dissenting.
Iisl respectfully dissent. This case should be reversed and remanded because the circuit court erred in ordering the court reporter to play the reporter’s backup audio tape of the testimony of Dr. Peretti for the jury when the circuit judge, the defendant, and the parties’ counsel were not present in the courtroom. Contrary to the suggestions of the majority and the concurrence, this case is distinguishable from Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006); the Anderson case does not require that the instant case be affirmed.
In Anderson, we held that the circuit court did not err, in violation of section 16-89-125(e), when it allowed the jury during deliberations to receive and replay a tape recording of Anderson’s statement that had been played at trial and received into evidence. Presumed prejudice was overcome in that case because “the jury received an admitted exhibit where there was no danger of additional evidence being introduced by giving the exhibit to the jury during deliberations.” Anderson, 367 Ark. at 541, 242 S.W.3d at 233. See also Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006) (stating that, pursuant to section 16-89-125(e), the circuit court did not err in making available to the jury during deliberations taped statements that had already been played for the jury during trial and admitted into evidence). Here, the back-up audio tape was not played to the jury at trial, was never 119admitted into evidence, and was not made part of the record, making it impossible for this court to review.1
What further distinguishes the instant case from Anderson is that, in Anderson, no outside party joined the jury during deliberations. The court reporter’s presence, outside the presence of the circuit court, the defendant, and the parties’ counsel, is prejudicial on its face. Section 16-89-125(e) sets forth the procedure by which a circuit court must proceed when the jury has a disagreement or desires to be informed on a point of law. It specifically requires that the jury be conducted into court, and at that time, the information required must be given in the presence of, or after notice to, counsel. That is the sole procedure to be followed. The statute in no way authorizes what took place in this case, and what distinguishes this case from Anderson, is that the court reporter was left alone with the jury to play a back-up audio tape of testimony admitted at trial. Noncompliance with section 16-89-125(e) gives rise to a presumption of prejudice, which the State has the burden of overcoming, and the State has in no way done so in the instant case. Because the procedure used in this case clearly violates the statutorily mandated procedure and because Jackson’s due-process rights under the United States Constitution and Arkansas Constitution were violated, this case should be reversed and remanded.
. There was no objection made that the back up audio tape was not evidence pursuant to Arkansas Code Annotated § 16-89-125(e).