Crawford v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

ANTHONY DALE CRAWFORD

v. Record No. 100202 OPINION BY JUSTICE DONALD W. LEMONS
January 13, 2011
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Anthony Dale Crawford (“Crawford”) was convicted in the

Circuit Court for the City of Charlottesville of capital

murder, abduction with intent to defile, use of a firearm in

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

of an abduction, rape, and grand larceny. Among the several

issues we address in this appeal is Crawford’s contention that

the trial court erred in admitting into evidence an affidavit

in violation of his rights under the Confrontation Clause of

the Sixth Amendment to the United States Constitution.

I. Facts and Proceedings Below 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

1
The Facts and Proceedings below are taken almost verbatim
from the compelling narrative written by Judge Humphreys in his
en banc opinion in the Court of Appeals, 55 Va. App. 457, 462-
70, 686 S.E.2d 557, 559-63 (2009).
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 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 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

2
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.

Before they separated, Sarah shared the apartment with

Crawford. 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 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

3
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,

4
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

[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. 2 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

2
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.

5
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 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 had co-signed the lease for their

apartment. Sarah now 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

6
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. 3 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

3
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 8:52 a.m.

7
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 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,

8
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 19, 2004. Crawford was driving

Sarah's car at the time 4 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.

4
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.

9
 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. 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

10
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 morning. Sarah was

driving, and he was in the passenger's seat. Crawford said they

drove directly to a McDonalds and got breakfast. 5 Without any

explanation as to why, Crawford then stated that he pulled out

his .38 caliber revolver 6 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

5
The autopsy report, which was admitted into evidence,
described the contents of Sarah’s stomach as “a scant amount
(20cc) of thin yellow fluid.”
6
The police learned that on November 6, 2004, Crawford
purchased a .38 caliber 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.

11
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 sperm was found in her mouth and

anus. 7

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 with respect to

statements by Sarah. The trial court agreed with the

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 the Court of Appeals.

7
Appellant’s brief filed in the Court of Appeals stated
that, “[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.

12
 In the Court of Appeals, Crawford contended 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 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 the Court of

Appeals reversed all of Crawford's convictions with the

exception of his conviction for grand larceny. See Crawford v.

Commonwealth, 53 Va. App. 138, 163, 670 S.E.2d 15, 27 (2008).

The panel majority held that the trial court's admission of the

affidavit violated Crawford's rights under the Confrontation

Clause. Id. at 151, 670 S.E.2d at 21. 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. Id. at 163, 670

S.E.2d at 27. The majority also reversed Crawford's conviction

for capital murder, since it reversed the convictions on which

the capital murder charge was based. Id. at 163-64, 670 S.E.2d

at 27. The panel dissent disagreed with the majority only in

its sufficiency analysis as to the charge of abduction with

13
intent to defile. Id. at 166, 670 S.E.2d at 28-29 (Beales, J.,

concurring in part and dissenting in part).

The Commonwealth petitioned the full Court of Appeals for

a rehearing en banc and the Court of Appeals granted the

petition. Crawford v. Commonwealth, 53 Va. App. 349, 349, 671

S.E.2d 436, 437 (2009). Upon rehearing en banc, the Court of

Appeals affirmed all of Crawford’s convictions in the trial

court. Crawford v. Commonwealth, 55 Va. App. 457, 482, 686

S.E.2d 557, 569 (2009).

Crawford timely filed his notice of appeal and we granted

an appeal on the following assignments of error:

1. The Court of Appeals erred in holding that an
affidavit in support of an ex parte petition for a
protective order is not “testimonial” within the
meaning of Confrontation Clause cases, in violation
of Anthony Crawford’s rights under the Confrontation
Clause of the Sixth Amendment to the United States
Constitution.

2. The Court of Appeals erred in holding that the
principle of “forfeiture by wrongdoing” applies to
permit extra-judicial statements in cases that arise
in domestic relations contexts, even without specific
proof in this case that the Defendant killed the
victim to silence her or to keep her from testifying
against him, in violation of Anthony Crawford’s
rights under the Confrontation Clause of the Sixth
Amendment to the United States Constitution.

3. The Court of Appeals erred in holding that the Court
of Appeals is not bound by the trial court’s ruling
and the prosecutor’s concession that the affidavit
was “testimonial.”

14
 4. The Court of Appeals erred in applying the “right
result/wrong reason” doctrine to uphold the
conviction.

