                                                       This opinion was filed for record

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                                                       -~       L, CARLSON
                                                         SUPREME COURT CLERK




      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                         )
STATE OF WASHINGTON,                     )
                                         )
                    Respondent,          )     No. 93668-4
                                         )
       v.                                )
                                         )     EN BANC
CHARLES LINNELL BLUFORD,                 )
                                         )
                    Petitioner.          )     Filed:      MAY O4 2017
    __________                           )

       YU, J.-This case provides us an opportunity to clarify what a trial court

must consider when the State moves to join multiple criminal charges against a

defendant into a single charging document pursuant to CrR 4.3(a). We now

reaffirm our precedent, which holds that the trial court must consider whether such

joinder will result in undue prejudice to the defendant. If it will, joinder is not

permissible. We therefore overrule certain Court of Appeals opinions that have

departed from this approach, reverse petitioner Charles Linnell Bluford's

convictions, and remand to the trial court for further proceedings consistent with

this opinion.
State v. Bluford, No. 93668-4


                 FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Bluford with one count of first degree robbery and one

count of indecent liberties. The basis for the indecent liberties charge was that

after threatening the victim with a gun and forcibly taking her purse, Bluford

"searched [the victim's] body, including putting his hand inside her underwear, for

money." Clerk's Papers (CP) at 4.

       The State later charged Bluford in a separate information with five more first

degree robberies involving five new victims. In a third information, the State

charged Bluford with first degree rape and first degree robbery involving yet

another victim. The similarities and differences between the charged offenses are

discussed in more detail below as relevant to the analysis.

       Before trial, the State moved to join the two robberies accompanied by

sexual offenses to the other five robberies, while Bluford moved to sever the five

robberies from each other. The court heard both motions at the same time at the

omnibus hearing. 1 The court granted the State's motion to join and denied

Bluford's motion to sever. Bluford did not renew his motion to sever.



       1
         Based on the timing of the various charges, Bluford's written motion to sever addressed
only the five robberies that were not accompanied by sexual offenses. CP at 369-70. The State's
written motion requested that the two robberies accompanied by sexual offenses be joined with
the other five and also requested that Bluford's severance motion be denied. Id. at 379. At oral
argument, the parties and the trial court approached Bluford' s motion as seeking severance of all
charges and the State's motion as seekingjoinder of all charges. Verbatim Report of
Proceedings (June 23, 2014) at 3-4, 31-32. We do not need to opine on the impact of that


                                                2
State v. Bluford, No. 93668-4


       Bluford was convicted of eight of the nine counts, including both sexual

offenses. He was acquitted of one count of robbery. The court sentenced Bluford

as a persistent offender pursuant to RCW 9.94A.570, finding that three of

Bluford' s prior out-of-state convictions (one conviction for second degree robbery

in New Jersey and two convictions for armed robbery in South Carolina) "are both

legally and factually comparable to most serious offenses in Washington." Id. at

196. Bluford was therefore sentenced to eight concurrent life sentences without

the possibility of parole.

       In a published opinion, the Court of Appeals held that (1) the trial court

properly allowed joinder, (2) Bluford did not invite the trial court to erroneously

deny his request for a lesser-included offense instruction on the indecent liberties

charge, and (3) the State had not proved Bluford's prior New Jersey conviction for

second degree robbery was factually or legally comparable to a most serious

offense in Washington, so Bluford's persistent offender sentence was erroneously

imposed. State v. Bluford, 195 Wn. App. 570, 583, 586, 591, 379 P.3d 163

(2016). 2 The Court of Appeals thus affirmed Bluford's robbery and rape


approach, if any, because we reverse all ofBluford's convictions and remand for further
proceedings consistent with this opinion.
        2
          The Court of Appeals determined that only one of Bluford's two prior South Carolina
robbery convictions could be considered because they were both entered on the same day and
therefore not '"on at least two separate occasions."' Bluford, 195 Wn. App. at 591 (quoting
RCW 9.94A.030(38)(a)(ii)). Therefore, without the New Jersey conviction, Bluford had only
one prior out-of-state conviction for a most serious offense, not the two required for persistent
offender sentencing. Id. The State does not challenge this conclusion.


