IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON,

 Respondent,

 v.

SPITZER, JAMES ROBERT,

 Appellant.

No. 83546-7-I

UNPUBLISHED OPINION

BOWMAN, J. — James Robert Spitzer appeals his jury conviction for first

degree rape. He argues insufficient evidence supports finding that he inflicted 

“serious physical injury” during the assault, the prosecutor committed misconduct 

in closing argument, and the court miscalculated his offender score by including 

a noncomparable out-of-state conviction. The State cross appeals the trial 

court’s finding that the prosecutor made improper comments during closing 

argument. We affirm Spitzer’s conviction but remand for resentencing.

FACTS

A.U. worked as a nursing assistant at Providence Regional Medical 

Center in Everett. Just past 6:00 a.m. on June 12, 2021, A.U. was walking to 

work. As she headed toward the hospital, A.U. noticed Spitzer pass her, walking 

in the opposite direction. When she walked across the street, A.U. looked back

over her shoulder and saw that Spitzer had turned around and was “looking back 

at [her].” She “froze” as Spitzer started “running” toward her. He reached over
No. 83546-7-I/2

2

A.U., hit her in the back of the head “very hard,” and she fell to the ground “in the 

middle of the street.” The last thing A.U. remembered was feeling her purse and 

lunch bag “drop off of [her] arms.” 

A.U. came to when Spitzer helped her up from the ground by the elbow. 

He whispered in her ear to “ ‘[a]ct normal or I’m going to slit your throat.’ ” 

Spitzer told A.U. to kiss him and to act like they were a couple while he kissed 

her mouth. He kept hold of her and started walking her “somewhere.” Spitzer

was “very hostile and . . . very aggressive” and started talking about money. 

Thinking she “was being held for ransom,” A.U. told him she would give him all 

the money he needed. Spitzer responded, “ ‘That’s not all you’re going to give 

me. You’re going to give me everything that I want,’ ” and told her he had a gun 

in his pocket.

Spitzer led A.U. to a wooded area, instructed her to take off her clothes,

and told her that they were “ ‘going to make love.’ ” He then raped her for about 

three hours. From the beginning, A.U. saw what looked like a black pistol on the 

ground by her side. Throughout the rape, Spitzer moved the gun around, 

including between his legs or “in [her] face.” He also had a knife and talked 

about “prior acts of violence he had committed.” A.U. “thought [she] was going to 

die.”

When she “could not take it anymore,” A.U. faked a seizure and told 

Spitzer she needed to use a bathroom. Spitzer agreed and walked her to a 

nearby Safeway without her shoes on. On the way, Spitzer made A.U. hold his 

hand, had her pick a flower, and talked to her as though they “were in a 
No. 83546-7-I/3

3

relationship.” When they arrived at the Safeway, A.U. went into the women’s 

restroom while Spitzer waited just outside the door. Soon after, a Safeway 

employee walked into the restroom, and A.U. told her that the man outside the 

door kidnapped and raped her. The Safeway employee called her manager to 

the restroom, who then called 911. Police arrested Spitzer outside the bathroom 

door. Spitzer insisted he did nothing wrong and was just waiting for his 

“girlfriend.” 

Emergency medical technicians (EMTs) arrived at the Safeway and 

evaluated A.U. A.U. told them she experienced a “trauma” and had neck and 

head pain. EMTs found a golf-ball-sized hematoma on the crown of her head. 

They then transported A.U. to the hospital for further evaluation. 

At the hospital, A.U. underwent a sexual assault examination by a forensic

nurse. During the exam, A.U. reported pain all over her body, especially her 

head, mouth, throat, neck, shoulders, hands, breasts, hips, genitals, knees, and 

feet. On a scale of 1 to 10, A.U. reported head pain at 8 and genital pain at 9 

with some bleeding. The nurse noted that A.U. had head, mouth, neck, and 

throat tenderness to the touch; knee bruises; and abrasions on her shoulders, 

thumbs, nipples, genitals, knees, and feet. The nurse saw additional areas of 

redness to A.U.’s shoulders and lower back. She tried to do a pelvic exam but 

could not complete it because of A.U.’s “exquisite pain.” The nurse described it 

as “come up off the table kind of pain.” 

