we remand for the trial court to make factual findings with regard to those elements. If the trial court finds that Defendant forfeited his confrontation rights under Alvarez-Lopez, his convictions will stand. If the trial court finds that he did not, the Defendant is entitled to a new trial, at which the three testimonial statements will be inadmissible. {77} IT IS SO ORDERED. I CONCUR: CELIA FOY CASTILLO, Judge. MICHAEL E. VIGIL, Judge (specially concurring). VIGIL, Judge (specially concurring). {78} I write separately only to disagree with the majority’s criticism of the Alvarez-Lopez requirement of a foundation showing that a defendant intended by his misconduct to prevent the declarant from testifying before hearsay of that unavailable witness may be admitted as substanti 9 (1927) (<HOLDING>). I therefore hesitate to recognize a special
holding that failure to identify the victim where the charge was interfering with domestic violence reporting is an omission of an essential element because the crime must be committed against a family or household member holding that domestic violence statute applied to partners in samesex relationship based on statutes definition of person living as spouse to include person who is otherwise cohabiting with offender rejecting trial courts imposition of requirement that such persons must have the ability to marry before domestic violence statute applied holding that children are often physically assaulted or witness violence against one of their parents and may suffer deep and lasting emotional harm from victimization and from exposure to family violence consequently a family law judge should take domestic violence into account when making an award of temporary eustodyt based upon a recognition that it is clear that where domestic violence is present it should be considered when determining parental fitness holding as relevant in a murder case a history of domestic violence involving defendant and his victim recognizing in a domestic violence case that the admission of a spontaneous declaration is often sought where the declarant has died in such cases great caution is to be exercised the danger of admitting merely selfserving declarations or those prompted by revenge must be guarded against