FILE 

IN CLERKS OFFICE 

aJ1R!ME COURT, STATE OF WA3HlNGTON 

DATE MAR 1 3 2014 

~~ 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) 

Respondent, ) No. 87472-7 

) 

v. ) EnBanc 

) 

TIMOTHY JOHN DOBBS aka TIMOTHY ) 

JOHN ST. LOUIS, ) 

) 

Petitioner. ) 

~ ) 

) 

In the Matter of the Personal Restraint of ) 

) 

TIMOTHY J. DOBBS, ) 

) Filed MAR 1 3 2014 

Petitioner. ) 

) 

OWENS, J. -- Under the Sixth Amendment to the United States Constitution, 

criminal defendants have the right to confront the witnesses against them. However, 

if the defendant intentionally causes the absence of a witness from trial, he or she 

forfeits that right. As the esteemed Justice Tom Chambers wrote, "[W]e will not 

allow [the defendant] to complain that he was unable to confront [the witness] when 

[the defendant] bears responsibility for [the witness's] unavailability." State v. 
State v. Dobbs 

No. 87472-7 

Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). Without such a forfeiture rule, 

defendants would have "an intolerable incentive ... to bribe, intimidate, or even kill 

witnesses against them." Giles v. California, 554 U.S. 353, 365, 128 S. Ct. 2678, 171 

L. Ed. 2d 488 (2008). 

In this case, Timothy John Dobbs engaged in a campaign of threats, 

harassment, and intimidation against his ex-girlfriend, C.R., that included a drive-by 

shooting at her home and warnings that she would "'get it"' for calling the police and 

she would "regret it" if she pressed charges against him. 1 Verbatim Report of 

Proceedings (VRP) at 97, 123. As C.R. reported the increasingly violent activities of 

Dobbs against her, she explained to the police that she was terrified that she was going 

to wind up dead. After Dobbs was arrested, he made yet another intimidating phone 

call to C.R., threatening that if she went forward and pressed charges against him, she 

would regret it. When C.R. failed to show up to testify at trial, the trial judge found 

that there was clear, cogent, and convincing evidence that Dobbs was the cause of her 

absence and thus had forfeited his confrontation right. We agree. While Dobbs has 

the right to confront witnesses against him, he forfeited his right to confront C.R. 

when he chose to threaten her with violence for cooperating with the legal system. 

"To permit the defendant to profit from such conduct would be contrary to public 

policy, common sense and the underlying purpose of the confrontation clause." 

United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976). 

2 
State v. Dobbs 

No. 87472-7 

FACTS 

The criminal charges in this case arose out of an escalating series of violent and 

threatening actions Dobbs took against C.R. shortly after the end of their relationship. 

On November 7, 2009, police were dispatched to C.R.'s residence in response to a 

domestic violence report shortly before 5:00 a.m. C.R. explained to the police officer 

that Dobbs had been following her and threatening to shoot her if she would not let 

him be her boyfriend anymore. C.R. indicated that Dobbs had just been at her 

residence beating on her door, wanting to come in. After they argued and she told 

him to leave, she heard a hissing noise outside and found that her tires had been 

slashed. 

While the police officer was at her residence, C.R. received text messages and a 

phone call. She explained to the officer that they were from Dobbs, and she put the 

call on speakerphone so the officer could hear. The caller argued with C.R. about 

why she had called the police on him, reminded her that he had warned her about 

calling the police, and ended the call by telling her that she was going to '"get it."' 1 

VRP at 97. C.R. told the officer that she believed Dobbs would hurt her, based on the 

earlier threats to shoot her and the fact that she knew he had a gun. She told the 

officer that Dobbs had told her that he was going to come back and shoot her house 

and everyone there. 

3 
State v. Dobbs 

No. 87472-7 

On November 10, 2009, C.R. called James Applebury, her cousin's fiancee 

who lived in a house on the same property as C.R. 's residence. She told him that 

Dobbs was leaving and wanted to know if Apple bury could confirm that Dobbs was 

gone. Applebury went to the window and saw a man resembling Dobbs in a car 

similar to one that he had seen Dobbs in previously. Shortly thereafter, the car pulled 

into the alley next to the property and Applebury heard gunshots from the alley. 

Applebury called the police, as did C.R., who reported that Dobbs had been stalking 

her and that he had recently been at her house. The officers who responded to the call 

found C.R. extremely fearful and upset. She told them that if Dobbs was not found, 

they were going to find her dead. The police later examined the outside of C.R. 's 

residence and found recent bullet holes. Based on the trajectory of the bullet holes, 

the police concluded that they came from the nearby alley. C.R. later played for 

police a voice mail from Dobbs that she received after the shooting. The police 

reported that the voice mail basically said, '"You heard that. That was me and that's 

what I can do."' Id. at 123. 

Later that same evening, Applebury's fiancee told him that Dobbs was back on 

the property. Applebury called the police and while he was talking to the dispatcher, 

C.R. ran into the house, screaming that Dobbs had a gun. Applebury looked across 

the yard through the open door to C.R.' s residence and saw Dobbs inside holding a 

gun. Dobbs then fled, jumping over the fence into the neighbor's yard. With the 

4 
State v. Dobbs 

No. 87472-7 

assistance of a K-9 unit, police tracked Dobbs to a nearby Laundromat, where he was 

arrested. The next morning, C.R. 's neighbor found a handgun in his yard and turned 

it over to the police. 

