* State Of Washington, Respondent V. Charles Bluford, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CHARLES LINNELL BLUFORD,
Appellant.
No. 73047-9-1
DIVISION ONE
PUBLISHED
FILED: August 29. 2016
Cox, J. — Charles Bluford appeals his judgment and sentence, based on
eight felony convictions for robbery and other charges. We hold that the trial
court did not abuse its discretion when it joined multiple counts against him and
refused to sever those counts for trial. 	But the court erred when it denied his
request to instruct the jury on the lesser included offense of fourth-degree
assault. Additionally, the State failed to prove that Bluford is a persistent
offender under the Persistent Offender Accountability Act (POAA). 	Thus, the
sentence of life without the possibility of release cannot stand. We affirm, in part,
reverse, in part, and remand for resentencing.
The State charged Charles Bluford with nine felony counts. 	These
included seven counts of first-degree robbery plus a charge of first-degree rape
of one victim and indecent liberties of a separate victim.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/2
The State initially charged Bluford under three different cause numbers,
but moved to join all the counts for trial. Bluford moved to sever five of the
counts from the others. 	The court considered these cross motions at the same
hearing and joined all counts for trial.
At trial, Bluford requested a lesser included instruction of fourth-degree
assault for the charge of indecent liberties. 	The court denied his request.
The jury found Bluford guilty of eight counts and acquitted him of one
count of robbery. 	The trial court determined that Bluford's prior felony
convictions in New Jersey and South Carolina qualified him under the POAA as a
persistent offender. It sentenced him to life without the possibility of release.
Bluford appeals.
JOINDER
Bluford argues that the trial court abused its discretion by joining for trial
the nine counts against him. 	Specifically, he argues that the joinder prejudiced
him. We hold that the court did not abuse its discretion in joining all counts for
trial.
Under RCW 10.37.060,
When there are several charges against any person, or
persons, for the same act or transaction, or for two or more acts or
transactions connected together, or for two or more acts or
transactions of the same class of crimes or offenses, which may be
properly joined, instead of having several indictments or
informations the whole may be joined in one indictment, or
information, in separate counts; and, iftwo or more indictments are
found, or two or more informations filed, in such cases, the court
may order such indictments or informations to be consolidated.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/3
Similarly, under CrR 4.3(a),
Two or more offenses may be joined in one charging document,
with each offense stated in a separate count, when the offenses,
whether felonies or misdemeanors or both:
(1) Are of the same or similar character, even if not part of a
single scheme or plan; or
(2) Are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme
or plan.
Courts may not join offenses if it would prejudice the defendant.1 	It is the
defendant's burden to establish prejudice.2
As a threshold matter, the State argues that we should abandon and
disavow the reasoning of this court's decision in State v. Bryant.3 We decline to
do so.
There, this court considered whether joinder of bail jumping and second-
degree robbery counts was proper.4 The trial court denied Bryant's motion to
sever the two counts that the State had alleged in an amended information.5
Because Bryant failed to renew his motion to sever during trial, this court held
that he failed to preserve the issue for review.6
1 State v. Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998).
2 State v. Bvthrow, 114 Wn.2d 713, 720, 790 P.2d 154 (1990).
3 89 Wn. App. 857, 950 P.2d 1004 (1998).
4 \± at 862.
5 ]cL at 864.
6 Id.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/4
Nevertheless, this court considered both joinder and severance. This
court did so because both rules "are based on the same underlying principle, that
the defendant receive a fair trial untainted by undue prejudice."7 	In reaching this
conclusion, this court acknowledged that the federal courts maintain a distinction
between the two.8
We see no compelling reason in this case to depart from the approach we
took in Bryant. 	Here, Bluford also failed to renew his severance motion following
the pretrial denial of that motion. Thus, he technically failed to preserve for
review the issue of severance.
