dissenting.
A lynchpin of our judicial system is the principle that the jury will only apply the law as described by the trial judge. A jury is not per*475mitted to engage in a private investigation of the law or to consult outside sources to untangle what the trial judge meant in his instructions. Yet, that is precisely what the jury did in this criminal case. Because I believe defendant was prejudiced by the jury’s consideration of extraneous material and, therefore, is entitled to a new trial, I respectfully dissent.
I recognize that in Lindsey v. Boddie-Noell Enters., Inc., 355 N.C. 487, 562 S.E.2d 420 (2002), our Supreme Court, in a per curiam opinion, reversed this Court “for the reasons stated in the dissenting opinion” and that Judge Tyson’s dissent held that dictionary definitions do not constitute “extraneous information” for purposes of Rule 606 of the Rules of Evidence. Lindsey v. Boddie-Noell Enters., Inc., 147 N.C. App. 166, 179, 555 S.E.2d 369, 378 (2001) (Tyson, J., dissenting). I firmly disagree with this conclusion, as does the majority, and urge the Supreme Court to revisit it. In any event, I do not believe that this holding — in a civil case — should control in criminal cases.
Significantly, Judge Tyson!s dissent stressed the fact that the case before the Court was “a civil action,” requiring the trial court to apply a different standard than in criminal cases. Id., 555 S.E.2d at 377-78. The dissent even referenced favorably State v. McLain, 10 N.C. App. 146, 148, 177 S.E.2d 742, 743 (1970), and described its holding as follows: “Although it was improper for the jury to obtain and read the [dictionary] definition [of uttering], we held that no reversible error had occurred” when “[t]he trial court instructed the jury to disregard the definition and defendant had not shown any 'prejudice by the jury conduct.” Lindsey, 147 N.C. App. at 180, 555 S.E.2d at 378-79. See McLain, 10 N.C. App. at 148, 177 S.E.2d at 743 (“It was improper for the jury to obtain and read a dictionary definition of one of the offenses charged in the bill of indictment; however, the able trial judge properly instructed the jury to disregard the definition taken from the dictionary and the defendant has not shown that he was prejudiced in any way by the conduct of the jury.”). Judge Tyson’s dissent contains no indication that he believed McLain should be overruled. Nor am I willing to conclude that the Supreme Court intended to do so sub silentio.
Both the federal and state constitutions set forth various rights unique to criminal trials, including the right of the defendant to be present in person during the course of his trial. State v. Buchanan, 330 N.C. 202, 209, 410 S.E.2d 832, 836 (1991) (observing that the defendant’s right to be present throughout his trial arises out of the accused’s Sixth Amendment right to confront witnesses and other evi*476dence against him and his due process “right to a ‘fair and just’ hearing”). Under the federal constitution, a defendant is guaranteed the right to be present at each critical stage of his trial. Id. at 217, 410 S.E.2d at 841. The North Carolina constitution, N.C. Const, art. I, § 23, is broader, assuring the accused “the right to be present in person at every stage of his trial.” State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987) (emphasis added). See also Buchanan, 330 N.C. at 217, 410 S.E.2d at 841 (“Under the state constitution, defendant’s actual presence is required throughout his trial, not just at particularly important junctures.”).2
Our Supreme Court has held that the state constitutional right to be present was violated in a number of instances involving interactions with the jury. In Payne, the Court held that the right was violated when the trial judge gave admonitions to the jury in the jury room without the defendant being present. 320 N.C. at 140, 357 S.E.2d at 613. In Monroe, the Court ordered a new trial when the trial judge conducted unrecorded conferences at the bench with jurors. 330 N.C. at 850, 412 S.E.2d at 654. Likewise, the Court found error when the trial judge passed a note to an alternate juror without revealing its contents to defendant or its counsel, although the Court held the error to be harmless because the transcript reflected the benign nature of the note. State v. Jones, 346 N.C. 704, 710, 487 S.E.2d 714, 718 (1997).