Along with the physical exam, the nurse took DNA1 swabs from several 

 

1 Deoxyribonucleic acid.
No. 83546-7-I/4

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areas on A.U.’s body. Swabs from A.U.’s breasts and genitals revealed male 

DNA. Forensic analysis showed that the DNA was 4.8 billion times more likely to 

have come from Spitzer than an unrelated individual. After law enforcement 

obtained a warrant, a forensic nurse also took DNA samples from Spitzer’s 

genitals. An analysis of that DNA showed it was 860 octillion times more likely to 

have come from A.U. than anyone else.

The State charged Spitzer with one count of first degree rape and one

count of first degree kidnapping. The information alleged three alternative means 

of committing first degree rape—that Spitzer “did use and threatened to use a 

deadly weapon or what appeared to be a deadly weapon,” that he “kidnapped 

A.U.,” and that he inflicted “serious physical injury.” At trial, the court instructed 

the jury it “need not be unanimous” as to which means. 

At the beginning of the State’s closing argument, the prosecutor described 

what happened to A.U. as 

the personification of everyone’s worst nightmare: That you will 

pass somebody on the street and they will decide to hurt you, not 

because of who you are, not because of what you believe or what 

you’ve said or what you’ve done, but simply because you’re there.

And the prosecutor finished his closing argument by telling the jury, “The very 

personification of the nightmare that . . . [A.U.] worried about . . . came true. That 

nightmare’s name is James Spitzer.” The defense objected to neither statement. 

The jury found Spitzer guilty on both counts. Spitzer then moved for a 

new trial, arguing that the State deprived him of a fair trial because the 

prosecutor made improper statements during closing argument when he told the 

jury that Spitzer was “everyone’s worst nightmare.” The court agreed that the 
No. 83546-7-I/5

5

statements were improper but denied the motion, concluding that they were not 

prejudicial given the “overwhelming” evidence of Spitzer’s guilt.

At sentencing, the court calculated Spitzer’s offender score at 7. The 

offender score included a Nevada burglary conviction. The court determined that 

the rape and kidnapping charges merged and dismissed the kidnapping charge. 

It then sentenced Spitzer at the high end of the standard range on the rape 

charge to a minimum of 236 months’ confinement and a maximum of life 

imprisonment.

Spitzer appeals and the State cross appeals.

ANALYSIS

Spitzer argues that insufficient evidence supports the jury finding that he 

inflicted “serious physical injury” when he raped A.U., that the prosecutor 

engaged in misconduct during closing argument, and that the court erred by 

including a Nevada conviction for burglary in his offender score. He also argues 

he received ineffective assistance of counsel because his attorney did not object 

to the out-of-state conviction. The State cross appeals the trial court’s finding 

that the prosecutor committed misconduct during closing argument. 

1. Sufficiency of the Evidence

Spitzer argues that insufficient evidence supports one of the charged 

alternative means of first degree rape—that he inflicted serious physical injury to 

A.U. We disagree.

Under article I, section 21 of the Washington Constitution, criminal 

defendants have a right to a unanimous jury verdict. State v. Owens, 180 Wn.2d 
No. 83546-7-I/6

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90, 95, 323 P.3d 1030 (2014). For alternative means crimes,2this may include 

the right to a unanimous jury determination of how the defendant committed the

crime. Id. When there is sufficient evidence to support each of the means to 

commit the crime, express jury unanimity as to which means it relied on is not 

required. Id. But if evidence is insufficient to support any one of the means, a 

particularized expression of jury unanimity is required. Id. Evidence is sufficient 

if, viewing the evidence in a light most favorable to the State, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt. Id. at 99.

Here, the trial court instructed the jury that to convict Spitzer of first degree 

rape, it must determine that the State proved beyond a reasonable doubt that 

Spitzer “engaged in sexual intercourse with [A.U] . . . by forcible compulsion” and 

that Spitzer “(a) used or threatened to use a deadly weapon or what appeared to 

be a deadly weapon, or (b) kidnapped [A.U.], or (c) inflicted serious physical 

injury.”3

Spitzer argues that insufficient evidence supports the alternative mean

that he inflicted serious physical injury on A.U. According to Spitzer, the State 

presented evidence sufficient to prove injury but not that the injury was “serious.” 