Nevertheless, we note that the trial court considered and decided the
cross motions for joinder and severance at the same hearing. 	The State offers
no practical assistance on how or why we should separate the two issues for
purposes of our review of the trial court's decision at that hearing to grant joinder
and deny severance.
We also note that the state supreme court has repeatedly stated that
joinder should not prejudice a defendant.9 A Division Two opinion on which the
State relies here states that the supreme court "has blurred the distinction
between joinder and severance so carefully drawn in federal law by referring to it
7 Jd at 865.
8 Id.
9 State v. Russell. 125 Wn.2d 24, 62, 882 P.2d 747 (1994); State v. Long,
65 Wn.2d 303, 319, 396 P.2d 990 (1964).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/5
as a broad rule."10 We will leave to the supreme court to decide whether it
wishes to follow the federal approach or continue a more flexible approach to this
question, as indicated in the jurisprudence.
Accordingly, under Bryant, we first determine whether joinder in this case
meets the criteria of the rule and statute. 	We then consider whether actual
prejudice precludes joinder.
Joinder of the counts was proper under CrR 4.3 and RCW 10.37.060. The
charges against Bluford were based on a series of acts connected together. And
Bluford does not dispute that joinder was proper under the rule and statute.
Accordingly, the next question is whether Bluford can establish that the
joinder prejudiced him.
We expansively construe the joinder rule to promote the public policy goal
of conserving judicial resources.11 	Joinder is appropriate unless it is so
"manifestly prejudicial" that it outweighs the need for judicial economy.12
Four factors guide the determination whether prejudice results from
joinder: "(1) the strength of the State's evidence on each of the counts; (2) the
clarity of the defenses on each count; (3) the propriety of the trial court's
10 State v. Wilson. 71 Wn. App. 880, 886, 863 P.2d 116 (1993), rev'd in
part, 125 Wn.2d 212, 883 P.2d 320 (1994).
11 Bryant, 89 Wn. App. at 864.
12 Bvthrow, 114Wn.2dat718.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/6
instruction to the jury regarding the consideration of evidence of each count
separately; and (4) the admissibility of the evidence of the other crime[s]."13
Strength of the Evidence
Here, the trial court determined that the strength of the State's evidence
for each count was equivalently strong. 	Bluford disagrees, pointing out that two
of the victims identified Bluford while the others did not. 	But while these two
were the only victims to identify Bluford, they were also the only victims whose
property was not found in the possession of Bluford's associate. 	Thus, while the
evidence for each count was different, the court did not abuse its discretion by
determining that the evidence was equivalently strong.
Clarity of Defenses to Each Count
Bluford asserted a general denial for each count—he argued that
someone else committed the crimes. 	Thus, he could not have been prejudiced
by inconsistent defenses—his defenses were all the same.
Instruction to Consider Evidence of Each Count Separately
The court determined that the jury could be instructed to consider the
evidence for each count separately. 	Bluford argues that the court's instructions
to the jury at the end of the case did not instruct the jury that it could not consider
the evidence of other crimes as propensity evidence. 	But Bluford failed to
request such an instruction. And the trial court is not required to give such an
instruction ifthe defendant fails to request one.14
13 State v. Cotten. 75 Wn. App. 669, 687, 879 P.2d 971 (1994).
14 State v. Russell. 171 Wn.2d 118, 122-23, 249 P.3d 604 (2011); ER 105.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/7
At the time of the court's pretrial ruling, the court properly identified that
such a limiting instruction could be given. 	Additionally, assuming that the lack of
such an instruction weighs towards severance, this is only one factor to consider.
Cross Admissibility of Evidence
The court determined that the evidence of each count would be cross
admissible for the other counts. We hold that the court properly did so for the
purpose of showing modus operandi.