As these cases reflect, a defendant is entitled to be present whenever the jury is instructed. When a jury engages in self-help and consults with sources other than the trial judge to clarify the governing the law, it is effectively instructing itself. I do not believe that the Lindsey holding, which appears to permit a jury to consult a dictionary, can be reconciled with a criminal defendant’s constitutional right to be present when the jury is instructed. At the least, I believe that Lindsey’s holding that a dictionary does not constitute extraneous material would deny a defendant the fair and just hearing mandated by the Due Process Clause of the federal constitution. See State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991) (holding that the right to a “fair trial by an impartial jury” includes the requirement that “the jury be free from outside influences” such as a dictionary); State v. Harris, 340 S.C. 59, 62-63, 530 S.E.2d 626, 627 (2000) (“The *477Sixth and Fourteenth Amendments of the United States Constitution guarantee a defendant a fair trial by a panel of impartial and indifferent jurors. ... To safeguard these rights, the jury must render its verdict free from any outside influences,” including dictionary definitions.); State v. Richards, 195 W. Va. 544, 550, 466 S.E.2d 395, 401 (1995) (holding that in order to ensure a criminal defendant a fair trial, the trial court was required to determine what effect a juror’s misconduct in referring to a dictionary had upon the jury’s verdict).
I would also note that Lindsey appears to stand alone with respect to its “extraneous information” holding. I have located no other decision in any jurisdiction, state or federal, holding that a dictionary does not constitute extraneous material. Although the Lindsey dissent adopted by our Supreme Court cites two cases, neither one reaches that conclusion. In Dulaney v. Burns, 218 Ala. 493, 497, 119 So. 21, 25 (1928), overruled on other grounds by Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala. 1984), the Alabama Supreme Court specifically concluded that a dictionary considered during a jury’s deliberations was extraneous matter, but held “the question is whether such extraneous matter, in this instance a Webster’s School Dictionary, was prejudicial to appellant.” The second case, State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227, 252 (1984), cert. denied, 470 U.S. 1050, 84 L. Ed. 2d 814, 105 S. Ct. 1749 (1985), only held that use by a jury of a dictionary does not give rise to a presumption of prejudice; a defendant must still demonstrate actual prejudice. The Connecticut Supreme Court continued:
We hasten to add that the fact that we have found no error in this case does not mean that a trial judge is authorized to furnish a dictionary to a jury upon their request. There may be situations where furnishing a dictionary to ¿jury may create a presumption of prejudice arising out of injecting unauthorized informational and definitional material into the jury instructions; but that is not this case.
Id. at 738, 478 A.2d at 252 (internal citation omitted).
Indeed, with the exception of Lindsey, the universal rule appears to be that a dictionary constitutes extraneous material that may not be consulted by a jury. As the Maryland Court of Appeals has explained, the only debate elsewhere revolves around whether prejudice must be shown and, if so, how.
The problem of the effect on proceedings where one or'more jurors have consulted a dictionary during deliberations has been *478presented in a number of decisions in other states. It appears to be the near universal consensus that a new trial is not awarded, simply because a dictionary was before the jury. The court must conclude that there was prejudice to the complaining party. Analysis by other courts, however, diverges in the approach taken to determine whether use of a dictionary was prejudicial. . . .
Some decisions require that the movant for a new trial essentially prove prejudice in fact. In the absence of such a showing, the new trial is denied. . . .
Other courts have presumed prejudice based solely on use of a dictionary during jury deliberations, with the burden on the adversary to rebut. Under these cases the court may conclude that there is prejudice without proof of the purpose for which the book was consulted.
