dissenting: It is impossible for me to conclude that John McGinnes received a fair trial. He was deprived of fundamental constitutional protections that cannot be swept away under a harmless error analysis. Not only was there an ex parte communication between the trial judge and the jury that drove a stake into the integrity of the process, the damage was compounded by *931a supplemental jury instruction that made tatters of the concept of reasonable doubt.
This case boiled down to whether the jury was going to believe A.C. beyond a reasonable doubt. Her credibility was a central issue for the jury.
A.C. did not accuse McGinnes until 9 months after the incident. Aside from her mother, Police Chief Rocky Whinery and Officer Floyd Ash were the first persons in authority to interview A.C. What A.C. told them could be crucial in assessing her credibility. However, neither Whinery nor Ash testified at trial. It is entirely understandable that during jury deliberations the questions arose: Where is Whinery and why did he not testify?
It is not clear where Judge Sell was during the jury deliberations or exactly how he was told the jury was discussing why Whineiy did not testify. No record was made immediately after the ex parte communication or at any later time. We are only given the recollection of McGinnes’ attorney when he testified at the motion for new trial. He testified:
“Judge Sell advised Ms. Dunning [assistant county attorney] and I about this situation where he was outside of the door, that he overheard one of the witnesses [sic] ask, ‘I wonder why we did not hear the testimony of Police Chief Rocky Whinery?’ and then Judge Sell told us or advised us that he had advised the jurors at that time that ‘Rooky Whineiy is at the law enforcement academy and was unable to be present at this trial. You should not concern yourselves with his absence, as to bring him back for the trial would have interfered with his training, and his absence here should not concern you.’ ”
The above ex parte comments are tantamount to a jury instruction admonishing the jury not to concern itself with the omission of Whinery’s testimony or why he was not called as a witness. Thus, there is not only a denial of McGinnes’ right to be present and his right of counsel, but also the comments are substantive misstatements of law that have a direct impact upon the issue of A.C.’s credibility and the fundamental concept of reasonable doubt.
The majority concludes Judge SelTs ex parte comments were harmless error because there has been no showing of actual prejudice. In reaching its conclusion the majority seemingly treats the issue as one of judicial misconduct that does not directly implicate *932the substantive issues being considered by the jury. If that were the case, I would agree that our law requires that an appellant demonstrate the conduct prejudiced his substantial rights. See State v. Walker, 252 Kan. 279, 290 845 P.2d 1 (1993). However, that is not all that occurred in the case now before us. As I have already stated, Judge Sell’s ex parte comments conveyed erroneous substantive instructions to the jury that denied McGinnes due process of law. Consequently, prejudice to the defendant is built into the process itself, and it is impossible to conclude by any objective standard that the error was harmless.
I turn next to Judge Sell’s unsolicited supplemental instruction to the jury that the majority considers to be a benign restatement of instructions of law already given to the jury.
L.C. is A.C.’s mother. Her testimony focused primarily upon A.C. telling her what had happened. After the jury had deliberated for several hours (and after Judge Sell had told them not to be concerned with the missing testimony of Whinery), a request was made for a complete readback of L.C.’s testimony. My conclusion is that there were jurors who wanted to know exactly what A.C. had told her mother.
Immediately after the readback, Judge Sell gave the following unsolicited supplemental instruction to the jury:
“Let me just make a couple of comments. And, that is, you have heard the testimony of each of the witnesses. You have heard the Court’s instructions as to the law which applies to this case, and you have those instructions with you in the jury room, and they are in writing. And you have been given the exhibits which have been offered and received in evidence.
“So I would ask you to focus your minds on the testimony that you have heard. I would ask you to re-read the instructions that I have given you, and I would ask you to look at the exhibits that have been admitted into evidence.
“And if you will concentrate on these things and on what has been presented and not allow yourselves to be diverted or not try to speculate on things that have not been presented, I think it will be helpful to you in arriving at a decision.” (Emphasis added.)
There is no doubt in my mind that the above supplemental instruction was related to the previous ex parte communication Judge Sell had with the jury and compounded the damage that had been done. Additionally, the supplemental instruction insidiously shifts *933the burden of proof by requiring a defendant to present evidence to establish reasonable doubt. Consequently, I conclude the supplemental instruction was erroneous.
The error in this trial was substantial and cumulative. The process by which a jury reaches a verdict was directly and adversely implicated by the trial error. One cannot reasonably or objectively conclude the error was harmless. I would reverse McGinnes’ conviction and grant him a new trial.