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## F·I-~E // IN CLIRICI OPFICE

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### MAY 08 2014.

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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 87253-8 Respondent, ENBANC


### v. Filed 

### MAY 08 2014 ANDRE LUIS FRANKLIN, Petitioner.

GORDON McCLOUD, J.-The trial court excluded defendant Andre Franklin's proffered evidence that someone else committed the cyberstalkingrelated crimes with which he was charged. Specifically, it excluded evidence that Franklin's live-in girl friend Rasheena Hibbler had sent threatening e-mails to his other girl friend Nanette Fuerte despite the fact that Hibbler had the motive Gealousy), the means (access to the computer and e-mail accounts at issue), and the prior history (of sending earlier threatening e-mails to Fuerte regarding her relationship with Franklin) to support Franklin's theory ofthe case.State v. Franklin (Andre Luis), No. 87253-8

The trial court reasoned that this was "other suspect" evidence, and that such evidence is inadmissible unless it overcomes a "high" bar. Partial Report of Proceedings (RP) (June 22, 2009) at 10. The trial court clearly meant a bar higher than the relevance, foundation, and similarprerequisites to admissibility established byWashington'sRules ofEvidence (ER); the trial courtmeantthat it could consider all the other evidence ofFranklin's guilt and exclude the "other suspect" evidence because the otherproofofthe defendant's guilt was great. We reverse. First, the United States Constitution bars the trial court from considering the strength or weakness of the State's case in deciding whether to excludedefense-proffered other suspectevidence. TheUnited States SupremeCourt expressly reiterated this rule not long ago in 

### Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). Second, Washington lawreinforces this constitutional mandate. We have never adopted a per se rule against admitting circumstantial evidence ofanotherperson's motive, ability, or opportunity. Instead,
our cases hold that ifthere is an adequate nexus between the alleged other suspect and the crime, such evidence should be admitted. The trial court violated both of theserules: it considered the strength ofthe State's case againstthe defendant and it applied aper se standard to exclude the other suspect evidence. Thus, its exclusion

-2-State v. Franklin (Andre Luis), No. 87253-8

ofthe proffered other suspect evidence was error under both our case law and our constitution. FACTS Franklin had a romantic relationship with two women. Fuerte and Franklin began an intermittent romantic relationship while working together during the fall of 2005; it lasted until late 2008. Meanwhile, Franklin lived with Hibbler and Hibbler disapproved ofFranklin's relationship with Fuerte. Things deterioratedbetweenFranklinandFuerteinOctober2008, afterFuerte borrowed $3,000 from Franklinto cover an unexpected expense. The two agreed in writingthat she wouldpayhimbackonNovember 26, 2008. OnNovember 6, 2008, Franklin showed up at Fuerte's home uninvited. Fuerte and a male friend were watching amovie. Fuerte did not invite Franklinin butdidtalkwithhim outside for
a few hours. At trial, she testified that Franklin seemed upset that she had another
man at her house. The next night, Fuerte began receiving numerous lewd calls and texts from numbers that she did not recognize. Fuerte eventually discovered that the callers
wererespondingto a Craigslist ad urgingreaders to contactFuerte for sexual favors. In total, she received between 75 and 100 calls or texts from the ad posting.

-3-State v. Franklin (Andre Luis), 

### No. 87253-8
Then, on November 8, 2008, Franklin interrupted Fuerte's dinner at a restaurant, threatened to tell her employers "exactly what type ofperson" she was, and demanded the money she owed him. RP (June 29, 2009) at 37. Franklin left afterFuerte toldhim she wouldpayhim backthe following Monday. But on Monday, Fuerte began receiving e-mails from a new personal e-mail account, time4gamez@yahoo.com, to set up a time for her to deliver the payment. The e-mail stated, "[I]fI was u[,] i would stop playing gamez." Ex. 40. Fuerte replied that she was not playing games and that she was trying to get the money. The response she received stated,

!d. [C]ommunicationis key
...u fridaythenu saidmonday@noon. u asked me 2 b patient I no longer have any patients for u and Ur games. the way i c it is that u are useing my money 2 go out and have fun while i amworkinghard 2 savemoney...uhavetilllpmthenuknowwhatwill happen.