Wernsing v. Gen. Motors Corp., 298 Md. 406, 414-15, 470 A.2d 802, 806-07 (1984) (internal citations omitted). See also United States v. Gillespie, 61 F.3d 457, 459 (6th Cir. 1995) (“A jury’s use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se.”); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 924 (10th Cir. 1992) (upholding district court’s conclusion that the jury’s unauthorized consultation of a dictionary was sufficiently prejudicial to warrant a new trial); Fulton v. Callahan, 621 So. 2d 1235, 1248 (Ala. 1993) (holding that definitions of legal terms and concepts from general reference books, such as dictionaries, are extraneous matters); Wiser v. People, 732 P.2d 1139, 1141-42 (Colo. 1987) (en banc) (holding that “[t]he court of appeals correctly determined that the resort of one of the jurors to a dictionary for a definition of the crime with which the defendant was charged was improper,” but that the court should have applied an objective test to determine whether there was a “reasonable possibility” that the dictionary affected the verdict (internal quotation marks omitted)); Williamson, 72 Haw. at 103, 807 P.2d at 596 (holding that “a juror’s obtaining of extraneous definitions or statement of law differing from that intended by the court is misconduct which may result in prejudice to the defendant’s constitutional right to a fair trial”); Pietrzak v. Rush-Presbyterian-St. Luke’s Med. Ctr., 284 Ill. App. 3d 244, 251, 670 N.E.2d 1254, 1259 (1996) (“When the jury consults outside sources for definitions of words contained in jury instructions, the court must determine whether the definitions conflict or substantially differ from the instructions.”), leave to appeal denied, 171 Ill. 2d 585, 577 N.E.2d 971 (1997); People v. Messenger, 221 Mich. App. 171, 176, 561 N.W.2d 463, *479466 (1997) (adopting the Sixth Circuit rule “that a jury’s use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se”), leave to appeal denied, 456 Mich. 955, 577 N.W.2d 688 (1998); Allers v. Riley, 273 Mont. 1, 8, 901 P.2d 600, 605 (1995) (“probable prejudice and potential injury was apparent from the fact that the jury used extraneous materials — two dictionaries — to redefine a critical element of this negligence case”); Priest v. McConnell, 219 Neb. 328, 337-38, 363 N.W.2d 173, 179 (1985) (holding that a jury’s use of dictionary definitions constitutes misconduct, but that a new trial is warranted only when a party demonstrates prejudice); State v. Melton, 102 N.M. 120, 123, 692 P.2d 45, 48 (N.M. Ct. App. 1984) (holding that when one juror consulted a dictionary and related the definitions to other jurors, the jury was exposed to extraneous information, giving rise to a presumption of prejudice); Hillier v. Lamborn, 740 P.2d 300, 305 (Utah Ct. App.) (“the dictionary was ‘extraneous information’ ” under Utah’s Rule 606(b), requiring a determination whether use of the dictionary was prejudicial), cert. denied, 765 P.2d 1277 (Utah 1987); State v. Ott, 111 Wis. 2d 691, 696, 331 N.W.3d 629, 632 (Wis. Ct. App. 1983) (concluding that “given the nature of the extraneous material [a dictionary definition] brought to the jury’s deliberations, the probable effect upon a hypothetical average jury would be prejudicial”). See generally Jean E. Maess, Annotation, Prejudicial Effect of Jury’s Procurement or Use of Book During Deliberations in Criminal Cases, 35 A.L.R.4th 626 (1985 & Supp. 2005) (collecting and analyzing state and federal cases discussing the prejudicial effect of the jury’s procurement or use of a book, including a dictionary, during deliberations in a criminal case when the book consulted was not formally introduced into evidence at trial).
In sum, if I were writing on a blank slate, I would hold in accordance with the rest of the country that a jury’s unauthorized consultation of a dictionary constitutes consideration of extraneous information under Rule 606. Nevertheless, in criminal cases, I believe that such consultation necessarily constitutes a violation of a defendant’s constitutional rights.
As such, the State should have been required to demonstrate that the jury’s conduct was harmless beyond a reasonable doubt.3 See *480Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir.1987) (“[U]nauthorized reference to dictionary definitions constitutes reversible error which the State must prove harmless beyond a reasonable doubt.”). I do not believe that the State has met its burden.
The critical issue in this case was whether the State had proven malice. This Court set out the various methods of proving malice in State v. Fuller, 138 N.C. App. 481, 484, 531 S.E.2d 861, 864, disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000) (internal quotation marks omitted):
The element of malice may be established by at least three different types of proof: (1) express hatred, ill-will or spite; (2) commission of inherently dangerous acts in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; or (3) a condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.
The State, in this case, relied upon the second type of malice, also called “depraved-heart malice.” Id. (internal quotation marks omitted). The trial court instructed the jury consistent with that definition.