5. The Court of Appeals erred in failing to address
Appellant’s argument that the evidence was
insufficient to sustain the convictions of abduction
with intent to defile and rape.

II. Analysis

A. Standard of Review

On appeal, constitutional arguments present questions of

law that this Court reviews de novo. Shivaee v. Commonwealth,

270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). Additional well-

established principles of appellate review guide this Court’s

analysis. “We consider the evidence and all reasonable

inferences fairly deducible therefrom in the light most

favorable to the Commonwealth, the prevailing party at trial.”

Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924

(2000) (citing Reid v. Commonwealth, 256 Va. 561, 564, 506

S.E.2d 787, 789 (1998)).

B. Testimonial Nature of the Affidavit

The Confrontation Clause of the Sixth Amendment to the

U.S. Constitution, made applicable to the States by the

Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403

(1965), provides that "[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him." U.S. Const. amend. VI. In Crawford v.

15
Washington, the United States Supreme Court held that the

Confrontation Clause does not allow 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.

The Court stated, “[w]here testimonial statements are at issue,

the only indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution actually

prescribes: confrontation.” Id. at 68-69.

If the statement is found to be testimonial, “the Sixth

Amendment demands what the common law required: [in-court

confrontation or] unavailability and a prior opportunity for

cross-examination.” Id. at 68. Significantly, the Court

declared that the “core class of ‘testimonial’ statements”

include:

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; extrajudicial statements . . .
contained in formalized testimonial materials
such as affidavits, depositions, prior
testimony, or confessions; 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.

16
Id. at 51-52 (internal quotation marks and citations omitted)

(emphasis added).

In Davis v. Washington, 547 U.S. 813, 822 (2006), the

Supreme Court further clarified what constitutes a

“testimonial” statement:

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.

As explained in Davis, a statement is nontestimonial if it is

made in the context of an ongoing emergency and is given for

the purposes of resolving that emergency. Id. By contrast, a

statement is testimonial if it is given while “[t]here was no

emergency in progress,” id. at 829, and is made for the purpose

of “establish[ing] or prov[ing] past events potentially

relevant to later criminal prosecution.” Id. at 822 (emphasis

added).

In this case, Sarah executed an affidavit for use in an ex

parte court proceeding, and given the nature of the statements

themselves, which describe violent, criminal acts, an objective

witness would reasonably “believe that the statement would be

available for use at a later trial.” Crawford, 541 U.S. at 52.

17
Additionally, Sarah’s statements were not made in the context

of an ongoing emergency in order to enable police to help

resolve that ongoing emergency. Instead, Sarah’s affidavit

described past events that had taken place days, weeks, and

even months previously--the very purpose of which was to

“establish or prove past events potentially relevant to later

criminal prosecution.” Davis, 547 U.S. at 822. Despite the

fact that the immediate purpose of the affidavit was to obtain

a protective order in a civil case, the facts recited were,

nonetheless, “potentially relevant to later criminal

prosecution.”

Most recently, the Supreme Court held in Melendez-Diaz v.

Massachusetts, 557 U.S. ___, ___, 129 S.Ct. 2527, 2532 (2009),

that affidavits (or certificates of analysis in that case)

related to forensic laboratory tests are testimonial. In so

holding, the Supreme Court stated:

There is little doubt that the documents at
issue in this case fall within the ‘core class
of testimonial statements’ thus described. Our
description of that category mentions affidavits
twice. See also White v. Illinois, 502 U.S.
346, 365 (1992) (Thomas, J., concurring in part
and concurring in judgment) ("[T]he
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"). The
documents at issue here, while denominated by
Massachusetts law ‘certificates,’ are quite
plainly affidavits: ‘declaration[s] of facts

18
 written down and sworn to by the declarant
before an officer authorized to administer
oaths.’ Black’s Law Dictionary 62 (8th ed.
2004). They are incontrovertibly a ‘solemn
declaration or affirmation made for the purpose
of establishing or proving some fact.’
Crawford, [541 U.S.] at 51 (quoting 2 N.
Webster, An American Dictionary of the English
Language (1828)). . . . The ‘certificates’ are
functionally identical to live, in-court
testimony, doing ‘precisely what a witness does
on direct examination.’ Davis v. Washington,
547 U.S. [at] 830.

Id.

Given the Supreme Court’s definition and examples of

testimonial statements in Crawford, Davis, and Melendez-Diaz,

we hold that the affidavit in support of Sarah Crawford’s

petition for a preliminary protective order is testimonial in

nature and should not have been admitted against Crawford at

trial. Because Sarah was unavailable to testify at Crawford’s

trial and Crawford did not have a prior opportunity to cross-

examine Sarah concerning these statements, Crawford’s Sixth

Amendment right to confrontation was violated when the

affidavit was admitted into evidence against him at trial.