Soon after the above e-mail, Fuerte received another e-mail that contained a copy of a new Craigslist ad. That new ad listed Fuerte's name and work phone number and asked readers to tell Fuerte what they would like to do to her. Two sexually explicit photos ofFuerte were attached to the e-mail, one ofwhich also featured Franklin.

-4-State v. Franklin (Andre Luis), No. 87253-8

Fuerte testified that she eventually cashed a $3,000 check and metFranklin at his home to deliver it. Fuerte testified that Franklin laughed at her when she gave him the money and that he stated, "[D]o you think this is the end ofit? This isjust the beginning." RP (June 29, 2009) at 51. Later that day, Fuerte received an additional e-mail from the time4gamez account: "[S]o r u going to play my game or not?" Ex. 42. This was followed by anotherthreatening e-mail. The next day, Fuertereceived another e-mail containing the same proposed Craigslist ad statingthatFuertewas offering free sexual services. Fuerte then received more threatening e-mails from the time4gamez account asking whether Fuerte would play the "game." E.g., Exs. 48-51. One of the time4gamez e-mails stated, "[N]ow u may lose it all B-cuzu wanted 2 play games . . . . I told u a# oftime I am notthe 1 2 play with
...butu still thought it was OK." Ex. 54. At one point Franklin called Fuerte and laughed while telling her that she should have gotten a receipt for the $3,000 payment because he couldjustpretend shehadnotpaid. Fuertewasparticularlyupsetbecausehe hadcontactedherthrough her son's phone. The next morning, Fuerte reportedthe call to the police. After several more rounds ofe-mails andphone calls, during one ofthe calls, Fuerte asked Franklin to stop everything. He told her that he would not stop, that the first Craigslist post "wasjust the tip ofthe iceberg," and that she "should start

-5-State v. Franklin (Andre Luis), No. 87253-8
looking over [her] shoulder." RP (June 29, 2009) at 73-74. He also stated that he knew people who could "do dirt" for him. Id. at 74. Shortly after ending thatphone call, Fuerte began receiving sexually explicit responses to another Craigslist ad, which also containedthe sexually explicitphotos from the first posting. Fuerte eventually contacted Human Resources, because the e-mails were directed to her work e-mail address, and contacted the police. She obtained a temporary protection order, and Franklin was placed on administrative leave. Intotal, priorto Fuerte'sreporting ofthe harassment, there were 13 Craigslist postings similarto the ones listed above. On December 8, 2008, the State charged Franklin with one count of first degree perjury, one count ofstalking, and one count ofcyberstalking. The perjury charge was based on Franklin's testimony at a hearing for a permanent restraining order where he testified under oath that he did not post any ads or possess any explicitpictures ofthe victim. The stalking charge allegedthatFranklin "repeatedly harass[ed]" Fuerte, Clerk's Papers (CP) at 2, and thejury instructions defined "to harass" as "to carry outaknowing andwillful course ofconductdirected ata specific personwhich seriously alarms, annoys, orharasses oris detrimental to suchperson," CP at 46. The cyberstalking charge alleged that Franklin, "with intent to harass
...

-6-State v. Franklin (Andre Luis), No. 87253-8


### Fuerte,
...rna[de] an electronic communicationto her
...using
... lewd, lascivious, indecent, or obscene words [or] images
...." CP at 2. One of Franklin's primary defenses to the charges was that Hibbler, with whom he lived, had posted the Craigslist ads and sent the harassing e-mails. His basis for this other suspect defense was that Hibbler's personal laptop was the only computer in their home, and she hadpreviously sentthreatening messages to Fuerte via e-mail, text message, and phone, expressing displeasure about Fuerte's relationship withFranklin. Moreover, Hibblerhad accessedFranklin's e-mail inthe past. The State, however, moved to exclude evidence that Hibbler had posted the Craigslist ads, arguing that there was not a sufficient nexus between her and the crime. The trial court granted the State's motion, explaining that "the other suspect bar, quite frankly, is high" and that itrequired more than showing mere motive and opportunity-it required specific facts showing that someone else committed the crime. RP (June 22, 2009) at 10-11. Moreover, the trial court stated, "I not only look at the foundation for other suspect evidence, but I also look at the evidence against the defendant." RP (June 29, 2009) at 13. Thejury convictedFranklin ofall three crimes. CP at 124-26. On appeal, he argued that the trial court erred in excluding the other suspect evidence. Franklin

