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# f'sVK L, CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON ) STATE OF WASHINGTON, ) ) Respondent, ) ) 

### v. ) ) CHARLES LINNELL BLUFORD, ) ) Petitioner. )



# __________ ) No. 93668-4
ENBANC Filed: 

### MAY O 4 

## 2017
YU, J.-This case provides us an opportunity to clarify what a trial court must considerwhen the State moves tojoinmultiple criminal charges against a defendant into a single charging document pursuantto CrR 4.3(a). We now reaffirm our precedent, whichholds that the trial court must consider whether such joinderwill result in undue prejudice to the defendant. Ifit will,joinderis not permissible. We therefore overrule certain Court ofAppeals 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 PROCEDURALBACKGROUND The State charged Bluford with one count offirst degree robbery and one count ofindecent 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 betweenthe charged offenses are discussed in more detail below as relevantto the analysis. Before trial, the State moved tojointhe two robberies accompanied by sexual offenses to the other five robberies, while Blufordmoved to severthe 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 tojoin and denied Bluford's motion to sever. Bluford did not renew his motion to sever.

1Based on the timing ofthe 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 thatthe two robberies accompanied by sexual offenses bejoined 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 ofall charges and the State's motion as seekingjoinder ofall charges. Verbatim Report of Proceedings (June 23, 2014) at 3-4, 31-32. We do not need to opine on the impact ofthat
2State v. Bluford, No. 93668-4 Blufordwas convicted ofeight ofthe nine counts, including both sexual offenses. He was acquitted ofone count ofrobbery. The court sentencedBluford
as a persistent offenderpursuantto RCW 9.94A.570, finding that three of Bluford's prior out-of-state convictions (one conviction for second degree robbery in New Jersey andtwo convictions for armedrobbery in South Carolina) "are both legally and factually comparable to most serious offenses in Washington." 

### Id. at 196. Bluford was therefore sentencedto eight concurrent life sentences without the possibility ofparole. In a published opinion, the Court ofAppeals heldthat (1) the trial court properly allowedjoinder, (2) Bluford did not invite the trial courtto erroneously deny his request for a lesser-included offense instruction onthe indecent liberties charge, and (3) the State had notproved Bluford'spriorNewJersey 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 ofAppeals thus affirmed Bluford's robbery and rape approach, ifany, because we reverse all ofBluford's convictions and remand for further proceedings consistent with this opinion. 2 The Court ofAppeals determined that only one ofBluford'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 NewJersey 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. 3State v. Bluford, No. 93668-4 convictions, reversed his indecent liberties conviction, vacated his sentence, and remanded for resentencing. Id. at 592. Blufordpetitioned for review on thejoinder issue. The State cross petitioned for review onthe issues ofthe lesser-included offense instruction and the persistent offender sentence. We granted review ofall issues. Order Granting Review, State v. Bluford, No. 93668-4 (Wash. Jan. 4, 2017). The State subsequently withdrew its request for review ofthe 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 byTVW, Washington State's Public Affairs Network, http://www.tvw.org. ISSUES A. Was it reversible error tojoin all nine ofthe charged counts? B. Did the State produce sufficient evidence ofthe comparability of Bluford's out-of-state convictions to support a persistent offender sentence?
ANALYSIS A. Joinder The parties differ sharply onthe scope and standard ofourreview on the joinder issue. We reaffirm ourprecedent and clarify that (1) both prejudice to the defendant andjudicial economy are relevant factors injoinder decisions, but

4State v. Bluford, No. 93668-4 judicial economy can never outweigh a defendant's rightto a fair trial, and (2) a trial court's decision on apretrial motion forjoinderis reviewed for abuse of discretion. While the Court ofAppeals applied the correct analytical approachto the joinder issue in this case, we reverse on the merits. The evidence for all nine charges was not cross admissible, andthe benefits ofjoinderwere outweighedby the clear likelihood ofundue prejudice to Bluford. We therefore reverse Bluford's remaining convictions and remand for further proceedings. 1. Overview of joinder and severance Whilejoinder and severance are often consideredtogether, the parties' arguments in this case indicate thatthere is a need to review the distinctions betweenthem and to clarify howthey interact with each other at the trial and appellate levels. We nowtake the opportunity to do so. 