ER 404(b) prohibits introducing evidence of other bad acts as propensity
evidence. 	But such evidence is admissible for other purposes, such as proof of
motive, plan, or identity.15
We review for abuse of discretion decisions to admit evidence under ER
404(b).16
Under the modus operandi exception, evidence of other bad acts is
admissible to show identity "if the method employed in the commission of [the]
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."17 "The modus operandi 'must be so unusual and distinctive as to be
like a signature.'"18
15 State v. Foxhoven. 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
16 State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
17 Foxhoven, 161 Wn.2d at 176 (internal quotation marks omitted) (quoting
Thang, 145 Wn.2d at 643).
18 id (internal quotation marks omitted) (quoting State v. Coe. 101 Wn.2d
772, 777, 684 P.2d 668 (1984)).
7
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/8
Modus operandi requires unique features.19 But features that are not
individually unique can be sufficiently unique in combination.20 "The question for
the court to answer is whether all of these shared features, when combined, are
so unusual and distinctive as to be signature-like."21
For example, in State v. Jenkins, two men broke into several apartment
complexes in the same area.22 In each instance, one acted as a lookout while
the other entered a ground floor apartment.23 Additionally, each break-in
occurred during the morning, a pipe wrench was used to break into each
apartment, and a brown Camero vehicle was used to leave.24 This combination
was unique enough to affirm the trial court's ruling that the evidence of the other
break-ins was admissible as modus operandi evidence.25
Similarly, in State v. Laureano, the supreme court upheld admission of
evidence as a modus operandi after the trial court determined that there were
several similarities between two robberies, including:
(1) that they occurred only approximately three weeks apart; (2)
that they both involved the forcible entry of family residences; (3)
that both crimes occurred after dark; (4) that both crimes involved
three perpetrators, although not the same three in each instance;
19 Jd,
20 Thang, 145 Wn.2d at 644.
21 ]d, at 645.
22 53 Wn. App. 228, 237, 766 P.2d 499 (1989).
23 jd,
24 Id at 229-30, 237.
25 id, at 237.
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/9
(5) that both crimes involved the presence of firearms by each of
the persons entering the residence; (6) that in both cases one of
the perpetrators was armed with a [20 gauge, 6 shot] shotgun, and
said shotgun was used in a similar manner in each crime; (7) that
both crimes involved perpetrators dressed in Army fatigues; and
that the above list of similarities is illustrative in nature but is not
exhaustive[.][26]
In Bluford's case, the trial court determined that the crimes were cross
admissible for the following reasons:
Each incident occurred within an approximately two month period.
Each incident occurred during hours of darkness. 	Each incident
occurred in the Seattle metro area. 	Each incident occurred in a
residential area. 	The defendant was a stranger to each victim. 	In
each incident, the victims were alone when an African American
male approached with a handgun and gave verbal demands to the
victims. 	The descriptions of the handgun by the victims are similar.
Four of the victims gave a description of the vehicle, which matches
the vehicle the defendant was later found inside. 	Two of the three
female victims were sexually assaulted during the course of the
robberies. 	Although one of the female victims was not sexually
assaulted during the robbery, she ran away at the time of the
robbery, thereby limiting the opportunity [for the defendant] to
sexually assault her... . Therefore, although none of the incidents
are a carbon copy of the others, the incidents are strikingly
similar.[27]
Additionally, in each case the perpetrator approached the victim as he or
she exited a car. And when the victim did not cooperate, the perpetrator
forcefully took his or her property or assaulted the victim.
The trial court did not abuse its discretion when it determined that these
similarities were sufficient to admit the evidence of other crimes as modus
26101 Wn.2d 745, 765, 682 P.2d 889 (1984) (second alteration in
original).