-7-State v. Franklin (Andre Luis), No. 87253-8

also argued that the court had erred by applying a Fifth Amendment1 privilege to Hibbler's testimony in open court, by excluding Franklin's brother as a witness, by closing the courtroom to conduct an in camera hearing, and by excluding Franklin from the incamerahearing. The CourtofAppeals affirmed. State v. Franklin,noted at 166 Wn. App. 1041,2012WL 745227, at *1. Franklinpetitioned for review, and
we granted it on all issues except for the closed courtroom issue. State v. Franklin, 174 Wn.2d 1017, 282 P.3d 96 (2012). ANALYSIS Thetrial court inthis case erredwhen itexcludedFranklin's alternate suspect evidence.2 The trial court's ruling conflicts withboth federal and state law because it considered the strength ofthe State's case against the defendant and because it applied a per se standard to exclude the other suspect evidence.
a. The Trial Court's Reasoning Conflicts with United States Supreme Court Precedent

1U.S. CONST. amend. V.
2 We review a trial court's decision to exclude evidence for abuse of discretion. State v. Perez-Valdez, 172 Wn.2d 808, 814, 265 P.3d 853 (2011) (citing State v. Bashaw, 169 Wn.2d 133, 140, 234 P.3d 195 (2010)). An erroneous evidentiary ruling that violates the defendant's constitutional rights, however, is presumedprejudicial unless the State can show the error was harmless beyond areasonable doubt. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)).
-8-State v. Franklin (Andre Luis), No. 87253-8

"Fewrights aremore fundamental thanthat ofan accusedto presentwitnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 

### L. Ed. 2d 297 (1973). Itis a right ofconstitutional magnitude. See id. For that reason, the United States Supreme Court has ruled that a trial court cannot exclude defense-proffered other suspect evidence because ofthe perceived strength ofthe State's case. Holmes, 547 U.S. at 327-29. In Holmes, the Court expressly distinguishedcaseswhere other suspectevidencewas excludedonthebasis of"wellestablished rules ofevidence," from the case before it where "the critical inquiry concern[ed] the strength ofthe prosecution's case." Jd. at 326, 329. TheHolmes Court explained that the exclusion ofother suspect evidence is a "specific application" ofthe general evidence rule permitting ajudge "to exclude evidence ifits probative value is outweighed by certain other factors such as unfair prejudice, confusion ofthe issues, orpotential to mislead thejury." 

### Id. at 327, 326. Butwhen arulethatis "intendedto be ofthis type" instead strays into evaluatingthe strength ofthe State's case, then it "does not rationally serve the end that [it was] designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues." Id. at 328, 330.

-9-State v. Franklin (Andre Luis), 

### No. 87253-8

The trial court's reasoning in this case suffers from the same flaw as did the South Carolina rule rejected by Holmes. 

### The trial court stated that in considering whether the defense had laid the foundation for other suspect evidence, "I not only look at the foundation for other suspect evidence, but I also look at the evidence against the defendant." RP 

### (June 29, 2009) at 13. Under Holmes, 

### this is unconstitutional. It 

### impermissibly inquires into the strength ofthe prosecution's case, rather than focusing on the relevance and probative value ofthe other suspect evidence itself. See Holmes, 

### 547 U.S. at 329. b. The Trial Court's Reasoning Is Inconsistent with Prior Washington Case Law The trial court also stated that other suspect evidence is inadmissible unless the proponent ofthe evidence shows thatthe alternate suspect had "more than mere opportunity" and "[m]ore than motive." RP 

### (June 22, 2009) at 10. It 

### ruled that "other suspect evidence . . . requires specific facts to show that another person actually committed the crime." Id. 

### at 11. The State argues that the trial court's statements arejustifiedby a line ofcases stemming from our 1932 decision in State
v. Downs, 

### 168 Wash. 664, 13 P.2d 1(1932). Inthat case, we heldthat other suspect evidence is admissible only if the defendant can show "a train of facts or circumstances as tend clearly to point out some one besides the [accused] as the guilty party." Id. 

### at 667 (citing State v. Caviness, 

### 40 Idaho 500, 235 P. 890, 892

-10-State v. Franklin (Andre Luis), No. 87253-8


### (1925)). The defendants in Downs 

### offered evidence that a potential suspect-the apparently infamous burglar "'Madison Jimmy'"-was in town at the time the charged burglary was committed. Id. 