When the police spoke with C.R. shortly after Dobbs had fled from her home, 

they reported that she was hysterical, upset, and fearful. She told them that Dobbs had 

been harassing and stalking her for two weeks. She explained that earlier that 

evening, he had pushed his way inside her residence and that he had a gun. She told 

the police, '"I told you ... you were going to find me dead."' !d. at 116. She also 

gave the police a note that Dobbs had left behind earlier that day that one of the police 

officers read into the record at trial: 

"Last days. The countdown on your ... ass. You should know me by 

now, Casey. You fucked up and tripped with ... the wrong brother. 

You will regret what ... you did and said to me. You never loved me. 

You never cared about me and now you will reap a world of trouble and 

pain. Number 1, you can apologize to me and talk with me face-to-face 

or Number 2, you know you can't and won't be (inaudible) here in 

Longview or Washington. I'm going all out on this with you. You're 

fucked up, bitch." 

Jd. at 120. 

The following day, the police spoke with C.R. again and she played a voice 

mail that she had received from Dobbs from jail the night after he had been arrested. 

The police described the voice mail as Dobbs "essentially pleading with her not to go 

forward and not to press charges against him and it -- it kind of quickly turned into 

kind of a threatening of don't do this to me or-- or you'll regret it." !d. at 123. 

5 
State v. Dobbs 

No. 87472-7 

C.R. also showed the police two text messages that she received the day of the 

shooting. The police photographed the messages and then read them aloud at trial. 

The first one said, "'Next time it is you, bitch. On, Bloods."' !d. at 126. The second 

one said, "'Bitch, you move and there will be hell to pay. Plus, my bro lives down 

there and he's a known figure. You can't get away from me. I told you you're mines 

(sic)."' !d. at 126-27. 

Prosecutors charged Dobbs with eight crimes, including stalking, harassment, 

and drive-by shooting. The bench trial began on January 25, 2010. C.R. was served 

with a subpoena, and the night before trial, an officer went to C.R. 's house to remind 

her to come to court the following morning to testify. The officer reported that C.R. 

responded "'Okay'" and closed the door. !d. at 106. C.R. did not appear at trial the 

next day. Prosecutors and police attempted to contact her over the next couple of days 

but were unable to reach her. The judge eventually issued a formal warrant for C.R.' s 

arrest but she was not located and never appeared at trial. 

The State asked the court to rule that Dobbs could not raise the issue of his 

confrontation rights because he had forfeited those rights by engaging in wrongdoing 

with the intent to prevent C.R. from testifying. The court agreed, ruling: 

Clear, cogent and convincing evidence. I'm satisfied that there is a 

sufficient basis that the defendant's conduct is the fact to why she is not 

here. There is testimony that she felt he was -- the defendant was 

following her. She knew he carried a weapon. Others had seen a black 

handgun. She had threatened to -- he had threatened to shoot her in the 

past, if she wouldn't let him be her boyfriend. She said she was 

6 
State v. Dobbs 

No. 87472-7 

receiving text messages calling her names. There is evidence that -- I'm 

deciding this by clear, cogent and convincing evidence. I have not 

decided this case based upon beyond a reasonable doubt. So, that should 

be emphasized. There is the -- she believed it was the defendant that 

punctured her tires. She said she believed the defendant would-- he 

would hurt her because of what she had said in the -- because of what he 

had said in the past, she believed he would shoot her. He had a handgun. 

So, I think that based upon the evidence that is in front of this Court, it is 

clear, cogent and convincing that she was afraid of him and that's why 

she isn't here to testify. And, that based on that evidence, he does forfeit 

the right to object on the confrontation issues, not as to the basis for any 

hearsay. 

2 VRP at 255-56. 

The trial court then addressed whether the forfeiture of one's confrontation 

rights also waives one's hearsay objections. The court ruled that under State v. 

Fallentine, 149 Wn. App. 614, 215 P.3d 945 (2009), "there is also a waiver ofhearsay 

objections if the Court finds forfeiture by wrongdoing." 2 VRP at 282. 

The judge found Dobbs guilty of (1) stalking (domestic violence) with a deadly 

weapon enhancement, (2) felony harassment (domestic violence), (3) intimidating a 

witness (domestic violence), (4) drive-by shooting (domestic violence), (5) first 

degree unlawful possession of a firearm, and ( 6) obstructing a law enforcement 

officer. 

Dobbs appealed and the Court of Appeals affirmed, holding that there was 

sufficient evidence that Dobbs intentionally engaged in misconduct to keep C.R. from 

testifying, including telling her she would die if she continued to cooperate with the 

police and then later, after he was arrested, threatening that she would regret it if she 

7 
State v. Dobbs 

No. 87472-7 

proceeded to press charges. State v. Dobbs, 167 Wn. App. 905, 914-15, 276 P.3d 324 

(2012). The Court of Appeals also held that the trial judge did not err in admitting 

evidence that would have been inadmissible as hearsay but for the doctrine of 

forfeiture by wrongdoing. !d. at 917-18. The Court of Appeals concluded that under 

the same reasoning underlying the forfeiture of wrongdoing, a defendant waives his 

hearsay objections when his actions make it necessary for the State to rely on out-ofcourt statements. !d. at 918. We granted Dobbs's subsequent petition for review. 

State v. Dobbs, 175 Wn.2d 1013, 287 P.3d 10 (2012). 

ISSUES 

1. Did substantial evidence support the trial judge's ruling that Dobbs had 

caused C.R.' s absence and thus forfeited his right to confront her? 

