(dissenting). I dissent. The majority, relying on the State of Wisconsin’s concession at oral argument, assumes that the trial court violated sec. 971.12(1), Stats., by improperly joining charges relating to four separate and distinct incidents. The majority states that if offenses do not meet the criteria for joinder, it may be presumed that the defendant will be prejudiced by a joint trial. Slip opinion at page 668. Despite this recognition of probable prejudice, the majority fails to adopt a per se rule that mis-joinder is prejudicial error and concludes that misjoinder is harmless error in this case. Because I believe that misjoinder is per se prejudicial error, I find that application of a harmless error rule to misjoinder situations is unreasonable.
As the majority states, the Judicial Council Committee’s note to sec. 971.12, Stats. 1969, Wis. Laws at 644, states that Wisconsin’s provisions for joinder and severance are taken from the federal rules of criminal procedure. Thus, federal cases construing Fed. R. Crim. P. 8 provide persuasive guidance to this court for the proper application of sec. 971.12. Federal courts are currently divided as to whether a harmless error analysis is applicable to the misjoinder of charges. I find that the best approach, adopted by the court of appeals below, is to treat misjoinder as per se impermissible and consequently to reject harmless error treatment. State v. *677Leach, 122 Wis. 2d 339, 352-58, 363 N.W.2d 234 (Ct. App. 1984).
The First Circuit Court of Appeals noted that joinder of offenses has the desirable effect of promoting judicial economy. United States v. Turkette, 632 F.2d 896, 906 (1st Cr. 1980), rev’d on other grounds, 452 U.S. 576 (1981). The court further noted that in permitting joinder if certain requirements are met, Fed. R. Crim. P. 8, balances the competing considerations of the benefit to the court, prosecution, and the public with the presumptive prejudice inherent in. the consolidation of offenses. Turkette at 906. The court stated that “Rule 8 ‘set the limits of tolerance’ beyond which the danger of prejudice outweighs the benefit, and any joinder which does not fall within Rule 8 ‘is per se impermissible.’ ” Id. (citation and footnote omitted.) Accord Cf. United States v. Graci, 504 F.2d 411 (3rd Cir 1974); United States v. Nettles, 570 F.2d 547 (5th Cir. 1978) (misjoinder of defendants is inherently prejudicial); United States v. Whitehead, 539 F.2d 1023 (4th Cir. 1976) (misjoinder of defendants is per se impermissible). See Note, Harmless Error and Misjoinder Under the Federal Rules of Criminal Procedure: A Narrowing Division of Opinion, 6 Hofstra L. Rev. 533, 563 (1979). See also 8 J. Moore, Moore’s Federal Practice, para. 8.04 [2] (2d ed. 1984); C. Wright, Federal Practice and Procedure, sec. 143, at 491 n. 19 (1982).
This court has recognized the prejudice which arises to an accused from a trial on multiple counts. In State v. Bettinger, 100 Wis. 2d 691, 696-97, 303 N.W.2d 585 (1981), this court stated:
“We have recognized that the defendant suffers a risk of prejudice when he is tried on the basis of an information containing multiple counts. The risk of prejudice arising under these circumstances is related to the prejudice which arises when evidence of other crimes or *678wrongful acts is admitted improperly at trial. See sec. 904.04(2), Stats. When a jury is informed of the accused’s previous wrongful conduct, it is likely that it will consider that the defendant is a ‘bad person’ prone to criminal conduct. It is also possible that the jury will confuse the issues and will be incapable of separating the evidence. Therefore there is a serious risk that a conviction will result without regard to the facts proven relative to the crime charged. Similarly, when some evidence is introduced to prove the commission of multiple criminal acts joined in one information, there is a risk that the defendant will he convicted not because the facts demonstrate guilt beyond a reasonable doubt but because the jury may conclude that the accused is predisposed to committing crimes and that ‘some’ evidence is ‘enough’ evidence to return a conviction. In a trial on joint charges, there is also the possibility that the jury will cumulate the evidence of the crimes charged and find guilt when it otherwise would not if the crimes were separately tried.” Id. (Emphasis added.)
