(dissenting).
I would agree that the three theft-by-swindle charges were not part of a single behavioral incident and were therefore improperly joined in one prosecution. However, I cannot agree that the improper joining of these charges was not prejudicial to Ross. I would conclude that because Ross was acquitted of the theft-by-swindle charge involving Sears, evidence related to that charge was not admissible as Spreigl evidence at the trial of the other offenses and, as a result, the admission of evidence from the improperly joined offenses was per se prejudicial.
In the past, this court has employed a Spreigl analysis to determine whether improperly joined offenses are prejudicial. See, e.g., State v. Profit, 591 N.W.2d 451, 460-61 (Minn.1999); State v. Conaway, 319 N.W.2d 35, 42 (Minn.1982). Spreigl analysis is appropriate because if evidence of the improperly joined offenses would have been admitted as Spreigl evidence in separate trials of each offense, then the defendant could not have been prejudiced by the improperly joined offenses. See Profit, 591 N.W.2d at 460-61. Here, however, unlike Profit, Ross was acquitted of one of the misjoined offenses (the Sears swindle). Acquitted conduct is not admissible as Spreigl evidence. State v. Wakefield, 278 N.W.2d 307, 309 (Minn.1979) (stating that “we conclude that under no circumstances *284is evidence of a crime other than that for which a defendant is on trial admissible when the defendant has been acquitted of that other offense.”).
On the acquitted offense there has been no determination at the district court level that its evidentiary basis meets the clear and convincing standard. The only determination at the district court level was the jury’s determination that the offense was not established beyond a reasonable doubt. So when a defendant is acquitted of any of the misjoined offenses, the task of applying the Spreigl analysis on appeal becomes entirely unwieldy. The evidence has not stood the test of the “clear and convincing evidence” standard because the district court never considered whether the Sears charge could withstand the test. It is highly improbable to conclude that evidence related to an acquitted charge could meet the clear and convincing standard. Accordingly, there is no decisive factual finding from the district court level to review on appeal.
While it is theoretically possible for the acquitted offense to meet the clear and convincing standard but not the beyond a reasonable doubt standard, see Wakefield, 278 N.W.2d at 308, I believe it is inappropriate for such a factual determination to be made for the first time on appeal in the face of a not guilty verdict — the distinction is too fine to trust to an appellate court. Accordingly, I cannot conclude that evidence of the acquitted theft-by-swindle offense would have been admitted as Spreigl evidence in separate trials of the other offenses. Due process and fundamental fairness lead me to conclude that the district court’s failure to separate these charges for trial was prejudicial error.
Even if I could conclude that the improper joinder of these offenses may not have prejudiced Ross, it is clear that the prosecution of several smaller separate offenses rather than one larger aggregate offense may give a defendant a higher criminal history score. The parties agree that a higher criminal history score may result in a more severe sentence. Ross may have been prejudiced in the calculation of his sentence due to an illegitimately elevated criminal history score. In an apparent effort to increase Ross’s criminal history score and thereby increase his sentence, the prosecutor made the strategic decision to charge the theft-by-swindle offenses individually and join them together in a single prosecution, rather than charge the offenses as one aggregated count as the law permits. The possibility that this strategy might fail should have been clear in light of our clear statements on the joinder rule in Profit and the fact that the prosecutor argued that the theft-by-swindle offenses were “part of a single behavioral incident” for purposes of join-der under Minn. R.Crim. P. 17.03, but then argued that they were not “part of a single behavioral incident” for purposes of sentencing under Minn.Stat. § 609.035, subd. 1 (2006). Now that the prosecution’s strategy has proven to be unsuccessful, it is not the prerogative of the judiciary to undo the prosecution’s decision and retrospectively determine that a misjoined charge on which the defendant was acquitted would have been admissible as Spreigl evidence had the case been prosecuted in a different way. For this reason and for the reason of fundamental fairness, the judgment of the court of appeals should be affirmed.