                                                 3
State v. Bluford, No. 93668-4


convictions, reversed his indecent liberties conviction, vacated his sentence, and

remanded for resentencing. Id. at 592.

       Bluford petitioned for review on the joinder issue. The State cross

petitioned for review on the issues of the lesser-included offense instruction and

the persistent offender sentence. We granted review of all issues. Order Granting

Review, State v. Bluford, No. 93668-4 (Wash. Jan. 4, 2017). The State

subsequently withdrew its request for review of the lesser-included offense issue.

Wash. Supreme Court oral argument, State v. Bluford, No. 93668-4 (Mar. 21,

2017), at 13 min., 51 sec., audio recording by TVW, Washington State's Public

Affairs Network, http://www. tvw. org.

                                        ISSUES

       A.      Was it reversible error to join all nine of the charged counts?

       B.      Did the State produce sufficient evidence of the comparability of

Bluford's out-of-state convictions to support a persistent offender sentence?


                                      ANALYSIS

A.     Joinder

       The parties differ sharply on the scope and standard of our review on the

j oinder issue. We reaffirm our precedent and clarify that ( 1) both prejudice to the

defendant and judicial economy are relevant factors in joinder decisions, but




                                            4
State v. Bluford, No. 93668-4


judicial economy can never outweigh a defendant's right to a fair trial, and (2) a

trial court's decision on a pretrial motion for joinder is reviewed for abuse of

discretion.

       While the Court of Appeals applied the correct analytical approach to the

joinder issue in this case, we reverse on the merits. The evidence for all nine

charges was not cross admissible, and the benefits ofjoinder were outweighed by

the clear likelihood of undue prejudice to Bluford. We therefore reverse Bluford's

remaining convictions and remand for further proceedings.

       1.     Overview of joinder and severance

       While joinder and severance are often considered together, the parties'

arguments in this case indicate that there is a need to review the distinctions

between them and to clarify how they interact with each other at the trial and

appellate levels. We now take the opportunity to do so.

       "J oinder" refers to bringing multiple criminal charges against one person as

separate counts in a single charging document. CrR 4.3(a). If multiple charges

were originally brought against a defendant in separate charging documents, the

court "may" join offenses on a party's motion. 3 Id. Offenses are eligible for

joinder only when they "[a]re of the same or similar character, even if not part of a



       3
         This opinion considers only permissive joinder pursuant to CrR 4.3(a), not mandatory
joinder pursuant to CrR 4.3. 1(b).


                                               5
State v. Bluford, No. 93668-4


single scheme or plan" or "[a]re based on the same conduct or on a series of acts

connected together or constituting parts of a single scheme or plan." CrR

4.3(a)(l), (2). If multiple offenses are properly joined, they "shall be consolidated

for trial unless the court orders severance pursuant to [CrR] 4.4." CrR 4.3.l(a).

       "Severance" refers to dividing joined offenses into separate charging

documents. CrR 4.4(b) Severance may be ordered on a party's motion where "the

court determines that severance will promote a fair determination of the

defendant's guilt or innocence of each offense." Id. A party must generally move

for severance pretrial and renew a denied pretrial motion for severance "before or

at the close of all the evidence." CrR 4.4(a)(2). If the party does not timely make

or renew a severance motion, "[s]everance is waived." CrR 4.4(a)(l ), (2); see

State v. Wilcoxon, 185 Wn.2d 324, 328 n.2, 373 P.3d 224 (plurality opinion), cert.

denied, 137 S. Ct. 580 (2016); State v. Bryant, 89 Wn. App. 857, 864-65, 950 P.2d

1004 (1998).

       The parties agree that because Bluford did not renew his pretrial motion for

severance, the only issue before this court is whether the trial court properly

granted the State's motion for joinder.

       2.      Likely undue prejudice to the defendant must be considered in joinder

       The State contends that we should review only whether joinder was

allowable in accordance with the plain language of CrR 4.3(a). According to the


                                           6
State v. Bhiford, No. 93668-4


State, the likelihood of undue prejudice to the defendant is not relevant to this

inquiry; prejudice may be considered only on a motion to sever. However, the
                                   '

State's approach conflicts with our precedent. Ever since Washington first allowed

for the joinder of offenses, our courts have recognized the close relation of joinder

and severance, and have held that joinder should not be allowed in the first place if

it will clearly cause undue prejudice to the defendant.

