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F·I-~E // IN CLIRICI OPFICE 

.. I I FCOURr, I'Dn CIF WA8HING'rCN j JMm MAY 0 8 2014. 

~~02 

This oplnlOn.was filed fOr record 

at z; go OlD on Mfi''( B I 20l'i 

'k~~R~a~ Supreme Court Clerk 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, NO. 87253-8 

Respondent, ENBANC 

v. 

Filed MAY 0 8 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 of the 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 similar prerequisites to admissibility established 

by Washington's Rules ofEvidence (ER); the trial court meant that it could consider 

all the other evidence of Franklin's guilt and exclude the "other suspect" evidence 

because the other proof of the 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 

exclude defense-proffered other suspect evidence. The United States Supreme Court 

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 law reinforces 

this constitutional mandate. We have never adopted a per se rule against admitting 

circumstantial evidence of another person's motive, ability, or opportunity. Instead, 

our cases hold that if there is an adequate nexus between the alleged other suspect 

and the crime, such evidence should be admitted. The trial court violated both of 

these rules: it considered the strength of the State's case against the defendant and it 

applied a per se standard to exclude the other suspect evidence. Thus, its exclusion 

-2-

 	 
	 
   
		

		

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

of the 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 of Franklin's relationship with Fuerte. 

Things deteriorated between Franklin and Fuerte in October 2008, after Fuerte 

borrowed $3,000 from Franklin to cover an unexpected expense. The two agreed in 

writing that she would pay him back on November 26, 2008. On November 6, 2008, 

Franklin showed up at Fuerte's home uninvited. Fuerte and a male friend were 

watching a movie. Fuerte did not invite Franklin in but did talk with him 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 

were responding to a Craigslist ad urging readers to contact Fuerte 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 of person" she was, 

and demanded the money she owed him. RP (June 29, 2009) at 37. Franklin left 

after Fuerte told him she would pay him back the 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]f I 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]ommunication is key ... u friday then u said monday@ 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 

am working hard 2 save money ... u have tilll pm then u know what will 

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 of Fuerte were attached to the e-mail, one of which also 

featured Franklin. 

-4-

 	 
	 
   
		

		

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

Fuerte testified that she eventually cashed a $3,000 check and met Franklin 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 of it? This is just 

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 

another threatening e-mail. The next day, Fuerte received another e-mail containing 

the same proposed Craigslist ad stating that Fuerte was 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-cuz u wanted 2 play games . 

. . . I told u a# of time I am not the 1 2 play with ... but u 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 could just pretend 

she had not paid. Fuerte was particularly upset because he had contacted her through 

her son's phone. The next morning, Fuerte reported the call to the police. 

After several more rounds of e-mails and phone calls, during one of the calls, 

Fuerte asked Franklin to stop everything. He told her that he would not stop, that 

the first Craigslist post "was just the tip of the 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. I d. at 7 4. 

Shortly after ending that phone call, Fuerte began receiving sexually explicit 

responses to another Craigslist ad, which also contained the sexually explicit photos 

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. In total, prior to Fuerte's reporting of the harassment, there were 13 Craigslist 

postings similar to the ones listed above. 

On December 8, 2008, the State charged Franklin with one count of first 

degree perjury, one count of stalking, and one count of cyberstalking. 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 

explicit pictures of the victim. The stalking charge alleged that Franklin "repeatedly 

harass[ ed]" Fuerte, Clerk's Papers (CP) at 2, and the jury instructions defined "to 

harass" as "to carry out a knowing and willful course of conduct directed at a specific 

person which seriously alarms, annoys, or harasses or is detrimental to such person," 

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 communication to 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 had previously sent threatening messages to Fuerte 

via e-mail, text message, and phone, expressing displeasure about Fuerte's 

relationship with Franklin. Moreover, Hibbler had accessed Franklin's e-mail in the 

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 it required 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. 

