State v. Allen, 8527SC1240

• Decision Date: 06 May 1986
• Docket Number: No. 8527SC1240,8527SC1240
• Citation: 80 N.C.App. 549,342 S.E.2d 571
• Parties: STATE of North Carolina v. Johnny Lee ALLEN.
• Court: North Carolina Court of Appeals

Page 571

342 S.E.2d 571

80 N.C.App. 549

STATE of North Carolina v. Johnny Lee ALLEN.

No. 8527SC1240.

Court of Appeals of North Carolina.

May 6, 1986.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Angeline M. Maletto, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant-appellant.

WELLS, Judge.

In his sole assignment of error, defendant contends that the trial court erred in not allowing him to offer evidence of a similar robbery. He argues that evidence that another robbery perpetrated by a man resembling defendant and utilizing an almost identical modus operandi was directly and substantially relevant to the sole issue in dispute, i.e., identity of the perpetrator of the robbery. He argues also that the exclusion of this evidence violated the Rules of Evidence and denied him the right to present a full defense. We disagree.

As a general rule, evidence that another person committed a crime with which a defendant is charged is admissible when "it points directly to the guilt of the third party." State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981); State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977). Evidence tending to show that the crime was committed by another is inadmissible, however, when such evidence creates only an inference or conjecture as to the other's guilt. State v. Hamlette, supra; State v. Baggett, 61 N.C.App. 511, 301 S.E.2d 116 (1983).

In the present case, the proffered evidence was, in essence, that another person, bearing a resemblance to defendant and utilizing a modus operandi similar to that used in the Hardee's robbery, robbed another fast food restaurant two months after the Hardee's robbery. There was no evidence, however, that the other person committed the crime with which defendant was charged. Stated another way, the proffered evidence does not point directly to the other person's guilt of the crime with which the defendant was charged. Neither does the proffered evidence in any way refute the identification of the defendant by the eyewitnesses as the perpetrator of the robbery. Therefore, the proffered evidence could do nothing more than create an inference or conjecture as to another's guilt of the crime charged and it was therefore properly excluded.

Defendant contends, however, that despite the decisional law to the contrary, on which we have relied, his proposed evidence was admissible under N.C.Gen.Stat. § 8C-1, Rule 402 of the Rules of Evidence. Rules 401 and 402 in pertinent part provide:

Rule 401. Definition of "relevant evidence." "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be...