Accordingly, the Court of Appeals erred when it held the

affidavit to be nontestimonial and upheld its admission at

Crawford’s trial.

However, this conclusion does not end our analysis. The

Commonwealth argues that the admission of the affidavit in

19
Crawford’s trial, if error, was harmless. We agree with the

Commonwealth.

C. Harmless Error

The United States Supreme Court has stressed on more than

one occasion that, “the Constitution entitles a criminal

defendant to a fair trial, not a perfect one.” Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986). Accordingly, the Supreme

Court has “rejected the argument that all federal

constitutional errors, regardless of their nature or the

circumstances of the case, require reversal of a judgment of

conviction.” Id. Therefore, “in the context of a particular

case, certain constitutional errors, no less than other errors,

may [be] ‘harmless’ in terms of their effect on the factfinding

process at trial.” Id.

Significantly, the Supreme Court has stated:

Whether a conviction for crime should stand when
a State has failed to accord federal
constitutionally guaranteed rights is every bit
as much of a federal question as what particular
federal constitutional provisions themselves
mean, what they guarantee, and whether they have
been denied. With faithfulness to the
constitutional union of the States, we cannot
leave to the States the formulation of the
authoritative laws, rules, and remedies designed
to protect people from infractions by the States
of federally guaranteed rights. We have no
hesitation in saying that the right[s] of these
petitioners . . . expressly created by the
Federal Constitution itself [are] federal
right[s] which, in the absence of appropriate

20
 congressional action, it is our responsibility to
protect by fashioning the necessary rule.

Chapman v. California, 386 U.S. 18, 21 (1967). Accordingly, the

Supreme Court has fashioned rules that this Court must apply

when deciding whether errors committed in violation of a

defendant’s federal constitutionally guaranteed rights are

harmless in nature.

In Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963), the

Supreme Court declared that, in conducting a constitutional

harmless error analysis, “[t]he question is whether there is a

reasonable possibility that the evidence complained of might

have contributed to the conviction.” The Supreme Court later

clarified this rule when it stated that “[t]here is little, if

any, difference between our statement in Fahy . . . and

requiring the beneficiary of a constitutional error to prove

beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman, 386 U.S. at 24

(emphasis added). Consequently, the Supreme Court 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.” Id. The Court explained that this

test “will provide a more workable standard, although achieving

the same result as that aimed at in [Fahy].” Id.

21
 Significantly, the Supreme Court has held that error

involving the Sixth Amendment’s Confrontation Clause is subject

to constitutional harmless error analysis. Van Arsdall, 475

U.S. at 684. In so holding, the Supreme Court further explained

that “[t]he correct inquiry is whether, assuming that the

damaging potential of the [error] were fully realized, a

reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt." Id. Accordingly,

[w]hether such an error is harmless in a
particular case depends upon a host of factors,
all readily accessible to reviewing courts.
These factors include the importance of the
[tainted evidence] in the prosecution's case,
whether [that 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.”

Id.; Cypress v. Commonwealth, 280 Va. 305, 318-19, 699 S.E.2d

206, 213-14 (2010).

Specifically, Sarah’s affidavit described several

instances of Crawford’s abuse and violence towards her,

including episodes where Crawford picked Sarah up and threw her

against a door; episodes where he would break things and where

he threw a glass and other items at her; where he pushed her

down; and an episode where he falsely accused her of forging a

prescription. The affidavit also included various threats made

by Crawford against Sarah, and the statement made by Sarah

22
that, “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.” Lastly, the affidavit included a description of an

incident in which Crawford had raped her less than three months

earlier.

The overall strength of the Commonwealth’s case against

Crawford, and the quantum, character, and quality of the other

evidence introduced at trial, independent of the affidavit, is

overwhelming. The affidavit is simply cumulative of other

evidence relating to these charges properly before the jury.

Upon considering the factors outlined in Van Arsdall, 475 U.S.

at 684, including “the importance of the [tainted evidence] in

the prosecution's case, whether [that evidence] was cumulative,

the presence or absence of evidence corroborating or

contradicting the [tainted evidence] on material points [and]

the overall strength of the prosecution's case,” we hold that

the admission of the affidavit constitutes harmless error

beyond a reasonable doubt in relation to Crawford’s convictions

for capital murder, abduction with intent to defile, rape, use

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

the commission of an abduction, and grand larceny.

i. Abduction with Intent to Defile

The evidence introduced at trial, independent of the

affidavit, overwhelmingly demonstrates that admission of the

23
affidavit was harmless beyond a reasonable doubt in relation to

the abduction with intent to defile conviction--a predicate

offense for the capital murder conviction.