### "Joinder" refers to bringing multiple criminal charges against one person as separate counts in a single charging document. CrR4.3(a). Ifmultiple charges
were originally brought against a defendant in separate charging documents, the court "may"join offenses on aparty's motion. 3 Id. Offenses are eligible for joinder only when they "[a]re ofthe same or similar character, even ifnotpart ofa

3 This opinion considers onlypermissivejoinderpursuantto CrR4.3(a), not mandatory joinderpursuantto CrR4.3. 1(b). 5State v. Bluford, No. 93668-4 single scheme or plan" or "[a]re based on the same conduct or on a series ofacts connected together or constituting parts ofa single scheme or plan." CrR 4.3(a)(l), (2). Ifmultiple offenses are properlyjoined, they "shall be consolidated for trial unless the court orders severance pursuantto [CrR] 4.4." CrR4.3.l(a). "Severance" refers to dividingjoined 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 ofthe defendant's guilt or innocence ofeach offense." Id. A party must generally move for severance pretrial and renew a deniedpretrial motion for severance "before or at the close ofall the evidence." CrR4.4(a)(2). Ifthe party does nottimely make
or renew a severance motion, "[s]everance is waived." CrR4.4(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 notrenew his pretrial motion for severance, the only issue before this court is whether the trial court properly granted the State's motion forjoinder. 2. Likely undue prejudice to the defendant must be considered injoinder The State contends that we should review only whetherjoinderwas allowable in accordance with the plain language ofCrR4.3(a). According to the

6State v. Bhiford, No. 93668-4 State, the likelihood ofundue prejudiceto the defendant is notrelevantto this inquiry; prejudice may be considered only on a motion to sever. However, the ' State's approach conflicts with ourprecedent. Ever since Washington first allowed for thejoinderofoffenses, our courts have recognizedthe close relation of joinder and severance, and have held thatjoinder should notbe allowed in the first place if it will clearly cause undueprejudice to the defendant. Before the enactment ofthe Superior Court Criminal Rules,joinder and
severance ofoffenses were governed by the same statute, now codified as RCW 10.37.060. See LAWS OF 1925, Ex. Sess., ch. 109, § 1. Pursuantto the statute, offenses could bejoined ifdoing so wouldnotprejudice the defendant's substantial rights and a trial court's determination onjoinderwas reviewed for abuse ofdiscretion. State v. Brunn, 145 Wash. 435, 437-38, 260 P. 990 (1927). Shortly after the Superior Court Criminal Rules were adopted, this courtheldthat CrR4.3 is a liberaljoinderrule. CrR4.3 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 asjoinder ofoffenses. State v. McDonald, 74 Wn.2d 563,445 P.2d 635 (1968). The same rule applies to CrR4.3. State v. Thompson, 88 Wn.2d 518, 525, 564 P.2d 315 (1977), overruledon other grounds byState v. Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992). Thompson thus clearly states thatjoinderpursuantto CrR4.3 is substantially similar tojoinderpursuantto RCW 10.73.060, which requires '"thatthe courtmust

7State v. Bluford, No. 93668-4
not permitthe 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 itto dojustice between the government and the accused."' Brunn, 145 Wash. at 437-38 (quoting Pointer v. UnitedStates, 151 U.S. 396,400, 14 S. Ct. 410, 38 L. Ed. 208 (1894)). Therefore, pursuantto Thompson, the likelihood ofundue prejudiceto the defendant is not only relevant to motions for severance, it must also be considered when the State moves forjoinder. We have not directly revisitedthat question in the 40 years since Thompson. Instead, we have typically analyzedjoinder 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 ofAppeals, however, has considered cases like this one, in which the defendant preserved an objection tojoinderbut 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 DivisionTwo, which observed that "the Washington Supreme Courthas 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 othergrounds, 125 Wn.2d 212, 883 P.2d 320 (1994); see also State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d