27 Clerk's Papers at 17.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/10
operandi evidence. 	The trial court based its decision on appropriate
considerations. 	"[Geographical proximity and commission of the crimes within a
short time frame" are appropriate factors to consider.28
This case resembles Jenkins and Laureano. As in Laureano, all crimes
occurred after dark and involved multiple perpetrators and firearms.29
Additionally, evidence suggested that one perpetrator was armed with the same
gun in all crimes, and that gun was used in a similar manner in each crime. And
as in Jenkins, there was evidence that the perpetrators used the same car in
multiple crimes.30
This case does have more dissimilarities than Jenkins or Laureano. 	Many
features were present in some, but not all, crimes. 	But "the existence of some
dissimilarities in the crimes is not dispositive."31 	One or two characteristics may
be missing from a given crime ifthe remaining similarities still suggest a
signature.32 And a higher number of crimes compensates for some
dissimilarities.33
28 Thang, 145 Wn.2d at 643.
29101 Wn.2dat765.
30 53 Wn. App. at 237.
31 In re Pet, of Coe. 175 Wn.2d 482, 498-99, 286 P.3d 29 (2012).
32 id,
33 Id at 500.
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/11
The trial court did not abuse its discretion when it determined that the
evidence of other crimes was cross admissible as modus operandi evidence.
Bluford relies on State v. Thang34 to argue that his crimes are not similar
enough to qualify as modus operandi evidence. 	But in that case the trial court
determined that the crimes were not distinctive enough.35 Thus, that case is not
helpful here, where the trial court used its discretion to determine that the other
crimes were admissible as modus operandi evidence.
Bluford also argues that the similarities that the trial court identified are
common in robberies. 	But the individual features do not have to be unique as
long as they are sufficiently unique in combination.36
Bluford also identifies several dissimilarities among the crimes. 	But as
stated earlier, this is not dispositive, and not every feature needs to be present in
every crime.
Accordingly, the court did not abuse its discretion when it determined that
the evidence was cross admissible to establish a modus operandi. And,
weighing the four relevant factors, the court did not abuse its discretion when it
determined that joinder would not prejudice Bluford.
34145Wn.2d630, 41 P.3d 1159(2002).
35 id at 645.
36 id at 644.
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/12
LESSER INCLUDED OFFENSE
Bluford argues that the court erred by denying his request for a lesser
included offense instruction. 	We agree.
Instructing juries on lesser included offenses "is crucial to the integrity of
our criminal justice system."37 Consequently, courts "err on the side of instructing
juries on lesser included offenses."38 Courts should instruct the jury about a
lesser included offense if the jury could find that the defendant committed only
the lesser included offense.39
We analyze whether a defendant is entitled to a lesser included offense
instruction under the test announced in State v. Workman.40 	Under this test, the
defendant is entitled to an instruction when "(1) each of the elements of the
lesser offense is a necessary element of the charged offense and (2) the
evidence in the case supports an inference that the lesser crime was
committed."41
Here, there is no dispute that the factual prong is satisfied. 	The question
is whether the legal prong of the Workman test is met. 	We review de novo
whether the legal prong is met.42
37 State v. Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015).
38 id
39 id
40 90 Wn.2d 443, 584 P.2d 382 (1978).
41 Henderson, 182 Wn.2d at 742.
42 State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015).
12
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/13
The State charged Bluford with one count of indecent liberties. 	This was
in connection with the robbery of R.J.
Indecent liberties requires that a person "knowingly cause[] another
person [who is not his or her spouse] to have sexual contact with him or her or
another.. . [b]y forcible compulsion."43 Accordingly, this crime requires
knowledge as the mental state.
Bluford argued that he was entitled to a lesser included offense instruction
on fourth-degree assault. 	Fourth-degree assault is an assault not amounting to
first, second, or third-degree assault.44 Because the statute does not define the
term "assault," Washington uses the common law definition.45 "For purposes of
this case, the definition of assault that applies is an unlawful touching with
criminal intent."46 Thus, fourth-degree assault requires intent as the mental state.
Here, the trial court ruled that assault is not a lesser included offense
because it requires a higher mental state than indecent liberties. The court relied
on State v. Thomas,47 an opinion from Division Three. Although Thomas so
holds, a subsequent supreme court case shows that Thomas was wrongly
decided.48
43 RCW 9A.44.100(1)(a) (emphasis added).
44RCW9A.36.041(1).