Section 971.12, Stats., like its federal counterpart Rule 8, sets forth circumstances in which charges may be joined, despite the risk of prejudice, because evidence of one crime will also be relevant and admissible on another charge. The gravamen of joinder under this statute is the similarity or interrelatedness of offenses. Turkette at 907. Thus, the preconditions for the joinder of charges set forth in sec. 971.12(1), are designed to safeguard an accused’s right to a fair trial against the improper use of inherently prejudicial “other crimes” evidence. When charges are misjoined, the jury is invariably confronted wth highly prejudicial “other crimes” evidence which would be inadmissible if t ie charges were tried separately. Thus, application of a harmless error analysis in the case of misjoinder effectively undermines the interests sec. 971.12(1) were designed to safeguard.
*679In the instant case, the majority takes solace because the several counts with which Leach was charged were logically, factually and legally distinct. P. 672. From this it concludes that there was no possibility that the jurors could have confused the proof received on each separate and distinct criminal charge. Id. While this may be true, it does not negate the serious possibility that the jury may have perceived that the defendant was predisposed to criminal activity and convicted him as a result after hearing proof on each of the separate charges.
I reject the majority’s attempt to minimize the prejudice that may have ensued to Leach through its assertion that misjoinder may be harmless when the defendant’s guilt of each offense is overwhelming. Id. The majority’s conclusion that any reasonable jury presented with strong, uncontradicted evidence to support each crime charged would have convicted the defendant on all four counts, whether the evidence was presented in a single trial or four separate trials, is mere speculation. Id. at 23. I believe that it is virtually impossible for a reviewing court to determine whether a jury confronted by “other crimes” evidence reached its verdict solely because it perceived the accused as a bad or dangerous man deserving conviction. Note at 563.
The court of appeals, in rejecting application of the harmless error rule to misjoinder situations, reasoned that adoption of such a rule would effectively eliminate sec. 971.12(1), Stats. Leach at 356. Section 971.12(3) allows severance as relief from prejudicial joinder even though the joinder was proper. The court of appeals stated, and I agree that “[i]f we were to hold that mis-joinder could be harmless and that reversal is required only when the misjoinder was prejudicial, sec. 971.12(1) *680would no longer be necessary.” Id. at 356. Wright applied a similar analysis to the federal joinder provision, stating:
“In the First Edition of this Treatise, the view was taken that misjoinder cannot be regarded as harmless error by the appellate court. This position was supported overwhelmingly at that time by the cases, and seemed to be supported by logic as well. The argument is that there is no point in having Rule 8 if the harmless error concept is applicable to it. If that concept could be applied, then defendant could obtain reversal only if the joinder were prejudicial to him. But Rule 14 provides for relief from prejudicial joinder, and a defendant can obtain a reversal, in theory at least, if he has been prejudiced even though the joinder was proper. If misjoinder can be regarded as harmless error, then reversal could be had only for prejudice whether the initial joinder was proper or improper. If that were true, it would be pointless to define in Rule 8 the limits on joinder, since it would no longer be of significance whether those limits were complied with, and the draftsmen would have been better advised to allow unlimited joinder of offenses and defendants, subject to the power of the court to give relief if the joinder were prejudicial. They did not follow such a course, and this suggests that misjoinder can never be harmless error.” C. Wright, Federal Practice and Procedure: Criminal 2d, sec. 145, p. 529-30. (Footnotes omitted.)
The legislature, in recognizing that the joinder of certain offenses will unfairly prejudice the accused, has placed a limit on the trial court’s authority to conduct single trials involving multiple charges. The majority’s decision, through the use of its harmless error analysis, abrogates the “limits of tolerance” beyond which any misjoinder is “per se impermissible.” In so doing, the majority permits the benefits of judicial economy to outweigh the defendant’s rights to a trial free from prejudice. Accordingly, I dissent.
*681Because I determine that misjoinder is per se impermissible and that Leach is entitled to a new trial, I do not reach the issue of whether the trial court erred in directing a verdict against the defendant in the second phase of his bifurcated trial.
I am authorized to state that Chief Justice Nathan Heffernan joins in this dissent.