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Full Opinion
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 (âCrawfordâ) 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 Crawfordâs 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 Sarahâs 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,
âIt's My Life Now: Starting Over After an Abusive Relationship
or Domestic Violence.â
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 âSarahâs car,â 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 Sarahâs stomach as âa scant amount
(20cc) of thin yellow fluid.â
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
Appellantâs brief filed in the Court of Appeals stated
that, â[d]uring the course of their travel [from Manassas to
Charlottesville] they engaged in consensual intercourse.â 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 Crawfordâs 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 âtestimonialâ within the
meaning of Confrontation Clause cases, in violation
of Anthony Crawfordâs 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 âforfeiture by wrongdoingâ 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 Crawfordâs
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 courtâs ruling
and the prosecutorâs concession that the affidavit
was âtestimonial.â
14
4. The Court of Appeals erred in applying the âright
result/wrong reasonâ doctrine to uphold the
conviction.
5. The Court of Appeals erred in failing to address
Appellantâs 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 Courtâs
analysis. âWe consider the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to the Commonwealth, the prevailing party at trial.â
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
âunless he was unavailable to testify and the defendant had had
a prior opportunity for cross-examination.â 541 U.S. at 53-54.
The Court stated, â[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.â Id. at 68-69.
If the statement is found to be testimonial, âthe Sixth
Amendment demands what the common law required: [in-court
confrontation or] unavailability and a prior opportunity for
cross-examination.â Id. at 68. Significantly, the Court
declared that the âcore class of âtestimonialâ statementsâ
include:
ex parte in-court testimony or its functional
equivalentâthat 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
âtestimonialâ 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 â[t]here was no
emergency in progress,â id. at 829, and is made for the purpose
of âestablish[ing] or prov[ing] past events potentially
relevant to later criminal prosecution.â 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 âbelieve that the statement would be
available for use at a later trial.â Crawford, 541 U.S. at 52.
17
Additionally, Sarahâs statements were not made in the context
of an ongoing emergency in order to enable police to help
resolve that ongoing emergency. Instead, Sarahâs affidavit
described past events that had taken place days, weeks, and
even months previously--the very purpose of which was to
âestablish or prove past events potentially relevant to later
criminal prosecution.â 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, âpotentially relevant to later criminal
prosecution.â
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 âcore class
of testimonial statementsâ 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 âcertificates,â are quite
plainly affidavits: âdeclaration[s] of facts
18
written down and sworn to by the declarant
before an officer authorized to administer
oaths.â Blackâs Law Dictionary 62 (8th ed.
2004). They are incontrovertibly a âsolemn
declaration or affirmation made for the purpose
of establishing or proving some fact.â
Crawford, [541 U.S.] at 51 (quoting 2 N.
Webster, An American Dictionary of the English
Language (1828)). . . . The âcertificatesâ are
functionally identical to live, in-court
testimony, doing âprecisely what a witness does
on direct examination.â Davis v. Washington,
547 U.S. [at] 830.
Id.
Given the Supreme Courtâs definition and examples of
testimonial statements in Crawford, Davis, and Melendez-Diaz,
we hold that the affidavit in support of Sarah Crawfordâs
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 Crawfordâs
trial and Crawford did not have a prior opportunity to cross-
examine Sarah concerning these statements, Crawfordâs 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
Crawfordâs trial.
However, this conclusion does not end our analysis. The
Commonwealth argues that the admission of the affidavit in
19
Crawfordâs 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, âthe Constitution entitles a criminal
defendant to a fair trial, not a perfect one.â Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986). Accordingly, the Supreme
Court has ârejected the argument that all federal
constitutional errors, regardless of their nature or the
circumstances of the case, require reversal of a judgment of
conviction.â Id. Therefore, âin the context of a particular
case, certain constitutional errors, no less than other errors,
may [be] âharmlessâ in terms of their effect on the factfinding
process at trial.â 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
defendantâs 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, â[t]he question is whether there is a
reasonable possibility that the evidence complained of might
have contributed to the conviction.â The Supreme Court later
clarified this rule when it stated that â[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.â Chapman, 386 U.S. at 24
(emphasis added). Consequently, the Supreme Court held that
âbefore 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.â Id. The Court explained that this
test âwill provide a more workable standard, although achieving
the same result as that aimed at in [Fahy].â Id.
