dissenting.
1.1 must dissent to Divisions 2 and 3 of this opinion. With regard to Division 2, I cannot agree that the answers the trial court gave to the first two questions submitted by the jury during their deliberations constitute harmless error in this case. The first question posed by the jury was: “Are the medical records available?” It is obvious from the way that question is phrased that the jury assumed that there were medical records based on the testimony offered at trial by the State’s witnesses concerning the examination of the victim at a hospital after the alleged molestation. Although the attorneys for the parties were not certain if there were medical records of the examination, the answer sent to the jury that “[t]he medical record is not available for the jury” did not relay their uncertainty. Indeed, the an*897swer implied there were medical records, but the jury would not receive them.
The jury’s second question, “Could the defense have brought the records to court as evidence?” indicates that the jury did not understand the court’s charge and thought the defendant had a duty to present evidence at trial and that he should have introduced the records of the medical examination of his stepdaughter if the records would have exonerated him or aided his defense. The trial court responded: “If a medical record had been made of the examination, the defense could have brought that into court as evidence.” Since the answer to the first question implied that there were medical records, and the answer to the second question made it clear that the defendant could have presented any medical records as evidence, I cannot agree with the majority that no harm was done to defendant. Absent a reminder to the jury that the State has the burden of proving each element of the crime charged and that the burden never shifts to the defendant to prove his innocence, the answers to these questions constituted impermissible burden shifting. See generally Swint v. State, 199 Ga. App. 515, 516 (1) (405 SE2d 333) (1991).
The special concurrence presumes that this court is barred from considering this issue because it was not preserved by the defendant below. The law is well-established in this state, however, that defendants in criminal cases are exempt from the strict requirements of preserving error from the court’s instruction to the jury when the erroneous instruction is clearly harmful and erroneous as a matter of law. OCGA § 5-5-24 (c); Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973); Carr v. State, 183 Ga. App. 36 (3) (357 SE2d 816) (1987); Sosebee v. State, 169 Ga. App. 370, 372 (3) (312 SE2d 853) (1983). Certainly, instructions to the jury that have the effect of shifting the burden of proof to defendant rise to this level, and consequently, this error must be considered by the court.
2. As indicated in Division 3 of the majority opinion, in response to the jury’s third question, “Is the tape of the girl available for us to see?,” the trial court reopened the evidence and allowed the jury to view the tape, even though the trial court had earlier refused to allow the State to present the tape because the State had not given defense counsel notice of intent to introduce it, and despite the fact that the videotape had not been produced to defendant. After the jury was told that the tape was available, they requested to see it. Although the State assured the defendant and the court that it contained no prejudicial material, it did in fact contain prejudicial material concerning “dirty” movies.
The majority simply finds that the admission of this prejudicial material is harmless error because the defendant did not renew his objection to the admission of the tape after the jury requested to see *898it. The Georgia Supreme Court, however, recently held that objections to illegal evidence can be made anytime before the case is submitted to the jury. Mable v. State, 261 Ga. 379 (1) (405 SE2d 48) (1991). Furthermore, a defendant should not have to continuously object to evidence that has been ruled inadmissible.
Decided January 24, 1992 Reconsideration denied February 19, 1992 Neil A. Smith, James T. Irvin, for appellant. Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.Although the majority opinion does not mention this pertinent fact, defendant moved for a mistrial after the tape was viewed. The trial court denied that motion. “Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. [Cit.]” Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991). “When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982).
. In this case, the trial court simply denied defendant’s motion for mistrial without any curative instruction to the jury. Under the facts of this case, the trial court’s failure to take any action to cure the admission of prejudicial evidence constitutes an abuse of discretion and reversible error.
In sum, the trial court should have granted the defendant’s motion for mistrial, or at least issued a curative instruction to the jury concerning the prejudicial evidence contained in the videotape. Furthermore, the trial court’s response to the first two questions posed by the jury impermissibly shifted the burden to defendant to come forward with exonerating evidence. For these reasons, this case should be reversed and remanded for a new trial.
I am authorized to state that Chief Judge Sognier and Presiding Judge Carley join in this dissent.