The jury instructions did not define “serious.” Indeed, nothing in the first 

degree rape statute or chapter 9A.44 RCW defines what amounts to “serious”

 

2 First degree rape is an alternative means crime. See RCW 9A.44.040(1).

3 RCW 9A.44.040(1)(d) provides a fourth alternative means to first degree rape 

not charged or instructed here—when a defendant “[f]eloniously enters into the building 

or vehicle where the victim is situated.” 
No. 83546-7-I/7

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physical injury. Spitzer urges us to apply a dictionary definition to the word. But

Division Two of our court determined in Welker that leaving the definition of 

“serious” to the common experience of the trier of fact aligns with legislative 

intent:

The Legislature has not defined the term “serious physical injury,” 

nor is there case law definition. In our view it is neither necessary 

nor desirable to attempt to do so in a jury instruction. The term 

speaks for itself, is adaptable to the type of injury in issue and 

permits argument both pro and con. The jury is usually told it may 

rely upon common sense and the “common experience of 

mankind.” Judges and lawyers are no better able to explain such 

ordinary terms than the jurors themselves.

State v. Welker, 37 Wn. App. 628, 638 n.2, 683 P.2d 1110 (1984). And our 

Supreme Court denied review of the decision. State v. Welker, 102 Wn.2d 1006

(1984). 

We later agreed with the analysis in Welker. See State v. Taitt, 93 Wn. 

App. 783, 791-92, 970 P.2d 785 (1999); see also State v. Wallace, noted at 84 

Wn. App. 1049, 1996 WL 734631, at *3

4

(“[t]he Legislature was free to leave the 

definition of ‘serious’ up to the jury, because people of common intelligence can 

understand what constitutes ‘serious physical injury’ ”). Division Three also 

agrees. See State v. Garcia, No. 30555-4-II, slip op. at 15 (Wash. Ct. App. Aug. 

15, 2013) (unpublished), https://www.courts.wa.gov/opinions/pdf/305554.

hernandez%20garcia.pdf. 

 

4 We recognize that “Washington appellate courts should not, unless necessary 

for a reasoned decision, cite or discuss unpublished opinions in their opinions.” GR 

14.1(c). “However, unpublished opinions of the Court of Appeals filed on or after March 

1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, 

and may be accorded such persuasive value as the court deems appropriate.” GR 

14.1(a). 
No. 83546-7-I/8

8

We decline to strictly define the word “serious” and, instead, consider 

whether any reasonable juror relying on common sense and experience could 

conclude that A.U.’s injuries were “serious.” A.U. reported pain all over her 

body—her head, mouth, throat, neck, shoulders, hands, breasts, hips, genitals, 

knees, and feet—consistent with being hit over the head and raped for hours in 

the woods. And she had abrasions on her feet, thumbs, shoulders, knees,

nipples, and genitals. But most significantly, A.U. had genital bleeding and pain 

she described as a 9 on a scale of 1 to 10. The forensic nurse testified that she 

could not complete a pelvic exam because A.U. was experiencing “exquisite 

pain,” or “come up off the table kind of pain,” during the exam. Spitzer also hit 

A.U. so hard over the head that it knocked her to the ground and gave her a golfball-sized hematoma, and she described that pain as an 8. A.U. testified the pain

and bruising lasted for days after the rape. From that evidence, a rational trier of 

fact, applying their common sense and experience, could reasonably find that

A.U. suffered serious physical injury.

2. Prosecutorial Misconduct

Spitzer argues that the prosecutor engaged in misconduct during closing 

argument. According to Spitzer, the prosecutor urged the jury to put itself in 

A.U.’s shoes, referred to matters outside the evidence, and denigrated him. We

agree the prosecutor’s comments were improper but conclude they were not so 

flagrant and ill intentioned that they caused an enduring and resulting prejudice 

that the trial court could not have neutralized by an admonition to the 
No. 83546-7-I/9

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jury.

5

The Sixth and Fourteenth Amendments to the United States Constitution 

and article I, sections 3 and 22 of the Washington Constitution guarantee the 

right to a fair trial. See State v. Finch, 137 Wn.2d 792, 843, 975 P.2d 967 (1999). 

Prosecutorial misconduct may deprive a defendant of that right. State v. 

Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984).

To prevail on a claim of prosecutorial misconduct, the defendant must 

establish that the prosecutor’s conduct was both improper and prejudicial in the 

context of the entire record and the circumstances at trial. State v. Thorgerson, 

172 Wn.2d 438, 442, 258 P.3d 43 (2011). “Prejudice” means that there is a 

substantial likelihood that the misconduct affected the jury’s verdict. Id. at 442-

43. But when, as here, a defendant does not object to alleged misconduct, he 

waives any error unless he can show that the conduct was “so flagrant and ill 

intentioned that it causes an enduring and resulting prejudice that could not have 

been neutralized by an admonition to the jury.” Id. at 443 (quoting State v. 

Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). 

Generally, we reverse convictions based on flagrant and ill-intentioned 

misconduct in only “ ‘a narrow set of cases where we [are] concerned about the 

jury drawing improper inferences from the evidence.’ ” State v. Loughbom, 196 

 

5 The State argues that “[a]s an initial matter,” if we determine that the 

prosecutor’s closing argument “was not flagrant and ill-intentioned misconduct, then [our] 

examination is foreclosed” because Spitzer’s failure to assign error to the court’s denial 

of his motion for a new trial precludes him from challenging the trial court’s conclusion 

that the comments were not prejudicial. But Spitzer designated for appeal his judgment 

and sentence, which “brings up for review the ruling of the trial court . . . deciding a 

timely motion based on . . . CrR 7.5 (new trial).” RAP 2.4(f)(5). As a result, we address 

Spitzer’s argument on the merits.
No. 83546-7-I/10

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Wn.2d 64, 74, 470 P.3d 499 (2020) (quoting In re Pers. Restraint of Phelps, 190 

Wn.2d 155, 170, 410 P.3d 1142 (2018)). Those cases typically involve 

“comments alluding to race or a defendant’s membership in a particular group, or 

where the prosecutor otherwise comments on the evidence in an inflammatory 

manner.” Phelps, 190 Wn.2d at 170. Our analysis focuses “ ‘on whether the 

resulting prejudice could have been cured.’ ” Loughbom, 196 Wn.2d at 74-75 

(quoting State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012)). That is, 

“ ‘whether the defendant received a fair trial in light of the prejudice caused by 

the violation of existing prosecutorial standards and whether that prejudice could 

have been cured with a timely objection.’ ” Id. at 75 (quoting State v. Walker, 182 

Wn.2d 463, 478, 341 P.3d 976 (2015)).

The State has wide latitude in closing argument and may draw reasonable 

inferences from the evidence. Thorgerson, 172 Wn.2d at 448. The State may 

properly reference “the heinous nature of a crime and its effect on the victim.” 

State v. Claflin, 38 Wn. App. 847, 849-50, 690 P.2d 1186 (1984). But it is 

improper for prosecutors to appeal to the jury’s passion and prejudice through 

inflammatory rhetoric. State v. Gregory, 158 Wn.2d 759, 808, 147 P.3d 1201 

(2006); State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). We 

consider a prosecutor’s comments in the context of the entire case. Thorgerson, 

172 Wn.2d at 443.

Spitzer contends the prosecutor committed misconduct by arguing that 

what we see here is the personification of every person’s worst 

nightmare: That you will pass somebody on the street and they will 

decide to hurt you, not because of who you are, not because of 
No. 83546-7-I/11

11

what you believe or what you’ve said or what you’ve done, but 

simply because you’re there.

And that

the very personification of the nightmare that [A.U.’s] father told her 

about and that [A.U.] worried about when a man she didn’t know 

passed her on the street and was looking at her came true. That 

nightmare’s name is James Spitzer, and he is sitting in that chair.

The prosecutor’s comments were improper. Characterizing the rape as 

“every person’s worst nightmare” and describing that nightmare in the second 

person as “you will pass somebody on the street and they will decide to hurt you 

. . . simply because you’re there” communicates to the jury that what happened 

to A.U. could also happen to them. And identifying Spitzer as “the very 

personification of [that] nightmare” communicates that the jury should fear Spitzer 

as the person who could inflict that nightmare. These comments did not 

emphasize evidence submitted at trial or relate to an element of the charged 

crime. And they go beyond a simple reference “to the heinous nature of a crime 

and its effect on the victim.” Claflin, 38 Wn. App. at 849-50. 

The State argues that the prosecutor’s comments were proper because 

they related to A.U.’s credibility—that “she was frightened by [Spitzer] and 

compelled into sexual intercourse.”6 According to the State, the prosecutor used

“only descriptive, vivid language so as to enable the jury to adequately 

appreciate the fullness of [A.U.’s] fear.” But the prosecutor did not describe the 

evidence as A.U.’s worst nightmare. Instead, the prosecutor referred to the 

incident as “every person’s worst nightmare.” This necessarily includes 

 

6 The State makes this argument in support of its cross appeal of the trial court’s 

finding of prosecutorial misconduct when it denied Spitzer’s motion for a new trial. 
No. 83546-7-I/12

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members of the jury. The comments were inflammatory and appealed to the 

jury’s passion and prejudice.7 Belgarde, 110 Wn.2d at 507-08. 