8State v. Bluford, No. 93668-4 39 (1982), rev 'dinparton othergrounds, 99 Wn.2d 538, 663 P.2d 476 (1983). Division Two based its analysis on a Second Circuit case interpreting the Federal Rules ofCriminal Procedure. Wilson, 71 Wn. App. at 885 (quoting UnitedStates
v. Werner, 620 F.2d 922, 926 (2d Cir. 1980)). Division Two did not identify the
source ofits authority to reject our controllingprecedent in favor ofthe Second Circuit's approach. Division One, meanwhile, has explicitly rejected the approach adopted by Division Two: To the extentthatthe distinction betweenreview of joinder and
·severance issues may have become blurred, we believe it is because the potential for prejudice mustbe considered in determining, in advance oftrial, whetherjoinder is proper as a matter oflaw, and because actual prejudice must be considered in determining, atthe appellate level, whetherjoinderwas proper as a matter oflaw. Thus, even if joinder is legally permissible, the trial court should notjoin offenses ifprosecution ofall charges in a single trial wouldprejudice the defendant. Bryant, 89 Wn. App. at 865 (citing UnitedStates v. Peoples, 748 F.2d 934, 936 (4th Cir. 1984); 12 ROYCE A. FERGUSON, JR., WASHINGTONPRACTICE: CRIMINAL PRACTICEAND PROCEDURE§ 1717, at 354 (2d. ed. 1997); Culver, 36 Wn. App. at 529; Bayless v. UnitedStates, 381 F.2d 67, 72 (9th Cir. 1967)). Division Three has not weighed in as clearly, butits position appears closerto that ofDivision One. State v. Pleasant, 21 Wn. App. 177, 181-82, 583 P.2d 680 (1978).

9State 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 "thejoinder ofcounts 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 inthis case, thatpretrialjoinder and severance are often "six ofone, halfdozen ofthe other" because the issues are so closely related. Verbatim Report ofProceedings (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 CrR4.4's requirement that a defendant renew a motion to sever at the close ofall 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 ajoindermotion 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 beunduly prejudicial in pretrial matters, so there is no need to consider prejudice at thejoinder stage, even thoughjoined offenses are presumptively tried together unless they are later severed. CrR 4.3.1 (a). Judicial economy in pretrial matters may ce1iainly be considered whenbalancing the benefits of joinder against the risk ofprejudice to the defendant. However, whether it is better in a particular caseto object tojoinder in the first instance orto move for severance at a later time (or to do both) is a strategic decision best made by defense counsel. 10State v. Bluford, No. 93668-4 which a defendant can secure separate trials on the charged offenses. Second, where we are reviewing only pretrialjoinder, we review only the facts known to the trialjudge at the time, rather than the events that develop later at trial. After all, ajudge cannot abuse his or her discretion based on facts that do not yet exist. Any prejudice that emerges over the course ofthe trial must still be addressed in a motion for severance that is timely raised and renewed. CrR 4.4(a)(2). We therefore hold thatjoinderpursuant to CrR 4.3(a) should be liberally allowed where the charged offenses "(1) [ a]re ofthe same or similar character,
even ifnotpart ofa single scheme or plan; or (2) [a]re based onthe same conduct
or on a series ofacts connectedtogether or constitutingparts ofa single scheme or plan." However, we agree with the Court ofAppeals holding inBryantthat our precedent does not allowjoinder "ifprosecution ofall charges in a single trial would prejudice the defendant." 89 Wn. App. at 865. We review a trial court's joinder decision for abuse ofits "considerable discretion." Thompson, 88 Wn.2d at 525. As in other contexts where trial courts are asked to exercise discretion, a court considering a pretrialjoindermotion should conduct its analysis on the record to ensure that its "exercise ofdiscretion was basedupon a careful and thoughtful consideration ofthe issue." State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986). After identifying whetherjoinderis allowable in accordance with