The jury convicted Franklin of all 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 in camera hearing. The Court of Appeals affirmed. State v. Franklin, noted 

at 166 Wn. App. 1041,2012 WL 745227, at *1. Franklin petitioned 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 

The trial court in this case erred when it excluded Franklin's alternate suspect 

evidence.2 The trial court's ruling conflicts with both federal and state law because 

it considered the strength of the 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 

1 U.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 presumed prejudicial unless the State can 

show the error was harmless beyond a reasonable 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 

"Few rights are more fundamental than that of an accused to present witnesses 

in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 

35 L. Ed. 2d 297 (1973). It is a right of constitutional 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 of the perceived strength of the 

State's case. Holmes, 547 U.S. at 327-29. In Holmes, the Court expressly 

distinguished cases where other suspect evidence was excluded on the basis of"wellestablished rules of evidence," from the case before it where "the critical inquiry 

concern[ed] the strength of the prosecution's case." Jd. at 326, 329. 

The Holmes Court explained that the exclusion of other suspect evidence is a 

"specific application" of the general evidence rule permitting a judge "to exclude 

evidence if its probative value is outweighed by certain other factors such as unfair 

prejudice, confusion of the issues, or potential to mislead the jury." I d. at 327, 326. 

But when a rule that is "intended to be of this type" instead strays into evaluating the 

strength of the 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 of the prosecution's 

case, rather than focusing on the relevance and probative value of the 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 of the evidence shows that the 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 are justified by a line of cases stemming from our 1932 decision in State 

v. Downs, 168 Wash. 664, 13 P.2d 1 (1932). In that case, we held that 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 of facts or circumstances" linking him to the crime, opportunity and 

character evidence alone were insufficient to infer any third-party guilt; it was "the 

most remote kind of speculation." Id. at 668. As such, it was properly excluded as 

irrelevant. 

While Downs remains good law, we have since developed the "train of facts 

or circumstances" standard. One year after Downs, we held that "[m]ere evidence 

of motive in another party, or motive coupled with threats of such other person, is 

inadmissible, unless coupled with other evidence tending to connect such other 

person with the actual commission ofthe crime 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 of the 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 necessary that the scope of 

inquiry into collateral and unimportant issues must be strictly limited. 

It is quite apparent that if evidence of motive alone upon the part of 

other persons were admissible, that in a case involving the killing of a 

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 evidence that establishes only such suspicion is 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 the true perpetrator or as an accomplice or associate 

of the defendant. Evidence of this sort differs from evidence of motive, ability, 

opportunity, or character in that the proffered evidence alone is sufficient under the 

circumstances to establish the necessary connection. However, neither Maupin 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 of facts or circumstances must point 

to a nonspeculative link between the 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 '"tending to connect'" someone 

other than the defendant with the crime. Downs, 168 Wash. at 667 (quoting 16 C.J. 

Criminal Law§ 1085, at 560 (1918)), quoted in Maupin, 128 Wn.2d at 925. Further, 

other jurisdictions have pointed out that this 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 of the third party beyond a 

reasonable doubt." Smithart v. State, 988 P.2d 583, 588 & n.21 (Alaska 1999). The 

standard set forth by the trial court establishes a bar to admission of other suspect 

evidence significantly higher than the standard we have previously set forth and 

higher than the standard used in other jurisdictions. 

Our more restrained interpretation of the 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 of the "train of facts 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-not based 

on the strength of the 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 of third-party guilt has only a weak logical connection to 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 

The trial court in this case excluded evidence showing that another person had 

both the motive and opportunity to commit the crime. More than that, the excluded 

evidence, taken together, amounts to a chain of circumstances 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 presumed to be prejudicial and the State bears the burden of proving that the error 

was harmless. A constitutional error is harmless if the appellate court is convinced 

beyond a reasonable doubt that any reasonable jury would have reached the same 

result in the absence of the 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 if the trial court erred in excluding the other suspect 

evidence, the error is subject to constitutional harmless error analysis. Br. ofResp't 

at 28. However, the State claims any error in excluding Hibbler's testimony was 

harmless beyond a reasonable doubt. It asserts 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 if we cannot reasonably doubt that the jury 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 of the circumstantial evidence against Franklin pointed equally to 

