence including the improperly admitted affidavit was insufficient to

7
Appellant does not argue that these statements were testimonial; nor does he argue that
Crawford should apply to this evidence.

- 22 -
prove these offenses. Thus, we dismiss the indictments for rape, abduction with intent to defile, and

use of a firearm in the commission of abduction. Because we reverse and dismiss the convictions

for rape and abduction with intent to defile, which provided the basis for convicting appellant for

capital murder rather than first-degree murder, appellant may not be retried for capital murder, but

because appellant does not challenge the sufficiency of the evidence to prove the underlying

murder, we remand for retrial on an offense no greater than first-degree murder without considering

the sufficiency of the evidence to prove this offense. For the same reason, we remand for retrial

appellant’s conviction for use of a firearm in the commission of murder.

Affirmed in part, reversed and dismissed
in part, and reversed and remanded in part.

- 23 -
Beales, J., concurring, in part, and dissenting, in part.

I concur with the majority’s holding that the trial court erred in using the forfeiture by

wrongdoing doctrine to admit Mrs. Crawford’s affidavit for the truth of the matters asserted

therein, given the United States Supreme Court’s recent holding in Giles v. California, ___ U.S.

___, 128 S. Ct. 2678, 171 L.Ed.2d 488 (2008). I also concur with the majority’s holding that the

trial court did not err in admitting the statements of Mrs. Crawford’s co-workers under the

state-of-mind exception to the hearsay rule, see Clay v. Commonwealth, 262 Va. 253, 257-58,

546 S.E.2d 728, 730 (2001). However, I disagree with the majority’s sufficiency analysis, and,

therefore, I dissent in part from the majority opinion.

I concur with the majority’s resolution of the issues related to the grand larceny, 1 rape, 2

capital murder, 3 and use of a firearm in the commission of a murder convictions. I also agree

that admission of the affidavit for the truth of the matters asserted therein was not harmless error

in relation to the abduction with intent to defile conviction because the affidavit could have

influenced the jury’s decision on that conviction. However, unlike the majority, I would reverse

and remand the abduction with intent to defile conviction, as well as the related firearm charge,

for retrial on the lesser-included offense of simple abduction, rather than dismiss this conviction.

1
Nothing in the affidavit mentioned automobiles or theft, and appellant did not argue that
the evidence was insufficient to prove that he stole his father-in-law’s car.
2
The affidavit clearly alleged a previous rape several months before the murder, which
constituted inadmissible evidence of the same crime with which appellant was charged, and the
evidence in the record was also insufficient to prove beyond a reasonable doubt that the sexual
intercourse between appellant and the victim that apparently occurred on November 19, 2004,
was not consensual.
3
I agree with the majority that both the rape and abduction with intent to defile
convictions are not supported by the evidence in the record. As these convictions form the
statutorily mandated predicate offenses for the capital murder conviction, we cannot remand for
retrial on capital murder, although we can remand the use of a firearm in the commission of a
murder conviction for a new trial. Therefore, I agree that appellant must have a new trial on the
lesser-included offense of first-degree murder, if the Commonwealth be so inclined.
- 24 -
Therefore, although I concur in other respects, I respectfully dissent from the majority opinion on

the abduction conviction and the related conviction for use of a firearm during the commission of

an abduction.

ANALYSIS

Appellant was convicted of abduction with intent to defile. As the majority found,

admission of the affidavit into evidence for the truth of the matters asserted therein violated

appellant’s constitutional right to confront the witnesses against him, and, given the standard set

by the United States Supreme Court for harmless error involving a constitutional issue, see

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967),

that error was not harmless. Therefore, the conviction for abduction with intent to defile must be

reversed. See Dearing v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000). If

appellant had not also argued that the evidence was insufficient to prove he committed abduction

with intent to defile, then we would simply remand the abduction with intent to defile conviction

for a new trial. See, e.g., Owens v. Commonwealth, 216 Va. 315, 218 S.E.2d 530 (1975)

(finding a certificate of analysis was improperly admitted into evidence and reversing and

remanding for retrial on the original charge “if the Commonwealth be so advised”). However,

appellant does argue that the evidence was insufficient to prove his abduction with intent to

defile conviction. Therefore, this Court must examine the sufficiency of the evidence here to

determine whether the conviction should be dismissed or remanded for a new trial.

While I agree with the majority that the evidence, viewed under the traditional

sufficiency standards of deference to the fact finder and examining the evidence in the light most

favorable to the Commonwealth, would not support the intent element of the crime of abduction

with intent to defile, I disagree with the majority’s conclusion that the evidence was also

insufficient to prove the act of simple abduction. Instead, I would find that the evidence was

- 25 -
sufficient to support a conviction for the lesser-included offense of simple abduction, and so this

charge should be remanded for retrial along with the associated firearm charge.

