dissenting.
I do not agree that the admission of the two challenged exhibits during Holcomb’s testimony violated Robertson’s Sixth Amendment right of confrontation, and because I also conclude that the exhibits in question provide sufficient evidence from which the jury could reasonably conclude that Robertson feloniously shoplifted over $200 in merchandise, I respectfully dissent from the analysis and judgment of the majority.
A. The Application of the Confrontation Clause of the Sixth Amendment
At its essence, the issue upon which the majority and I disagree is whether or not the Confrontation Clause of the Sixth Amendment can ever be satisfied when fewer than every single person involved in the joint preparation of an exhibit provides the evidentiary foundation for its admission and is tendered for cross-examination by the Commonwealth.
*708“ ‘[T]he principal evil at which the Confrontation Clause was directed’ ... ‘was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.’ ” Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 2242, 183 L.Ed.2d 89 (2012) (quoting Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 1363, 158 L.Ed.2d 177 (2004)). “ ‘[I]n England, pretrial examinations of suspects and witnesses by government officials were sometimes read in court in lieu of live testimony.’ The Court has thus interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right.” Id. (quoting Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1152, 179 L.Ed.2d 93 (2011)). No such abuse of the right to confront witnesses occurred here.
I do agree with the majority that the two exhibits introduced against appellant are testimonial in nature and thus Robertson had a right under the Sixth Amendment to confront the source of those exhibits. Where I part from my colleagues is that, given the collaborative nature of the way both Holcomb and Dishman jointly prepared these exhibits, I would hold that Robertson had the opportunity to and did confront Holcomb as a source of these exhibits and thus no violation of Robertson’s right to confront the evidence against her occurred.
Clearly Holcomb and Dishman jointly created the two exhibits in this case for the express purpose of estabhshing the total value of the stolen items at the later prosecution of Robertson for felony shoplifting, and thus I agree with the majority that they are testimonial in nature and subject to the protection afforded by the Sixth Amendment.
However, while exhibits may constitute testimonial evidence, there is no violation of the Confrontation Clause as long as the accused is confronted with “a live witness competent to testify to the truth of the statements made in the [exhibit].” Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2709, 180 L.Ed.2d 610 (2011) (emphasis added) (citing Melen*709dez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)). That is precisely what occurred here. In Melendez-Diaz, the United States Supreme Court held that a defendant is entitled to confront the analysts who prepared affidavits pertaining to substance analyses that were introduced against him at trial. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532. However, the Court specified,
[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of a sample, or accuracy of the testing device, must appear in person as part of the prosecution’s ease. [While it is the prosecution’s obligation] to establish the chain of custody, this does not mean that everyone who laid hands on the evidence must be called.... It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.
Id. at 311 n. 1, 129 S.Ct. at 2532 n. 1 (internal quotations and citations omitted).
In Aguilar v. Commonwealth, 280 Va. 322, 699 S.E.2d 215 (2010), the Virginia Supreme Court held that the Confrontation Clause was satisfied when the supervising analyst who prepared the certificates of DNA analysis testified at a rape trial, even though an assistant analyst upon whose work he relied did not testify. Id. at 337, 699 S.E.2d at 222. While the supervisor relied on the assistant’s DNA extraction, the supervisor was directly involved in the entire DNA analysis at issue and he was the person who drew the conclusions expressed in the certificates of analysis. Id. at 335, 699 S.E.2d at 221. The Court relied on the Melendez-Diaz footnote reproduced above, and quoted the Seventh Circuit, ‘“the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself.’ ” Id. at 335, 699 S.E.2d at 222 (quoting United States v. Turner, 591 F.3d 928, 933 (7th Cir.2010)). The Court further stated, “the Sixth Amendment does not require that every person who had some role in performing a forensic analysis, or whose work upon *710which the ultimate conclusions depend, testify at trial.” Id. See also Anderson v. Commonwealth, 48 Va.App. 704, 716 n. 5, 634 S.E.2d 372, 377 n. 5 (2006) (“Crawford has no applicability to out-of-court conduct observed by, relied upon, or noted by a witness who does appear at trial and subjects his testimony to cross-examination.” (emphasis in original)).
