(concurring in result in part and dissenting in part).
[¶ 83.] I concur in result in part but dissent on Issue 9.
[¶ 84.] The trial court erred when it instructed the jury that it was supposed to consider the bruises and abrasions caused from the alleged rape in the second charge of aggravated assault.
[¶ 85.] SDCL 23A-6-23 allows joinder of offenses, and in the instant case, joinder of the aggravated assault and rape charges was appropriate. However, we have stated that joinder of offenses is not prejudicial to the defendant when, “the trial court appropriately instructed the jury to separately consider each offense and the evidence applicable thereto.” State v. Busack, 532 N.W.2d 413, 417 (S.D.1995) (emphasis supplied). The trial court’s answer to the jury’s question prejudiced the defendant by ignoring this requirement.
[¶ 86.] As indicated, after hearing argument on this question, the trial court answered in the affirmative with the response: “The answer is yes.” A better answer, as suggested by the State, was: Please re-read the instructions. The correct answer was: “No.”
[¶ 87.] A “yes” answer allowed the jury to convict Moran on the basis of conduct not charged in the information and tended to preclude the jury from returning a verdict on the lesser-included offense of simple assault. Even more prejudicial was the fact that it instructed the jury to convict on aggravated assault based on bruises and abrasions caused by the alleged rape.
[¶ 88.] The majority opinion’s analysis is confusing and incorrect. In paragraph 69, the majority opinion attempts to change the meaning of the jury’s question by stating the jury was asking whether it “should consider the bruises from the sex act as they pertained to the aggravated assault charge of the bite on the breast and cigarette burn.” The jury’s question had nothing whatsoever to do with the “bruises from the sex act as they pertained to the aggravated assault charge of the bite on the breast and cigarette burn.” This is simply a concoction of the majority opinion.
[¶ 89.] The question actually asked by the jury was, “[a]re we supposed to consider the bruises and abrasions caused from the ‘alleged rape’ in the 2nd charge of aggravated assault?” In this context, “supposed to,” translates to “should,” *338which translates to “shall.” By answering “yes,” the trial court was not indicating that the jury could consider the bruises and abrasions as evidence on the credibility of the witnesses. Rather, the trial court was telling the jury that it had to consider the bruises and abrasions caused by the alleged rape on the aggravated assault charge.' The jury was attempting to determine the evidentiary basis of the charge, contrary to the second sentence in paragraph 69 which incorrectly states that the jury, “clearly understood the legal and evi-dentiary basis between the two charges.” Likewise, there is absolutely nothing in the question of the jury that has anything whatsoever to do with credibility. This is another concoction of the majority opinion in an attempt to justify the result.10 The manner in which the majority opinion skews the meaning of the question is central to its reasoning, but when the question is read as it was written by the jury, the answer and the holding are inappropriate.
[¶ 90.] Furthermore, the majority opinion is inconsistent with itself in that paragraph 58 provides, “... the rape and aggravated assault were two separate and distinct acts for which Moran was convicted.” (emphasis supplied). The rape and aggravated assault were “two separate and distinct acts” and therefore it is obvious that the bruises and abrasions supporting the rape should not also be used to convict on aggravated assault.
[¶ 91.] We should reverse Issue 9 and remand to the trial court to vacate the aggravated assault conviction and the sentence thereon and provide Moran a fair trial on aggravated assault and the lesser-included offense of simple assault.
. A review of the trial transcript where this jury question was discussed shows that neither the attorneys nor the court indicated the question had anything to do with the credibility of the witnesses.
Contrary to the assertion in the special concurrence, counsel did contemplate that the rape trauma would be used as substantive evidence of the aggravated assault. Specifically, defense counsel objected to a ''yes” answer arguing that the charging document did not allege the bruises and abrasions to support the aggravated assault charges. She argued, ''I'd say no, Your Honor. First of all, the [charging] information has ... that he burned and bit [her]. There's nothing about any other bruises or abrasions [in the charging information].”
Neither the State's Attorney nor the special concurrence can change the substance and meaning of the jury's question by misinterpreting it to relate to credibility, impeachment, or other non-substantive use.