### at 666. There was no evidence actually connecting Madison Jimmy in any way to the particular burglary. Without the necessary "train offacts or circumstances" linkinghimto the crime, opportunity and character evidence alone were insufficient to infer any third-party guilt; it was "the most remote kind ofspeculation." Id. 

### at 668. As such, it was properly excluded as irrelevant. While Downs 

### remains good law, we have since developed the "train offacts
or circumstances" standard. One year after Downs, 

### we held that "[m]ere evidence ofmotive in another party, or motive coupled with threats ofsuch other person, is inadmissible, unless coupled with other evidence tending to connect such other personwiththe actual commission ofthecrime charged." State v. Kwan, 

### 174 Wash. 528, 533, 25 P.2d 104 (1933) (citing People v. Mendez, 

### 193 Cal. 39, 52, 223 P. 65 (1924), overruled in part on other grounds by People v. McCaughan, 

### 49 Cal. 2d 409, 317 P.2d 974 (1957)). Further, we stated in Kwan 

### that "[r]emote acts, disconnected and outside ofthe crime itself, cannot be separately proved for such a purpose." Id. 

### (citing Downs, 

### 168 Wash. at 667). And we cited with approval a California case that explained:

-11-State v. Franklin (Andre Luis), No. 87253-8
[This rule] rests upon the necessity that trials of cases must be both orderly and expeditious
... To this end it is necessarythatthe scope of inquiry into collateral and unimportant issues must be strictly limited. It is quite apparent that if evidence ofmotive alone upon the part of other persons were admissible, that in a case involving the killing ofa man who had led an active and aggressive life it might easily be possible for the defendants to produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased
.... Mendez, 193 Cal. at 52. In effect, this limitation on collateral evidence was similar to the requirement that evidence must have sufficient "probative value" to be relevant and admissible under ER 403. Evidence establishing nothing more than suspicion that another person might have committed the crime was inadmissible because its probative value was greatly outweighed by its burden on the judicial system. Other suspect evidencethat establishes only such suspicionis inadmissible. In contrast, we held in State v. Maupin that eyewitness testimony that a kidnapping victim was seen after the kidnapping with a person other than the defendant was both relevant and sufficiently probative to pass the Downs test. 128 Wn.2d 918,928,913 P.2d 808 (1996). Such evidence links the other suspect to the specific crime charged, either as thetrueperpetrator or as an accomplice or associate ofthe defendant. Evidence ofthis sort differs from evidence ofmotive, ability, opportunity, or character in that the proffered evidence alone is sufficientunder the circumstances to establish the necessary connection. However, neitherMaupin nor

-12-State v. Franklin (Andre Luis), No. 87253-8



### the earlier cases stand for the proposition that motive, ability, opportunity, and/or character evidence together can never establish such a connection. The Downs 

### test in essence has not changed: some combination offacts or circumstances must point to anonspeculative link betweenthe other suspect and the charged crime. The trial court was thus incorrect to suggest that direct evidence rather than circumstantial evidence is required under our cases. The standard for relevance of other suspect evidence is whether there is evidence '"tendingto connect'" someone otherthan the defendant with the crime. Downs, 

### 168 Wash. at 667 (quoting 16 C.J. CriminalLaw§ 

### 1085, at 560 (1918)), quotedin Maupin, 

### 128 Wn.2d at 925. Further, otherjurisdictionshave pointed outthatthis inquiry, properly conducted, "focuse[s] upon whether the evidence offered tends to create a reasonable doubt as to the defendant's 

### guilt, not whether it establishes the guilt ofthe thirdparty 

### beyond a reasonable doubt." Smithartv. State, 

### 988 P.2d 583, 588 & 

### n.21 (Alaska 1999). The standard set forth by the trial court establishes a bar to admission ofother suspect evidence significantly higher than the standard we have previously set forth and higherthan the standard used in otherjurisdictions. Our more restrained interpretation ofthe Downs 

### standard is also compelled by the United States Supreme Court's holding in Holmes, 

### 547 U.S. 319. As discussed above, in that case, the Court examined the South Carolina Supreme

-13-State v. Franklin (Andre Luis), No. 87253-8



### Court's transformation ofthe "train offacts or circumstances" test-i.e., the Downs 

### test-into a balancing of the relative probative value of other suspect evidence against strong forensic evidence implicating the defendant. Id. 

