concurring.
I agree with the analysis of my learned colleague, Judge Peay; and I would reverse and grant the defendant a new trial. I must admit, however, that it pains me to do so. A new trial will mean that these issues will have to be tried for the third time, because the first trial resulted in a hung jury. This is a strain to the victims, the defendant, the lawyers, and our system of criminal justice. Having to try a case for the third time presents a troublesome situation, and this problem is exacerbated when dealing with young children who are victims. Nonetheless, I cannot find that the facts of this case constitute a common scheme or plan or that the economics of the case prohibit a severance. Economics should not take priority over fairness and sensible disposition of criminal cases, particularly when young victims are involved.
Notwithstanding my personal feelings for the victims, I concur.