2. If Dobbs forfeited his confrontation right by wrongdoing, did he also waive 

any hearsay objections he might have? 

STANDARD OF REVIEW 

Constitutional issues, such as the potential violations of the Sixth Amendment 

right to confront witnesses, are subject to de novo review. State v. Price, 158 Wn.2d 

630, 638-39, 146 P.3d 1183 (2006). We review a trial court's findings of fact to 

determine whether they are supported by substantial evidence. State v. Hill, 123 

Wn.2d 641, 644-47, 870 P.2d 313 (1994). We review trial court decisions on the 

admissibility of evidence for abuse of discretion. State v. Powell, 126 Wn.2d 244, 

8 
State v. Dobbs 

No. 87472-7 

258, 893 P .2d 615 (1995). A trial court abuses its discretion when its decision "is 

manifestly unreasonable or based upon untenable grounds or reasons." !d. 

ANALYSIS 

1. Substantial Evidence Supported the Trial Judge's Ruling That Dobbs Had 

Caused C.R. 's Absence and Thus Forfeited His Right to Confront Her 

The Sixth Amendment gives criminal defendants the right to confront the 

witnesses against them. 1 However, a criminal defendant forfeits this right when he or 

she causes the witness to be unavailable. Mason, 160 Wn.2d at 925. This ruleknown as the forfeiture by wrongdoing doctrine-"permit[s] the introduction of 

statements of a witness who was 'detained' or 'kept away' by the 'means or 

procurement' of the defendant." Giles, 554 U.S. at 359. 

In Washington, we first adopted the forfeiture by wrongdoing doctrine in 

Mason. 160 Wn.2d at 925. We explained that the doctrine is grounded in the 

principle of equity, and that a defendant cannot complain of his inability to confront a 

witness when his own actions caused that witness to be unavailable. !d. at 925-26. 

We held that when a trial court is faced with a potential forfeiture by wrongdoing, 

"the trial court must decide whether the witness has been made unavailable by the 

1 Article I, section 22 of the Washington State Constitution similarly provides a criminal 

defendant with the right "to meet witnesses against him face to face." Because the parties 

do not argue that the state constitution provides stronger confrontation rights than the 

federal constitution, we do not engage in that analysis. Mason, 160 Wn.2d at 917 n.l. 

9 
State v. Dobbs 

No. 87472-7 

wrongdoing of the accused based upon evidence that is clear, cogent, and 

convincing." !d. at 927. 

In Mason, we also held that "[s]pecific intent to prevent testimony is 

unnecessary" and that "[k]nowledge that the foreseeable consequences of one's 

actions include a witness' unavailability at trial is adequate to conclude a forfeiture of 

confrontation rights." !d. at 926. However, the United States Supreme Court later 

explained that the forfeiture by wrongdoing doctrine is limited to those situations 

where the defendant engaged in the conduct with the intention to prevent the witness 

from testifying. Giles, 554 U.S. at 361. 

Reading Mason and Giles together, we conclude that a defendant forfeits the 

Sixth Amendment right to confront a witness when clear, cogent, and convincing 

evidence shows that the witness has been made unavailable by the wrongdoing of the 

defendant, and that the defendant engaged in the wrongful conduct with the intention 

to prevent the witness from testifying. 

When the standard ofproofis clear, cogent, and convincing evidence, the fact 

at issue must be shown to be "highly probable." In re Welfare ofSego, 82 Wn.2d 736, 

739, 513 P.2d 831 (1973). In this case, we hold that the State has established Dobbs's 

pattern of abuse and intimidation towards C.R. and shown it is highly probable that 

these violent threats-which Dobbs explicitly and directly connected to her decisions 

to call the police and press charges-were the cause of her absence at trial. The trial 

10 
State v. Dobbs 

No. 87472-7 

judge's finding of fact that there was clear, cogent, and convincing evidence that 

Dobbs was the cause ofC.R.'s absence is supported by substantial evidence in the 

record. 

First, we review the evidence. We know that Dobbs had been stalking and 

threatening C.R. with violence, including threats to shoot her. We know that C.R. 

knew Dobbs had a gun and was terrified that he was going to kill her. She told police 

that ifthey did not find Dobbs soon, they were going to find her dead. We know that 

after Dobbs threatened to shoot her house and everyone in it, he partially followed 

through on that threat by shooting at her residence, showing C.R. very clearly that he 

was not making idle threats. We know that once C.R. chose to report Dobbs to the 

police, Dobbs began harassing her about that decision and warned her that she was 

going to "'get it."' 1 VRP at 97. We know that Dobbs left a note with C.R. telling 

her that she would "'reap a world of trouble and pain.'" Id. at 120. We know that 

C.R. received a text the day of the shooting that warned her that she would not be safe 

even if she moved, telling her that "'my bro lives down there and he's a known 

figure"' and "'[y]ou can't get away from me."' Id. at 126-27. And we know that after 

he shot at C.R.' s house, he returned with a gun again and forced his way into her 

residence. We know that C.R. was forced to run from her own home, screaming for 

help. After Dobbs was finally apprehended that evening, we know that he called C.R. 

from jail and left a voice mail pleading with her not to press charges. The police 

11 
State v. Dobbs 

No. 87472-7 

officer who listened to the voice mail recalled that it "quickly turned into kind of a 

threatening of don't do this to me or-- or you'll regret it." !d. at 123. 

Taken together, these facts show that Dobbs was armed, consistently threatened 

C.R. if she cooperated with the police, and followed through on these threats by 

showing up at her house with a gun on multiple occasions, once even shooting at it. 

