                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 47439

STATE OF IDAHO,                                      )
                                                     )
     Plaintiff-Respondent,                           )    Boise, January 2020 Term
                                                     )
v.                                                   )    Opinion Filed: June 11, 2020
                                                     )
QUENTIN NAVA,                                        )    Melanie Gagnepain, Clerk
                                                     )
     Defendant-Appellant.                            )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       Canyon County. George A. Southworth, District Judge.

       The judgment of the district court is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant
       Quentin Nava. Brian R. Dickson argued.

       Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of
       Idaho. Kale D. Gans argued.
                                 _____________________

STEGNER, Justice.
       Quentin Nava appeals from the judgment of conviction entered against him for one count
of lewd and lascivious conduct and one count of sex abuse. He argues that the district court erred
when it denied his motion to sever the two counts. Nava argues that the similarities between the
two counts did not constitute a common scheme or plan as to justify joinder of the two charges.
The Idaho Court of Appeals agreed, and vacated Nava’s judgment of conviction. The State
petitioned for review, which this Court granted. For the reasons set out in this opinion, we affirm
Nava’s judgment of conviction.
                          I.   FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Nava with one count of lewd and lascivious conduct and one count of
sexual abuse. The charges arose from an approximately two-day period in July 2016 when Nava
was staying in the home of a female friend, her twelve-year-old daughter, who will be referred to
by the initials J.R.R., her twelve-year-old niece, who will be referred to by the initials J.L.R., as
well as other friends and relatives who were staying at the woman’s house.



                                                 1
         On the first night, purportedly during the early morning hours of July 15, 2016, 1 J.R.R.
awoke to find Nava touching, rubbing, and pushing on her vagina outside of her underwear. On
July 16, 2016, during the early morning hours, J.L.R. awoke to the sound of Nava unbuttoning
her pants. Nava then slid his hand down her pants and rubbed her buttocks. J.L.R. ran upstairs
and locked herself in the bathroom. After about fifteen minutes, she left the bathroom and woke
her aunt and informed her about what Nava had done. The woman called law enforcement
regarding J.L.R.’s allegation. During the investigation into J.L.R.’s claims, J.R.R. told her
mother that Nava had also touched her inappropriately. That allegation was also reported to law
enforcement.
         Following its investigation, the State charged Nava in a single complaint alleging one
count of lewd conduct with a minor for the assault against J.R.R. and one count of sexual abuse
of a child under the age of sixteen for the assault against J.L.R. A grand jury returned a single
indictment that included both charges.
         Months later, Nava filed a “Motion to Sever for Improper Joinder Pursuant to ICR 8(a).”
Nava argued that joinder had been improper because the similarities between the two counts
were too unremarkable to demonstrate a common scheme or plan. During the hearing on the
motion, the State argued that it intended to introduce evidence that Nava’s actions had
demonstrated similar “grooming behavior” towards both J.R.R. and J.L.R., such as buying them
drinks from a coffee shop and making inappropriate comments about their physical appearances.
         The district court denied Nava’s motion to sever the two charges. The district court found
that the two counts contained numerous similarities: (1) the assaults occurred in the same room
of the same house; (2) the assaults occurred within a forty-eight hour period; (3) both victims
were twelve-year-old girls; (4) they were both initially asleep when the assaults occurred; and (5)
Nava had been grooming both girls. Accordingly, the district court found that sufficient
similarities existed between the two counts to conclude that joinder was proper.




1
  There appears to be some uncertainty as to the date that Nava allegedly assaulted J.R.R. The State’s superseding
indictment alleged that Nava touched J.R.R. “on or about the 15th day of July 2016.” The law enforcement officer’s
probable cause affidavit stated that the assaults occurred in the early morning hours of July 16 and 17, 2016. During
trial, J.R.R. testified that Nava touched her “maybe close to a week” before he touched J.L.R. However, when
questioned by the defense counsel regarding the assaults, J.R.R. seemed to indicate that the assaults against her and
J.L.R. happened on successive nights.