Citing Claflin and State v. Pierce, 169 Wn. App. 533, 280 P.3d 1158 

(2012), Spitzer argues that the prosecutor’s improper comments amount to 

reversible error.

8

 In Claflin, the State accused the defendant of molesting several 

young girls. 38 Wn. App. at 848-49. In closing argument, over defense 

objections, the State read a poem by an anonymous rape victim to show “ ‘most 

poignantly’ ” how one of the young girls “ ‘probably felt.’ ” Id. at 849. Division 

Two of our court concluded that the poem was an improper comment because it 

appealed to the jury’s passion and prejudice and alluded to matters outside the 

evidence. Id. at 850-51. The court explained that reading a poem with “vivid and 

highly inflammatory imagery in describing rape’s emotional effect on its victims”

was unduly prejudicial given the charges. Id. at 850. This was particularly true 

because “the poem contained many prejudicial allusions to matters outside the 

actual evidence against [the defendant].” Id. at 851.

In Pierce, the State charged the defendant with two counts of aggravated 

first degree murder. 169 Wn. App. at 540. In closing argument, the prosecutor 

invented a first-person narrative of the defendant’s thoughts just before the 

crime, fabricated a description of the murders, and “argued about how 

 

7 As a result, we reject the State’s cross appeal that the trial court erred in finding 

the prosecutor’s comments were improper. 

8 Spitzer also cites In re Personal Restraint of Parker, No. 45163-8-II (Wash. Ct. 

App. July 21, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%

2045163-8-II%20%20Unpublished%20Opinion.pdf. There, we concluded the 

prosecutor’s repeated request that the jury “ ‘imagine [the victim’s] terror’ ” and repeated 

characterization of the incident as “a ‘waking nightmare’ ” amounted to an improper 

appeal to the jury’s passion and prejudice. Parker, No. 45163-8-II, slip op. at 13.
No. 83546-7-I/13

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unexpected the crimes must have been for the victims.” Id. at 541-43. The 

defendant objected to most of the prosecutor’s comments. Id. Division Two of 

our court determined those comments improperly appealed to the passion and 

prejudice of the jury and referred to facts outside the evidence. Id. at 556. The 

court concluded that “[t]aken together, there is more than a substantial likelihood 

that the above three improper arguments affected the verdict.” Id.

Unlike the defendants in Claflin and Pierce, Spitzer did not object to the 

prosecutor’s improper comments. Had Spitzer objected to the prosecutor’s 

reference to the crime as “every person’s worst nightmare,” the court could have 

admonished the prosecutor and instructed the jury to disregard the statement. 

We presume that jurors follow the court’s instructions. See Phelps, 190 Wn.2d at 

171-72 (concluding there was no reversible prosecutorial misconduct because 

the defendant “has not shown any prejudice incurable by a jury instruction,” since

“[c]losing arguments are not evidence, and the jury here was given an instruction 

to that effect”). And here, while the comments improperly appealed to the jurors’ 

passions and prejudices, they were isolated, did not refer to matters outside the 

evidence, and were not cumulative of other acts of misconduct. 

Still, Spitzer contends that a curative instruction would not have been 

enough to alleviate prejudice because “the case ultimately came down to [A.U.]’s 

credibility.” But the record shows the State presented significant physical and 

testimonial evidence that corroborated A.U.’s testimony. Security camera video 

footage from a strip mall showed Spitzer pass A.U. in a cross walk, turn around 

when he reached the other side of the street, then walk back across the street to 
No. 83546-7-I/14

14

follow A.U. Two Safeway employees testified about finding A.U. in the bathroom, 

nervous and shaking, and calling law enforcement. Law enforcement arrested 

Spitzer outside the bathroom with A.U.’s underwear, purse, and lunch bag in his 

backpack. Swabs taken from A.U.’s genitals matched Spitzer’s DNA, and swabs 

from Spitzer’s genitals matched A.U.’s DNA. And A.U.’s injuries tracked her

description of Spitzer hitting her over the head hard enough to knock her to the 

ground and raping her for hours in the woods—a hematoma on the crown of her 

head and bruising, abrasions, and pain all over her body, especially her head 

and genitals. 