       Before the enactment of the Superior Court Criminal Rules, joinder and

severance of offenses were governed by the same statute, now codified as RCW

10.37.060. See LAWS OF 1925, Ex. Sess., ch. 109, § 1. Pursuant to the statute,

offenses could be joined if doing so would not prejudice the defendant's

substantial rights and a trial court's determination on joinder was reviewed for

abuse of discretion. State v. Brunn, 145 Wash. 435, 437-38, 260 P. 990 (1927).

Shortly after the Superior Court Criminal Rules were adopted, this court held that

       CrR 4.3 is a liberal joinder rule. CrR 4.3 did not supersede RCW
       10.37.060 and the two are consistent. We have held that RCW
       10.37.060 gives the trial court considerable discretion in matters such
       as joinder of offenses. State v. McDonald, 74 Wn.2d 563,445 P.2d
       635 (1968). The same rule applies to CrR 4.3.

State v. Thompson, 88 Wn.2d 518, 525, 564 P.2d 315 (1977), overruled on other

grounds by State v. Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992).

       Thompson thus clearly states that joinder pursuant to CrR 4.3 is substantially

similar to joinder pursuant to RCW 10.73.060, which requires '"that the court must



                                           7
State v. Bluford, No. 93668-4


not permit the defendant to be embarrassed in his defense by a multiplicity of

charges embraced in one indictment"' and '"invest[s the trial court] with such

discretion as enables it to do justice between the government and the accused."'

Brunn, 145 Wash. at 437-38 (quoting Pointer v. United States, 151 U.S. 396,400,

14 S. Ct. 410, 38 L. Ed. 208 (1894)). Therefore, pursuant to Thompson, the

likelihood of undue prejudice to the defendant is not only relevant to motions for

severance, it must also be considered when the State moves for joinder.

       We have not directly revisited that question in the 40 years since Thompson.

Instead, we have typically analyzed joinder and severance together. See State v.

Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994) (citing State v. Smith, 74 Wn.2d

744, 754-55, 446 P.2d 571 (1968), vacated, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed.

2d 747 (1972)). The Court of Appeals, however, has considered cases like this

one, in which the defendant preserved an objection to joinder but waived a motion

to sever. See, e.g., Bryant, 89 Wn. App. at 864-65; State v. Culver, 36 Wn. App.

524, 529, 675 P.2d 622 (1984). Two different approaches have emerged.

       The State's proposed approach has been endorsed by Division Two, which

observed that "the Washington Supreme Court has blurred the distinction between

joinder and severance so carefully drawn in federal law." State v. Wilson, 71 Wn.

App. 880,886,863 P.2d 116 (1993), rev'dinparton other grounds, 125 Wn.2d

212, 883 P.2d 320 (1994); see also State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d


                                          8
State v. Bluford, No. 93668-4


39 (1982), rev 'din part on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983).

Division Two based its analysis on a Second Circuit case interpreting the Federal

Rules of Criminal Procedure. Wilson, 71 Wn. App. at 885 ( quoting United States

v. Werner, 620 F.2d 922, 926 (2d Cir. 1980)). Division Two did not identify the

source of its authority to reject our controlling precedent in favor of the Second

Circuit's approach.

       Division One, meanwhile, has explicitly rejected the approach adopted by

Division Two:

        To the extent that the distinction between review of joinder and
      · severance issues may have become blurred, we believe it is because
        the potential for prejudice must be considered in determining, in
        advance of trial, whether joinder is proper as a matter of law, and
        because actual prejudice must be considered in determining, at the
        appellate level, whether joinder was proper as a matter of law. Thus,
        even if joinder is legally permissible, the trial court should not join
        offenses if prosecution of all charges in a single trial would prejudice
        the defendant.

Bryant, 89 Wn. App. at 865 (citing United States v. Peoples, 748 F.2d 934, 936

(4th Cir. 1984); 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL

PRACTICE AND PROCEDURE§ 1717, at 354 (2d. ed. 1997); Culver, 36 Wn. App. at

529; Bayless v. United States, 381 F.2d 67, 72 (9th Cir. 1967)). Division Three has

not weighed in as clearly, but its position appears closer to that of Division One.