45 State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006).
46 id at 311.
47 98 Wn. App. 422, 989 P.2d 612 (1999).
48 Stevens, 158 Wn.2d at 310-12.
13
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/14
In State v. Stevens, the supreme court decided whether fourth-degree
assault was a lesser included offense of child molestation.49 Child molestation
does not explicitly include an intent requirement.50 	But "sexual contact" between
the defendant and the victim is one element.51
The legislature has defined "[s]exual contact" as "any touching of the
sexual or other intimate parts of a person done for the purpose of gratifying
sexual desire."52 Thus, the State must prove that the defendant acted with a
sexual purpose.53 The Stevens court held that this purpose requirement meant
that fourth-degree assault did not require a higher mental state and was a lesser
included offense of child molestation.54
The same reasoning applies here. 	Indecent liberties also requires "sexual
contact."55 And the same definition of "sexual contact" applies to both indecent
liberties and child molestation.56 Thus, the State must prove that the defendant
49 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006).
50 RCW 9A.44.086.
51 id
52RCW9A.44.010(2).
53 Stevens, 158 Wn.2d at 312.
54 id at 311.
55 RCW 9A.44.100(1).
56RCW9A.44.010.
14
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/15
acted with a sexual purpose. Accordingly, fourth-degree assault does not require
a higher mental state than indecent liberties.
Thus, the Workman test's legal prong is met here. 	Consequently, Bluford
was entitled to a lesser included offense instruction on fourth-degree assault.
Failure to instruct the jury on a lesser included offense when warranted
requires reversal.57 Thus, we must reverse Bluford's conviction for indecent
liberties.
The State does not address the merits of this argument. 	Instead, it argues
that Bluford may not raise this issue under either the invited error doctrine or
RAP 2.5(a). 	Neither reason applies, and we reject the State's procedural
arguments.
Bluford submitted lesser included offense instructions to the trial court. 	In
a colloquy with the court, Bluford acknowledged Thomas's holding on the
claimed difference in mental state. 	But Bluford maintained that a lesser included
offense instruction was still appropriate. 	This was sufficient to preserve the issue
for our review.
Despite the State's argument to the contrary, Bluford did not invite the trial
court's error. 	For the invited error doctrine to apply, "[t]he defendant must
materially contribute to the error challenged on appeal by engaging in some type
57 Condon, 182 Wn.2d at 326.
15
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/16
of affirmative action through which he knowingly and voluntarily sets up the
error."58 The State has the burden to prove invited error.59
Here, Bluford maintained that a lesser included offense instruction was
appropriate. 	Thus, he did not "knowingly and voluntarily" set up any error.
RAP 2.5(a) also does not prevent Bluford from arguing this issue on
appeal. 	Under this rule, this court generally does not review issues first raised on
appeal. 	Because Bluford preserved the issue for review, RAP 2.5(a) does not
apply.
POAA
Bluford argues that the State failed to prove that he is a persistent
offender. 	Because we agree, we reverse the sentence of life without the
possibility of release and remand for resentencing.
At sentencing, the trial court determined that Bluford's prior convictions in
South Carolina and New Jersey were comparable to robbery in Washington, a
"most serious offense" under the POAA. 	The court sentenced him to
"confinement for life without the possibility of release" as a "persistent offender."
We review de novo whether an out-of-state conviction is comparable to a
Washington crime.60 To determine comparability, "we first consider if the
elements of the foreign offense are substantially similar to the Washington
58 State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014).
59 id
60 State v. Sublett. 176 Wn.2d 58, 87, 292 P.3d 715 (2012).
16
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/17
counterpart. 	If so, the inquiry ends."61 	In this analysis, we look at the statutes in
effect at the time the out-of-state crime was committed.62
If the elements are not substantially similar,
the sentencing court can, in some cases, look at portions of the
record of the prior proceeding to see if the conduct of which the
defendant was convicted was identical to what is required for a
comparable Washington conviction; but the portion of the foreign
record that the Washington court can consider is very limited.
