                because they were not based on the same act or transaction, they did not
                constitute parts of a common scheme or plan, and they were not connected
                together. Jones further argued that, even if the counts were properly
                joined, they must be severed to prevent the unfair prejudice that would
                arise if the jury heard evidence that he admitted to committing some of
                the counts and was prejudiced into assuming that he committed the
                remaining counts. Jones sought an order severing the counts into 11 trials
                based on the 11 different crime locations.
                            Petitioner opposed severance. Petitioner argued that all 34
                counts were properly joined because they were either connected together
                or constituted parts of a common scheme or plan. Petitioner also argued
                that Jones failed to show that joinder of these counts was so manifestly
                prejudicial that it outweighed the dominant concern of judicial economy.
                Petitioner opined that any fear Jones had that the jury would improperly
                associate evidence from one incident to other incidents could be cured with
                a limiting instruction.
                            Jones replied to petitioner's opposition, the district court
                heard argument on the motion, and the district court made the following
                ruling:
                            I've reviewed the pleadings carefully and I've
                            listened carefully to the argument. And the Court
                            is inclined to grant the defendant's motion
                            pursuant to NRS 174.165, subsection 1, because
                            where the central issue will likely be whether the
                            defendant is a perpetrator in this particular case
                            for the Court to allow these cases to be combined
                            would cause substantial prejudice to the
                            defendant. It does appear to me that there seems
                            to be a common scheme or plan but given the law
                            as I understand it would be it would be extremely
                            prejudicial to the defendant for the Court to

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                                permit this especially in view of the legal analysis
                                in the Tabish case.
                   The district court entered a written order granting Jones' motion to sever
                   in its entirety, and it denied petitioner's subsequent motion to consolidate
                   the counts after hearing argument on that motion. This mandamus
                   petition followed.
                                Petitioner argues that the district court exercised its
                   discretion in an arbitrary manner when it granted Jones' motion to sever
                   on a specter of prejudice and without consideration of the principles of
                   judicial economy.
                   Availability of mandamus relief
                                "A writ of mandamus is an extraordinary remedy, and
                   therefore, the decision to entertain the petition lies within our discretion.
                   Such a writ is available only to compel the performance of an act which
                   the law especially enjoins as a duty resulting from an office, trust or
                   station."   Winkle v. Foster, 127 Nev.      „ 269 P.3d 898, 899 (2011)
                   (citation and internal quotation marks omitted). "[It] will not lie to control
                   discretionary action, unless discretion is manifestly abused or exercised
                   arbitrarily or capriciously."     Round Hill Gen. Improvement Dist. v.
                   Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (citation omitted).
                   "An arbitrary or capricious exercise of discretion is one founded on
                   prejudice or preference rather than on reason, or contrary to the evidence
                   or established rules of law."       State v. Eighth Judicial Dist. Court
                   (Armstrong), 127 Nev.        ,     267 P.3d 777, 780 (2011) (citation and
                   internal quotation marks omitted). "Petitioned ] carr[ies] the burden of
                   demonstrating that extraordinary relief is warranted."        Pan v. Eighth
                   Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
                   Unfair joinder
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                            Even when charges are properly joined, some form of relief
                may be necessary to avert unfair prejudice to the defendant. NRS
                174.165(1) provides that "[i]f it appears that a defendant . . . is prejudiced
                by a joinder of offenses . . . in an indictment . . . , the court may order an
                election or separate trials of counts, . . . or provide whatever relief justice
                requires." The defendant has the burden of demonstrating to the district
                court that the joinder would be unfairly prejudicial; this requires more
                than a mere showing that severance may improve the defendant's chances
                for acquittal.   Weber v. State, 121 Nev. 554, 574-75, 119 P.3d 107, 121
                (2005). Courts construing NRS 174.165(1)'s federal cognate
                            have identified three related but distinct types of
                            prejudice that can flow from joined counts: (1) the
                            jury may believe that a person charged with a
                            large number of offenses has a criminal
                            disposition, and as a result may cumulate the
                            evidence against him or her or perhaps lessen the
                            presumption of innocence; (2) evidence of guilt on
                            one count may 'spillover' to other counts, and lead
                            to a conviction on those other counts even though
                            the spillover evidence would have been
                            inadmissible at a separate trial; and (3) defendant
                            may wish to testify in his or her own defense on
                            one charge but not on another.
                1A Charles Wright, Andrew D. Leipold, Peter J. Jenning, & Sarah N.
                Welling, Federal Practice and Procedure Criminal § 222 (4th ed. 2014).
                Like the federal rule, NRS 174.165(1) "does not require severance even if
                prejudice is shown; rather, it leaves the tailoring of the relief to be
                granted, if any, to the district court's sound discretion."   Zafiro v. United
                States, 506 U.S. 534, 538-39 (1993).
                             "To require severance, the defendant must demonstrate that a
                joint trial would be 'manifestly prejudicial.' The simultaneous trial of the
                offenses must render the trial fundamentally unfair, and hence, result in a
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                violation of due process."    Honeycutt v. State, 118 Nev. 660, 667-68, 56
                P.3d 362, 367 (2002) (emphasis added), overruled on other grounds by
                Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005). In evaluating
                the defendant's motion to sever, the district court must consider "whether
                [the] joinder is so manifestly prejudicial that it outweighs the dominant
                concern [of] judicial economy and compels the exercise of the court's
                discretion to sever." Tabish v. State, 119 Nev. 293, 304, 72 P.3d 584, 591
                (2003). We think the district court must also carefully consider other, less
                drastic forms of relief before ordering a severance.     See id. ("When some
                potential prejudice is present, it can usually be adequately addressed by a
                limiting instruction to the jury. The jury is then expected to follow the
                instruction in limiting its consideration of the evidence.").
                Discussion
                             Having considered the petition and the answer, we conclude
                that relief is warranted. Severance is an extraordinary remedy that must
                be used with great caution and care. Here, it is not apparent that the
                district court gave due consideration to the tremendous impact that 11
                separate trials would have on judicial resources and public funds. Nor is
                it apparent that the district court considered forestalling the real-party-in-
                interest's prejudice through lesser forms of relief—such as providing
                cautionary instructions on the admissibility of evidence and the need to
                compartmentalize the evidence or by grouping the counts into fewer trials.
                Consequently, we conclude that the district court manifestly abused its
                discretion by severing the 34 counts into 11 trials without due
                consideration to the issues at hand, see Patterson v. State, 129 Nev. ,
                   , 298 P.3d 433, 439 (2013), and we



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                                     ORDER the petition GRANTED AND DIRECT THE CLERK
                      OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
                      district court to vacate its order granting the real party in interest's
                      motion to sever counts and reconsider the motion to sever counts giving
                      due consideration to the dominant concern of judicial economy, whether
                      joinder is unfairly prejudicial, and the possibility of less drastic forms of
                      relief. 1



                                                   Piekuth,
                                               Pickering
                                                                            , J.



                         CI—Xect ck—Sc5                                                      J.
                      Parraguirre                                Saitta


                      cc:     Hon. Jessie Elizabeth Walsh, District Judge
                              Attorney General/Carson City
                              Clark County District Attorney
                              Anthony M. Goldstein
                              Eighth District Court Clerk




                              1 We
                                 deny petitioner's motion for stay of the district court
                      proceedings.

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