State v. Pleasant, 21 Wn. App. 177, 181-82, 583 P.2d 680 (1978).




                                           9
State v. Bluford, No. 93668-4


       We now explicitly adopt Division One's approach and disapprove of

Division Two's. Division One's approach is more consistent with our precedent

and the fundamental principle that "the joinder of counts should never be utilized

in such a way as to unduly embarrass or prejudice one charged with a crime, or

deny him a substantial right." Smith, 74 Wn.2d at 754-55. It also reflects the

reality, made clear by the record in this case, that pretrial joinder and severance are

often "six of one, half dozen of the other" because the issues are so closely related.

Verbatim Report of Proceedings (June 23, 2014) (VRP) at 4.

       The State, however, argues that considering prejudice to the defendant at the

joinder stage makes the severance rules "redundant" and "eviscerates CrR 4.4's

requirement that a defendant renew a motion to sever at the close of all the

evidence in order to preserve the issue for appeal." 4 Suppl. Br. ofResp't at 10, 11

n.5. We disagree with both contentions.

       First, where multiple charges are originally brought in a single charging

document, the State has no need to bring a joinder motion to the court. In that

situation, the severance rules are not at all redundant; they are the only means by



       4   At oral argument, the State also contended thatjoinder should never be unduly
prejudicial in pretrial matters, so there is no need to consider prejudice at the joinder stage, even
though joined offenses are presumptively tried together unless they are later severed. CrR
4.3.1 (a). Judicial economy in pretrial matters may ce1iainly be considered when balancing the
benefits of j oinder against the risk of prejudice to the defendant. However, whether it is better in
a particular case to object to joinder in the first instance or to move for severance at a later time
(or to do both) is a strategic decision best made by defense counsel.


                                                 10
State v. Bluford, No. 93668-4


which a defendant can secure separate trials on the charged offenses. Second,

where we are reviewing only pretrial joinder, we review only the facts known to

the trial judge at the time, rather than the events that develop later at trial. After

all, a judge cannot abuse his or her discretion based on facts that do not yet exist.

Any prejudice that emerges over the course of the trial must still be addressed in a

motion for severance that is timely raised and renewed. CrR 4.4(a)(2).

       We therefore hold thatjoinder pursuant to CrR 4.3(a) should be liberally

allowed where the charged offenses "( 1) [a]re of the same or similar character,

even if not part of a single scheme or plan; or (2) [a]re based on the same conduct

or on a series of acts connected together or constituting parts of a single scheme or

plan." However, we agree with the Court of Appeals holding in Bryant that our

precedent does not allow joinder "if prosecution of all charges in a single trial

would prejudice the defendant." 89 Wn. App. at 865. We review a trial court's

joinder decision for abuse of its "considerable discretion." Thompson, 88 Wn.2d at

525.

       As in other contexts where trial courts are asked to exercise discretion, a

court considering a pretrial joinder motion should conduct its analysis on the

record to ensure that its "exercise of discretion was based upon a careful and

thoughtful consideration of the issue." State v. Smith, 106 Wn.2d 772, 776, 725

P.2d 951 (1986). After identifying whether joinder is allowable in accordance with


                                            11
State v. Bluford, No. 93668"4


CrR 4.3(a)(l) or CrR 4.3(a)(2), the court should balance the likelihood of prejudice

to the defendant against the benefits of j oinder in light of the particular offenses

and evidence at issue and carefully articulate the reasoning underlying its decision.

       3.     Judicial economy is relevant to joinder but cannot outweigh a
              defendant's right to a fair trial

       Bluford challenges our precedent holding that judicial economy may be

considered and weighed against the possibility of prejudice to the defendant. See,

e.g., State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990); Smith, 74 Wn.2d

at 755. According to Bluford, "[n]o Washington court has ever explained why the

principle is sound." Suppl. Br. of Pet'r at 8. However, we have explained that

judicial economy is a relevant consideration because'" [t]he justification for a

liberal rule on j oinder of offenses appears to be the economy of a single trial.'"

