concurring and dissenting.
In Stevens v. State, 582 P.2d 621 (Alaska 1978), the supreme court established a rule based on the ABA Standards Relating to Joinder and Severance, §§ 1.1(a), 2.2(a). This rule permits a defendant an automatic severance at his election where offenses are initially joined solely on the basis that they are of the same or similar character. I do not believe the supreme court’s intention is in doubt or that the language it chose to express that intention in Stevens is ambiguous. The court elected to apply that rule prospectively and not to allow Stevens to benefit from it. Nevertheless, it is clear that the rule was to apply to subsequent cases such as Nix’s. I believe that the supreme court’s holding in Stevens is binding on this court and feel compelled to follow it.
I agree that evidence of each of Nix’s assaults was cross-admissible except evidence of the assault on L.O.M. I also agree that Nix has not demonstrated prejudice from the joinder. Nevertheless, it seems reasonable to assume that the supreme court adopted a per se rule in Stevens simply because it feared subtle prejudice from joinder that could never be demonstrated to the extent necessary to overcome a harmless error rule. Consequently, I believe we are precluded by Stevens from applying a harmless error test in this case. I would therefore reverse Nix’s conviction and grant him new trials on his separate rape and burglary convictions.
In all other respects I join in the court’s decision.