Hibbler. Though some of this evidence emerged at trial through other witnesses, 

some of it did not. And the trial court barred Franklin from arguing that the limited 

evidence on this point that was presented at trial implicated Hibbler. If the jury had 

been allowed to consider all of the 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 

error was not harmless beyond a reasonable doubt. We therefore reverse Franklin's 

convictions and remand to the trial court. 

3 We note that the other suspect evidence was relevant not only to the cyberstalking 

charge against Franklin, but also to the stalking and perjury charges. The stalking jury 

instructions allowed the jury to consider the e-mails and Craigslist ads as proof of that 

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 of Appeals 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 instead reverses the trial court for its questionable choice 

of words. And third, it misinterprets a United 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 of Appeals as a "close call." State v. Franklin, noted at 166 

Wn. App. 1041, 2012 WL 745227, at *6, review granted, 174 Wn.2d 1017,282 P.3d 

 	 
	 
   
		

		

State 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 that the 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); ER 402. Evidence is relevant if it has "any tendency to make the 

existence of any [material] fact ... more probable or less probable than it would be 

without the evidence." ER 401. Relevant "evidence may [nevertheless] be excluded 

if its probative value is substantially outweighed bi' certain considerations such as 

prejudice or confusion, or if it will mislead the jury. ER 403. 

In this case, Franklin sought to introduce evidence that another suspect 

committed the crimes. To establish other-suspect evidence as relevant and 

admissible, a defendant must connect the other suspect to the charged crime through 

"such a train of facts 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 commit the crime is not enough as such evidence is 'the most 

remote kind of speculation."' State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 

(2004) (quoting Downs, 168 Wash. at 668). A defendant must show the 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. 

2 

 	 
	 
   
		

		

State 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 of the crime itself, cannot be separately proved for such 

a purpose."' Downs, 168 Wash. at 667 (quoting Greenfieldv. People, 85 N.Y. 75,89 

(1881 )). The defendant has the burden of showing that the 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, yet the majority alters it fundamentally. Citing a footnote from an Alaska 

case, the majority holds that rather than showing a train of facts and circumstances 

that connect the other suspect to the crime, a defendant needs to show only some 

"chain of circumstances that tends to create reasonable doubt as to [the defendant's] 

guilt." !d. at 13, 14. That has not been the law in Washington, and it opens the door 

to irrelevant, speculative evidence in future cases. I would apply the Downs standard, 

which has remained good law for 82 years in this state, and evaluate whether 

Franklin's evidence sufficiently connects the supposed other suspect to the crime. 

In addition to altering the standard for admitting other-suspect evidence, the 

majority spends its time criticizing the unartfullanguage of the trial judge rather than 

analyzing the record to determine whether Franklin met his burden to show that the 

evidence was admissible. In fact, the majority skips any analysis of the evidence 

altogether and summarily concludes that "the excluded evidence, taken together, 

3 

 	 
	 
   
		

		

State v. Franklin 

No. 87253-8 

Owens, J., Dissenting 

amounts to a chain of circumstances that tends to create reasonable doubt as to 

Franklin's guilt." Id. at 14. In fact, a full analysis of the evidence that Franklin 

submitted shows that the 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 of opportunity-the most remote kind of speculation. 