As this Court has explained previously:

The consistent practice in Virginia, when the evidence is found
insufficient to sustain a felony conviction on appeal, but sufficient
to sustain a conviction on a lesser-included misdemeanor offense,
has been to remand the case for retrial on the lesser-included
offense.

This practice is consistent with case law from other jurisdictions
that holds that a post-trial finding of insufficient evidence to
support a conviction requires an acquittal only as to the greater
charge for which the evidence was insufficient, but does not
require acquittal of a lesser-included offense adequately supported
by the evidence.

Gorham v. Commonwealth, 15 Va. App. 673, 678-79, 426 S.E.2d 493, 496-97 (1993) (citations

omitted). In reviewing the sufficiency of the evidence here, we should examine all of the

evidence, including the affidavit, in the light most favorable to the Commonwealth. Hargraves v.

Commonwealth, 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002) (“[W]e consider all

admitted evidence, including illegally admitted evidence,” when assessing the sufficiency of the

evidence on appeal.).

The majority’s discussion of the act of abduction focuses on the evidence regarding

Mrs. Crawford’s intention to meet her estranged husband on the morning of November 19th.

The evidence does support a conclusion that, initially, Mrs. Crawford willingly met with

appellant that morning. However, that evidence does not prove that Mrs. Crawford willingly and

voluntarily continued to stay with her husband that morning. In fact, additional facts in the

record prove that, while they were together, the situation changed, and appellant then abducted

Mrs. Crawford.

Appellant told the police that his reason for meeting his wife was to reconcile with his

wife. However, Mrs. Crawford clearly did not have the same intention. The affidavit, the

- 26 -
preliminary protective order, and the testimony of her co-workers and her parents proved that

Mrs. Crawford was not interested in reuniting with her husband. See Hodges v. Commonwealth,

272 Va. 418, 436-37, 634 S.E.2d 680, 689-90 (2006) (discussing the relevance of a victim’s state

of mind); Elliot v. Commonwealth, 30 Va. App. 430, 437-38, 517 S.E.2d 271, 275 (1999)

(discussing state of mind). Although she asked the JDR court to dismiss the protective order,

nothing in the record suggests that, by withdrawing her request for a protective order,

Mrs. Crawford had forgiven her husband for all of his abuse and now wanted to reconcile with

him. Many other explanations exist for the refusal to go forward with a permanent protective

order. Here, although appellant alleged in his statement that they were meeting to attempt a

reconciliation, the Commonwealth’s evidence proved Mrs. Crawford apparently wanted to meet

with her estranged husband to obtain his signature on a form that freed her father from liability

on their apartment’s lease, creating the strong inference that she did not intend to move back into

that apartment.

Appellant had made threats and committed acts of violence against Mrs. Crawford. She

was afraid that he would kill her, based on statements she included in the affidavit. Appellant

himself apparently felt so unsure about their alleged reconciliation that he took a loaded gun with

him when they met on the morning of November 19th. Although appellant packed a suitcase and

took it with him to the motel, the motel room contained none of Mrs. Crawford’s luggage – only

her purse. Nothing in the room suggested she intended to go away for the weekend with her

estranged husband. In fact, she had told her employer that she expected to be at work by 1:00

that afternoon, and she had a date with another man the next evening. Based on the evidence

here, the jury could reject appellant’s statement to the police that the spouses intended to

reconcile and instead could have believed that he was lying to the police.

- 27 -
 In addition, appellant’s actions after shooting his wife support the jury’s conclusion that

appellant abducted his wife. After shooting her, instead of going into the McDonald’s where he

alleged the shooting occurred and asking for help, appellant removed Mrs. Crawford from the

driver’s seat of her car and placed her in the back seat. He then drove her away from the scene

of the shooting. He did not take Mrs. Crawford directly to a hospital or to a doctor, although her

desperate need for medical attention was obvious. He contacted no medical personnel or anyone

else who might have been able to help her. Instead, he threw her cell phone out of the car, and

he then drove to a motel in Charlottesville, preventing her from contacting anyone who might

have been able to help her.

Appellant admitted to the police who arrested him in Florida that he took Mrs. Crawford

to a motel and left her there alone after the shooting. At that point, according to the assistant

medical examiner, Mrs. Crawford could not move her body due to the severing of her spine.