                                                         2
         In analyzing whether Nava would suffer prejudice from the joinder, the district court
noted that evidence of the other act, i.e., the assault of one girl, would be admissible at the trial of
the assault on the other girl under I.R.E. 404(b). Additionally, the district court noted some
concern about Nava having a separate defense for the allegation made by J.R.R. Nava alleged
that J.R.R.’s allegation may have been tainted by hearing about J.L.R.’s allegation. However, the
district court found that the prejudice relating to the presentation of a separate defense on one of
the charges did not substantially outweigh the probative value of the similarities of the offenses
and evidence that Nava had the opportunity to assault the girls. Accordingly, the district court
denied Nava’s motion to sever the charges.
         Following a jury trial, Nava was convicted of both counts. Following the jury’s verdict,
Nava admitted to a pair of sentencing enhancements. 2 The district court imposed an aggregate
sentence of forty years, with eighteen years fixed.
         Nava timely appealed. The Court of Appeals heard his appeal in State v. Nava, No.
45463, 2019 WL 2060933 (Idaho Ct. App. May 9, 2019). The Court of Appeals held that the
district court erred by denying Nava’s motion to sever because the similarities between the cases
were insufficient to demonstrate a common scheme or plan because the similarities were
“unremarkable.” Id. at *4. Further, the Court of Appeals held that the error was not harmless
because the prejudicial effect of the evidence outweighed any probative value the evidence had
to show that Nava had an opportunity to abuse the two young girls. Id. at *5–6. Accordingly, the
Court of Appeals vacated Nava’s judgment of conviction and remanded the case. Id. at *6.
         The State petitioned for review, which this Court granted.
                                                  II. ANALYSIS
    A.   Clarifying Motions to Join or Sever and Standards of Review.
         On appeal, Nava argues that there is confusion in this Court’s case law regarding the
applicable standard of review used by an appellate court when reviewing a decision concerning
the joinder or severance of charges. To resolve this confusion, Nava contends that district court
decisions concerning I.C.R. 8 and I.C.R. 14 motions should be reviewed de novo because both

2
  These sentencing enhancements were alleged in Parts II and III of the criminal complaint and indictment. The
allegations were that Nava had previously been convicted of statutory rape and failing to register as a sex offender.
These allegations were made in the absence of the grand jury and were not presented to the jury at trial. Prior to
admitting to the prior convictions, Nava waived his right to have a jury determine whether he had been previously
convicted of these crimes.




                                                         3
decisions require the same basic analysis. Nava argues that applying different standards of
review for the two rules gives the State an unfair advantage and allows the State to “manipulate
the scope of review” on appeal. Nava bases this argument on the proposition that, to limit the
scope of review on appeal, the State could file charges together in its original complaint—as was
done here—the propriety of which could only be challenged through an I.C.R. 14 motion to
sever, which is reviewable under an abuse of discretion standard. Conversely, if charges are
brought separately and the State later moves to join them through an I.C.R. 8 motion, the
propriety of this joinder would be reviewed de novo. The standard of review for an abuse of
discretion results in this Court giving deference to the trial court. A de novo standard does not
afford the trial court any deference.
        The State disagrees that there is any confusion in the standard of review. Instead, the
State argues that there is one standard for reviewing the propriety of joinder under I.C.R. 8, and
another for reviewing an order on a motion to sever under I.C.R. 14.
        1. Idaho law provides two independent grounds to sever charges.
        Nava spends significant time in his briefing arguing that rulings on motions filed under
I.C.R. 8 and motions filed under I.C.R. 14 should be reviewed under the same standard.
However, this argument lies on a faulty premise. Nava appears to make this argument believing
that an I.C.R. 14 motion for relief from prejudicial joinder was the exclusive remedy available to
him to object to improper joinder. Nava is incorrect.
        Idaho law provides for two independent grounds upon which a defendant may seek to
have the charges against him severed. 3 Pursuant to I.C.R. 8(a), the State may seek to join two or
more charges in a single charging document where the charges “are based on the same act or
transaction or on two or more acts or transactions connected together or constituting parts of a
common scheme or plan.” I.C.R. 8(a). Idaho law permits a defendant to challenge the State’s
joining of two offenses by arguing that the requirements of I.C.R. 8 have not been met, e.g., the
charges do not constitute a common scheme or plan. See State v. Field, 144 Idaho 559, 565, 165
P.3d 273, 279 (2007); State v. Anderson, 138 Idaho 359, 361, 63 P.3d 485, 487 (Ct. App. 2003).
        In contrast, I.C.R. 14 provides a different procedural mechanism. Pursuant to I.C.R. 14, a
defendant may move to sever charges, even if the requirements of I.C.R. 8 have been satisfied, if

3
 This was first announced in an unpublished opinion by the Idaho Court of Appeals. See State v. Bower, No. 41336,
2015 WL 654467, at *2 (Idaho Ct. App. Feb. 13, 2015).