Code § 18.2-48 states in relevant part, “[a]bduction . . .

of any person with intent to defile such person . . . shall be

a Class 2 felony.” The crime incorporates the charge of

abduction under Code § 18.2-47(A), which states:

Any person who, by force, intimidation or
deception, and without legal justification or
excuse, seizes, takes, transports, detains or
secretes another person with the intent to deprive
such other person of his personal liberty or to
withhold or conceal him from any person, authority
or institution lawfully entitled to his charge,
shall be deemed guilty of “abduction.”

The distinguishing feature between the charge of abduction and

abduction with intent to defile is the specific intent required

by the latter. McKinley v. Commonwealth, 217 Va. 1, 4, 225

S.E.2d 352, 353 (1976). Abduction with intent to defile is a

more serious offense than abduction with intent only to deprive

one of personal liberty.

In order to prove the greater offense of abduction with

intent to defile, the evidence must show that Crawford abducted

Sarah with the intent to sexually molest her. Wilson v.

Commonwealth, 249 Va. 95, 103, 452 S.E.2d 669, 675 (1995); see

also Fitzgerald v. Commonwealth, 223 Va. 615, 632, 292 S.E.2d

798, 808 (1982) (holding that the terms “sexually molest” and

24
“defile” are interchangeable). In Wilson, we upheld the

defendant’s conviction for abduction with intent to defile

based on evidence showing that the victim was tied to her bed,

arms and legs spread apart, with semen observed on her body.

Wilson, 249 Va. at 99, 103-04, 452 S.E.2d at 673, 675.

Similarly, the evidence here, independent of the

affidavit, was sufficient to show that Sarah did not

voluntarily travel with Crawford, but rather that Crawford

abducted her against her will. Sarah had plans for a hair

appointment and to go on a date with another man the weekend

she disappeared. She also failed to report to work the day she

disappeared, despite telling her supervisor she would be at

work by 1:00 p.m. Additionally, a box that belonged to Sarah’s

employer was found on the side of the road, with Sarah’s blood

on it, in Fauquier County on the morning Sarah disappeared.

Sarah’s supervisor testified that Sarah was supposed to ship

that box for him. Sarah’s cell phone was also found on the

side of the road in Manassas, Virginia that same morning.

Records from Sarah’s cell phone showed that Sarah called

Crawford twice on the morning of November 19, 2004, once at

7:52 a.m. and once at 8:52 a.m. Sarah did not appear to have

packed anything, and she left all of her luggage at home.

Moreover, Crawford admitted that Sarah was shot inside her

car. The driver’s-side window of Sarah’s car was broken and

25
Sarah’s blood was found on both the driver’s and rear seats of

the vehicle. Crawford also admitted that he took Sarah to a

motel in Charlottesville and left her there alone after the

shooting. An expert witness testified that Sarah could not

move after she was shot because the bullet severed her spine.

Consequently, she could not have gone to or entered the motel

room on her own volition. The medical examiner testified that

Sarah could have lived for an hour after she was shot. The

medical examiner also testified that Sarah had several bruises,

scratches, and abrasions on her neck and hands, injuries that

Sarah’s parents confirmed she did not have when they last saw

her.

Additionally, several witnesses testified concerning

Crawford’s violent nature and Sarah’s intense fear of him.

Sarah’s father testified that Crawford threw a table into the

room and broke it when Sarah attempted to remove her belongings

from the apartment she had shared with Crawford previously.

This incident was described in detail in the affidavit. It was

also offered into evidence through the testimony of Sarah’s

father, illustrating the merely cumulative nature of statements

contained in Sarah’s affidavit. Sarah’s mother also testified

that Crawford threatened Sarah when she moved out, telling her,

“You’ll pay for this.” A police officer, who responded to the

couple’s home when Sarah was moving out, testified that

26
Crawford acted in an intimidating and overbearing manner, and

appeared to threaten her. Sarah’s supervisor and co-worker

both testified about their knowledge of Sarah’s fear of

Crawford. Sarah’s supervisor testified that he was not

surprised to learn about the protective order against Crawford,

given the “history between them.”