### at 328-29. The Supreme Court held that trial courts may exclude evidence on the ground that its probative value is outweighed by other considerations, but the probative value must be based on whether the evidence has a logical connection to the crime-notbased
on the strength ofthe State's evidence: "[j]ust because the prosecution's evidence, 

### if credited, 

### would provide strong support for a guilty verdict, it does not follow that evidence ofthird-party guilthas only aweak logical connectionto the central issues in the case." Id. 

### at 330. The South Carolina rule at issue in Holmes, 

### like the rule applied by the trial court in this case, contradicts this constitutional standard and prior state case law.
c. The Trial Court's Error in Excluding the Other Suspect Evidence in This Case Was Not Harmless Thetrial court inthis case excludedevidence showingthat anotherpersonhad boththe motive and opportunity to commit the crime. More than that, the excluded evidence, taken together, amounts to a chain ofcircumstances that tends to create reasonable doubt as to Franklin's guilt. The trial court's error directly affected Franklin's right, under both the state and federal constitutions, to present witnesses on his own behalf. See Maupin, 

### 128

-14-State v. Franklin (Andre Luis), No. 87253-8

Wn.2d at 927. The error is therefore constitutional in nature. "[C]onstitutional error is presumedto be prejudicial and the State bears the burden ofprovingthatthe error
was harmless. A constitutional error is harmless ifthe appellate court is convinced beyond a reasonable doubt that any reasonablejury would have reached the same result in the absence ofthe error." 

### State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007) (citing 

### State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (citing 

### State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980))). The State concedes that ifthe trial court erred in excluding the other suspect evidence, the error is subject to constitutionalharmless error analysis. Br. ofResp't at 28. However, the State claims any error in excluding Hibbler's testimony was harmless beyond a reasonable doubt. Itasserts the error was harmless because "the evidence that Franklin had wanted to elicit from Hibbler was largely admitted through other witnesses." ld. at 35. An error is harmless only ifwe cannot reasonably doubt that thejury would have arrived at the same verdict in its absence. 

### State v. Jones, 168 Wn.2d 713, 724, 230 P.3d 576 (2010) (quoting 

### State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002)). Here, Franklin offered evidence that Hibbler had the motive, ability, and opportunity to commit the charged crime, and that she had personally threatened Fuerte regarding her relationship with Franklin via text and e-mail in the past.

-15-State v. Franklin (Andre Luis), No. 87253-8
Moreover, some ofthe circumstantial evidence against Franklin pointed equally to Hibbler. Though some ofthis evidence emerged at trial through other witnesses,
some ofit did not. Andthe trial courtbarredFranklin from arguing thatthe limited evidence onthis pointthat was presented at trial implicatedHibbler. Ifthejuryhad been allowed to consider all ofthe other suspect evidence, it may have reached a different verdict.3 CONCLUSION The trial court erred in excluding other suspect evidence in this case, and the
errorwas notharmless beyond a reasonable doubt. We therefore reverse Franklin's convictions and remand to the trial court.

3We note thatthe other suspect evidence was relevant not only to the cyberstalking charge against Franklin, but also to the stalking and perjury charges. The stalkingjury instructions allowed the jury to consider the e-mails and Craigslist ads as proof ofthat crime, CP at 41-46; the perjury charge was based on Franklin's assertion at a pretrial hearing that he did not post any ads on Craigslist, CP at 1. Because we reverse all of Franklin's convictions and grant a new trial based on the other suspect issue, we do not reach his other claims.
-16-State v. Franklin (Andre Luis), No. 87253-8

WE CONCUR:

-17-State v. Franklin

No. 87253-8
OWENS, J. (dissenting)