                                                       4
the joinder of those charges prejudiced the defendant. See State v. Caudill, 109 Idaho 222, 226,
706 P.2d 456, 460 (1985) (italics added) (“Parties properly joined under I.C.R. 8(b) may be
severed under I.C.R. 14 if it appears that joint trial would be prejudicial[.]”); Anderson, 138
Idaho at 361 n.1, 63 P.3d at 487 n.1 (italics in original) (“Rule 14 permits a trial court to sever
defendants, or grant separate trials of counts, if a party is prejudiced by an otherwise permissible
joinder under Rule 8(a).”). Generally, to get to the question of whether joinder was prejudicial, it
is “presume[d] joinder was proper in the first place.” Field, 144 Idaho at 564–65, 165 P.3d at
278–79 (citation omitted).
       In sum, a defendant may file a motion to sever charges he contends were improperly
joined under I.C.R. 8. Consequently, a motion to sever is not limited to I.C.R. 14. Separately,
I.C.R. 14 allows a defendant to sever the charges if the joinder of the charges was prejudicial,
regardless of whether joinder was proper under I.C.R. 8.
       2. Propriety of joinder pursuant to I.C.R. 8 is reviewed de novo and prejudicial joinder
          under I.C.R. 14 is reviewed for an abuse of discretion.
       The standard of review utilized by the appellate courts depends on what type of motion is
appealed by the defendant. If the defendant is appealing from a ruling on a motion to sever based
on I.C.R. 8 (misjoinder), this Court exercises free review. Field, 144 Idaho at 564, 165 P.3d at
278 (citation omitted). In contrast, if a defendant is appealing from a motion to sever based on
I.C.R. 14 (prejudicial joinder), this Court uses an abuse of discretion standard of review. Id.
       Nava contends that State v. Orellana-Castro, 158 Idaho 757, 351 P.3d 1215 (2015),
created confusion as to the relevant standard of review. We agree. Orellana-Castro stated,
       [w]hen the defendant moves for severance under Criminal Rule 14, the alleged
       prejudice is often that evidence of the defendant’s conduct which would be
       admissible in the prosecution of one offense would not be admissible under
       Evidence Rule 404(b) in the prosecution of the other offense if it were tried
       separately. In that circumstance, the analysis is the same as to whether the
       offenses are part of a common scheme or plan permitting joinder under Criminal
       Rule 8(a) and whether the defendant would be prejudiced by joinder because the
       offenses were not part of a common scheme or plan under Evidence Rule 404(b).
       Both of those decisions are reviewed on appeal under an abuse of discretion
       standard. State v. Pepcorn, 152 Idaho 678, 690, 273 P.3d 1271, 1283 (2012)
       (admissibility of evidence under Evidence Rule 404(b)); State v. Dambrell, 120
       Idaho 532, 537, 817 P.2d 646, 651 (1991) (denial of motion to sever).
Id. at 760, 351 P.3d at 1218. This paragraph appears to create a standard of review wholly
separate from the general standard of review applied to rulings on motions to sever based on



                                                 5
improper joinder when the claim of joinder is based on the “common scheme or plan” theory.
See id. It provides that in the instance that joinder is based on the fact that the charges constitute
a common scheme or plan, the ruling is reviewed under an abuse of discretion standard because
it requires the same analysis as a ruling concerning I.R.E. 404(b).
          We now hold that the standard created in Orellana-Castro is not appropriate.
Accordingly, we disavow Orellana-Castro to the extent that it creates a singular standard of
review instead of the two standards of review articulated in Field. In Field, we stated,
          [w]hether a court improperly joined offenses pursuant to I.C.R. 8 is a question of
          law, over which this Court exercises free review. In contrast, an abuse of
          discretion standard is applied when reviewing the denial of a motion to sever
          joinder pursuant to I.C.R. 14; however, that rule presumes joinder was proper in
          the first place. As we are reviewing the propriety of the initial joinder, we exercise
          free review.
Field, 144 Idaho at 564–65, 165 P.3d at 278–79 (footnote omitted) (internal citations omitted).
          We uphold the standards of review articulated in Field. Therefore, a ruling on a motion
under I.C.R. 8, even if based on the common scheme or plan theory, is reviewed de novo. 4 The
standard of review should not be altered just because the analysis for another rule is similar and
reviewed under a different standard. Rather, a proper and complete analysis should analyze each
rule separately. To hold otherwise would confuse the relevant criminal rules and standards of
review.
          Additionally, I.C.R. 14 considers much more than whether the evidence could come in
under I.R.E. 404(b). In analyzing whether joinder is prejudicial, Idaho courts have considered
three potential sources of prejudice when addressing a motion to sever based on I.C.R. 14:
          (1) the jury may confuse and cumulate the evidence, and convict the defendant of
          one or both crimes when it would not convict him of either if it could keep the
          evidence properly segregated; (2) the defendant may be confounded in presenting
          defenses, as where he desires to assert his privilege against self-incrimination with
          respect to one crime but not the other; or (3) the jury may conclude that the
          defendant is guilty of one crime and then find him guilty of the other because of
          his criminal disposition.