Any rational individual would fear testifying against such a person. And indeed, C.R. 

was terrified of Dobbs. She knew he carried a gun, and she knew his threats were 

escalating. She told police over and over that she was scared that Dobbs was going to 

kill her. And Dobbs specifically threatened her from jail, warning her not to press 

charges. The only purpose such a threat could have would be to intimidate C.R. into 

not participating in the criminal proceedings against Dobbs. The trial judge reviewed 

the evidence and made a finding of fact that there was clear, cogent, and convincing 

evidence that Dobbs's violence and intimidation aimed at C.R. was the cause of her 

decision against testifying against him at trial. Based on our review of the record, we 

find that his decision was supported by substantial evidence. 

We recognize that because we did not formally adopt the forfeiture by 

wrongdoing doctrine until2007, there is little precedent to guide trial courts. In this 

case, the trial judge relied on Fallentine, a Court of Appeals case from 2009 and one 

of the only Washington cases to address forfeiture due to witness intimidation. He 

concluded that "this case ... has a stronger basis than I think the Falentine [sic] 

12 
State v. Dobbs 

No. 87472-7 

decision." 2 VRP at 282. We agree that the evidence in this case is even stronger 

than the evidence in Fallentine, where the Court of Appeals dismissed a confrontation 

challenge. 

In Fallentine, both Anthony Clark and Conrad Fallentine were charged in 

connection with an arson and burglary. 149 Wn. App. at 618. Clark admitted 

committing the arson with Fallentine and pleaded guilty, but he later refused to testify 

against Fallentine. I d. The State then sought to introduce the testimony of a social 

worker who met with Clark. She testified that Clark had told her that he was afraid of 

Fallentine, that he knew Fallentine carried a firearm, and that he believed Fallentine or 

his associates would retaliate against him for '"roll[ing] over' on Fallentine." Id. at 

621-22 (alteration in original). 

However, when the court held a hearing to determine why Clark refused to 

testify, Clark recanted. I d. at 622. He denied that he was frightened and spoke 

favorably ofFallentine, saying he was "'like a brother"' and "'didn't do the arson."' 

Id. The social worker testified again to Fallentine's earlier statements of fear, and this 

time testified that Clark had claimed that Fallentine threatened to "'put a hit"' out on 

him if he testified. I d. at 622-23. There was no other evidence of any threat to Clark, 

and the social worker also testified that Clark did not want to "'rat ... out"' Fallentine 

and "did not want to be seen as a snitch inside the jail 'on top of everything else."' I d. 

13 
State v. Dobbs 

No. 87472-7 

The Court of Appeals held that the evidence showed that Fallentine intentionally 

prevented Clark from testifying. ld. at 623. 

We find the evidence in this case to be even stronger. In contrast to Clark, who 

directly denied that his fear ofFallentine was the reason he refused to testify, we have 

no such disavowal from C.R., who remained silent. Also, unlike here, where Dobbs's 

menacing conduct was directly observed by multiple witnesses and left a trail of text 

messages, voice mails, and bullet holes, there was no independent evidence to verify 

that Fallentine prevented Clark from testifying. The evidence supporting this 

proposition consisted only of Clark's hearsay statements to the investigator and social 

worker. Jd. at 618, 621-23. Even this was somewhat diluted by the fact that Clark 

also told the social worker that he did not want to be seen as a snitch inside the jail, 

suggesting a different motive for his changing story. Id. at 622-23. But despite 

Clark's direct denial that his refusal to testify was caused by Fallentine and the 

indications that Clark had other potential motives, the court saw through the charade 

and held that there was clear, cogent, and convincing evidence that Clark's failure to 

testify was caused by Fallentine. Id. at 616, 623. 

Admittedly, in this case we do not have a direct statement from C.R. stating 

that she feared Dobbs would kill her specifically as a result of her testifying. But that 

is the nature of the forfeiture by wrongdoing doctrine, where witnesses are scared into 

silence. We cannot and do not require a direct statement from the witness who is 

14 
State v. Dobbs 

No. 87472-7 

intimidated into silence because such a requirement would exclude almost all absent 

witnesses' testimony, regardless of evidence of witness intimidation. The only 

situation in which such testimony would be admitted is where the witness comes 

forward and identifies the defendant's actions as the reason for refusing to testify. 

This would be an extreme and inappropriately high bar because, by definition, a 

witness who was intimidated into silence will not come forward to say as much. 

Here, we do have a police officer's testimony regarding the voice mail C.R. 

received from Dobbs in jail where he warned that she should not press charges or she 

would "regret it." 1 VRP at 123. The only purpose for such a threat was to intimidate 

C.R. into not participating in the criminal proceedings against Dobbs. And it is highly 

probable that this threat was successful. Just because C.R. did not spell out exactly 

what type of cooperation with law enforcement she feared would cause Dobbs to 

follow through on his death threats does not mean they did not have their intended 

effect. C.R. repeatedly expressed terror of Dobbs and what he would do. She had 

seen Dobbs follow through on his threats before when he fired bullets into her house, 

and it is highly probable that she feared the consequences of testifying against him. 

C.R. should not have to spell out for the court what is obvious to any rational 

observer: she was afraid Dobbs would again follow through on his threats if she 

testified, perhaps to a much more dangerous extent. Every one of Dobbs's threatening 

text messages, voice mails, and uninvited appearances made it less rational for C.R. to 

15 
State v. Dobbs 

No. 87472-7 

risk her life to testify and more likely that Dobbs would succeed in preventing her 

from doing so. There is simply too much evidence here of Dobbs's violence to avoid 

the conclusion that it is highly probable that he succeeded in his repeated efforts to 

deter C.R. and keep her away from the stand. 

