concurring in result and dissenting in part.
I agree with the majority in its conclusion that there were no exigent circumstances justifying the separation of the jury after it had begun deliberations. However, I respectfully dissent from the conclusion that because the final verdict remained subject to change until it had been accepted by the trial court, reversal is required.
In the case before us the verdict, as finally returned and accepted by the trial court, is identical to the verdict as announced by the jury to the trial court prior to its separation. In my view, such clearly demonstrates that the dangers inherent in separation were manifested in the final verdict. Quite simply, the verdict has been demonstrated to be "free of any influence extraneous to the law and evidence presented at trial.' Follrad v. State (1981) Ind., 428 N.E.2d 1201, 1203.
Notwithstanding my disagreement with the rationale employed by the majority for the result reached, I agree that reversal is required. My concurrence is premised upon two errors, both of which call for a new trial.
During trial the State made numerous comments with respect to White's silence after he had received Mirando warnings. The comments were neither inadvertent nor isolated. One such question and its greatly prejudicial answer was as follows:
"PROSECUTOR: Alright, uh, when you first started talking with Mister White would you describe for the jury his demeanor and his, either, cooperativeness or lack of cooperativeness?
DET. YORK: When Mister White was confronted with the allegations that had been made against him, uh, he was seated in a chair. Mister White crossed his legs, crossed his arms across his chest in this manner and placed his head down. He gave no verbal response to any of the questions that were asked. He did not shake his head yes or no when he was asked questions or talked to. He remained in this position for several minutes." Record at 330-31.
Even more damaging, however was a question posed by the State to the defendant upon cross-examination and followed by a piercingly accusatory comment by the prosecutor:
"PROSECUTOR: Okay. Is it fair if I say that you vehemently denied [on direct examination] the accusations that are con*417tained in the charging affidavits that you molested these boys?
MR. WHITE: That's correct, I do.
PROSECUTOR: But when officers Yorg and Fisher first asked you about the accusations and asked you to respond, is it not true that you, as Mister Yorg testified, reacted by dropping your head and folding your arms and looking at the floor?" Record at 765-66.
Thus, in its brief upon appeal, the State is reprehensibly in error when it states that the matter of defendant's post-Miranda silence was "elicited ... not from the defendant." Appellee's Brief at 15. In actuality, and as noted by the State, Bevis v. State (1993) 1st Dist.Ind.App., 614 N.E.2d 599, stated that where, as here, "the State asks the defendant about his silence, the probable impact upon the jury tends to be more harmful than harmless." 614 N.E.2d at 604. It cannot be said with any degree of assurance that the jury was unaffected by the evidentiary harpoon thrust at White. The comments, of and in themselves, call for reversal.
Additionally, the State's use in evidence of prior unrelated bad acts upon the part of White dictate reversal. The rule of Lannan v. State (1992) Ind., 600 N.E.2d 1334, was clearly applicable at the time of White's trial. Lannan was decided October 16, 1992. White's trial took place March 9, 10, and 11, 1993.
In the case before us the State introduced into evidence numerous and varied instances of White's prior unrelated conduct which tended to show that he was generally a bad person who contributed to the delinquency of minors. More prejudicial, however, was the evidence of a depraved sexual instinct. The evidence which came before the jury in these respects was not inadvertent or isolated. The evidence was not otherwise arguably non-prejudicial. See Rafferty v. State (1993) 1st Dist.Ind.App., 610 N.E.2d 880. The prejudice to White is self-evident.
For the reasons set forth herein, I coneur in reversal of the judgment.