dissenting.
Most respectfully, I dissent because I conclude that the trial court abused its discretion in its answer to the question raised by the jurors during deliberation. The jury asked the trial judge whether it could “consider the facts that there was no police report in evidence or no police testimony ... ?”, indicating that one or more of the jurors were provoked by defense counsel’s closing argument that the police would have made a report or testified if Ms. Moran had suffered any injuries. But, the trial court declined to answer this direct question, and instead, instructed the jury that they must “decide this case based on what is in evidence” and “consider the testimony ... physical items of evidence, and any exhibits.” In so doing, the trial court made erroneous and prejudicially misleading statements, which undermined the effect of the reasonable doubt instruction.
The court’s response strongly implies that the jurors must not consider whether the State proved sufficient facts to convict the defendant of the elements of the crimes beyond a reasonable doubt. When a juror is told that she must decide the case based on what is in evidence, in response to a question about considering a potentially significant fact not in evidence, the obvious answer is: No, you may not consider what is not in evidence. Thus, with this response, the trial court gives them a “pass” on the fundamental and crucial part of their deliberations — did the State prove, beyond a reasonable doubt, that the defendant committed the crime.
As was his constitutional right, the defendant did not produce any testimony, physical items, or exhibits. In closing, counsel sought to cast doubt on Ms. Moran’s testimony about the alleged assaults, pointing out that it was neither plausible nor corroborated. In support of his corroboration argument, defense counsel emphasized that there was no police testimony or report. This defense, I submit, was severely undermined when the trial court instructed the jury to consider only the evidence, and implied that they should not draw any inferences from the absence of police testimony. Indeed, when the *59defendant rested without introducing any evidence, the court’s instruction to consider the evidence, without mention of the reasonable doubt standard, could well have been construed as an endorsement of the State’s proof. When a jury is told that it cannot draw inferences from the absence of evidence, the reasonable doubt standard goes out the window.
This cannot be harmless error. I am persuaded that this instruction caused prejudice to the defendant because the jury reported to the court that it was deadlocked, and thereafter, asked questions about the police’s involvement — the question at issue here. Moreover, the jury convicted Petitioner of one assault charge, but acquitted him of the second one, which allegedly occurred some hours later. This sequence of events persuades me that one or more jurors had doubts about Ms. Moran’s testimony, and that such juror(s) may have reached a different conclusion had the court included in its response a reminder that the State was required to prove the defendant’s guilt beyond a reasonable doubt.
Chief Judge BELL authorizes me to state that he agrees with the views set forth herein.