Forfeiture by wrongdoing requires clear, cogent, and convincing evidence. It 

does not require a showing beyond a reasonable doubt. A court does not need to rule 

out all possibilities for a witness's absence; it needs only to find that it is highly 

probable that the defendant intentionally caused it. Here, all of the evidence points to 

that conclusion. The trial court entered a finding of fact that clear, cogent, and 

convincing evidence showed that Dobbs caused C.R. 's absence from court. The court 

then ruled that, as a result, Dobbs forfeited his right to confront C.R. We hold that the 

trial court's finding of fact was supported by substantial evidence and the legal 

standard was properly applied. 

2. When Dobbs Forfeited His Confrontation Right by Wrongdoing, He 

Waived His Hearsay Objections 

The trial court and the Court of Appeals held that when Dobbs forfeited his 

confrontation rights by wrongdoing, he also waived his hearsay objections. We agree. 

As the United State Supreme Court has observed, '" [I]t seems apparent that the Sixth 

Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the 

same roots." Giles, 554 U.S. at 365 (quoting Dutton v. Evans, 400 U.S. 74, 86, 91 S. 

Ct. 210, 27 L. Ed. 2d 213 (1970)). Both are designed to protect against the dangers of 

16 
State v. Dobbs 

No. 87472-7 

using out-of-court statements as proof. But when the defendant's actions are the 

reason that the State must rely on out-of-court statements, he is hardly in a position to 

complain about the use of those out-of-court statements, whether through an assertion 

of confrontation rights or a hearsay objection. For the same reasoning that underlies 

the forfeiture by wrongdoing doctrine, we hold that a defendant who procures a 

witness's absence waives his hearsay objections to that witness's out-of-court 

statements. 

In Giles, the United States Supreme Court underwent a thorough review of the 

history behind the forfeiture by wrongdoing doctrine. 554 U.S. at 358-69. The Court 

found that "[n]o case or treatise that we have found ... suggested that a defendant 

who committed wrongdoing forfeited his confrontation rights but not his hearsay 

rights." !d. at 365. The Court went on to comment that "the distinction would have 

been a surprising one, because courts prior to the founding excluded hearsay evidence 

in large part because it was unconfronted." !d. The majority of courts have agreed 

with the Supreme Court's conclusion. See United States v. White, 325 U.S. App. D.C. 

282, 116 F.3d 903, 912 (1997). Indeed, when considering whether forfeiture of 

confrontation rights also waives one's hearsay objections, we find it reasonable to 

conclude that "[t]he same equity and policy considerations apply with even more 

force to a rule of evidence without constitutional weight." !d. at 913. If such 

wrongdoing did not result in a waiver of hearsay objections, a defendant would have a 

17 
State v. Dobbs 

No. 87472-7 

perverse incentive to use threats, intimidation, or violence to prevent a witness from 

coming to court.2 Such an outcome defies common sense. 

CONCLUSION 

Those in the best position to protect the survivors of domestic violence are the 

survivors themselves. We find that it is highly likely that C.R. chose to protect herself 

by refusing to testify against Dobbs. By threatening C.R. with violence for 

cooperating with the police and pressing charges, Dobbs attempted to prevent her 

from testifying. We will not reward him for his success in bringing about that result. 

We hold that he has forfeited his confrontation rights and hearsay objections through 

his wrongdoing. We affirm the Court of Appeals. 

2 We note that this rule, already adopted by the majority of the courts who have addressed 

it and adopted by this court in this opinion, has also recently been codified in 

Washington's Rules of Evidence effective September 1, 2013. See ER 804(b)(6) 

(including in the list of hearsay exceptions "[a] statement offered against a party that has 

engaged directly or indirectly in wrongdoing that was intended to, and did, procure the 

unavailability of the declarant as a witness."). 

18 
State v. Dobbs 

No. 87472-7 

WE CONCUR: 

19 
State v. Dobbs (Timothy J.) 

No. 87472-7 

WIGGINS, J. (dissenting)-As part of Timothy John Dobbs's two-week 

campaign of harassing and stalking C.R., Dobbs warned C.R. not to call the police. 

Despite these threats, C.R. called the police after Dobbs pounded on her door and 

slashed her tires. 

Three days later, Dobbs apparently fired several shots into C.R.'s residence. 

Despite Dobbs's threats not to call the police, C.R. again called the police. Later 

that same evening, C.R. ran to her neighbor's house screaming that Dobbs was 

present and had a gun. The neighbor called police and C.R. told the police about 

Dobbs's threats and her fear that he would kill her. 

The police apprehended and jailed Dobbs. The next night Dobbs called from 

the jail and left a voice mail pleading with her not to go forward with charges and 

threatening her if she proceeded. Despite Dobbs's threats, C.R. played the voice 

message for the police and showed them two threatening text messages he had 

sent a few days earlier. 