Looking at the entire record, this is not a case in which the prosecutor’s 

two improper comments during closing argument could easily serve as the 

deciding factor affecting the jury’s verdict.

9

 As a result, we reject Spitzer’s 

prosecutorial misconduct claim.

3. Nevada Conviction

Spitzer argues the trial court improperly included a prior Nevada 

conviction for burglary in his offender score. We agree.

We review offender score calculations de novo. State v. McCorkle, 88 

Wn. App. 485, 493, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490, 973 P.2d 461 

(1999). Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,

we calculate offender scores to determine a defendant’s sentencing range. State 

v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187 (2014). “The offender score is the 

 

9 Contra State v. Walker, 164 Wn. App. 724, 738-39, 265 P.3d 191 (2011) 

(concluding a prosecutor’s “frequent[ ]” improper comments were prejudicial because 

there were significant disputed facts and the case “was largely a credibility contest”).
No. 83546-7-I/15

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sum of points accrued as a result of prior convictions.” Id. Under the SRA, the 

State must prove the existence of prior felony convictions by a preponderance of 

the evidence. RCW 9.94A.500(1). An out-of-state conviction counts toward the 

offender score if the trial court determines it is comparable to a Washington 

offense that the court would have included in the offender score had the crime 

occurred in Washington. RCW 9.94A.525(3). The State bears the burden to 

show that out-of-state convictions exist and are comparable. Olsen, 180 Wn.2d 

at 472. 

Our Supreme Court established a two-part test to determine the 

comparability of an out-of-state conviction. State v. Thiefault, 160 Wn.2d 409, 

415, 158 P.3d 580 (2007). First, the sentencing court determines whether the 

offense is legally comparable; that is, “whether the elements of the foreign 

offense are substantially similar” to those of the comparable Washington offense. 

Id. If the elements are substantially similar under the legal prong, the inquiry 

ends, and the court may include the conviction in the offender score. See Id.; 

Olsen, 180 Wn.2d at 472-73. But if the elements of the foreign offense are 

broader than the Washington counterpart, the court must look to whether the 

offense is “factually comparable.” Thiefault, 160 Wn.2d at 415. An offense is 

factually comparable if the State proves the defendant’s conduct underlying the 

foreign offense would have also violated the comparable Washington statute. Id. 

If an out-of-state conviction involves an offense that is neither legally nor factually 

comparable to a Washington offense, the sentencing court may not include that 

conviction in the defendant’s offender score. Id.
No. 83546-7-I/16

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Spitzer contends that his Nevada conviction for burglary, committed 

September 9, 2010, was not legally or factually comparable to burglary in 

Washington. In Nevada,

[a] person who, by day or night, enters any house, room, 

apartment, tenement, shop, warehouse, store, mill, barn, stable, 

outhouse or other building, tent, vessel, vehicle, vehicle trailer, 

semitrailer or house trailer, airplane, glider, boat or railroad car, with 

the intent to commit grand or petit larceny, assault or battery on any 

person or any felony, or to obtain money or property by false 

pretenses, is guilty of burglary. 

Former NEV. REV. STAT. (NRS) 205.060(1) (2005). And in Washington, a person 

is guilty of burglary in the first degree if, with intent to commit a 

crime against a person or property therein, he or she enters or 

remains unlawfully in a building and if, in entering or while in the 

building or in immediate flight therefrom, the actor or another 

participant in the crime (a) is armed with a deadly weapon, or (b) 

assaults any person.

RCW 9A.52.020(1). 

Spitzer argues the Nevada statute is broader, and thus not legally 

comparable, because “ ‘[u]nlawful entry or remaining’ was not an essential 

element of the crime of burglary in Nevada.” The State agrees. Because the 

Washington statute contains a different, more specific element than the Nevada 

statute, we too conclude that Spitzer’s Nevada burglary conviction is not legally 

comparable to burglary in Washington. So, we next consider whether the crimes 

are factually comparable. 