Second, Franklin in no way connected Hibbler to the time4gamez@yahoo.com 

account-the account actually used to perpetrate the crime. Franklin did not show 

that Hibbler even knew of the account, let alone that she created or accessed it. Third, 

as for prior threats, the evidence shows only that Hibbler sent threatening e-mails two 

to three years before the cyberstalking occurred. Though Hibbler contacted the victim 

five months before the cyberstalking began, she made no specific threats, and none of 

her e-mails suggest an intent to post salacious Craigslist ads or to send the harassing 

e-mails that supported the charges. These '"[r]emote acts, disconnected and outside 

of the crime itself, cannot be separately proved"' to show that Hibbler intended to 

cyberstalk the victim or took 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 of Appeals 

correctly concluded. In Strizheus, the defendant-accused of assaulting and 

attempting to murder his ex-wife and identified as the assailant by her-sought to 

introduce evidence of their son's recanted confession, motive, and bad character. 163 

4 

 	 
	 
   
		

		

State v. Franklin 

No. 87253-8 

Owens, J., Dissenting 

Wn. App. at 826. The trial court excluded the evidence, and the Court of Appeals 

affirmed its decision because no direct evidence contravened the State's version of 

events and no evidence showed an intent by the son to commit the crime. Id. at 832-

33. The same conclusion applies here because Franklin's other-suspect evidence does 

not contravene the State's version of events and does not show intent or any actual 

step to commit the crime on Hibbler's part. 

The majority reverses in large part due to the trial court's statement that it 

considered both the "foundation for other suspect evidence" as well as the "evidence 

against the defendant" when it ruled to exclude the other-suspect evidence. Partial 

Report of Proceedings (PRP) (June 29, 2009) at 13. The State's direct evidence 

included Franklin's separate confessions to his two superiors that he posted the ads 

and the victim's identification of him 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 of the United States Supreme Court's holding in Holmes v. South 

Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). Holmes supports 

no such contention. 

In that case, the Supreme Court reviewed the following standard created and 

applied by the South Carolina Supreme Court: "'[W]here there is strong evidence of 

an appellant's guilt, especially where there is strong forensic evidence, the proffered 

evidence about a third party's alleged guilt does not raise a reasonable inference as to 

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State 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 of only one party's evidence, no logical 

conclusion can be reached regarding the strength of contrary evidence offered by the 

other side to rebut or cast doubt." !d. at 331 (emphasis added). 

The standard applied by the trial court was far different from the one the 

Supreme Court struck down in Holmes. Here, the trial court did not look to only one 

party's evidence, but rather determined-based on the totality of the evidence-that 

Franklin's evidence was too weak to meet the standard for admissibility. I find no 

abuse of discretion in that determination. Hibbler sent threatening e-mails years 

before the cyberstalking began. Those actions were too remote in time to connect to 

Franklin's crimes. Beyond that remote evidence, Franklin speculated only that 

Hibbler committed the crime because she had access to his computer, and he offered 

no other evidence or witness to corroborate her involvement in the crime. Here, the 

other-suspect evidence is far less than the evidence in Holmes, for example, where the 

defendant offered eight witnesses connecting the other suspect to the crime. See State 

v. Holmes, 361 S.C. at 339-41. After considering all the evidence on both sides of the 

issue, the trial court did not abuse its discretion in excluding the other-suspect 

evidence for lack of sufficient connection to the crime. 

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State 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 that the State 

failed to meet its burden "by showing that there are other people who have ... access 

to the IP Address." PRP (June 22, 2009) at 11. In fact, Franklin presented evidence 

to the jury that Hibbler had accessed his personal e-mail account and sent an e-mail to 

the victim from that account. Thus, Franklin cannot say that the trial court completely 

restrained his right to defend himself on this point. The majority admits that some of 

this evidence made it to the jury, yet-with little explanation-finds reversible error 

because "some of it did not." Majority at 15-16. At the very least, the fact that the 

jury heard this evidence weighs on the side of finding harmless error, to the extent one 

finds that any error occurred. But I do not find any reversible error in the trial court's 

decision to exclude the other-suspect evidence. I respectfully dissent. 

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State v. Franklin 

No. 87253-8 

Owens, J., Dissenting 

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