In the present case, Holcomb, the store manager, testified at trial regarding the preparation of the handwritten list of stolen merchandise with them corresponding prices and the generation of the receipt from the cash register.9 Holcomb testified that the procedure employed to create these exhibits was that she would remove the shoplifted items one-by-one from the “tote” or “buggy” and hand them to Dishman to “scan it to, well, you have to do a price inquiry to scan it to see how much [sic], see what it is.” App. at 40. Dishman would scan each item received from Holcomb into her cash register and write down the information produced by the register concerning the item description and price. In support of its analysis, the majority ignores two significant portions of Holcomb’s testimony. Holcomb testified on direct examination that she was “watching the prices come up as she pulled the items from the buggy” and “observed that the prices were correct as [Dishman] put them on the paper.” App. at 40-41. Moreover, the majority incorrectly asserts that Dishman prepared the second exhibit, the register receipt. Supra at 697-98, 732 S.E.2d at 34. However, the record clearly reflects that *711it was Holcomb who created this second exhibit. App. at 41. This exhibit, a receipt generated on Dishman’s register by-Holcomb from the original list with the exception that Holcomb deducted the sales tax that the cash register apparently automatically computed on the original list, was signed by both Holcomb and Dishman. Thus, the record reflects that while Dishman was the person who actually recorded the items and noted the prices reported by the cash register scan, Holcomb was present and directed, supervised, and observed the creation of the list of stolen items and was solely the person responsible for preparing the register receipt reflecting the value of those items. As noted in Melendez-Diaz and Aguilar, the Sixth Amendment does not require that everyone involved in the preparation of an exhibit testify as a witness at trial. Neither does the Confrontation Clause demand that everyone whose testimony might be relevant be required to testify. Therefore, the fact that only Holcomb, and not Dish-man, testified to the manner in which the two lists of items stolen were created does not violate the Confrontation Clause.
The United States Supreme Court’s decision in Bullcoming and its most recent decision in Williams do not change this conclusion. The majority relies upon Bullcoming as authority for the majority’s holding in this case. However, in Bullcoming, the Supreme Court specifically noted that it was dealing with a very narrow issue not factually replicated here. Bull-coming was arrested for driving while intoxicated and the principal evidence against him was a lab report certifying his blood alcohol concentration (BAG). Bullcoming, — U.S. at -, 131 S.Ct. at 2709. At trial, the prosecution did not call the analyst who signed the certification, but instead called another analyst who was familiar with the lab’s testing procedures and who had not participated in or observed the test on Bullcoming’s sample. Id. The testifying analyst had not even reviewed the analysis of the performing analyst that was introduced at trial. Id. at -, 131 S.Ct. at 2712. The narrow question decided by the Court was whether
the Confrontation Clause permit[s] the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal *712trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.
Id. at -, 131 S.Ct. at 2713 (emphasis added). The Court rejected the reasoning of the New Mexico Supreme Court that the testifying analyst could substitute for the performing analyst because he was qualified as an expert with respect to the testing device used in the analysis and the lab procedures employed. The Court noted that the performing analyst was more than a “mere scrivener” and denounced such “surrogate testimony,” as the testifying analyst could not convey what the performing analyst knew or observed about the particular test the certification concerned. Id. at -, 131 S.Ct. at 2714. “These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross examination.” Id. Further, the testifying analyst conceded that he played no role in producing the BAC report and did not observe any portion of the performing analyst’s conduct of the testing. Id. at -, 131 S.Ct. at 2722 (Sotomayor, J., concurring) (also noting that the court below recognized the witness’ total lack of connection to the test at issue).
In Williams, a four justice plurality plus Justice Thomas, for differing reasons, found that third-party evidence relied upon by an expert to formulate his opinion expressed at trial was not testimonial in nature and therefore did not violate the Confrontation Clause. Williams, at -, 132 S.Ct. at 2228.