11State v. Bluford, No. 93668"4 CrR4.3(a)(l) or CrR4.3(a)(2), the court should balance the likelihood ofprejudice to the defendant against the benefits of joinder in light ofthe particular offenses and evidence at issue and carefully articulate the reasoning underlying its decision. 3. Judicial economy is relevanttojoinderbut cannot outweigh a defendant's rightto a fair trial Bluford challenges ourprecedentholding thatjudicial economy may be considered and weighed against the possibility ofprejudice 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 courthas ever explained why the principle is sound." Suppl. Br. ofPet'r at 8. However, we have explained that judicial economy is a relevant consideration because'"[t]hejustification for a liberal rule onjoinder ofoffenses appears to be the economy ofa single trial.'" Smith, 74 Wn.2d at 755 (quotingDrew v. UnitedStates, 118 U.S. App. D.C. 11, 14, 331 F.2d 85 (1964)). In other words, if judicial economy is irrelevant, the justification forjoinder disappears, and defendants would essentiallybe entitledto separate charging documents andtrials on each alleged offense as a matter ofright. This was the law in early statehood, LAWS OF 1891, ch. 28, 

### § 24, butWashington abandoned that approach long ago, LAWS OF 1925, Ex. Sess., ch. 109, § 1. To be sure, if joinderwill cause clear, undue prejudice to the defendant's substantial rights, no amount of judicial economy canjustifyrequiring a defendant

12State 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 causedbythejoinder againstthe obviously important considerations of economy and expedition injudicial 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 whetherjoinder causes undue prejudice: "(1) the strength ofthe State's evidence on each count; (2) the clarity ofdefenses as to each count; (3) court instructions to thejuryto consider each count separately; and (4) the admissibility ofevidence ofthe other charges
even ifnotjoined for trial." 

### Russell, 125 Wn.2d at 63. Bluford focuses primarily
on the cross admissibility ofthe evidence pursuantto ER404(b). We agree with Blufordthat, on this record, the trial court abused its discretion. 5 ER404(b) provides, Evidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in order to show action in conformity therewith. It may, however, be admissible for otherpurposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident.

5 We hold only thatjoining all nine ofthe charges against Bluford was an abuse of discretion. We express no opinion on whetherjoinder ofonly some ofthe charges would be allowable, and we leave it to the parties and the trial court to resolve that question onremand, if necessary, in a manner consistent with this opinion. 13State v. Bluford, No. 93668A The court in this case determined that evidence ofall the charges was cross admissible pursuant to ER404(b) to show identity based on modus operandi. 6 "This Court reviews decisions to admit evidence under ER404(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 ofother bad acts is introduced to show identity by establishing a unique modus operandi, the evidence is relevant to the current charge "only ifthe method employed in the commission of both crimes is 'so unique' that proofthat an accused committed one of the crimes creates a high probability that he also committedthe other crimes with which he is charged." Id. at 643 (quotingRussell, 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, ifany, distinctive features the offenses share, and howthe offenses differ from each other. Id. at 645; Smith, 106 Wn.2d at 779. "[G]eographical proximity and commission ofthe crimes within a shorttime 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 ofidentity than offenses sharing only "verygeneral similarities
... withrespectto the time,
manner and location ofthe 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 onreview. 14State v. Bluford, No. 93668-4 believedthat geographical proximity and a short time frame were implicated in Bluford's case: These alleged offenses occurredjustunder a two-month period oftime
....

. . . [T]hree ofthe last four, two ofthem occurred onthe same day onMarch 14th, one ofthem was March 10th, all ofthem in the dark hours
.... They all occurred in the Seattle Metro area, four ofthem 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 "whetherthe similarities betweenthe 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 "involvedthe victimjust getting out ofa car and beingby themselves." VRP at 45-46. Furthermore, "[i]n all ofthe cases, there was allegedly a gun displayed, and in all ofthem 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.