There is no evidence of any other threats by Dobbs against C. R. for the next 

two months, while Dobbs was confined in jail. Thus, before Dobbs was arrested and 

jailed, C.R. repeatedly reported Dobbs's threats and attacks to police. Two months 

later, without any further known threats by Dobbs and while Dobbs was still jailed, 

C.R. failed to attend his trial. 
No. 87472-7 (Wiggins, J., dissenting) 

I. The state did not provide clear, cogent, and convincing evidence that Dobbs 

caused C.R.'s absence at trial 

The majority concludes that these facts clearly, cogently, and convincingly 

prove that Dobbs's actions caused C.R.'s absence at trial. But the majority's 

conclusion is mere speculation in light of the multiple plausible theories for C.R.'s 

nonappearance. It is certainly possible that Dobbs's phone call and voice message 

to C.R., along with his earlier acts of intimidation and harassment, dissuaded C.R. 

from testifying. However, it is also quite possible that she had some other motive: if 

the situation with Dobbs calmed after November 10, she may have decided she did 

not want him to be convicted. She may also have been intimidated by the prospect 

of appearing in court, or may have had a personal distaste for cooperating with law 

enforcement once the original threat had dissipated. As early as November 17 she 

was not showing up for appointments at the police station, and no evidence 

suggested it was because she was afraid. We do not know what occurred in the 

months between her sworn statement to police on November 1 0 and her absence 

from trial on January 25 to change C.R.'s perspective (even assuming she ever 

intended to testify); we can only speculate. Where the evidence supports multiple 

inferences as to the cause of a witness's failure to appear, we cannot conclude that 

the evidence of causation is clear, cogent, and convincing. See Wilkie v. Simonson, 

51 Wn.2d 875, 877-78, 322 P.2d 870 (1958) (where evidence adduced sustains two 

equally plausible theories, the party with the burden of proof has failed to meet its 

burden). 

2 
No. 87472-7 (Wiggins, J., dissenting) 

Indeed, to reach its conclusion, the majority overlooks the remarkable dearth 

of evidence connecting Dobbs's actions to C.R.'s nonappearance. None of the 

officers or civilian witnesses who were in contact with C.R. leading up to the trial 

offered any evidence on whether C.R. had mentioned a plan not to appear, or 

offered any reasons why C.R. might not appear. Officers contacted C.R. several 

times after the incident on November 10. And notably, Officer Michael Headley 

spoke with her the night before the start of trial, and C.R. assured Headley that she 

would be at trial. Civilian witnesses James Applebury and Sarah Ellis lived next to 

C.R. throughout this period. 1 They both offered testimony to support the charges, 

but neither offered any evidence to explain why C.R. declined to appear. 

The majority's conclusion is not only speculative, it is counterintuitive. 

Dobbs's threats did not prevent C.R. from contacting police before he was arrested 

and jailed. The majority concludes somewhat implausibly that once behind bars, 

Dobbs somehow instilled such a fear in C.R. so as to prevent her from testifying at 

the very trial that would ensure her continued safety by placing Dobbs behind bars 

for a considerable period of time. 

Under the majority's analysis, every defendant who threatens a witness not to 

contact police or to testify automatically forfeits the right to cross-examine the 

witness. The majority authorizes a court to admit the witness's prior statements 

about the crime without any evidentiary support that the threats caused the witness' 

absence. Indeed, that is what happened here. The State presented evidence of 

threats, which had never before prevented C.R. from contacting the police and 

1 James Applebury is C.R.'s landlord and Sarah Ellis is C.R.'s neighbor. 

3 
No. 87472-7 (Wiggins, J., dissenting) 

accusing Dobbs; the trial court concluded that the threats caused C.R.'s absence 

from trial; and the majority affirms without requiring evidence that Dobbs's threats 

caused the absence. The majority's reasoning is summarized by its assertion, 

"While Dobbs has the right to confront witnesses against him, he forfeited his right to 

confront C.R. when he chose to threaten her with violence for cooperating with the 

legal system." Majority at 2 (emphasis added). Although the majority later 

acknowledges that the doctrine of forfeiture by wrongdoing requires proof that the 

defendant "causes the witness to be unavailable," id. at 9, the majority fails to find 

that proof in this case. 

The clear, cogent, and convincing standard of evidence is deliberately difficult: 

it does not permit courts to assume a link between a defendant's wrongful behavior 

and a witness's absence where there may be none. To allow such a weak showing 

to become Washington's standard for "clear, cogent, and convincing" would swallow 

the rule of confrontation. Indeed, it is difficult to imagine a domestic violence case 

that would not involve threats or action designed to cause fear in the recipient. 

Accordingly, the State should at least be required to produce more evidence than 

was presented here. 

Not only does the majority fail to find proof of causation, it finds little support in 

the leading cases, State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (2007), and Giles 

v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). In both 

Mason and Giles, the evidence unequivocally established that the defendant 

prevented the witness from testifying-in both cases the defendant silenced the 

witnesses by murder. Even in the face of such clarity, we noted that "'a defendant's 

4 
No. 87472-7 (Wiggins, J., dissenting) 

loss of the valued Sixth Amendment confrontation right constitutes a substantial 

deprivation."' Mason, 160 Wn.2d at 926 (quoting People v. Geraci, 85 N.Y.2d 359, 

367, 649 N.E.2d 817, 625 N.Y.S.2d 469 (1995)). This loss is a danger we refused to 

take lightly: although the defendant may find other avenues to challenge an 

incriminating statement's veracity, the Sixth Amendment enshrines the proposition 

that none approaches the effectiveness of cross-examination. See Crawford v. 

Washington, 541 U.S. 36, 61-62, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ("The 

[Confrontation] Clause thus reflects a judgment ... about how reliability can best be 

determined."). 

