(dissenting) — Fifteen years ago, Kenneth Jackson chose to flee Washington state rather than face trial for the first degree statutory rape on Christmas eve of his 4-year-old niece, who subsequently contracted gonorrhea. The judge allowed the trial to proceed in Jackson’s absence. The majority concludes that a new trial must take place, despite the almost impossible burden this places on the State to retrieve essential evidence and produce credible witnesses. The lesson this case sends is clear: not only can you run and hide, you might even beat the rap.
I concede that the majority’s summary analysis of the law is technically plausible. However, it completely ignores the consequences of its ruling on the victims who must relive age-old .tragedies.
There are certainly no equities on the Defendant’s side. Jackson cannot claim to be a stranger to the criminal justice system. He had previous convictions for third degree assault and resisting arrest, as well as numerous traffic violations. Prior to his arrest on the statutory rape charge, he had twice been charged with failure to appear for court-ordered proceedings. Although he made an appearance to enter a plea of not guilty and was present on the day of the omnibus hearing, Jackson later voluntarily fled the jurisdiction. He did not attempt to contact either his attorney or the court to explain his absence.
*363In State v. Hammond, 121 Wn.2d 787, 854 P.2d 637 (1993), this court unanimously held that CrR 3.4, which describes the circumstances for attendance at trial, prohibited a trial in that defendant’s absence. However, the facts of Hammond are quite different from this case. Although Hammond violated the terms of his release and visited his parents in California, he made his whereabouts known to the court and his counsel. He claimed he did not have the funds to return to Washington, and asked that an arrest warrant be issued so that he could be transported by authorities to Washington. The trial judge refused to issue the warrant and conducted the trial in Hammond’s absence. Hammond, at 789. We concluded that "[bjecause CrR 3.4 does not authorize beginning a trial without the defendant under the circumstances presented here, Hammond’s conviction is reversed”. (Italics mine.) Hammond, at 794.
Contrary to the assertion of the majority, this court is not bound by the United States Supreme Court’s interpretation of the federal counterpart to CrR 3.4. We should interpret our rule to be more flexible. See Crosby v. United States, 506 U.S. 255, 122 L. Ed. 2d 25, 113 S. Ct. 748 (1993). Such a result would be fair to defendants, and at the same time avoid the gross injustice of forcing the prosecution to reconstruct its case over a decade later.
In the present case, Jackson knew that his trial was approaching and yet decided to flee the jurisdiction. He quit his job, vacated his apartment, and disappeared to parts unknown. He made no attempt to contact his counsel or the court, nor did his actions give even the slightest indication of an intent to return for trial. He successfully eluded apprehension for almost 13 years.
I believe that the majority opinion errs by extending Hammond beyond its factual context. Hammond correctly required a retrial when the defendant, on the morning of trial, contacted authorities in an attempt to return to Washington. In sharp contrast, Jackson absented himself from Washington for almost 13 years and returned here only after being arrested on a warrant. I would hold that Jackson *364objectively manifested an intent to knowingly and voluntarily waive both his constitutional and statutory rights, and may be tried in absentia. See Wilson v. Harris, 595 F.2d 101, 103-04 (2d Cir. 1979).
Therefore, I would affirm the trial court.
Andersen, C.J., concurs with Durham, J.