were not admissible under the state-of-mind exception to the hearsay rule. The trial court overruled appellant’s motion to exclude this evidence and admitted the evidence under the state-of-mind exception. II. ANALYSIS A. THE AFFIDAVIT 1. Appellant’s Confrontation Rights In ruling on appellant’s motion to exclude the affidavit, the trial court held “it is clear, and the Commonwealth does not dispute, that these statements do fall within the scope of Crawford” because they are testimonial hearsay. On appeal, the Commonwealth contends the statements in the affidavit were not testimonial and avers that this legal issue is subject to de novo review on appeal in spite of the prosecutor’s concession below. See generally Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006) (<HOLDING>). We disagree. Whether or not the prosecutor
recognizing de novo standard of review holding that whether statements are testimonial is a legal issue subject to de novo review holding that whether a statute has been properly construed is a question of law subject to de novo review holding that whether a statute affects sentencing is a question of law subject to de novo review holding statutory interpretation is subject to de novo review