These cases additionally demonstrate that we are concerned about a 

bootstrapping phenomenon peculiar to this context sometimes called "reflexive 

forfeiture." Establishing forfeiture by wrongdoing requires a preliminary finding of fact 

that the defendant's wrongful conduct prevented the witness's testimony. Mason, 

160 Wn.2d at 926. This, by itself, is not unusual: evidentiary questions frequently 

require a judge to make crucial pretrial findings pursuant to ER 1 04. /d. However, 

"the issue of forfeiture by wrongdoing is unique in that the trial judge must often rule 

on the ultimate question: [e.g.,] did the accused kill the alleged victim?" /d. 

(emphasis added). Indeed, that was the case here because the trial judge had to 

determine whether Dobbs had committed stalking, felony harassment, and 

intimidating a witness to decide whether those same acts had procured C.R.'s 

absence. In this way, establishing forfeiture sometimes requires presupposition of 

the very guilt the defendant sought to challenge through confrontation, thus 

ensnaring him or her in a circular trap. Any time a set of unconfronted, extrajudicial 

5 
No. 87472-7 (Wiggins, J., dissenting) 

statements tend both to incriminate the defendant and establish grounds for 

forfeiture, that defendant could lose any opportunity to challenge their accuracy and 

truthfulness through cross-examination. 

To guard against these dangers, we held that to establish forfeiture, the 

prosecution must provide clear, cogent, and convincing evidence that the defendant 

intended to prevent the witness from testifying, and that the defendant's wrongful 

conduct actually caused the witness's nonappearance. /d. at 926-27. While 

acknowledging that conventional pretrial decisions are typically made on a 

preponderance of the evidence, we concluded that in this context, "the stakes are 

simply too high to be left to a mere preponderance standard." /d. 2 

In short, our case law makes clear that "the right of confrontation should not 

be easily deemed forfeited by an accused." /d. at 927. When we articulate the "clear, 

cogent, and convincing" standard, this court is commenting on the degree of 

confidence the trier of fact should have in the correctness of its factual conclusions, 

rather than requiring a certain level of statistical probability. In re Oet. of Brooks, 145 

Wn.2d 275, 297, 36 P.3d 1034 (2001 ), overruled on other grounds by In re Oet. of 

Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). This formulation properly reflects the 

fact that probability with respect to the standard of proof is a measure of the 

subjective belief of the trier of fact. We require a high degree of confidence under 

2 Although Washington's use of the clear, cogent, and convincing standard is more exacting 

than the preponderance of evidence required by a majority of jurisdictions, see Mason, 160 

Wn.2d at 926-27, this formulation of the forfeiture inquiry is not unique. The United States 

Court of Appeals for the Fourth Circuit, for instance, permits forfeiture of the confrontation 

right only where '"(1) the defendant engaged or acquiesced in wrongdoing (2) that was 

intended to render the declarant unavailable as a witness and (3) that did, in fact, render the 

declarant unavailable as a witness."' United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 

2012) (quoting United State v. Gray, 405 F.3d 227, 241 (4th Cir. 2005)). 

6 
No. 87472-7 (Wiggins, J., dissenting) 

the "clear, cogent, and convincing" standard, which falls just short of "beyond a 

reasonable doubt," the category reflecting the highest degree of certainty. While the 

evidence in this case is sufficient to prove by a preponderance of the evidence that 

Dobbs caused C.R.'s failure to appear, it fails to rise to the required level of clear, 

cogent, and convincing evidence. 

Nor does the majority derive support from State v. Fa!lentine, 149 Wn. App. 

614, 618, 215 P.3d 945 (2009), in which witness Anthony Clark made statements to 

an investigator implicating the defendant, Fallentine, in an arson. Clark and 

Fallentine were both charged with the arson. Clark later pleaded guilty, but refused 

to testify against Fallentine at trial, despite being ordered by the trial judge to testify. 

Clark, who was apparently a juvenile, explained to his social worker that he did not 

want to '"have to look over [his] shoulder all the time"' and that Fallentine had 

threatened to '"put a hit"' on him if he testified. /d. at 622-23. Moreover, there was 

evidence that Clark had low self-esteem; was a '"follower"'; did not want to return to 

foster care under any circumstances; and was motivated to have an ongoing 

relationship with his sister and Fallentine, even though he was afraid of Fallentine. 

/d. at 621. After Clark's first interview with the arson investigator, the social worker 

said Clark told her that Fallentine carried a firearm and was dangerous, Clark felt he 

could not get away from Fallentine, and he was worried what would happen if 

Fallentine found him. After Clark's second recorded interview with the investigator, 

he appeared "'frightened, hypervigilant and somewhat paranoid."' /d. at 621-22. The 

social worker found Clark on the floor in a fetal position, sobbing. /d. On this basis, 

the court was persuaded that Fallentine's threats were the reason Clark refused to 

7 
No. 87472-7 (Wiggins, J., dissenting) 

appear in court. /d. at 623. The court of appeals affirmed, reasoning, "Viewed in the 

light most favorable to the State, the evidence shows Fallentine told Clark if Clark 

testified against him, he would be killed, and that threat actually prevented Clark 

from testifying." /d. (footnote omitted). 

Contrary to the majority, I would find that the evidence that Fallentine's threats 

caused Clark not to testify was much stronger than the evidence that Dobbs's 

threats caused C.R. not to testify. Here, the State adduced no direct evidence of 

causation and offered only circumstantial evidence. The circumstantial evidence 

showed a pattern of abuse giving rise to general fear but failed to connect that fear 

to C.R.'s decision not to testify. We simply do not know why C.R. failed to appear, 

and to conclude otherwise on these facts would permit a virtual presumption of 

forfeiture any time a witness fails to appear after a defendant's threatening or violent 

behavior. 

