STATE of North Carolina
v.
Johnny Lee ALLEN.
No. 8527SC1240.
Court of Appeals of North Carolina.
May 6, 1986.*572 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 *573 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 without the evidence.
Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible.... Evidence which is not relevant is not admissible.
The Advisory Committee's Commentary to Rule 401 notes: "Problems of relevancy call for an answer to the question of whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence." This view is in accord with the decisional law of this State. See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) (Evidence is relevant if it has any logical tendency, however slight, to prove the fact in issue); see also 1 Brandis, N.C. Evidence § 77 (2d rev. ed. 1982). Defendant's proffered evidence, having been offered to refute the eyewitnesses' identification of defendant as the robber, was so weak, so speculative and uncertain, that it did not possess sufficient probative value to justify receiving it in evidence. The Rules of Evidence simply do not help defendant on this issue.
We hold that defendant had a fair trial free from prejudicial error.
No error.
HEDRICK, C.J., and MARTIN, J., concur.