21
Significantly, the Supreme Court has held that error
involving the Sixth Amendmentâs 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 â[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.â
Id.; Cypress v. Commonwealth, 280 Va. 305, 318-19, 699 S.E.2d
206, 213-14 (2010).
Specifically, Sarahâs affidavit described several
instances of Crawfordâs 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, âI 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.â 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 Commonwealthâs 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 âthe 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,â we hold that
the admission of the affidavit constitutes harmless error
beyond a reasonable doubt in relation to Crawfordâs 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, â[a]bduction . . .
of any person with intent to defile such person . . . shall be
a Class 2 felony.â 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 âabduction.â
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 âsexually molestâ and
24
âdefileâ are interchangeable). In Wilson, we upheld the
defendantâs 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 Sarahâs
employer was found on the side of the road, with Sarahâs blood
on it, in Fauquier County on the morning Sarah disappeared.
Sarahâs supervisor testified that Sarah was supposed to ship
that box for him. Sarahâs cell phone was also found on the
side of the road in Manassas, Virginia that same morning.
Records from Sarahâs 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 driverâs-side window of Sarahâs car was broken and
25
Sarahâs blood was found on both the driverâs 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
Sarahâs parents confirmed she did not have when they last saw
her.
Additionally, several witnesses testified concerning
Crawfordâs violent nature and Sarahâs intense fear of him.
Sarahâs 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 Sarahâs
father, illustrating the merely cumulative nature of statements
contained in Sarahâs affidavit. Sarahâs mother also testified
that Crawford threatened Sarah when she moved out, telling her,
âYouâll pay for this.â A police officer, who responded to the
coupleâs home when Sarah was moving out, testified that
26
Crawford acted in an intimidating and overbearing manner, and
appeared to threaten her. Sarahâs supervisor and co-worker
both testified about their knowledge of Sarahâs fear of
Crawford. Sarahâs supervisor testified that he was not
surprised to learn about the protective order against Crawford,
given the âhistory between them.â
Independent of the affidavit, the evidence, including the
voluminous testimony and evidence demonstrating Crawfordâs
history of violence and threats toward Sarah, the protective
order, Sarahâs plans for the weekend, the physical evidence of
the box and her cell phone, Crawfordâs 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. Crawfordâs semen was found
inside Sarahâs vagina, and sperm was found in or around Sarahâs
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 âevidence 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,â had ârecently occurred.â
Therefore, after considering the factors outlined in Van
Arsdall, 475 U.S. at 684, including âthe 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,â we hold that the admission of the affidavit constitutes
harmless error beyond a reasonable doubt in relation to
Crawfordâs conviction for abduction with intent to defile.
ii. Rape
We have consistently held that, â â[t]he burden is on the
Commonwealth to prove every essential element of the offense
28
beyond a reasonable doubt.â This fundamental precept has been
the bedrock of Virginia's criminal jurisprudence since the
inception of this Commonwealth.â 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 âthat
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.â
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
âthrough the use of the complaining witnessâs . . . physical
helplessnessâ 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 didnât 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 Crawfordâs 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 Crawfordâs 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 â a drive he said
took an hour and a half. The motel clerk testified that
Crawford checked into the motel in Charlottesville (where
Sarahâs body was found) at approximately 11 oâclock that
morning. Crawford told police that Sarah was shot in her car
in Charlottesville; however, Sarahâs 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. Crawfordâs semen was found inside Sarahâs
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 Sarahâs 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 âthe
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,â 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
Crawfordâs 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: âCRAWFORD . . . 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.â (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: âWe, 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.â (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 Crawfordâs 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
Crawfordâs abuse, violence, and threats toward Sarah. As
mentioned above, the preliminary protective order itself,
admitted into evidence at trial without objection, declared
that â[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,â had
ârecently occurred.â Furthermore, several witnesses testified
concerning Crawfordâs violent, abusive nature, and Sarahâs
intense fear of him. Considering the voluminous evidence
demonstrating Crawfordâs history of violence and threats toward
Sarah, the affidavitâs 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
âaccident.â 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
Sarahâs car and drove to Florida to visit relatives who did not
know he was coming. He did not mention the âaccidentâ to them,
and Crawfordâs extended family testified that he acted normally
during his time in Florida and that he did not seem âmorose or
sadâ about anything. The jury was entitled to disbelieve
Crawfordâs 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 âthe 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,â 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 Crawfordâs 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 Crawfordâs conviction
for grand larceny. Crawfordâs conviction for grand larceny
required proof that he âwrongful[ly] or fraudulent[ly] [took]
anotherâs property [valued at $200 or more] without [the
ownerâs] permission and with the intent to deprive the owner of
that property permanently.â 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 Sarahâs 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.