In making a factual comparability determination, “ ‘[t]he key inquiry is 

whether, under the Washington statute, the defendant could have been convicted 

if the same acts were committed in Washington.’ ” State v. Davis, 3 Wn. App. 2d 

763, 778, 418 P.3d 199 (2018) (quoting State v. Thomas, 135 Wn. App. 474, 
No. 83546-7-I/17

17

485, 144 P.3d 1178 (2006)). We consider “ ‘only facts that were admitted, 

stipulated to, or proved beyond a reasonable doubt.’ ” Id. at 771-72 (quoting 

Olsen, 180 Wn.2d at 478). And “ ‘[w]hile the sentencing court can examine the 

indictment or information as evidence of the underlying conduct, [facts relating to] 

the elements of the crime remain the focus of the analysis.’ ” Id. at 778 (quoting 

Thomas, 135 Wn. App. at 485). That is because where the elements of the 

foreign crime are broader, there may be no incentive for a defendant to attempt 

to prove that he did not commit the more narrow offense. See In re Pers.

Restraint of Lavery, 154 Wn.2d 249, 257, 111 P.3d 837 (2005).

The State contends that the Nevada burglary conviction is factually 

comparable because Spitzer entered a Nevada plea agreement “in which he 

admitted to facts as they were described in the charging document,” and the 

charging document included an admission that he “willfully and unlawfully” 

entered the victim’s residence. Spitzer contends that because “Nevada did not 

need to prove ‘unlawful entry or remaining’ in order to get a conviction,” we 

cannot rely on that language to support factual comparability. We agree with 

Spitzer.

Spitzer’s Nevada guilty plea agreement says, “I hereby agree to enter a 

plea of guilty to . . . one count BURGLARY . . . as is more fully alleged in the 

charging document.” And the charging document alleges that Spitzer 

willfully and unlawfully enter[ed] the residence of [R.L.], located on 

White River Road, in the County of White Pine, State of Nevada, 

without [R.L.]’s permission and with the intent to take and/or carry 

away property owned by [R.L.] . . . in violation of [former] NRS 

205.060.
No. 83546-7-I/18

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But Spitzer’s plea agreement also says, “I understand that by pleading 

guilty I admit the facts which support all the elements of the offenses to which I 

now plead as set forth in the charging document.” So, the facts Spitzer admitted 

to were only the facts that “support . . . the elements” of the Nevada burglary

statute. See Davis, 3 Wn. App. 2d at 778. And unlawful entry is not one of those 

elements. As a result, the facts in the Nevada charging document cannot 

support a conviction of burglary in Washington.

The State argues that even if Spitzer did not admit to facts sufficient to 

support a Washington burglary conviction, “he was responsible for those acts 

[described in the charging document] by simply pleading guilty per operation of 

Nevada law.” It cites Ex Parte Dickson, 36 Nev. 94, 133 P. 393 (1913), and 

Righetti v. Eighth Judicial District Court of State of Nevada, 133 Nev. 42, 388 

P.3d 643 (2017), in support of its argument. 

In Dickson, the Nevada Supreme Court held that the “effect of the plea of 

guilty, generally speaking, is a record admission of whatever is well charged in 

an indictment.” 133 P. at 396. But nothing in that 110-year-old case suggests 

that a defendant also admits to facts sufficient to support the elements of crimes 

in foreign jurisdictions when pleading guilty to a charged crime in Nevada. And in

Righetti, the court determined that when a charging document alleges multiple 

theories for a single offense, the defendant has no right to plead guilty to fewer 

than all the theories alleged without agreement of the State. 133 Nev. at 42-43. 

Again, nothing in the case holds that a defendant admits to facts in a charging 

document unrelated to an element of the charged crime.
No. 83546-7-I/19

19

Because Spitzer admitted to only the facts that supported the elements of 

burglary in Nevada, there is no factual comparability, and we remand for 

resentencing with a corrected offender score.

10 See Davis, 3 Wn. App. 2d at 

784, 793 (remanding for resentencing where foreign conviction was not factually 

comparable).

We conclude that sufficient evidence supports the jury finding that Spitzer 

inflicted serious bodily injury on A.U. and that the prosecutor’s improper 

comments do not warrant reversal. But because Spitzer’s Nevada burglary 

conviction is not legally or factually comparable to burglary in Washington, we 

remand for resentencing. 

WE CONCUR:

 

10 Spitzer also claims ineffective assistance of counsel because his attorney 

failed to object to including the Nevada burglary conviction in his offender score. 

Because we address the issue on its merits and remand for resentencing, we do not 

reach Spitzer’s ineffective assistance claim.