-- The majority reverses the Court ofAppeals and overturns the trial court's discretionary ruling to exclude speculative evidence that another suspect cyberstalked the victim in this case. In doing so, the majority makes three critical errors. Prist, it alters our standard for admitting other-suspect evidence while claiming to leave it unchanged. Second, it fails to analyze the evidence using that-or any-standard and insteadreverses the trial court for its questionable choice ofwords. Andthird, it misinterprets aUnited States Supreme Court case, expanding its limited holding well beyond its intended reach. The majority does all this to
reverse Andre Luis Franklin's convictions based on a trial court ruling correctly referred to by the Court ofAppeals as a "close call." State v. Franklin, noted at 166 Wn. App. 1041, 2012 WL 745227, at *6, review granted, 174 Wn.2d 1017,282P.3dState v. Franklin No. 87253-8 Owens, J., Dissenting 96 (2012). That call was well within the trial court's discretion to make, and I dissent because I cannot say thatthe trial court abused its discretion in doing so. ANALYSIS A defendant's constitutional right to present a defense does not include the right to present irrelevant evidence. State v. Maupin, 128 Wn.2d 918, 924-25,913 P.2d 808 (1996); ER402. Evidence is relevant ifit has "anytendency to make the existence ofany [material] fact
... more probable or less probable than it wouldbe withoutthe evidence." ER401. Relevant "evidence may [nevertheless] be excluded ifits probative value is substantially outweighed bi' certain considerations such as prejudice or confusion, or ifit will misleadthejury. ER403. Inthis case, Franklin sought to introduce evidence that another suspect committed the crimes. To establish other-suspect evidence as relevant and admissible, a defendant must connectthe other suspectto the charged crime through "sucha train offacts or circumstances as tend clearly to point out someone besides the accused as the guilty party." State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932). "Mere opportunity to committhe crime is not enough as such evidence is 'themost remote kind ofspeculation."' State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004) (quotingDowns, 168 Wash. at 668). A defendant must showthe other suspect intended to commit the charged crime or took an actual step to do the same. State v. Kwan, 174 Wash. 528,532-33,25 P.2d 104 (1933); State v. Strizheus, 163 Wn. App.

