dissenting. The majority opinion states that the severance of criminal offenses for trial is a matter within the discretion of the trial court but then correctly recites Ark. R. Crim. P. 22.2 and states that “when. . .the offenses are joined solely on the basis that they are of the same or similar character, a defendant has an absolute right to their severance,” citing Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). The opinion then proceeds to point out how “remarkably similar” the offenses in question appear to have been, and that discussion is presumably in support of the trial court’s refusal to sever the offenses.
One pillar of the majority opinion is, I take it, that there is an exception to Rule 22.2 when the evidence to be used by the State to prove one of the offenses is the same as that to prove the one from which it is sought to be severed, “and the evidence is admissible to prove a plan, scheme, motive, or state of mind under A.R.E. 404(b).” And yet these offenses occurred with different alleged victims, at different times, and at different places. There is no evidence whatever that each alleged offense involved a plan, scheme, motive, or state of mind relevant to the other.
Another pillar is the “intimate relationship in the home” recitation. That one simply will not hold. While evidence of alleged previous sexual events between Mr. Dillard and either of the alleged victims might be admissible pursuant to that exception to Rule 404(b), it furnishes no basis whatever for refusal to sever the alleged offenses. The same is true of the “depraved sexual instinct” or “pedophile” exception to Rule 404(b).
If our case law and Rule 22.2 are interpreted as the majority suggests, there is a direct conflict between the absolute right to severance when the basis for joinder is the “same or similar character” of the offenses charged and the “exceptions” allowing evidence of similar offenses absent a showing of a “single scheme or plan.”
We attempted to sort all of this out in Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). We went to great lengths to discuss and describe the meaning of the words, “single scheme or plan,” and we concluded that the five separate sexual incidents allegedly committed by Mr. Clay with five girls, all of whom were 14 or younger, did not qualify as a “single scheme or plan.” We distinguished Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), and the “depraved sexual instinct” cases. We summarized the result as follows:
In summary, the alleged offenses occurred over a twelvemonth period, involve different charges, and were committed in different manners, against different victims, at different locations. They did not involve “similar acts with the same child or other children in the same household . . . showing ‘a proclivity toward a specific act with a person or class of persons.’ ” Free, 293 Ark. at 71, 732 S.W.2d at 455. There was no allegation or proof that the five offenses were planned in advance as part of a single scheme. There was no allegation or proof these crimes were part of one criminal episode. Since these five crimes were of a similar character, but were not part of a single scheme or plan, the appellant had “a right to a severance of the offenses.” A.R.Cr.P. Rule 22.2(a) (emphasis added). In addition, the culpable mental state required to be proved was different for some of the crimes. Both the severance rule and our cases mandate reversal and remand for new trials.
Even the penultimate sentence of that summary applies here, as the two charges required substantially different evidence for proof of guilt. Mr. Dillard was charged in the amended information, count one, with unlawfully and feloniously engaging in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age, Ark. Code Ann. § 5-14-108(a)(4). In count two, he was charged with unlawfully and feloniously engaging in sexual contact with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1).
The Clay decision, in my view, drew away much of the confusion I have observed in our previous decisions, and it properly described the limits on the “exceptions” to Rule 22.2 and Rule 404(b). With the majority opinion in this case, we are dumped back into the swamp.
I respectfully dissent.
Imber, J., joins in this dissent.