This opinion was filed for record 

at B: LIO C\.j1\ on ~ll\1\ ~~·t!)1 J 

-~ 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 

EN BANC 

Filed: MAY O 4 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 O 1 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 of Adolph, 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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