4
  Today’s decision in no way changes the standard of review for I.R.E. 404(b) evidence. The standard articulated in
State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009), is the standard to be used to determine the
admissibility of Rule 404(b) evidence. The holding today is limited to rulings on motions made under I.C.R. 8 and
I.C.R. 14.




                                                        6
State v. Williams, 163 Idaho 285, 293, 411 P.3d 1186, 1194 (Ct. App. 2018) (quoting State v.
Abel, 104 Idaho 865, 867–68, 664 P.2d 772, 774–75 (1983)). Therefore, combining the analyses
for I.C.R. 8 and I.C.R. 14 as was done by the Court in Orellana-Castro would foreclose
arguments that a party would have under either rule.
           Consequently, Rules 8 and 14 must be analyzed separately with their proper standards of
review. Going forward, this Court will employ the following analysis: This Court will first
analyze whether joinder was permissible under I.C.R. 8. This Court exercises free review over
this determination. Field, 144 Idaho at 564, 165 P.3d at 278 (citation omitted). If joinder is
determined to be proper, this Court then turns to whether that proper joinder was prejudicial to
either party. 5 This Court reviews this determination for an abuse of discretion. Id.
           3. Nava primarily argues that joinder was improper pursuant to the language of I.C.R. 8;
              accordingly, the decision will be reviewed de novo.
           Nava spends significant time in his briefing regarding the application of I.C.R. 14, all
while arguing that joinder was improper as opposed to prejudicial. The primary arguments, both
below and on appeal, focus on whether joinder was proper. For example, Nava filed a “Motion to
Sever for Improper Joinder Pursuant to ICR 8(a).” Nava’s arguments in his memorandum in
support of his motion to sever focused on whether joinder was proper pursuant to I.C.R. 8.
Additionally, Nava’s arguments to the district court during the motion hearing focused on
whether joinder was proper pursuant to I.C.R. 8. Also during the hearing, the State argued both
that joinder was not prejudicial under I.C.R. 14 and that joinder was proper under I.C.R. 8. The
district court concluded, “the closeness in time and other circumstances leads the Court to
conclude that joinder is proper in this case.” The district court’s conclusion of the propriety of
joinder necessarily was a finding under I.C.R. 8. Accordingly, Nava’s motion for severance was
clearly tied to I.C.R. 8 and propriety of joinder, not limited to an I.C.R. 14 motion to sever for
prejudicial joinder. Finally, Nava’s citation to I.C.R. 14 on appeal is in large part due to the
confusion caused by this Court’s opinion in Orellana-Castro. As a result, this Court will exercise
free review to determine whether the joinder of the charges was proper.
B.        The district court did not err in denying Nava’s motion to sever because the two
          charges contained sufficient common characteristics to constitute a common scheme
          or plan.