In my view, neither Williams nor Bullcoming are applicable to the case before us. I agree with the majority that Williams is inapplicable to this case, because the exhibits here are unquestionably testimonial. The majority’s analysis regarding Bullcoming and his conclusion that it controls the outcome of this appeal flows from an initial premise that “the only evidence establishing the identity and value of the stolen items consisted of written testimonial statements made not by the person testifying in court.” However, Bullcoming is also inapplicable since Holcomb only testified to what she did and what she observed Dishman do under her direct observation and supervision. In the present case and unlike the situation *713in Bullcoming, Holcomb was present while the list was prepared and handed the stolen items to Dishman who did nothing but scan the items into the register and record the item description and price including sales tax as reported by the register. Holcomb superintended the preparation of the list of stolen merchandise, spot checked the accuracy of “most” of the items, apparently finding no discrepancies, and herself generated the second exhibit, a register receipt to establish the total value of the items stolen less the sales tax previously included. Therefore, unlike in Bullcoming, I would hold that Dishman was a “mere scrivener” of machine-generated data since, also unlike the situation in Bullcoming, Dishman did nothing beyond a recordation function, supervised and observed by a competent witness who did testify subject to cross-examination. Dishman’s additional testimony was unnecessary as foundation for the admission of either exhibit. Holcomb signed the receipt attesting to the accuracy of the information recorded by Dishman, signifying her agreement with the information contained therein. Thus, I believe that the analysis in this case is more correctly governed by the analyses of Melendez-Diaz and Aguilar.
The majority relies principally upon Holcomb’s concession on cross-examination, that she did not verify that Dishman wrote down the correct item and price for every single item scanned or specifically confirm that the correct quantity of each item was recorded. However, given the totality of her testimony regarding her involvement in the preparation of these exhibits, I see no significant constitutional impact on Robertson’s ability to confront her accuser. Holcomb testified that she observed the cash register display as the items were scanned and in the light most favorable to the Commonwealth, “observed that the prices were correct as [Dishman] put them on the paper” or even in the light most favorable to Robertson, “pretty much kn[e]w most of those ... [we]re correct.” In any event, Holcomb signed the register receipt attesting to the accuracy of the information. It seems to me that, even applying the erroneous standard of review of the facts utilized by the majority, to the extent that Holcomb’s testimony lacks *714the level of specificity that Dishman may have been able to supply, any such deficiency would go to the weight given to the evidence by the fact-finder and not to whether or not Robertson’s Sixth Amendment right to confrontation was honored.10 Where “there is mere speculation that contamination or tampering could have occurred, it is not an abuse of discretion to admit the evidence and let what doubt there may be go to the weight of the evidence.”11 Anderson, 48 Va.App. at 717, 634 S.E.2d at 378. This point in Anderson is instructive in the present case. Holcomb was present and observed the creation of the challenged .exhibits. She also signed the exhibit bearing witness to the value of the merchandise, and Robertson was permitted to and did cross-examine her. As noted previously, the Constitution does not require that all who participate in the preparation and creation of an exhibit testify as long as someone intimately associated with the creation and preparation of a testimonial exhibit can be cross-examined about what specifically was done and how. That is exactly what occurred here.
Thus, I disagree with the majority’s analysis since there was no “surrogate testimony” in this case, which would implicate the holding in Bullcoming. On the other hand, Melendez-Diaz and our Supreme Court’s decision in Aguilar are directly *715on point and ought to control this analysis. Similar to the facts in the record before us, in Aguilar, the supervisor who testified at trial was directly involved in the entire DNA analysis at issue and he was the one who made the conclusions expressed in the certificates of analysis that were introduced against the appellant, whereas in Bullcoming the testifying analyst played no role in the certificate introduced at trial and had not even reviewed the analysis. Any deficiencies in Holcomb’s testimony regarding what she may or may not have overlooked in observing and supervising Dishman’s record-keeping goes to the weight the fact-finder may choose to assign to the evidence, and does not implicate a violation of the Confrontation Clause.
For these reasons, I would hold that the trial court did not err by admitting the exhibits based upon the foundation laid by Holcomb concerning which she was cross-examined, thereby honoring Robertson’s Sixth Amendment right to confrontation.
B. The Sufficiency of the Evidence
I also respectfully dissent from the holding and judgment of the majority with regard to Robertson’s second assignment of error. Because I find no error on the part of the trial court regarding the admission of the exhibits, they are sufficient to establish the value of the property taken by Robertson. I would therefore hold that the evidence was sufficient to support Robertson’s conviction for felony shoplifting and Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012), is inapplicable.