Smith, 74 Wn.2d at 755 (quoting Drew v. United States, 118 U.S. App. D.C. 11,

14, 331 F.2d 85 (1964)). In other words, if judicial economy is irrelevant, the

justification for joinder disappears, and defendants would essentially be entitled to

separate charging documents and trials on each alleged offense as a matter of right.

This was the law in early statehood, LAWS OF 1891, ch. 28, § 24, but Washington

abandoned that approach long ago, LAWS OF 1925, Ex. Sess., ch. 109, § 1.

       To be sure, if joinder will cause clear, undue prejudice to the defendant's

substantial rights, no amount of judicial economy can justify requiring a defendant




                                           12
State v. Bluford, No. 93668-4


to endure an unfair trial. However, where the likely prejudice to the defendant will

not necessarily prevent a fair trial, "'the court must weigh prejudice to the

defendant caused by the joinder against the obviously important considerations of

economy and expedition in judicial administration."' Smith, 74 Wn.2d at 755

(quoting Drew, 118 U.S. App. D.C. at 14).

       4.      Joining the charges against Bluford caused him undue prejudice

       There are four factors to consider when determining whether joinder causes

undue prejudice: "(1) the strength of the State's evidence on each count; (2) the

clarity of defenses as to each count; (3) court instructions to the jury to consider

each count separately; and (4) the admissibility of evidence of the other charges

even if not joined for trial." Russell, 125 Wn.2d at 63. Bluford focuses primarily

on the cross admissibility of the evidence pursuant to ER 404(b). We agree with

Bluford that, on this record, the trial court abused its discretion. 5

       ER 404(b) provides,

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.



       5
         We hold only that joining all nine of the charges against Bluford was an abuse of
discretion. We express no opinion on whether joinder of only some of the charges would be
allowable, and we leave it to the parties and the trial court to resolve that question on remand, if
necessary, in a manner consistent with this opinion.


                                                 13
State v. Bluford, No. 93668A


The court in this case determined that evidence of all the charges was cross

admissible pursuant to ER 404(b) to show identity based on modus operandi. 6

"This Court reviews decisions to admit evidence under ER 404(b) for abuse of

discretion." State v. Vy Thang, 145 Wn.2d 630,642, 41 P.3d 1159 (2002). "In

doubtful cases, the evidence should be excluded." Id.

              When evidence of other bad acts is introduced to show identity
       by establishing a unique modus operandi, the evidence is relevant to
       the current charge "only if the method employed in the commission of
       both crimes is 'so unique' that proof that an accused committed one of
       the crimes creates a high probability that he also committed the other
       crimes with which he is charged."

Id. at 643 (quoting Russell, 125 Wn.2d at 66-67). The offenses must share

"distinctive features" that "establish signature-like similarity." Id. To determine

whether the offenses meet this test, we consider what, if any, distinctive features

the offenses share, and how the offenses differ from each other. Id. at 645; Smith,

106 Wn.2d at 779.

       "[G]eographical proximity and commission of the crimes within a short time

frame" may be considered. Vy Thang, 145 Wn.2d at 643. Offenses occurring "on

the same day or in close proximity" are much more probative of identity than

offenses sharing only "very general similarities ... with respect to the time,

manner and location of the crimes." Smith, 106 Wn.2d at 779. The court here


       6
        The trial court also found the charges would be cross admissible to show common
scheme or plan, but the State argues only the identity theory on review.


                                             14
State v. Bluford, No. 93668-4


believed that geographical proximity and a short time frame were implicated in

Bluford's case:

             These alleged offenses occurred just under a two-month period
       of time ....
              . . . [T]hree of the last four, two of them occurred on the same
       day on March 14th, one of them was March 10th, all of them in the
       dark hours ....

             They all occurred in the Seattle Metro area, four of them in
       Renton, one in Bellevue, one in Seattle, and one in Shoreline. All of
       them occurred in a residential area.

VRP at 45. However, occurring at night over a two-month time span in residential

areas within the large Seattle metropolitan area are much more general similarities

than distinctive attributes.