5
    This assumes that the issues for both Rule 8 and Rule 14 were properly preserved for appeal.




                                                           7
        The district court ruled that joinder was proper because the charges shared many common
characteristics. The district court stated,
        [Nava] is alleged to have inappropriately touched two young girls, both 12 [years]
        of age, either one or two nights apart in the same room as he was sleeping. I think
        it was in the living room watching TV. There were other people around.
                They’re connected as to place, same room in the same house, time, just a
        day or two apart, victim type, both 12-year-old girls, opportunity. They were both
        sleeping in the same room the defendant was staying. Evidently they had fallen
        asleep there. And additionally, . . . it appears that there was some previous
        instances of grooming in at least what the victims felt were perhaps inappropriate
        comments regarding their appearance, on one of them their breasts.
The district court concluded that these similarities were sufficient to find that joinder was proper.
        On appeal, Nava argues that the district court erred because the two offenses were not
part of a common scheme or plan. Nava argues that this Court and the Court of Appeals have
previously rejected joinder under circumstances similar to those found by the district court as
“too unremarkable” to constitute a common scheme or plan. The State argues that the similarities
found by the district court were sufficient to constitute a common scheme or plan. Further, the
State argues that the evidence that Nava engaged in grooming behavior was sufficient to
demonstrate a common scheme or plan. However, Nava contends that the “grooming behavior”
alleged by the State was not the continued and escalating behavior that this Court typically
requires to find a common scheme or plan.
        Idaho Criminal Rule 8(a) provides,
        [t]wo or more offenses may be charged on the same complaint, indictment or
        information if the offenses charged, whether felonies or misdemeanors or both,
        are based on the same act or transaction or on two or more acts or transactions
        connected together or constituting parts of a common scheme or plan.
        I.C.R. 8. As explained previously, “[w]hether a court improperly joined offenses pursuant
to I.C.R. 8 is a question of law, over which this Court exercises free review.” Field, 144 Idaho at
564, 165 P.3d at 278 (citations omitted). In reviewing whether joinder was proper, appellate
courts may consider what was alleged by the State, not merely what the proof at trial ultimately
showed. Id. at 565, 165 P.3d at 279. However, courts may consider information other than what
is contained in the charging documents to determine whether joinder is proper under I.C.R. 8.
Field, 144 Idaho at 565 n.3, 165 P.3d at 279 n.3 (Two or more offenses may be joined in a single
charging document in two circumstances. First, the charges may be joined if the charges are
based “on the same act or transaction[.]” I.C.R. 8. Second, the charges may be joined if the


                                                 8
charges are based “on two or more acts or transactions connected together or constituting parts of
a common scheme or plan.” Id. Here, the State alleges that the two charged offenses constituted
a common scheme or plan.
       Under the common scheme or plan theory, “at a minimum, there must be evidence of a
common scheme or plan beyond the bare fact that sexual misconduct has occurred with children
in the past.” State v. Johnson, 148 Idaho 664, 668, 227 P.3d 918, 922 (2010). “The events must
be linked by common characteristics that go beyond merely showing a criminal propensity and
instead must objectively tend to establish that the same person committed all the acts.” Id.
(citation omitted). Essentially, “a common scheme or plan embracing the commission of two or
more crimes so related to each other that proof of one tends to establish the other.” Id. (italics in
original) (quotation omitted).
       There are three Idaho Supreme Court cases relevant to the inquiry into whether various
sexual abuse charges are sufficiently similar to constitute evidence of a common scheme or plan.
First, in State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984), this Court held that the
district court properly joined the charges of sexual abuse. Id. at 93, 685 P.2d at 834. The Court
held that the similar facts demonstrated a “common plan, in that Schwartzmiller frequents areas
where young boys may be found, befriends boys with no father figure in the home, entices them
from their homes, lowers their natural inhibitions through the use of drugs and alcohol, and
commits sex acts upon them.” Id.
       Then, in Field, this Court held that the facts alleged by the State were insufficient to
demonstrate a common scheme or plan. 144 Idaho at 566–67, 165 P.3d at 280–81. The district
court granted the State’s motion to join a charge of lewd conduct against a seven-year-old victim
with a charge of sexual battery against a seventeen-year-old victim. Id. at 563–64, 165 P.3d at
277–78. This Court rejected the State’s argument that the two charges were connected as a
common scheme or plan. Id. at 566, 165 P.3d at 280. This Court found it significant that the
victims were different ages, the type of sexual contact was different, and the incidents occurred
more than two years apart. Id. Further, the Court reasoned, “[t]here is nothing to show that at the
time Field committed the offense against T.B. he had a plan to also commit an offense against
H.P.” Id. In conclusion, the Court stated that the only similarities were “that both girls were only
temporarily in the household, that the acts occurred in Field’s home, and that the abuse began