The sentencing court can look at the charging instrument from the
foreign proceeding, but it cannot consider "facts and allegations
contained in [the] record of prior proceedings, if not directly related
to the elements." This limitation is compelled by not just statutory
interpretation but also constitutional concerns. . . . Any attempt to
examine the underlying facts of a foreign conviction, facts that were
neither admitted or stipulated to, nor proved to the finder of fact
beyond a reasonable doubt in the foreign conviction, proves
problematic.[63]
Under RCW 9.94A.030(38), a persistent offender:
is an offender who: (a)(i) Has been convicted in this state of any
felony considered a most serious offense, and (ii) Has, before the
commission of the offense under (a) of this subsection, been
convicted as an offender on at least two separate occasions,
whether in this state or elsewhere, of felonies that under the
laws of this state would be considered most serious offenses .
. . provided that of the two or more previous convictions, at least
one conviction must have occurred before the commission of any of
the other most serious offenses for which the offender was
previously convicted.[64]
61 Id.
62 In re Pers. Restraint of Laverv, 154 Wn.2d 249, 255, 111 P.3d 837
(2005).
63 State v. Jones, 183 Wn.2d 327, 345-46, 352 P.3d 776 (2015)
(emphasis added) (alteration in original) (citations omitted) (quoting State v. Ford,
137 Wn.2d 472, 479-80, 973 P.2d 452 (1999)).
64 (Emphasis added.)
17
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/18
Here, Bluford was convicted in this state of robbery, a most serious
offense for purposes of this statute.65 The question is whether the State proved
that his South Carolina and New Jersey felony convictions fulfill the statutory
requirements for at least two prior most serious offenses.
New Jersey
Bluford pleaded guilty to second-degree robbery in New Jersey. 	He
argues that the State failed to prove that this offense is comparable to
Washington's robbery statute. 	We agree.
New Jersey's robbery statute is not legally comparable to Washington's
robbery statute. 	In Washington:
A person commits robbery when he unlawfully takes
personal property from the person of another or in his presence
against his will by the use or threatened use of immediate force,
violence, or fear of injury to that person or his property or the
person or property of anyone. 	Such force or fear must be used to
obtain or retain possession of the property, or to prevent or
overcome resistance to the taking; in either of which cases the
degree of force is immaterial. 	Such taking constitutes robbery
whenever it appears that, although the taking was fully completed
without the knowledge of the person from whom taken, such
knowledge was prevented by the use of force or fear.[66]
In contrast, in New Jersey:
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.[67]
65 RCW 9.94A.030(33).
66 Former RCW 9A.56.190 (1975).
67 N.J. Stat. § 2C:15-1 (emphasis added).
18
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/19
This statute's third prong does not require the use of force or threatened force.
Thus, New Jersey's robbery statute is broader than Washington's.
The New Jersey judgment and sentence for Bluford does not specify
under which prong he pleaded guilty. It merely lists the entire statute, N.J. Stat. §
2C: 15-1, as the basis for the conviction. 	So, there is the possibility that he
pleaded guilty to the third prong of the statute.
Likewise, the State did not produce the information for the charge to which
Bluford pleaded guilty. So, there is no basis to exclude the possibility that he
could have pleaded guilty to the third prong of the statute.
The next question is whether the crimes are factually comparable. There
is insufficient proof of this requirement.
There is no evidence in this record of any facts that Bluford either admitted
or stipulated to, or that were proven beyond a reasonable doubt. 	Accordingly,
there is no basis in this record to make a factual comparison.
The State argues that it proved Bluford's conviction was legally
comparable to a Washington robbery conviction. It relies on two matters in the
record for this argument.