With respect to the judgment of the majority applying our Supreme Court’s recent decision in Rushing, and dismissing the indictment rather than remanding this case for a new trial if the Commonwealth is so advised, I acknowledge that I am bound by the holding in Rushing if I considered it applicable. However, this case aptly illustrates the problematic magnitude of the holding in that case. In Rushing, the Supreme Court of Virginia brought unnecessary and unexplained confusion to what was previously thought to be a clear principle of appel*716late review. In Rushing, our Supreme Court acknowledges that the Supreme Court of the United States held in Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), that, “on appellate review for sufficiency of the evidence, all evidence in the record, whether erroneously admitted or not, is to be considered.” Rushing, 284 Va. at 278, 726 S.E.2d at 339 (emphasis added). However, in the very next sentence our Supreme Court states
[w]e have adopted a different standard of appellate review in Virginia. In Crawford v. Commonwealth, 281 Va. 84, 111-12, 704 S.E.2d 107, 123-24 (2011), we held that, on appellate review of the sufficiency of the evidence, an appellate court may not consider evidence illegally admitted at trial. To hold otherwise would circumvent on appeal the Constitutional protections provided to a defendant at trial.
Id. (emphasis in original).
The precise question presented in Lockhart was “whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction.” Lockhart, 488 U.S. at 40, 109 S.Ct. at 290. In answering that question unequivocally in the affirmative, the Supreme Court of the United States noted in Lockhart,
a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause ... and the overwhelming majority of appellate courts considering the question have agreed. The basis for [this] exception to the general rule [remanding for a new trial] is that a reversal for insufficiency of the evidence should be treated no differently than a trial court’s granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a motion considers all of the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court.
*717Id. at 41-42, 109 S.Ct. at 291 (emphasis added). See also McDaniel v. Brown, 558 U.S. 120, -, 130 S.Ct. 665, 672, 175 L.Ed.2d 582 (2010) (“To ‘make the analogy complete’ between a reversal for insufficiency of the evidence and the trial court’s granting a judgment of acquittal, Lockhart, 488 U.S. at 42 [109 S.Ct. at 291-92] ‘a reviewing court must consider all of the evidence admitted by the trial court,’ regardless whether that evidence was admitted erroneously, id., at 41, [109 S.Ct. at 294.]”).12
Put another way, while our Supreme Court was not specific as to which “Constitutional protections” it was referring to, it does not violate the Double Jeopardy Clause of the Sixth Amendment to remand a case for a new trial provided that the evidence presented to the fact-finder at the original trial was sufficient as a matter of law. The Supreme Court of the United States should have the last word on that subject if the issue is the application of the Sixth Amendment. Moreover, to the extent that Rushing might be construed as an implicit application of the Double Jeopardy Clause of the Constitution of Virginia, the holding in Rushing is internally inconsistent and confusing when considered against the long line of cases in which the Supreme Court of Virginia has expressly interpreted the constitutional rights embodied in Article I, Section 8 of the Constitution of Virginia in an entirely congruent manner with the identical language of the Bill of Rights as construed by the Supreme Court of the United States. See, e.g., Lowe v. Commonwealth, 230 Va. 346, 348 n. 1, 337 S.E.2d 273, 274 n. 1 (1985); Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d 315, 318 (1963); Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E. 289, 291 (1912); and 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 182 (1974). See also United States v. Payne, 492 F.2d 449, 459-60 (4th Cir.1974) (Widener, J., concurring and dissenting) (“The *718Virginia Declaration of Rights [later enshrined as Article I, Section 8 of the current Constitution of Virginia] was the first true Bill of Rights in the modern American sense, since it is the first protection for the rights of the individual contained in a Constitution adopted by the people acting through an elected convention____[I]ts importance as the source of the federal Bill of Rights may not be overemphasized.... Every specific guarantee in the Virginia proposal, save one, later found a place in the federal Bill of Rights which was introduced in the first Congress by Madison as proposed by Virginia herself.”).
