concurring.
11(J agree with the majority that this case must be affirmed in accordance with the precedent set forth in Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006). However, I write separately to address the troubling practice of permitting the court reporter to re-present evidence for the jury while neither the court, the defendant, nor the parties’ counsel are present in the courtroom.
In interpreting Arkansas Code Annotated section 16-89-125(e) (Repl.2005), we have stated that its purpose is to protect against misinformation communicated to the jury. Anderson, 367 Ark. at 540, 242 S.W.3d at 232-33 (citing Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994)). In situations such as this one, where the jury is brought into the courtroom for communication with court personnel outside of the presence of the court, the parties, and their counsel, the danger of communicating misinformation is particularly high — not because the court reporter will necessarily misrepresent the evidence, but because the usual safeguards inherent in courtroom settings are absent. Had there been some allegation of misconduct in this case, either on the part of the court reporter or the jurors, Jackson and his counsel would not have the benefit of a record to show prejudicial error. In essence, the jury could have continued its deliberations in the presence of the court reporter, or even allowed the court reporter to participate in its deliberations, and neither Jackson nor the court would have known.
Moreover, a court reporter who is representing evidence for the jury may be unable 117to simultaneously create a record of the re-presentation. We have stated that the State cannot meet its burden of rebutting the presumption of prejudice when there is no record of what occurred during the re-presentation of the evidence. Davlin v. State, 313 Ark. 218, 221-22, 853 S.W.2d 882, 884-85 (1993). I agree with the majority that the instant case differs from the fact situation presented in Dav-lin, wherein there was no assurance that the replaying of a videotape of the victim’s statement omitted portions that were not admitted into evidence at trial. Id. Here, there is no dispute that the evidence represented for the jurors had already been admitted and viewed by them. However, the manner in which the evidence was represented makes review of the re-presentation difficult, if not impossible.
Because the evidence re-presented for the jury in the present case had been admitted at trial, I cannot say that there was reversible error under this court’s decision in Anderson v. State, supra.1 Nonetheless, the better practice would have been for the circuit court to require the presence of Jackson and counsel for both sides, and the court itself, during the representation of the testimony. Such a scenario would have resulted in far less risk of reversible error and far greater confidence in the outcome of the trial. For these reasons, I concur.
CORBIN, J., joins this concurrence.
. I remain convinced that the majority opinion in Anderson failed to abide by our prior holding in Davlin v. State, supra, requiring the State to rebut the presumption of prejudice resulting from noncompliance with section 16-89-125(e). See Anderson v. State, supra (Imber, J., dissenting).