¶37 (dissenting) — I respectfully dissent. I agree with the United States Supreme Court that
[djomestic violence is an intolerable offense that legislatures may choose to combat through many means — from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendant is not in the State’s arsenal.
Giles v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008).
¶38 Because the abridgment of defendant’s right of confrontation in domestic violence cases should not be an option, I would hold that the State is not allowed to invoke the doctrine of forfeiture by wrongdoing in domestic violence cases without clear, cogent, and convincing evidence that the alleged victim’s failure to appear in response to the State’s witness subpoena was due to the defendant’s actions that do not form the basis of the criminal charges against the defendant.
¶39 Evidence must be clear, cogent, and convincing that the defendant accomplished the absence of the witness. *920State v. Mason, 160 Wn.2d 910, 927, 162 P.3d 396 (2007).6 Here, the majority relies in part on acts that were the basis of the charges against Dobbs to find that his conduct caused the alleged victim to not appear for trial. Majority at 914. In doing so, the majority, as well as the trial court, had to assume that he was guilty of the charges, without benefit of a trial and in the absence of overwhelming and untainted evidence of those charges. I am not persuaded that admission of hearsay statements from the alleged victim regarding the charges, without more, constitutes clear, cogent, and convincing evidence that the witness did not appear at trial due to the defendant’s actions.
¶40 The trial court’s factual findings do not indicate that Timothy Dobbs had the specific intent to prevent the complaining witness from testifying against him. Nor could the trial court have found on the record before it that Dobbs’ intended to, and did, prevent the complaining witness from testifying against him by clear, cogent, and convincing evidence sufficient to waive his United States Constitution Sixth Amendment right to confrontation.
¶41 Although the record is replete with allegations about Dobbs’ conduct toward the alleged victim, the record lacks even a scintilla of evidence about why the witness actually chose to not attend trial. The night before, she responded *921to Longview Police Officer Matthew Headley’s reminder about appearing at trial without any suggestion that she would not appear. The record shows only speculation about her reasons for not appearing in court, based on the pending charges and on a statement Dobbs allegedly made to her after his arrest, and after he made a telephone call from the jail. Majority at 914. This evidence, under any measure, is not clear, cogent, and convincing that Dobbs procured the witness’s absence.
¶42 Because I believe that Dobbs’ constitutional right to confront the witness against him has been violated by an overly expansive application of the forfeiture by wrongdoing doctrine, I respectfully dissent.
Review granted at 175 Wn.2d 1013 (2012).
Giles overruled Mason to the extent Mason holds that specific intent to prevent testimony need not be shown to invoke the forfeiture doctrine. State v. Fallentine, 149 Wn. App. 614, 620, 215 P.3d 945 (2009). I would agree that application of the forfeiture doctrine does not offend the Sixth Amendment right of confrontation in murder cases where the witness is dead and there is “ ‘overwhelming [and] untainted’ ” evidence that the defendant intended to and did procure the absence of the victim by killing him. Mason, 160 Wn.2d at 927 (quoting State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005)). In those cases, the State may offer evidence of the murder victim’s fear of the defendant or evidence of a murder defendant’s actions toward the murder victim that suggests the defendant’s motive or means of accomplishing the victim’s silence or lack of cooperation with a criminal prosecution for the defendant’s earlier possibly criminal conduct toward the murder victim. See Giles, 554 U.S. at 377; Mason, 160 Wn.2d at 916-17. In Mason, everything the murder victim said to the police was said to four civilian witnesses whose testimony Mason did not challenge, making any confrontation clause error harmless. 160 Wn.2d at 927. That is not the case here.