If our Supreme Court has departed from its plentiful prior jurisprudence finding no difference in the application of the double jeopardy protections provided by the identical language of both constitutions, it has not said so. On the other hand, if Virginia has simply adopted “a different standard of appellate review,” there is no constitutional or statutory bar to a retrial limited to properly admitted evidence. By dismissing the indictment, as it did in Rushing, rather than remanding for a new trial on the original charge when there is no constitutional or statutory impediment to one, our Supreme Court appears to have assumed and exercised what amounts to legislative authority where none exists. Nevertheless, until either the General Assembly or the Supreme Court itself remedies this confusion, I concede that if the exhibits had been improperly admitted, this Court is compelled to follow the precedent of Rushing.
However, this leaves open the question of how to apply Rushing to this particular case. Having found the admissible evidence insufficient as a matter of law through the application of Rushing, the majority dismisses the indictment rather than remanding for a new trial on a charge of misdemeanor shoplifting, a charge clearly supported by the admissible evidence in this record. If there is no constitutional or statutory bar to a retrial on the original felony shoplifting charge, an application of Rushing creates the unresolved issue of the collateral consequences of the Supreme Court’s holding in that case. If the federal and state constitutions and the Code of Virginia *719impose no bar to retrial on the original felony charge then, notwithstanding the decision of the majority, there is nothing to prevent the Commonwealth from re-indicting Robertson on the original charge of felony shoplifting and proceeding to trial on properly admitted evidence. On the other hand, if the Supreme Court of Virginia in Rushing has implicitly imposed what amounts to a judicial sanction on trial courts for improperly admitting evidence, it remains an undecided question as to whether such sanction bars reprosecution altogether or would permit retrial on a lesser-included offense for which the evidence was both admissible and sufficient. For this reason and in the absence of any further guidance from our Supreme Court regarding the rationale for its confusing holding in Rushing, the majority’s decision to dismiss the indictment altogether thereby deferring the effect of any collateral consequences that may arise from an election by the Commonwealth to pursue this matter further, is the more prudent course.
Nevertheless, for all of the reasons previously stated, I would affirm the judgment of the trial court.
. Although the majority does not address it, the Commonwealth conceded in its brief that the trial court's admission of the handwritten list of stolen merchandise violated the Confrontation Clause. During oral argument, the Assistant Attorney General clarified that her concession applied only to the evidence of the handwritten prices corresponding to each item of merchandise and not to the listed items themselves. This Court is "not bound by concessions of law by the parties.” Epps v. Commonwealth, 47 Va.App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc), aff'd on other grounds, 273 Va. 410, 641 S.E.2d 77 (2007). Appellate courts cannot be forced to accept a flawed construction of law simply because of a tactical decision by one or both parties. Id. For the reasons stated more fully infra, I would reject the Commonwealth’s concession of law that the information was inadmissible on Sixth Amendment grounds as not being well founded.
. Contrary to our required standard of appellate review, the majority dismisses Holcomb’s testimony that she "pretty much kn[e]w” that the information recorded by Dishman was accurate in favor of her concession on cross-examination that she "probably” did not make sure that Dishman accurately recorded every single item. To the extent there is any inconsistency in Holcomb’s testimony, it was resolved below in favor of the Commonwealth and that resolution frames my analysis, as it should that of the majority.
. The issue in Anderson was a Sixth Amendment Confrontation Clause challenge to the chain of custody of vaginal swab samples. The appellant in that case complained of the absence of testimony from the emergency room nurse or law enforcement officers familiar with storage protocol for the samples. This Court held that the Commonwealth is not required to bring in every witness who physically handled the samples for the certificate to be admissible and the real complaint went to the weight to be given the evidence and not to the chain of custody as appellant argued. Anderson, 48 Va.App. at 716-17, 634 S.E.2d at 378.
. This approach is followed in other jurisdictions for obvious reasons. See generally 6 Wayne R. LaFave, Criminal Procedure § 25.4(c), at 652 (3d ed. 2007) ("As one court put it, the appellate court ... is assessing the legal sufficiency of the evidence not at the trial that will be, but at the trial that was.’ ” (citation omitted)).