¶33 (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. First, it alters our standard for admitting other-suspect evidence while claiming to leave it unchanged. Second, it fails to analyze the *384evidence 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, 2012 Wash. App. LEXIS 451, at *18, review granted, 174 Wn.2d 1017, 282 P.3d 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
¶34 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 by” certain considerations such as prejudice or confusion, or if it will mislead the jury. ER 403.
¶35 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 *385must 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. 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 Greenfield v. 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).
¶36 The majority claims to leave the standard described above unchanged, majority at 380-81, 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.” Id. at 381, 382. 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.
¶37 In addition to altering the standard for admitting other-suspect evidence, the majority spends its time criticizing the unartful language 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, amounts to a chain of circumstances that tends to create reasonable doubt as to Franklin’s guilt.” Id. at 382. In fact, a full analysis of the evidence that Franklin submitted shows that the trial court did not abuse its discretion in excluding it.
*386¶38 First, the fact that Franklin’s girlfriend 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 had 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).
¶39 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 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.
¶40 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 *387evidence. 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.
¶41 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 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.” Id. at 331 (emphasis added).
¶42 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 con*388necting 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.
¶43 Finally, while the trial court did not abuse its discretion in excluding the other-suspect 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 383. 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.
Madsen, C.J.; C. Johnson, J.; and J.M. Johnson, J. Pro Tem., concur with Owens, J.Reconsideration denied June 17, 2014.