Given that appellant admitted that he shot her – and Mrs. Crawford’s urgent need for medical

attention – the evidence proved overwhelmingly that Mrs. Crawford did not willingly leave the

scene of the shooting to go with appellant to a motel. Viewed in the light most favorable to the

Commonwealth, the evidence supports the jury’s finding that appellant abducted his wife.

The majority opinion finds the timing of Mrs. Crawford’s death is relevant to our review

of the evidence of abduction on appeal. However, in his arguments to this Court, appellant has

never argued that Mrs. Crawford died before they arrived at, or even started driving to, the motel.

His entire argument on appeal regarding the sufficiency of the evidence to prove abduction rests

upon his allegation that Mrs. Crawford was with him willingly; he makes no claim that she died

before any asportation of her occurred. Therefore, I would not address the timing of

Mrs. Crawford’s death in our discussion of the sufficiency of the evidence here. See Rule

5A:18.

- 28 -
 However, as the majority does address the timing of Mrs. Crawford’s death, I do note

various facts upon which the jury could rely to find Mrs. Crawford did not die instantly after the

shooting. First, the medical examiner testified that Mrs. Crawford could have lived for up to an

hour after she was shot, although he also said that she might have lived only a few minutes. As

appellant testified that the shooting occurred in Charlottesville, the medical expert’s testimony

could support the conclusion that Mrs. Crawford was alive when they reached the motel, which

was also in Charlottesville. 4 In addition, appellant told the police that his wife talked to him

after the shooting, although he did not indicate more specifically when she spoke to him. Also,

appellant apparently attempted to minister to Mrs. Crawford once they were in the motel room –

something he would be unlikely to do if she were already dead. Appellant put her on the bed,

undressed her, and put a make-shift dressing on the gunshot wound. Even if Mrs. Crawford was

not alive when they reached the motel, I would find that, once appellant shot her and she was in

need of medical attention, the evidence is sufficient to conclude that Mrs. Crawford did not want

to take a drive to a motel in Charlottesville with the man who had just shot her and, therefore,

she was abducted at the point that he drove her away from the scene of the shooting. Therefore,

I would find that the evidence was sufficient to prove that Mrs. Crawford was alive when

appellant, the man who shot her, forced her into the back seat of the car and then, instead of

taking her to a hospital or getting some assistance anywhere, drove her away from the scene of

4
The exact location of the shooting is not known. The physical evidence suggested that
it occurred somewhere in or near Manassas, but appellant in his statement claimed it happened in
Charlottesville. No evidence was presented to prove where the car was parked when the
shooting occurred. Therefore, the actual distance between the scene of the shooting and the
motel is unknown.
- 29 -
the shooting and any possible medical assistance to a motel in Charlottesville, thereby

committing abduction of Mrs. Crawford. 5

Finally, I find it appropriate to comment on the conclusion reached here, and in the

majority opinion, that various convictions be remanded for retrial on lesser-included offenses,

rather than simply remanding these convictions for resentencing on the lesser-included offenses.

Based on the Virginia Supreme Court’s recent decision in Britt v. Commonwealth, ___ Va. ___,

___ S.E.2d ___ (Oct. 31, 2008), we cannot simply remand for resentencing, as was done in South

v. Commonwealth, 272 Va. 1, 630 S.E.2d 318 (2006), because the parties here did not concur in

asking this Court for a remand for resentencing of the abduction with intent to defile conviction

on the lesser-included offense of simple abduction (or for a remand for resentencing of the

capital murder conviction on the lesser-included offense of first-degree murder). Therefore, as

directed by the Supreme Court in Britt, I believe the appropriate result here is to remand the

abduction with intent to defile conviction to the trial court for a new trial on the lesser-included

offense of simple abduction and for retrial on the attending conviction for the use of a firearm in

the commission of an abduction, if the Commonwealth be so advised. I also concur in the

majority opinion’s remand of the capital murder conviction for retrial on the lesser-included

offense of first-degree murder and for retrial on the related use of a firearm in the commission of

a murder conviction, if the Commonwealth be so advised.

5
The indictment charged appellant with use of a firearm in the commission of an
abduction, not with use of a firearm in the commission of an abduction with intent to defile, and
the relevant jury instruction likewise defined the crime as use of a firearm in the commission of
an abduction. The final order states that appellant was convicted of use of a firearm in the
commission of an abduction. Therefore, as the predicate offense, i.e., an abduction, was proven,
I would not dismiss this conviction.

- 30 -
 CONCLUSION

For the foregoing reasons, I respectfully concur in part and dissent in part from the

majority opinion.

- 31 -