Independent of the affidavit, the evidence, including the

voluminous testimony and evidence demonstrating Crawford’s

history of violence and threats toward Sarah, the protective

order, Sarah’s plans for the weekend, the physical evidence of

the box and her cell phone, Crawford’s admission that Sarah was

shot in her car, and the fact that she was paralyzed from the

wound, overwhelmingly demonstrates, beyond a reasonable doubt,

that Sarah did not go with Crawford willingly to

Charlottesville and certainly did not go willingly from the car

to the motel room.

Moreover, the evidence shows beyond a reasonable doubt

that Crawford abducted Sarah with the intent to defile her.

After she was shot, Crawford took Sarah directly to the motel

room, completely undressed her and left her paralyzed on the

bed, naked and positioned on her back with her thighs spread,

in a sexually suggestive position. Crawford’s semen was found

inside Sarah’s vagina, and sperm was found in or around Sarah’s

mouth and anus. Just as in Wilson, 249 Va. at 98-100, 103-04,

27
452 S.E.2d at 672-73, 675, this evidence alone is sufficient,

independent of the affidavit, to conclude that Crawford

abducted Sarah with the intent to defile her, particularly as

Crawford was still in the process of abducting Sarah when he

disrobed her and left her naked and paralyzed in the motel.

Significantly, the preliminary protective order admitted

into evidence at trial without objection by Crawford informed

the jury that a court had recently found “evidence sufficient

to establish probable cause that family abuse, including

forceful detention, resulting in physical injury to [Sarah] or

placing [her] in reasonable apprehension of serious bodily

injury,” had “recently occurred.”

Therefore, after considering the factors outlined in Van

Arsdall, 475 U.S. at 684, including “the importance of the

[tainted evidence] in the prosecution's case, whether [that

evidence] was cumulative, the presence or absence of evidence

corroborating or contradicting the [tainted evidence] on

material points [and] the overall strength of the prosecution's

case,” we hold that the admission of the affidavit constitutes

harmless error beyond a reasonable doubt in relation to

Crawford’s conviction for abduction with intent to defile.

ii. Rape

We have consistently held that, “ ‘[t]he burden is on the

Commonwealth to prove every essential element of the offense

28
beyond a reasonable doubt.’ This fundamental precept has been

the bedrock of Virginia's criminal jurisprudence since the

inception of this Commonwealth.” Bishop v. Commonwealth, 275

Va. 9, 13, 654 S.E.2d 906, 908 (2008) (quoting Powers v.

Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)).

"Because of the stringent standard of proof the law imposes

upon the prosecution, juries must acquit unless they find each

element of the crime charged to have been proved beyond a

reasonable doubt." Ellison v. Commonwealth, 273 Va. 254, 257-

58, 639 S.E.2d 209, 212 (2007). We have observed that

the burden of proof upon the [Commonwealth] in a
criminal case was given constitutional status in
In re Winship, 397 U.S. 358, 364 (1970) wherein
the [United States Supreme] Court stated “that
the Due Process Clause protects the accused
against conviction except upon proof beyond a
reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”

Washington v. Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485,

487 (2007). In order to obtain a conviction against a

defendant charged with a violation of Code § 18.2-61,

therefore, the Commonwealth must prove beyond a reasonable

doubt: (1) that the defendant had sexual intercourse with the

victim; (2) that it was against her will and without her

consent; and (3) that it was by force, threat or intimidation. 8

8
Although Code § 18.2-61 provides that sexual intercourse
“through the use of the complaining witness’s . . . physical
helplessness” also constitutes rape, the instructions given to

29
Gonzales v. Commonwealth, 45 Va. App. 375, 382, 611 S.E.2d 616,

619 (2005); Code § 18.2-61(A).

The affidavit alleged that Crawford had raped Sarah

earlier in their relationship. Describing the incident in

detail, Sarah stated:

I went to bed around 1 am. I notice [sic]
[Crawford] was not in bed and I got up. I went
out on the porch to smoke a cigarette. When I
came back, I went to bed. He then came in and
wanted sex. I did not want sex. He got mad and
got up. I too got up and went to the bathroom.
He then followed me in and said I was going to do
what he tells me. He made me take a bath and
also gave me an enema and made me dress up. He
then made me dance for him. He would hit me in
the head when he didn’t like how I was dancing.
He then got a belt and hit me three times on the
thighs and butt. He then forced me to use a
vibrator and he forced me to have sex with him.