15State 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 armedrobberies. There was nothing particularly distinctive noted aboutthe gun exceptthat 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 uponreceiving it, the Court ofAppeals held that although the crimes were similar, the shared features were not sufficiently unusual
or unique to amount to a signature."). Finally, similar descriptions ofthe perpetrators, such as "wearing similar clothing," may be considered. Id. at 643. The courthere notedthat "[a]ll ofthe victims identified a black male perpetrator" and, ofthe charges that included a witness description ofthe car, "althoughthe colors differed slightly
.. ·. it's generally described as a Honda-type car." VRP at 46, 50. Butbeing a blackmale is not a distinctive physical feature, and Hondas are very common. Thus, the similarities betweenthe charges are much more general than distinctive. "The manner in which each robbery was committedhere is notunique.

16State v. Bluford, No. 93668-4 Any general similarities betweenthe two crimes 'mighthave 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 ofthe other robbery victims was allegedly subjectedto 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 ofthese marked dissimilarities, and the absence of any distinctive similarities," we hold that the trial court abused its discretion in holding that evidence ofall the charges would be cross admissible as to all the others to prove identity by modus operandi. 7 

### Smith, 106 Wn.2d at 779; 

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

7 The State also argues thatthe evidence was cross admissible to show identity even if modus operandi was not established because there was evidence that many ofthe stolen items were found in places that had a connectionto Bluford or his girlfriend. Br. ofResp't at 33. However, the State does not cite any case supporting the notion that absent modus operandi, evidence ofmultiple offenses is cross admissible to prove identity based solely on the fact that there is similar evidence linking the defendantto many ofthe offenses. 17State 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 O 1Wn.2d 745, 765, 682 P.2d 889 (1984) (forced-entry residential burglaries occurring within three weeks ofeach other, with similaruse ofa 20-gauge shotgun and perpetrators dressed in Army fatigues), overruled inparton othergrounds, 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 precludejoinder. Bythrow, 114 Wn.2d at 720. To establish error, Blufordmust also show thatthe prejudicial effect oftrying 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 ofprior sexual offenses." Id. at 718-19. Moreover, because the evidence was not cross admissible, the interest in judicial economy loses much ofits force because the State would nothave been required (or allowed) to call all ofits witnesses in each separate trial. When a defendant is charged with multiple offenses, the offenses may be joined only ifthe offenses satisfy CrR4.3(a) andjoinder 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 forjudicial economy. We therefore reverse Bluford's convictions and remand for further proceedings consistent with this opinion.

18State 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 thatBluford's New Jersey robbery conviction was legally comparable to a most serious offense in Washington for purposes ofthe 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 "ofany 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, "wouldbe considered most serious offenses." RCW 9.94A.030(38)(a). A court's determination ofwhether 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 ofthe foreign offense are substantially similarto the elements ofthe Washington offense." Id. at 415.

8This opinion does not preventthe State from presenting more or different evidence of Bluford's NewJersey conviction ifBluford is eventually convicted ofa most serious offense on remand and the State chooses to seek a persistent offender sentence. 9 Onreview, the State argues only legal, not factual, comparability. 19State v. Bluford, No. 93668-4 At issue here is the legal comparability ofBluford's 1994 conviction for second degree robbery in New Jersey. New Jersey law defines "robbery" as follows:
a. Robbery defined. A person is guilty ofrobbery if, in the course ofcommitting a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with orpurposely puts him in fear of immediate bodily injury; or (3) Commits orthreatens immediately to commit any crime of the first or second degree. b. Grading. Robbery is a crime ofthe second degree, except that it is a crime ofthe first degree ifin the course ofcommitting the theftthe actor attempts to kill anyone, orpurposely inflicts or attempts to inflict serious bodily injury, or is armed with, oruses or threatens the immediate use ofa deadly weapon. N.J. STAT. § 2C: 15-1. The record shows that Blufordwas originally indicted for first degree robbery, apparently pursuantto N.J. Stat.§ 2C:15-l(a)(2). CP at 316 ("in the
course ofcommitting a theft, [Bluford] did threaten immediate bodily injury to [the victim] and/or did purposely put [the victim] in fear ofimmediate bodily injury while armed with and/or threatening the immediate use of[a] deadly weapon"). However, Bluford ultimately pleaded guilty to one count ofsecond degree robbery, and there is no amended charging document inthe record. Bluford'sjudgment specifies that the conviction was pursuantto N.J. Stat. § 2C: 15-1, but does not state which subsection ofthat statute applied. This is problematic.