2State v. Franklin No. 87253-8 Owens, J., Dissenting 820, 830, 262 P.3d 100 (2011) (quoting State v. Rehak, 67 Wn. App. 157, 163, 834 P.2d 651 (1992)), review denied, 173 Wn.2d 1030, 274 P.3d 374 (2012). "'Remote acts, disconnected and outside ofthe crime itself, cannotbe separatelyproved for such
a purpose."' Downs, 168 Wash. at 667 (quoting Greenfieldv. People, 85 N.Y. 75,89 (1881)). The defendant has the burden ofshowing thatthe other-suspect evidence is admissible. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). The majority claims to leave the standard described above unchanged, majority at 12-13, yetthe majority alters it fundamentally. Citing a footnote from an Alaska case, the majority holds that rather than showing a train offacts and circumstances that connectthe other suspectto the crime, a defendant needs to show only some "chain ofcircumstances thattends to create reasonable doubt as to [the defendant's] guilt." !d. at 13, 14. Thathas notbeen the law in Washington, and it opens the door to irrelevant, speculative evidence in future cases. I would apply theDowns standard, which has remained good law for 82 years in this state, and evaluate whether Franklin's evidence sufficiently connects the supposed other suspectto the crime. In additionto altering the standard for admitting other-suspect evidence, the majority spends its time criticizing the unartfullanguage ofthe trialjudgerather than analyzing the record to determine whether Franklin met his burdento show thatthe evidence was admissible. Infact, the majority skips any analysis ofthe evidence altogether and summarily concludes that "the excluded evidence, takentogether,
3State v. Franklin No. 87253-8 Owens, J., Dissenting
amounts to a chain ofcircumstances that tends to create reasonable doubt as to Franklin's guilt." Id. at 14. In fact, a full analysis ofthe evidence that Franklin submitted shows thatthe trial court did not abuse its discretion in excluding it. First, the fact that Franklin's girl friend Rasheena Hibbler had access to the computer is merely evidence ofopportunity-themostremote kind ofspeculation. Second, Franklin in no way connected Hibblerto the time4gamez@yahoo.com account-the account actually used to perpetrate the crime. Franklin did not show that Hibbler evenknew ofthe account, let alone that she created or accessed it. Third,
as for prior threats, the evidence shows only that Hibbler sentthreatening e-mails two to three years before the cyberstalking occurred. ThoughHibbler contacted the victim five months before the cyberstalking began, she made no specific threats, and none of her e-mails suggest an intentto post salacious Craigslist ads or to send the harassing e-mails that supportedthe charges. These '"[r]emote acts, disconnected and outside ofthe crime itself, cannotbe separately proved"' to showthat Hibbler intendedto cyberstalkthe victim ortook an actual step to do so. Downs, 168 Wash. at 667 (quoting Greenfield, 85 N.Y. at 89). The evidence in this case is akin to that in Strizheus, as the Court ofAppeals correctly concluded. InStrizheus, the defendant-accused ofassaulting and attempting to murder his ex-wife and identified as the assailant by her-soughtto introduce evidence oftheir son's recanted confession, motive, and bad character. 163
4State v. Franklin No. 87253-8 Owens, J., Dissenting Wn. App. at 826. The trial court excluded the evidence, and the Court ofAppeals affirmed its decision because no direct evidence contravened the State's version of events and no evidence showed an intent by the sonto committhe crime. Id. at 832- 33. The same conclusion applies here because Franklin's other-suspect evidence does not contravene the State's version ofevents and does not show intent or any actual step to committhe crime onHibbler's part. The majority reverses in large part due to the trial court's statementthat it considered both the "foundationfor other suspect evidence" as well as the "evidence against the defendant" when itruled to exclude the other-suspect evidence. Partial Report ofProceedings (PRP) (June 29, 2009) at 13. The State's direct evidence included Franklin's separate confessions to his two superiors thatheposted the ads and the victim's identification ofhim as the person she delivered $3,000 to on November 10, 2008. The majority contends that considering the State's evidence, in any way, runs afoul ofthe United States Supreme Court's holding inHolmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). Holmes supports
no such contention. Inthat case, the Supreme Courtreviewed the following standard created and applied by the South Carolina Supreme Court: "'[W]herethere is strong evidence of
an appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a thirdparty's alleged guilt does notraise a reasonable inference as to
5State v. Franklin No. 87253-8 Owens, J., Dissenting the appellant's own innocence."' Id. at 324 (quoting State v. Holmes, 361 S.C. 333, 342-43, 605 S.E.2d 19 (2004)). The Court held that the standard was arbitrary, reasoning that "by evaluating the strength ofonly oneparty's evidence, no logical conclusion canbe reached regarding the strength ofcontrary evidence offered by the other side to rebut or cast doubt." !d. at 331 (emphasis added). The standard applied bythe trial court was far different from the one the Supreme Court struck down inHolmes. Here, the trial court did not lookto only one party's evidence, butrather determined-based onthe totality ofthe evidence-that Franklin's evidence was too weakto meetthe standard for admissibility. I find no abuse ofdiscretion inthat determination. Hibbler sentthreatening e-mails years before the cyberstalkingbegan. Those actions were too remote intime to connectto Franklin's crimes. Beyondthatremote evidence, Franklin speculated only that Hibbler committedthe crime because she had access to his computer, and he offered
no other evidence or witness to corroborate her involvement inthe crime. Here, the other-suspect evidence is far less thanthe evidence inHolmes, for example, where the defendant offered eight witnesses connecting the other suspectto the crime. See State
v. Holmes, 361 S.C. at 339-41. After considering all the evidence onboth sides ofthe issue, the trial court did not abuse its discretion in excluding the other-suspect evidence for lack ofsufficient connectionto the crime.

6State v. Franklin No. 87253-8 Owens, J., Dissenting Finally, while the trial court did not abuse its discretion in excluding the othersuspect evidence, I note that Franklin was nevertheless able to argue thatthe State failed to meet its burden "by showing thatthere are otherpeople who have
... access to the IP Address." PRP (June 22, 2009) at 11. In fact, Franklinpresented evidence to thejurythatHibbler had accessed his personal e-mail account and sent an e-mail to the victim from that account. Thus, Franklin cannot say thatthe trial court completely restrained his rightto defend himselfon this point. The majority admits that some of this evidence made it to thejury, yet-withlittle explanation-finds reversible error because "some ofit did not." Majority at 15-16. At the very least, the fact that the juryheard this evidence weighs on the side offinding harmless error, to the extent one finds that any error occurred. ButI do not find any reversible error in the trial court's decision to exclude the other-suspect evidence. I respectfully dissent.

7State v. Franklin No. 87253-8 Owens, J., Dissenting

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