                                                 9
with ‘innocent’ touching[.]” Id. Consequently, we held there that joinder of the offenses was
erroneous. Id. at 566–67, 165 P.3d at 280–81.
         Finally, in Johnson, this Court again held that the facts alleged by the State were
insufficient to demonstrate a common scheme or plan. 148 Idaho at 669, 227 P.3d at 923. In that
case, Johnson was charged with abusing his young daughter. Id. at 666, 227 P.3d at 920.
Although the case involved a determination under Rule 404(b), it is instructive as to what this
Court has previously found to be insufficient to demonstrate a common scheme or plan. 6 During
trial, the district court admitted evidence of the defendant’s previous, uncharged sexual conduct
with his sister when he was between fifteen and sixteen because “(1) both victims were about
seven to eight years old; (2) both victims viewed Johnson as an ‘authority figure’ because he was
an older brother or father; (3) both courses of conduct involved Johnson requesting the victim to
touch his penis.” Id. at 669, 227 P.3d at 923. This Court held that “[t]hese similarities, however,
are sadly far too unremarkable to demonstrate a common scheme or plan in Johnson’s behavior.
The facts that the two victims in this case are juvenile females and that Johnson is a family
member are precisely what make these incidents unfortunately quite ordinary.” Id. (internal
quotation marks omitted).
         It is a difficult burden for the State to establish that the similarities between two charges
demonstrate a common scheme or plan when it comes to sexual abuse crimes. As this Court
stated in Grist, 147 Idaho at 55, 205 P.3d at 1191, “[w]e once again caution the trial courts of
this state that they must carefully examine evidence offered for the purpose of demonstrating the
existence of a common scheme or plan in order to the [sic] determine whether the requisite
relationship exists.”
         Here, the State alleged, and the district court found, the following similarities: (1) the
assaults occurred in the same room of the same house; (2) the assaults occurred within one or
two days of each other; (3) both victims were twelve-year-old girls; (4) they were both asleep
when the assaults occurred; (5) there were other young children sleeping in the room at the time;
and (6) Nava had been grooming both girls. The district court concluded that these similarities


6
 Idaho Rule of Evidence 404(b) does not expressly authorize the admission of evidence to show a “common scheme
or plan.” Rather, the phrase is used as a term of art when referring to “preparation, plan, knowledge, [and] identity.”
State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009) (alteration in original); State v. Marks, 156 Idaho 559,
565 n.2, 328 P.3d 539, 545 n.2 (Ct. App. 2014) (observing that the phrase is “used as legal shorthand”).




                                                         10
were sufficient to constitute a common scheme or plan. We agree that these facts present
sufficient common characteristics to constitute a common scheme or plan.
       Unlike the acts in Field or Johnson in which there were months or years between the
assaults, the assaults in this case occurred within one or two days of each other. Additionally,
both assaults occurred in the early morning hours. The assaults occurred in the same room of the
same house. While it is true that we have previously found the fact of a similar location to be
insufficient, the facts of this case present a unique set of circumstances. Here, there were several
young children sleeping in the room where Nava assaulted the two girls. Nava passed over other
children of various ages specifically to target J.R.R. and J.L.R. This would demonstrate a
common scheme or plan connecting the two charges.
       Further, the State’s evidence suggests that Nava’s actions constituted “grooming”
behavior. “‘[G]rooming’ is conduct intended to foster trust and remove defenses over time
through a pattern of seduction and preparation, resulting in the child being willing and compliant
to the defendant’s sexual abuse.” State v. Coleman, 152 Idaho 872, 877, 276 P.3d 744, 749 (Ct.
App. 2012). Here, during the hearing on the motion to sever, the State asserted that Nava had
been grooming the two girls. First, the State argued that it intended to present evidence that Nava
made a number of inappropriate comments regarding the girls’ physical appearances. He started
with comments such as telling the girls he thought they looked beautiful. Those comments
continued with Nava telling the girls he thought they were attractive. Additionally, the State
alleged that Nava would buy the girls drinks from a local coffee shop or treats from the gas
station, but would not buy anything for the other children. This evidence suggests that Nava
intended to foster trust and lower the girls’ defenses. This type of grooming behavior, paired
with the other characteristics, is sufficient to constitute a common scheme or plan.
       As a result, the district court did not err in concluding that joinder was proper pursuant to
I.C.R. 8.
C.     The district court did not abuse its discretion in denying Nava’s motion to sever
       because joinder did not prejudice Nava.
       Having found that joinder was proper, we turn to whether the joinder prejudiced Nava as
to justify severing the two charges. As noted above, in analyzing whether joinder is prejudicial,
Idaho courts have considered three potential sources of prejudice when considering a motion to
sever based on I.C.R. 14:



                                                11
       (1) the jury may confuse and cumulate the evidence, and convict the defendant of
       one or both crimes when it would not convict him of either if it could keep the
       evidence properly segregated; (2) the defendant may be confounded in presenting
       defenses, as where he desires to assert his privilege against self-incrimination with
       respect to one crime but not the other; or (3) the jury may conclude that the
       defendant is guilty of one crime and then find him guilty of the other because of
       his criminal disposition.
Williams, 163 Idaho at 293, 411 P.3d at 1194 (citation omitted).
       Here, the State argues that the joinder of the two charges was not prejudicial because the
evidence of the assault against one girl would be admissible in the separate trial for the assault of
the other girl. Nava additionally asserts that he had a separate defense relating to J.R.R. Nava
contends that J.R.R.’s allegation may have been tainted by hearing the allegation from J.L.R.
Each of these arguments will be discussed in turn.
       1. The district court did not abuse its discretion in determining that the evidence of the
          assaults would be admissible in separate trials.
       It is well established that evidence of other crimes, wrongs, or acts is not admissible to
prove a defendant’s criminal propensity. I.R.E. 404(b)(1). However, evidence of other crimes,
wrongs, or acts “may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” I.R.E.
404(b)(2).
       Admissibility of evidence pursuant to Rule 404(b) requires the trial court to engage in a
two-tiered analysis. Grist, 147 Idaho at 52, 205 P.3d at 1188 (citations omitted). The first tier has
two steps. Id. “First, the trial court must determine whether there is sufficient evidence to
establish the other crime or wrong as fact.” Id. (citation omitted). Second, the trial court must
determine whether the evidence of the other act would be relevant to a “material and disputed
issue concerning the crime charged, other than propensity.” Id. (citation omitted). This relevancy
determination is reviewed de novo. Field, 144 Idaho at 569, 165 P.3d at 283. The second tier
requires the district court to engage in a balancing test pursuant to Rule 403. Grist, 147 Idaho at
52, 205 P.3d at 1188. This balancing test is reviewed under the abuse of discretion standard. Id.
       Here, the State asserts that the evidence would have been admissible under Rule 404(b)
as evidence of a common scheme or plan. Under Grist, evidence is relevant for a non-propensity
purpose if it is to prove “a common scheme or plan embracing the commission of two or more
crimes so related to each other that proof of one tends to establish the other, knowledge, identity,
or absence of mistake or accident.” Grist, 147 Idaho at 54–55, 205 P.3d t 1190–91 (italics in


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original) (quotation omitted). As established above, the two charges share significant common
characteristics that are so related that the charges constitute a common scheme or plan.
Therefore, the evidence was relevant for I.R.E. 404(b) purposes.
        However, finding the evidence relevant does not end the analysis. Under the second part
of the Grist analysis, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; see also I.R.E. 403.
While it is true that additional allegations of sex crimes carry significant prejudicial risk, here the
prejudicial risk does not outweigh the probative value of this evidence. The two charges are so
related to each other, that the probative value of the other assault is high. Therefore, the district
court did not abuse its discretion in determining that the evidence would have been admissible in
separate trials.
        2. The district court did not abuse its discretion in concluding that joinder was not
           prejudicial due to a separate defense for one of the charges.
        The district court noted some concern that Nava might have a separate defense as to
J.R.R. because she only came forward after hearing about allegations from J.L.R. She stated that
she originally thought she had been dreaming. The fact a defendant may be confounded in
presenting defenses with respect to one charge and not the other charge is a legitimate concern
under I.C.R. 14 for prejudicial joinder. I.C.R. 14; Williams, 163 Idaho at 293, 411 P.3d at 1194
(citation omitted).
        We hold that the district court did not abuse its discretion in concluding that Nava was
not prejudiced by the joint trial. There is nothing that would preclude Nava from presenting his
defense that J.R.R.’s allegation may have been tainted by J.L.R. In fact, such a defense logically
requires evidence of the other allegation be admitted in order to give context for the defense that
the second allegation was tainted. Accordingly, the district court did not abuse its discretion.
                                          III. CONCLUSION
        For the foregoing reasons, this Court affirms Nava’s judgment of conviction.
        Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER CONCUR.




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