dissenting.
First, I disagree that the trial court’s determination of a misjoinder under Rule 13.3(a), Rules of Criminal Procedure, 17 A.R.S., and its grant of a new trial “is conclusive” on this court. In my opinion the question before us is whether the trial judge abused his discretion in granting a new trial on the basis of misjoinder. See State v. Mincey, 115 Ariz. 472, 566 P.2d 273 (1977).
Second, I disagree that the bribery, forgery, and embezzlement counts that were joined in the same indictment were not crimes of “same or similar character,” as permitted by Rule 13.3(a), Rules of Criminal Procedure. According to the Commentary to § 1.1 of ABA Standards: Joinder and *570Severance, this language “same or similar character” was taken from Federal Rule of Criminal Procedure 8(a). In Finnegan v. U. S., 204 F.2d 105 (8th Cir.), cert. denied, 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347 (1953), the court, interpreting the “same or similar character” language of Rule 8(a), approved bringing multiple counts against a Director of Internal Revenue involving conflict of interest and bribery counts. The court said that all the offenses, in effect, charged a government official with taking the part of private interests in matters in which the government was a party. The joinder was proper since all of the counts involved directly or indirectly the use of official position for the benefit of private interest for a pecuniary consideration. The counts were, therefore, “same or similar character” since they were designed to protect the government.
A good analysis of the federal cases is found in United States v. Barrett, 505 F.2d 1091, 1105 (7th Cir. 1974), where the court approved joinder of charges of mail fraud, bribery, and tax evasion, since all counts arose out of Barrett’s misuse of his public office for private gain. See 8 Moore’s Federal Practice ¶ 8.05[2].
Looking at the “same or similar character” of the crimes charged against appellee from the state’s standpoint: The Arizona Coliseum and Exposition Center Board is a state agency. See A.R.S. §§ 3-1001 to 3-1012. No employee of the Board “shall, either directly or indirectly, have any financial interest in a contract made by the board.” A.R.S. § 3-1002(B). If they have such a financial interest, it is a crime (misdemeanor). A.R.S. § 3-1002(C). The Board, per § 3-1003(A)(5), shall employ an Executive Director, whose contract shall stipulate that he can be terminated by 90 days notice. His duties and qualifications are set out at §§ 3-1003.01 and 3-1003.02. He is the chief executive and administrative officer of the center. He is responsible for fixing the duties of all employees, submitting monthly reports to the board, and acting as the Center’s fiscal agent with responsibility for the processing of all cash receipts, the internal accounting, the preservation of assets, and the control of all books and accounting records. Section 3-1005 requires all funds collected by the board to be deposited “promptly” with the state treasurer. By virtue of the foregoing, Jones, by definition, was an “officer” or “public officer” of the state. See A.R.S. § 38-101. All of the crimes charged arose entirely out of acts involving his position as executive director, his control of the books and records, and his misuse of his office. The federal cases view the “character” of crime for joinder purposes from this viewpoint. This view is supported by the broad joinder recommended by the ABA Standards, supra.
Third, a good argument can be made 'that the various counts were properly joined since they related to a “common scheme or plan.” This argument is closely aligned to the argument, based on the “same or similar character” of the crime, discussed above. Under Rule 13.3(a)(3), Rules of Criminal Procedure, offenses are properly joined if evidence of a separate crime would be admissible in evidence at the trial of one count to prove motive, intent, absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other or others, or identity of the person charged with the commission of the crime. See State v. Dale, 113 Ariz. 212, 215, 550 P.2d 83, 86 (1976). Here, taking all inferences in favor of the judgment, Jones’s common scheme was to misuse his public office and public trust for his own personal pecuniary benefit to the detriment of the state. The evidentiary manifestations of his common scheme or plan are the various counts charged and proven: bribery, forgery, theft and embezzlement. The common denominator is that “but for” his position as Executive Director, he could not have performed and gained as he did.
Finally, I believe the joinder was correct under Rule 13.3(a)(2), Rules of Criminal Procedure, since the counts were based on the same conduct by Jones: misfeasance and malfeasance, and were otherwise connected, as discussed above.
*571For these reasons I believe the trial court abused its discretion by granting the appel-lee’s motion for a new trial. I would therefore reverse the order and reinstate the judgment.