       Courts also consider "whether the similarities between the two crimes are

unusual or distinctive" insofar as how the crimes were carried out. Vy Thang, 145

Wn.2d at 644. The court in this case noted that the victims were "apparently ...

stranger[ s]" to the perpetrator, and all the cases "involved the victim just getting

out of a car and being by themselves." VRP at 45-46. Furthermore, "[i]n all of the

cases, there was allegedly a gun displayed, and in all of them there were verbal

demands made." Id. at 46. And in each case, "[t]he property taken was very

similar, which is small portable items that individuals generally have on their

person, such as wallets, cell phones, and purses." Id. at 50.




                                           15
State v. Bluford, No. 93668-4


       While these are similar features, they are not unusual or distinctive.

Robbing a stranger who is alone and not on guard is not distinctive. And

displaying a weapon, demanding valuable items, and taking available valuable

items from a person are features common to many armed robberies. There was

nothing particularly distinctive noted about the gun except that it was always a

handgun, which is hardly an unusual weapon. See District of Columbia v. Heller,

554 U.S. 570, 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). These general

similarities, even in combination, do not establish a modus operandi. Cf Vy

Thang, 145 Wn.2d at 644 ("Thus, in a case where a robber entered the store, pulled

a knife, asked for money and fled upon receiving it, the Court of Appeals held that

although the crimes were similar, the shared features were not sufficiently unusual

or unique to amount to a signature.").

       Finally, similar descriptions of the perpetrators, such as "wearing similar

clothing," may be considered. Id. at 643. The court here noted that "[a]ll of the

victims identified a black male perpetrator" and, of the charges that included a

witness description of the car, "although the colors differed slightly .. ·. it's

generally described as a Honda-type car." VRP at 46, 50. But being a black male

is not a distinctive physical feature, and Hondas are very common.

       Thus, the similarities between the charges are much more general than

distinctive. "The manner in which each robbery was committed here is not unique.


                                            16
State v. Bluford, No. 93668-4


Any general similarities between the two crimes 'might have been as much due to

coincidence as to modus operandi."' Bythrow, 114 Wn.2d at 720 (quoting Smith,

106 Wn.2d at 779).

       Moreover, the differences between the charges were notable, particularly as

to the two robberies accompanied by sexual offenses. None of the other robbery

victims was allegedly subjected to a sexual offense, and even the two sexual

offenses charged were very different from each other. In one case, the robber put

his hand in the victim's underwear, ostensibly to search for money. In the other

case, the robber pushed the victim into her garage, forcibly removed her pants,

penetrated her vagina with his fingers, then grabbed her by the hair and forced his

penis in her mouth. No other victim was subjected to anything like that.

       In light of "the existence of these marked dissimilarities, and the absence of

any distinctive similarities," we hold that the trial court abused its discretion in

holding that evidence of all the charges would be cross admissible as to all the

others to prove identity by modus operandi. 7 Smith, 106 Wn.2d at 779; cf State v.

Foxhoven, 161 Wn.2d 168, 177, 163 P.3d 786 (2007) (admitting evidence of




       7
          The State also argues that the evidence was cross admissible to show identity even if
modus operandi was not established because there was evidence that many of the stolen items
were found in places that had a connection to Bluford or his girlfriend. Br. of Resp't at 33.
However, the State does not cite any case supporting the notion that absent modus operandi,
evidence of multiple offenses is cross admissible to prove identity based solely on the fact that
there is similar evidence linking the defendant to many of the offenses.


                                                17
State v. Bluford, No. 93668-4


graffiti because, even though they were stylistically different, they all used

distinctive "tags," which "are akin to signatures"); State v. Laureano, l O1 Wn.2d

745, 765, 682 P.2d 889 (1984) (forced-entry residential burglaries occurring within

three weeks of each other, with similar use of a 20-gauge shotgun and perpetrators

dressed in Army fatigues), overruled in part on other grounds, State v. Brown, 113

Wn.2d 520, 529, 782 P.2d 1013, 787 P.2d 906 (1989).