The evidence, independent of the affidavit, overwhelmingly

proves that Crawford raped Sarah the morning he abducted and

killed her. Moreover, the allegations contained in the

affidavit are cumulative of the evidence of substantial abuse

suffered by Sarah at Crawford’s hands, and serve simply to

corroborate the overwhelming direct physical and circumstantial

evidence, including that previously discussed. 9

Cell phone records show that Sarah called Crawford at 8:52

a.m. on the morning of her death, indicating that they were not

the jury at Crawford’s trial did not include this alternative
element.
9
See discussion supra Part II-C(i), regarding the
abduction with intent to defile charge.

30
yet together. Crawford admitted to taking Sarah from Northern

Virginia to Charlottesville that same morning – a drive he said

took an hour and a half. The motel clerk testified that

Crawford checked into the motel in Charlottesville (where

Sarah’s body was found) at approximately 11 o’clock that

morning. Crawford told police that Sarah was shot in her car

in Charlottesville; however, Sarah’s blood was found on a box

in Northern Virginia. Crawford told police that he took Sarah

directly to the motel after she was shot, rather than to a

hospital. Crawford then stripped Sarah completely of her

clothing. He positioned her nude on her back, on the bed, with

her thighs spread. Crawford’s semen was found inside Sarah’s

vagina and sperm was found in or around her mouth and anus.

Additionally, the testimony of multiple witnesses indicated

that, at the time of her disappearance, Sarah was deeply afraid

of Crawford. The medical examiner also testified that Sarah

had several bruises, scratches, and abrasions on her neck and

hands, injuries that Sarah’s parents confirmed she did not have

the night before Crawford abducted and killed her.

Considered as a whole, the evidence shows beyond a

reasonable doubt that Sarah did not engage in consensual sexual

contact with Crawford on the morning that he killed her,

particularly given that expert testimony indicated that she

would have been paralyzed after having been shot. Furthermore,

31
while the affidavit did contain the allegation that Crawford

had previously raped Sarah, it was merely cumulative of the

mountain of other evidence indicating the horrible and abusive

nature of their relationship, and corroborative of the direct

physical and circumstantial evidence indicating that Crawford

raped Sarah after he shot her on the morning of her death,

November 19, 2004.

Therefore, after considering the necessary factors

outlined in Van Arsdall, 475 U.S. at 684, including “the

importance of the [tainted evidence] in the prosecution's case,

whether [that evidence] was cumulative, the presence or absence

of evidence corroborating or contradicting the [tainted

evidence] on material points [and] the overall strength of the

prosecution's case,” as it relates to this particular charge,

we hold that the admission of the affidavit constitutes

harmless error beyond a reasonable doubt in relation to

Crawford’s conviction for rape.

iii. Capital Murder

Crawford was charged with one count of capital murder with

two possible predicate offenses stated in the disjunctive. The

indictment charging capital murder read, in pertinent part, as

follows: “CRAWFORD . . . did willfully, deliberately and with

premeditation, kill and murder Sara [sic] Crawford during the

commission of an abduction with intent to defile or during the

32
commission of or subsequent to rape, forcible sodomy or object

sexual penetration.” (Emphasis added.) The jury instruction

on this issue stated in pertinent part:

The defendant is charged with the crime of
capital murder. The Commonwealth must prove
beyond a reasonable doubt each of the following
elements of that crime: . . .

[3) T]hat the killing occurred in the commission
of the abduction with intent to defile Sarah
Crawford or that the killing occurred in the
commission of the rape of Sarah Crawford.

(Emphasis added.) Consequently, while Crawford was only

charged with one count of capital murder, the jury had the

opportunity to convict him of capital murder based upon both

predicate offenses (abduction with intent to defile and the

rape of Sarah Crawford) or based upon either abduction with

intent to defile or rape, independently. The jury ultimately

found the capital murder conviction to be based upon both

predicates. The verdict form that was rendered by the jury

stated: “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.” (Emphasis added.)

The evidence in the record, independent of the affidavit,

demonstrates that admission of the affidavit was harmless

beyond a reasonable doubt in relation to Crawford’s conviction

33
for capital murder, based upon the predicate offenses that the

killing occurred in the commission of the abduction with the

intent to defile Sarah Crawford and in the commission of the

rape of Sarah Crawford.

The affidavit did relate incidents when Crawford had been

violent towards Sarah in the past and had threatened her.