Powersâ (Sarahâs father) name and he testified that he had
purchased the car for his daughter. Additionally, Mr. Powers
testified that at the time Crawford stole Sarahâs car, it was
worth approximately fifteen thousand dollars ($15,000).
The affidavit simply does not contain any information,
whatsoever, relevant to Crawfordâs 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 Crawfordâs conviction for grand larceny.
v. Use of a Firearm Convictions
The admission of the affidavit was harmless beyond a
reasonable doubt in relation to Crawfordâs two firearms
convictions. Code § 18.2-53.1 provides that, â[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.â
Just as with the grand larceny charge, the affidavit simply
makes no allegation, whatsoever, having anything to do with a
firearm or Crawfordâs 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 Sarahâs 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 Crawfordâs use of a firearm
convictions.
D. The âForfeiture by Wrongdoingâ Doctrine
The Commonwealth argues that even if the affidavit is
testimonial in nature, nonetheless, it is admissible under the
doctrine of âforfeiture by wrongdoing.â The Court of Appeals
37
discussed what it referred to as the âpossibility,â left open
by the United States Supreme Court in Giles v. California, 554
U.S. 353, 128 S.Ct. 2678 (2008), âthat a defendantâs intention
to prevent testimony might be inferred from the surrounding
circumstances, such as in a case of ongoing domestic violence.â
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 â
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
Crawfordâs 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, â[b]y not considering
Crawfordâs 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.â Crawford, 55 Va. App. at 474, 686
S.E.2d at 565. We agree with the Court of Appeals.
E. The Commonwealthâs Concession and
âRight Result for the Wrong Reasonâ
In separate assignments of error, Crawford maintains that:
(1) the Court of Appeals erred by holding it was not bound by
the Commonwealthâs concession at trial that the affidavit was
âtestimonial;â and (2) the Court of Appeals erred in applying
the âright result/wrong reasonâ 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 âthe evidence in the light most
favorable to the prevailing party at trial and
consider[s] all inferences fairly deducible from
that evidence.â 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 âis plainly wrong or
without evidence to support it.â Wilson v.
Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326,
330 (2006) (quoting Code § 8.01-680). âIf 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.â 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, â[a]ny evidence properly admitted at trial is
subject to this review.â 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
âconceded that, if the affidavit were admissible, the
evidence was sufficient to convict him of abduction with
intent to defile and rape.â Crawford, 55 Va. App. at 481,
686 S.E.2d at 569 (emphasis added). The Court of Appeals
found this concession to qualify âeither as a waiver for
purposes of Rule 5A:18 or as an express withdrawal of an
appellate challenge to a trial court judgment.â 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 Crawfordâs sufficiency
argument.
After reviewing âthe evidence in the light most favorable
to [the Commonwealth,] the prevailing party at trial[,] and
consider[ing] all inferences fairly deducible from that
evidence,â 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 Crawfordâs Sixth Amendment
right to confrontation, was harmless beyond a reasonable doubt
for each of Crawfordâs 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 Crawfordâs
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