dissenting. I respectfully dissent. In Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), this court held that where criminal offenses constitute one criminal episode and when a series of acts are committed, that is enough to give the state a right to join them in a single information. See also ARCP Rule 21.1 (b). The majority relies on Rule 22.2(a), which gives a defendant the absolute right of severance when the offenses have been joined solely on the ground that they are of the same or similar character. Here, the state’s reason for joining Sutton’s murder and felon/firearm charges was Sutton used a handgun to kill his victim, so much of the proof in proving both charges is the same. See Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990).
Finally, the majority court seems concerned Sutton is wrongly prejudiced by his 1974 theft conviction being revealed to the jury in the same trial in which he is being tried for murder. Of course, under A.R.E. Rule 609(b), such conviction could not ordinarily have been used against him in his murder case. However, in the circumstances presented, Sutton, as a convicted felon, used a gun to commit murder. As a consequence, the felon/ firearm violation is a current offense which makes his sixteen-year-old theft conviction relevant. I do not believe this is the type prejudice our severance rules protect against.
The trial court had discretion in my view to deny Sutton’s severance motion, and on the record provided this court in review, I cannot say the court abused its discretion.
Hays, J., joins this dissent.