However, the record, independent of the affidavit, demonstrates

Crawford’s abuse, violence, and threats toward Sarah. As

mentioned above, the preliminary protective order itself,

admitted into evidence at trial without objection, declared

that “[t]here is evidence sufficient to establish probable

cause that family abuse, including forceful detention,

resulting in physical injury to [Sarah] or placing [her] in

reasonable apprehension of serious bodily injury,” had

“recently occurred.” Furthermore, several witnesses testified

concerning Crawford’s violent, abusive nature, and Sarah’s

intense fear of him. Considering the voluminous evidence

demonstrating Crawford’s history of violence and threats toward

Sarah, the affidavit’s allegations of violence and threats were

merely cumulative in nature.

Additionally, the evidence, apart from the affidavit,

proved that Crawford purchased a gun and ammunition just days

prior to shooting Sarah. Crawford admitted that he shot his

wife and that he took her to the motel room after shooting her.

34
Crawford claimed that he shot her accidentally, but rather than

taking Sarah to a hospital, he attempted to cover up this

“accident.” After he shot her, Crawford drove to a motel and

left Sarah alone in one of its rooms. According to expert

testimony, even if Sarah were alive when Crawford left her in

that room, she would not have been able to move to seek help.

After leaving Sarah alone and immobile in the motel room,

Crawford did not call anyone for help. Instead, he took

Sarah’s car and drove to Florida to visit relatives who did not

know he was coming. He did not mention the “accident” to them,

and Crawford’s extended family testified that he acted normally

during his time in Florida and that he did not seem “morose or

sad” about anything. The jury was entitled to disbelieve

Crawford’s implausible account of the shooting.

Accordingly, upon review of the record, and after

considering the factors outlined in Van Arsdall, 475 U.S. at

684, including “the importance of the [tainted evidence] in the

prosecution's case, whether [that evidence] was cumulative, the

presence or absence of evidence corroborating or contradicting

the [tainted evidence] on material points [and] the overall

strength of the prosecution's case,” we conclude that the

affidavit was merely cumulative of other evidence properly

before the jury; therefore, we hold that the admission of the

affidavit constitutes harmless error beyond a reasonable doubt

35
in relation to Crawford’s conviction for capital murder, based

upon the predicate offenses of abduction with the intent to

defile and rape.

iv. Grand Larceny

Clearly, the admission of the affidavit was harmless

beyond a reasonable doubt in relation to Crawford’s conviction

for grand larceny. Crawford’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] 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). See also Code § 18.2-

95. Crawford was found in possession of Sarah’s vehicle,

without her permission, and he admitted in his statement to the

police that he drove it to Florida. The car was titled in Mr.

Powers’ (Sarah’s father) name and he testified that he had

purchased the car for his daughter. Additionally, Mr. Powers

testified that at the time Crawford stole Sarah’s car, it was

worth approximately fifteen thousand dollars ($15,000).

The affidavit simply does not contain any information,

whatsoever, relevant to Crawford’s conviction for grand

larceny, and the independent evidence proved that Crawford was

guilty of grand larceny. As such, admission of the affidavit

36
constitutes harmless error beyond a reasonable doubt in

relation to Crawford’s conviction for grand larceny.

v. Use of a Firearm Convictions

The admission of the affidavit was harmless beyond a

reasonable doubt in relation to Crawford’s two firearms

convictions. Code § 18.2-53.1 provides that, “[i]t shall be

unlawful for any person to use . . . any pistol, shotgun,

rifle, or other firearm or display such weapon . . . while

committing or attempting to commit murder . . . or abduction.”

Just as with the grand larceny charge, the affidavit simply

makes no allegation, whatsoever, having anything to do with a

firearm or Crawford’s use or possession of any firearm. The

evidence did show, independent of the affidavit, however, that

Crawford purchased a gun just prior to the killing. Crawford

admitted that he had a gun on the day of Sarah’s disappearance

and death. Crawford even admitted to shooting Sarah, although

he claimed it was accidental. Accordingly, we hold that

admission of the affidavit was harmless error beyond a

reasonable doubt in relation to Crawford’s use of a firearm

convictions.

D. The “Forfeiture by Wrongdoing” Doctrine

The Commonwealth argues that even if the affidavit is

testimonial in nature, nonetheless, it is admissible under the

doctrine of “forfeiture by wrongdoing.” The Court of Appeals

37
discussed what it referred to as the “possibility,” left open

by the United States Supreme Court in Giles v. California, 554

U.S. 353, 128 S.Ct. 2678 (2008), “that a defendant’s intention

to prevent testimony might be inferred from the surrounding

circumstances, such as in a case of ongoing domestic violence.”