Following those instructions, it is undisputed that the jury foreman read to the rest of the jury a series of dictionary definitions regarding key words contained in the trial judge’s definition of the word “malice,” including “recklessly” and “wantonly.” Using the dictionary, the jury foreman told the other jurors that “recklessly” means “lack of due caution,” while “wantonly” means “arrogant recklessness of justice or the feelings of others.” Because the definition of “wantonly” refers back to “recklessness,” it thus incorporates the concept of a “lack of due caution.” In other words, based on the dictionary, the jury could believe that both the “reckless” and “wanton” components of the trial court’s definition of “malice” could be met if the jurors concluded that there had been a “lack of due caution.”
I believe that the dictionary diluted the degree of recklessness necessary for a finding of “malice.” Both this Court and the Supreme Court have recognized that “recklessness” encompasses a range of conduct of various degrees of severity. The Supreme Court stated in State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000), that “[t]he distinction between ‘recklessness’ indicative of murder and ‘recklessness’ associated with manslaughter ‘is one of degree rather than kind’ ” and that instructions must ensure that the jury does not confuse the “high *481degree of recklessness” required for second degree murder with “mere culpable negligence.” Id. at 393-94, 527 S.E.2d at 303 (quoting United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984), cert. denied, 469 U.S. 1193, 83 L. Ed. 2d 973, 105 S. Ct. 970 (1985)). The Court has emphasized that, standing alone, culpable negligence supports only a verdict of involuntary manslaughter. See id. at 395, 527 S.E.2d at 304; State v. Wilkerson, 295 N.C. 559, 582, 247 S.E.2d 905, 918 (1978). The Court found no error in Rich because the trial court “never mentioned culpable negligence” and, in light of the instructions, the Court could not “conclude that the jury could have confused malice with culpable negligence.” 351 N.C. at 396, 527 S.E.2d at 304.
I believe that the juror’s reference to the dictionary created the potential for just such confusion. The focus on “lack of due caution” risks blurring the distinction between involuntary manslaughter and second degree murder. As this Court has explained, the recklessness referred to in second degree murder instructions “continues to require a high degree of recklessness to prove malice” and the instructions to the jury must ensure that the jurors understand “the high degree of recklessness required for murder as opposed to the lesser degree required for manslaughter.” State v. Blue, 138 N.C. App. 404, 410, 531 S.E.2d 267, 272, aff’d in part, rev’d in part on other grounds, per curiam, 353 N.C. 364, 543 S.E.2d 478 (2000).
Although I recognize that the trial judge’s instructions included terms and phrases that ordinarily would be sufficient to ensure that the jury found the requisite high degree of recklessness, the incorporation of the milder concept of “lack of due caution” into both recklessness and wantonness risks allowing a verdict based on the lesser standard of “culpable negligence.” “Culpable negligence” is “[negligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one’s actions.” Black’s Law Dictionary 1062 (8th ed. 2004).
Because I do not believe that the State can demonstrate that the jury’s reference to the dictionary definitions of “recklessly” and “wantonly” was harmless beyond a reasonable doubt, I would remand for a new trial. Based on the record in this case, I simply cannot conclude that the jury would have convicted defendant of second degree murder no matter what.
I know of no words that would sufficiently condemn defendant’s conduct, and he should be severely punished. He is, however, entitled *482to be convicted of second degree murder based on a trial judge’s instructions rather than on a dictionary definition.
. The North Carolina Supreme Court has distinguished between capital and non-capital cases by providing that this right may be waived only in non-capital cases. State v. Monroe, 330 N.C. 846, 849, 412 S.E.2d 652, 654 (1992). In all cases, however, the State may show that any violation of this right was harmless beyond a reasonable doubt. Payne, 320 N.C. at 140, 357 S.E.2d at 613.
. I recognize that, in McLain, this Court did not apply the harmless beyond a reasonable doubt standard. In that case, however, the jury’s consultation of the dictionary was discovered prior to the conclusion of the trial and the trial court instructed the jury to disregard the dictionary definition. Since we presume that a jury follows the trial court’s instructions, the constitutional concerns existing in this case were not present in McLain.