       The mere fact that evidence is not cross admissible does not automatically

preclude joinder. Bythrow, 114 Wn.2d at 720. To establish error, Bluford must

also show that the prejudicial effect of trying all the counts together outweighed

the benefits of joinder. Id. at 722. In this case, he makes that showing. We have

previously noted "the inherently prejudicial effect of prior sexual offenses." Id. at

718-19. Moreover, because the evidence was not cross admissible, the interest in

judicial economy loses much of its force because the State would not have been

required (or allowed) to call all of its witnesses in each separate trial.

       When a defendant is charged with multiple offenses, the offenses may be

joined only if the offenses satisfy CrR 4.3(a) and joinder is not likely to cause

undue prejudice to the defendant. In this case, the trial court abused its discretion

because the likely prejudice to Bluford outweighed concerns for judicial economy.

We therefore reverse Bluford's convictions and remand for further proceedings

consistent with this opinion.


                                            18
State v. Bluford, No. 93668-4


B.     Persistent offender sentence

       Although we reverse Bluford's convictions, we briefly address the issue of

whether the State established that Bluford's New Jersey robbery conviction was

legally comparable to a most serious offense in Washington for purposes of the

persistent offender sentencing statute, RCW 9.94A.570. We affirm the Court of

Appeals holding that it did not. 8

       A persistent offender is an individual who ( 1) has been convicted in

Washington "of any felony considered a most serious offense" and (2) has "been

convicted as an offender on at least two separate occasions" in any state for

offenses that, in accordance with Washington law, "would be considered most

serious offenses." RCW 9.94A.030(38)(a). A court's determination of whether an

out-of-state conviction is legally comparable to a most serious offense in ·

Washington is reviewed de novo. 9 State v. Thiefault, 160 Wn.2d 409,414, 158

P.3d 580 (2007). An out-of-state conviction is legally comparable if "the elements

of the foreign offense are substantially similar to the elements of the Washington

offense." Id. at 415.




       8 This opinion does not prevent the State from presenting more or different evidence of
Bluford's New Jersey conviction if Bluford is eventually convicted of a most serious offense on
remand and the State chooses to seek a persistent offender sentence.
       9
         On review, the State argues only legal, not factual, comparability.


                                               19
State v. Bluford, No. 93668-4


       At issue here is the legal comparability of Bluford's 1994 conviction for

second degree robbery in New Jersey. New Jersey law defines "robbery" as

follows:

               a. Robbery defined. A person is guilty of robbery if, in the
       course of committing a theft, he:
              (1) Inflicts bodily injury or uses force upon another; or
              (2) Threatens another with or purposely puts him in fear of
       immediate bodily injury; or
              (3) Commits or threatens immediately to commit any crime of
       the first or second degree.

               b. Grading. Robbery is a crime of the second degree, except
       that it is a crime of the first degree if in the course of committing the
       theft the actor attempts to kill anyone, or purposely inflicts or attempts
       to inflict serious bodily injury, or is armed with, or uses or threatens
       the immediate use of a deadly weapon.

N.J. STAT. § 2C: 15-1.

       The record shows that Bluford was originally indicted for first degree

robbery, apparently pursuant to N.J. Stat.§ 2C:15-l(a)(2). CP at 316 ("in the

course of committing a theft, [Bluford] did threaten immediate bodily injury to [the

victim] and/or did purposely put [the victim] in fear of immediate bodily injury

while armed with and/or threatening the immediate use of [a] deadly weapon").

However, Bluford ultimately pleaded guilty to one count of second degree robbery,

and there is no amended charging document in the record. Bluford's judgment

specifies that the conviction was pursuant to N.J. Stat. § 2C: 15-1, but does not state

which subsection of that statute applied. This is problematic.


                                           20
State v. Bluford, No. 93668-4


       We assume, without deciding, that N.J. Stat.§ 2C:15-l(a)(l) and (a)(2) may

be legally comparable to second degree robbery, a most serious offense in

Washington. RCW 9.94A.030(33)(o) (listing second degree robbery as a most

serious offense); RCW 9A.56.190 ("A person commits robbery when he or she

unlawfully takes personal property from the person of another or in his or her

presence against his or her will by the use or threatened use of immediate force,

violence, or fear of injury to that person or his or her property or the person or

property of anyone."), .210(1) ("A person is guilty of robbery in the second degree

ifhe or she commits robbery."). N.J. Stat.§ 2C:15-l(a)(3), however, clearly is not;

it contemplates a robbery conviction based on a theft accompanied by "any crime

of the first or second degree," regardless of whether force, violence, or injury is

inflicted or threatened. (Emphasis added.) We cannot determine which subsection

ofN.J. Stat.§ 2C:15-l(a) applied to Bluford's conviction without looking to the

facts underlying that conviction.