Crawford, 55 Va. App. at 473, 686 S.E.2d at 564. The United

States Supreme Court specifically discussed this possibility in

Giles:

Where such an abusive [domestic] 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.

Giles, 554 U.S. at ___, 128 S.Ct. at 2693 (emphasis added).

Ultimately, the Court of Appeals concluded that the trial

court neither made the requisite factual findings showing

Crawford’s intent to prevent Sarah from testifying against him,

nor did the court consider the specific domestic violence

factors discussed in Giles which may evidence such an intent.

Crawford, 55 Va. App. at 482, 686 S.E.2d at 569. Accordingly,

the Court of Appeals held that, “[b]y 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

38
affidavit on that basis.” Crawford, 55 Va. App. at 474, 686

S.E.2d at 565. We agree with the Court of Appeals.

E. The Commonwealth’s Concession and
“Right Result for the Wrong Reason”

In separate assignments of error, Crawford maintains that:

(1) the Court of Appeals erred by holding it was not bound by

the Commonwealth’s concession at trial that the affidavit was

“testimonial;” and (2) the Court of Appeals erred in applying

the “right result/wrong reason” doctrine. Because we hold that

the affidavit was testimonial in nature, it is unnecessary to

address either of these assignments of error.

F. Sufficiency of the Evidence

Crawford maintains that the evidence was insufficient to

convict him of abduction with intent to defile and rape. As we

have previously held:

When considering a challenge to the sufficiency
of the evidence to sustain a conviction, this
Court reviews “the evidence in the light most
favorable to the prevailing party at trial and
consider[s] all inferences fairly deducible from
that evidence.” Jones v. Commonwealth, 276 Va.
121, 124, 661 S.E.2d 412, 414 (2008). This
Court will only reverse the judgment of the
trial court if the judgment “is plainly wrong or
without evidence to support it.” Wilson v.
Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326,
330 (2006) (quoting Code § 8.01-680). “If there
is evidence to support the convictions, the
reviewing court is not permitted to substitute
its own judgment, even if its opinion might
differ from the conclusions reached by the
finder of fact at the trial.” Commonwealth v.

39
 Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265
(1998).

Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d

786, 788 (2010). Additionally, we have held that when an

appellate court is reviewing the sufficiency of the

evidence, “[a]ny evidence properly admitted at trial is

subject to this review.” Commonwealth v. Presley, 256 Va.

465, 467, 507 S.E.2d 72, 72 (1998) (citing Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998))

(emphasis added). As such, 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.

The Court of Appeals held that counsel for Crawford

“conceded that, if the affidavit were admissible, the

evidence was sufficient to convict him of abduction with

intent to defile and rape.” Crawford, 55 Va. App. at 481,

686 S.E.2d at 569 (emphasis added). The Court of Appeals

found this concession to qualify “either as a waiver for

purposes of Rule 5A:18 or as an express withdrawal of an

appellate challenge to a trial court judgment.” Id.

Because the affidavit was improperly admitted, however,

and because Crawford did not concede that the evidence was

sufficient to convict him of abduction with intent to

40
defile and rape without the affidavit, Crawford did not

waive this assignment of error. Accordingly, the Court of

Appeals erred in failing to address Crawford’s sufficiency

argument.

After reviewing “the evidence in the light most favorable

to [the Commonwealth,] the prevailing party at trial[,] and

consider[ing] all inferences fairly deducible from that

evidence,” Clark, 279 Va. at 640-41, 691 S.E.2d at 788 (quoting

Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414

(2008)), we hold that the evidence, independent of the

affidavit, is sufficient to support the jury verdict finding

Crawford guilty of abduction with intent to defile and rape for

the same reasons that the admission of the affidavit was

harmless error beyond a reasonable doubt, above.

III. Conclusion

We hold that the admission of the affidavit into evidence

at trial, although violative of Crawford’s Sixth Amendment

right to confrontation, was harmless beyond a reasonable doubt

for each of Crawford’s convictions. Additionally, we hold that

the evidence was sufficient to sustain the convictions for

abduction with intent to defile and rape. Accordingly, albeit

based upon different analysis, we will affirm the judgment of

the Court of Appeals of Virginia, which affirmed Crawford’s

convictions for capital murder, abduction with intent to

41
defile, rape, use of a firearm in the commission of a murder,

use of a firearm in the commission of an abduction, and grand

larceny.

Affirmed.

42