20State 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 ("Aperson commits robbery whenhe or she unlawfully takes personal property from the person ofanother or in his or her presence against his or her will bythe use or threatened use ofimmediate force, violence, or fear ofinjury to thatperson orhis orherproperty orthe person or property ofanyone."), .210(1) ("Aperson is guilty ofrobbery inthe 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 accompaniedby 

### "any crime ofthe first or second degree," regardless ofwhether force, violence, or injury is inflicted orthreatened. (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 withthe State thatthe question ofwhether we can consider facts underlying a foreign conviction cannotbe resolved merely by distinguishing between whetherthe information was spoken or written. See Answer to Pet. for Review & Cross-Pet. at 12-13. However, in orderto preserve due process and the right tojury trial, "[a]ny attempt to examine the underlying facts ofa foreign conviction, facts that were neither admitted or stipulatedto, norprovedto the

21State v. Bluford, No. 93668A finder offact 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 thatthe documentation it submitted establishes that Bluford's conviction was pursuantto 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 indictmentbecause he pleaded guiltyto a different offense. The only other information we have about what crime Bluford was convicted ofare thejudge's statedreasons for accepting Bluford's guilty plea. It is not clear from the record whether Bluford admitted or stipulatedto those facts, and, more importantly, they do not actually track the elements ofN.J. Stat.§ 2C:15-l(a)(2). 10 The New Jerseyjudge noted that "[t]his offense occurred when defendant and ajuvenile accomplice committed an armed robbery during the course ofwhich

10 We do not meanto suggest that ajudge'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 ofthose 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; cfIn re Pers. Restraint of Adolph, l70 Wn.2d 556, 568-69, 243 P.3d 540 (2010) (considering evidence ofa prior Washington conviction). 22State v. Bluford, No. 93668-4 they stole $85.00 and a ring having great sentimental value to the victim. The weapon, which the victim believedto be a 9 mm handgun was in fact a B.B. gun." CP at 310. These statements do not establishthat the victim was threatened or purposefully put in fear ofimmediate bodily injury as required for N.J. Stat. § 2C:15-l(a)(2). And use ofa deadly.weapon (or what appeared to be a deadly weapon) is not an element ofsecond degree robbery in New Jersey. See N.J. STAT. § 2C:15-l(b) ("Robbery is a crime ofthe second degree, except that it is a crime of the first degree ifin the course ofcommitting the theft the actor ... is armed with,
oruses or threatens the immediate use ofa deadly weapon."). Based on the record presented, we know only that Bluford necessarily admitted to (l) committing a theft and (2) at least one ofthe three possible criteria that would elevate that theft to arobbery pursuantto N.J. Stat.§ 2C:15-l(a)(l)-(3). We do not know which one, and ifitwas 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 ofAppeals on this issue. CONCLUSION We take this opportunity to reaffirm that likely undue prejudice to the defendant is relevant to determining whether pretrialjoinderpursuant to CrR4.3(a) should be granted over a defendant's objection. Joining all nine charges in this

23State v. Bluford, No. 93668-4

case was an abuse ofdiscretion. We therefore reverse the Court ofAppeals and remand to the trial court for further proceedings consistent with this opinion.

24State v. Bluford, No. 93668-4



### WE CONCUR:



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