The majority rightly sympathizes with the injustice inherent in domestic 

violence situations and rightly seeks to protect C.R. and others from Dobbs. 

Intimate partner abuse is endemic in this State: nearly one in five women 

experience injury from their partner and almost one-half of all female homicide 

victims perish at the hands of their current or former partner. LILLIAN BENSELY, WASH. 

STATE DEP'T OF HEALTH, HEALTH OF WASHINGTON: DOMESTIC VIOLENCE (2004) 

(updated 2013). These issues must be taken seriously. However, we cannot allow a 

difficult case to vitiate this court's role as the guardian guarantor of constitutional 

protections. The majority eviscerates the constitutional rights of many in order to 

punish one, building bad law on bad facts. 

8 
No. 87472-7 (Wiggins, J., dissenting) 

II. The erroneous admission of C.R.'s unconfronted testimony was not harmless 

beyond a reasonable doubt. 

Because I would find a violation of the confrontation clause, I analyze whether 

the conviction should be reversed due to the error, or whether the error was 

harmless, in which case the conviction may stand. 

A violation of the confrontation clause at trial is harmless only if the State can 

show '"beyond a reasonable doubt that the error complained of did not contribute to 

the verdict obtained."' State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012) 

(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 

(1967)). By contrast, if the conviction is nonetheless supported by "'overwhelming 

untainted evidence,"' we deem the confrontation clause error harmless. Mason, 160 

Wn.2d at 927 (quoting State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005)). 

Here, I would find that the trial court's admission of C.R.'s statements was not 

harmless beyond a reasonable doubt with respect to Dobbs's convictions for 

stalking, felony harassment, or intimidating a witness. Each of these convictions was 

heavily supported by C.R.'s unconfronted testimony. In both of her sworn written 

statements to police, C.R. complained that Dobbs had been making death threats 

and harassing her for two weeks. This evidence would carry substantial weight with 

a trier of fact supporting the charges of stalking and felony harassment. And C.R. 

identified a threatening voice mail from a man she identified as Dobbs urging her not 

to testify-evidence supporting the intimidating a witness charge. Witness James 

Applebury's untainted testimony may have helped corroborate some of these 

9 
No. 87472-7 (Wiggins, J., dissenting) 

statements from C.R. but falls short of providing overwhelming independent support 

for these three convictions. 

Dobbs's conviction for drive-by shooting presents a closer question, but here 

too I am unable to conclude, beyond a reasonable doubt, that C.R.'s statements did 

not at least contribute to the verdict. Applebury's testimony might, by itself, have 

been sufficient to establish the conviction. Applebury testified that he saw a car he 

recognized as Dobbs's pull into the alley and then heard and saw gunshots coming 

from the alley. This occurred, according to Applebury, almost immediately after he 

saw someone he believed was Dobbs leaving the vicinity of C.R.'s apartment. And a 

trajectory analysis of two nearby bullet holes corroborated his account. However, 

C.R.'s sworn statement from November 10 identified Dobbs as the shooter even 

more unambiguously: "he got angry & shot 2x at my garage where there is [sic] 2 

bullet holes .... " Pl.'s Ex. 37. And her earlier sworn statement on November 7 

relayed his previous threats to shoot her. I cannot conclude, beyond a reasonable 

doubt, that the trier of fact would have found Dobbs guilty of drive-by shooting in the 

absence of C.R.'s unconfronted statements. 

By contrast, the admission of C.R.'s statements was harmless beyond a 

reasonable doubt with respect to Dobbs's convictions for unlawful possession of a 

firearm and obstruction of a law enforcement officer. The conviction for unlawful 

possession of a firearm required the State to prove both that Dobbs had a previous 

conviction for a serious offense and that he was subsequently in possession of a 

firearm. See RCW 9.41.040(1 )(a). Dobbs has such a previous conviction (attempted 

robbery in the first degree), and Applebury testified that he directly observed Dobbs 

10 
No. 87472-7 (Wiggins, J., dissenting) 

with a handgun on the evening of November 10. Finally, Dobbs's conviction for 

obstructing a law enforcement officer is not based on C.R.'s statements at all, but 

rather on Officer Nicholas Woodard's account that Dobbs fled after being ordered to 

halt. 

When evidence admitted at trial is later found to violate the confrontation 

clause, remand for retrial is the appropriate remedy. Jasper, 174 Wn.2d at 120. 

Therefore, because C.R.'s unconfronted statements may have contributed to them, 

Dobbs's convictions for stalking, felony harassment, intimidating a witness, and 

drive-by shooting should be reversed and retried. 

To conclude, a defendant's Sixth Amendment confrontation right is forfeited 

only upon clear, cogent, and convincing evidence that (1) the defendant acted with 

specific intent to procure the witness's absence and (2) the defendant's wrongful 

conduct is the actual cause of that witness's absence. I would hold that Dobbs did 

not forfeit his right to confront C.R. C.R.'s unconfronted, extrajudicial statements to 

police were therefore admitted in violation of Dobbs's Sixth Amendment rights. This 

error was of a constitutional dimension, and I cannot conclude that it was harmless 

beyond a reasonable doubt. Thus, I would reverse the Court of Appeals and 

remand for retrial on the charges of stalking, felony harassment, intimidating a 

witness, and drive-by shooting. 

11 
No. 87472-7 (Wiggins, J., dissenting) 

I dissent. 

12