First, it argues that Bluford was initially charged with first-degree robbery
under the second prong of the statute. 	New Jersey initially indicted Bluford for
first-degree robbery for "threatening] immediate bodily injury . . . [or] use of a
deadly weapon." Threatening bodily injury corresponds with the second prong of
19
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73047-9-1/20
the statute, while threatening use of a deadly weapon corresponds with the
elevation of the crime to the first degree.68
The State argues that the lack of an amended information for second-
degree robbery permits this court to infer that Bluford was charged with and
pleaded guilty to second-degree robbery under the same prong he was charged
with for first-degree robbery. 	It argues, "If Bluford had pled guilty under a
different prong than the one set out in the original charging document,
presumably an amended charging document would have been necessary. . . ."
We are not persuaded by this untenable presumption. 	The State cites no
authority for this argument. 	For that reason alone, we could reject it.
In any event, we decline to speculate on whether an amended information
was required in New Jersey. 	The fact is that none is in the record before us.
That is a failure of proof of a vital piece of information to determine whether
Bluford is a persistent offender for sentencing purposes.
The State also argues that the judgment's description of facts establishes
that Bluford pleaded guilty to the second prong. This argument falls short of the
required proof.
The State concedes that this description of facts cannot be used for a
factual comparability analysis. 	They are neither admitted to nor proven beyond a
reasonable doubt. 	Why they should be used in this circumstance is not
convincingly explained.
68 Jd
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No. 73047-9-1/21
The State argues that it "is aware of no authority holding that [this
description of facts] may not be considered as circumstantial evidence of the
prong under which the New Jersey court accepted Bluford's guilty plea." We are
unaware of any authority that would permit this court or any court to use such
facts when making a comparability determination.
South Carolina
We next consider the South Carolina convictions to determine whether the
State has met its burden of proof in this case.
On August 12, 1998, Bluford pleaded guilty to two counts of armed
robbery in South Carolina. 	To the extent these two felonies should be
considered most serious offenses in Washington, either of them may be
considered, but not both. 	That is because the plain words of RCW
9.94A.030(38)(ii) require prior qualifying convictions to occur "on at least two
separate occasions." These South Carolina convictions were both on the same
day, August 12, 1998, the date he pleaded guilty to the two counts of armed
robbery. 	Thus, they were not convictions on two separate occasions.
Accordingly, only one of Bluford's two South Carolina convictions may be
considered as a most serious offense in this analysis.
Because only one of the two South Carolina convictions may be
considered, and the State has failed in its burden to show that the New Jersey
conviction is comparable, we need not address further the comparability of either
South Carolina conviction. 	That is because doing so would be insufficient to
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No. 73047-9-1/22
show that Bluford had two prior qualifying convictions. 	Accordingly, we do not
further address the comparability of either South Carolina conviction.
In sum, on this record, there is a failure of proof to show that Bluford is a
persistent offender. 	The sentence of life without the possibility of release is not
warranted. We must reverse the sentence and remand for resentencing.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Bluford's Statement of Additional Grounds for Review does not raise any
meritorious claims.
In his first argument, he appears to argue that one of the victims for two of
the charged crimes was allegedly unable to identify him in a photo montage. 	But,
given the evidence at trial, this apparent challenge to the sufficiency of the
evidence is untenable.
Bluford's second argument is that police officers violated the Fourth
Amendment and article I, section 7 of the state constitution when they searched
his home. 	But he concedes that the police had a valid warrant. 	Accordingly, this
argument is also untenable.
For these reasons, we reject his request for relief based on these
additional arguments.
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No. 73047-9-1/23
We affirm Bluford's convictions for rape and six counts of first-degree
robbery. 	We reverse Bluford's conviction for indecent liberties. 	We vacate
Bluford's sentence of life without the possibility of release and remand for
resentencing.
49X.X
WE CONCUR:
-7*
KJ
23