       We agree with the State that the question of whether we can consider facts

underlying a foreign conviction cannot be resolved merely by distinguishing

between whether the information was spoken or written. See Answer to Pet. for

Review & Cross-Pet. at 12-13. However, in order to preserve due process and the

right to jury trial, "[a]ny attempt to examine the underlying facts of a foreign

conviction, facts that were neither admitted or stipulated to, nor proved to the


                                           21
State v. Bluford, No. 93668A


finder of fact beyond a reasonable doubt in the foreign conviction, proves

problematic." In re Pers. Restraint of Lavery, 154 Wn.2d 249,258, 111 P.3d 837

(2005). Therefore, in a comparability analysis we may consider only those

underlying facts that were "admitted, stipulated to, or proved beyond a reasonable

doubt." Thiefault, 160 Wn.2d at 415.

       The State argues that the documentation it submitted establishes that

Bluford's conviction was pursuant to N.J. Stat.§ 2C:15-l(a)(2) and thus

comparable to a most serious offense. We find that documentation insufficient.

Bluford certainly did not admit or stipulate to his original indictment because he

pleaded guilty to a different offense. The only other information we have about

what crime Bluford was convicted of are the judge's stated reasons for accepting

Bluford's guilty plea. It is not clear from the record whether Bluford admitted or

stipulated to those facts, and, more importantly, they do not actually track the

elements ofN.J. Stat.§ 2C:15-l(a)(2). 10

       The New Jersey judge noted that "[t]his offense occurred when defendant

and a juvenile accomplice committed an armed robbery during the course of which




       10
           We do not mean to suggest that a judge's statements regarding the facts underlying a
prior foreign conviction can never be considered. The relevant inquiry is not who made the
factual statements, but whether the source of those statements is sufficiently reliable and whether
the facts themselves were "admitted, stipulated to, or proved beyond a reasonable doubt."
Thiefault, 160 Wn.2d at 415; cf In re Pers. Restraint ofAdolph, l 70 Wn.2d 556, 568-69, 243
P.3d 540 (2010) (considering evidence of a prior Washington conviction).


                                                22
State v. Bluford, No. 93668-4


they stole $85.00 and a ring having great sentimental value to the victim. The

weapon, which the victim believed to be a 9 mm handgun was in fact a B.B. gun."

CP at 310. These statements do not establish that the victim was threatened or

purposefully put in fear of immediate bodily injury as required for N.J. Stat.

§ 2C:15-l(a)(2). And use of a deadly.weapon (or what appeared to be a deadly

weapon) is not an element of second degree robbery in New Jersey. See N.J. STAT.

§ 2C:15-l(b) ("Robbery is a crime of the second degree, except that it is a crime of

the first degree if in the course of committing the theft the actor ... is armed with,

or uses or threatens the immediate use of a deadly weapon.").

       Based on the record presented, we know only that Bluford necessarily

admitted to (l) committing a theft and (2) at least one of the three possible criteria

that would elevate that theft to a robbery pursuant to N.J. Stat.§ 2C:15-l(a)(l)-(3).

We do not know which one, and ifit was N.J. Stat.§ 2C:15-l(a)(3), Bluford's

conviction was not legally comparable to a most serious offense in Washington.

We therefore affirm the Court of Appeals on this issue.

                                   CONCLUSION

       We take this opportunity to reaffirm that likely undue prejudice to the

defendant is relevant to determining whether pretrial joinder pursuant to CrR 4.3(a)

should be granted over a defendant's objection. Joining all nine charges in this




                                          23
State v. Bluford, No. 93668-4


case was an abuse of discretion. We therefore reverse the Court of Appeals and

remand to the trial court for further proceedings consistent with this opinion.




                                          24
State v. Bluford, No. 93668-4




WE CONCUR:




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