concurring: I respectfully concur in the result, but I am unable to agree with the majority’s analysis on the “missing cassette tape” issue. I conclude the district court abused its discretion by not questioning the juror who reported that Roderick Leaper took the cassette tape and put it in his pocket as he left the witness stand. However, I do not believe this error affected the outcome of Tyrone Leaper’s trial.
The facts are unusual. Roderick Leaper, the defendant’s brother, testified at trial that his cousin, Travis, was the only person with a gun on the night of the shooting. To impeach this testimony, the State, in the presence of the juiy, moved to admit into evidence a cassette tape of Roderick’s prior statement to tire police in which Roderick did not mention anything about Travis having a gun. Defense counsel objected and the district court took the motion under advisement. Later, when the judge wanted to listen to the cassette tape, it was discovered missing. The bailiff notified the judge that a juror reported that Roderick took the cassette tape and put it in his pocket as he left the witness stand. Roderick was questioned about the whereabouts of the tape, and a deputy searched him, but the tape was never found.
As a result of these developments, Leaper moved for a mistrial or in the alternative Leaper requested the court to question the juror to learn what the juror witnessed and whether other jurors saw Roderick take the tape. The State argued that Roderick’s action was part of his demeanor and the jury could use anything they saw from him on the witness stand to judge his credibility. The district court denied Leaper’s motion in its entirety and stated that the jury had a duty to determine the credibility of witnesses. The district court rejected Leaper’s argument that he might be prejudiced by the fact that a juror saw his brother take an exhibit from the courtroom. According to the district court, it was not an uncommon occurrence for a witness to walk out of the courtroom with a piece *914of evidence. After the trial, Leaper renewed his arguments in a motion for a new trial which was denied by the district court.
The majority analyzes the issue in terms of juror misconduct and concludes that no juror misconduct was committed. However, juror misconduct is not the issue. Leaper’s motion for new trial did not even allege juror misconduct. Leaper’s primaiy argument is that prejudicial conduct which occurred in the courtroom made it impossible for him to receive a fair trial.
The majority agrees with the State that even if a juror saw Roderick put the cassette tape in his pocket as he left the witness stand, this was simply part of the witness’ demeanor which could be considered by the jury in judging credibility. On this point, I disagree. “Demeanor” is defined as “[o]utward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions”; “demeanor evidence” is “[t]he behavior and appearance of a witness on the witness stand, to be considered by the fact-finder on the issue of credibility.” (Emphasis added.) Black’s Law Dictionaiy 463, 596 (8th ed. 2004).
Here, a juror reported that Roderick took the cassette tape and put it in his pocket as he left the witness stand, after he had completed his testimony. The fact that a juror may have observed Roderick take an exhibit as he left the courtroom does not fall within the definition of witness demeanor. Rather, this was extrinsic evidence that was not legitimately before the factfinder. Leaper may well have been prejudiced by the fact that a juror saw his brother take the exhibit. The juror apparently realized this behavior was improper or else the juror would have never reported the conduct to the bailiff in the first place.
If, in fact, a juror saw Roderick take the cassette tape and put it in his pocket as he left the witness stand, the juror should have been instructed to disregard this conduct in deciding Leaper’s guilt or innocence of second-degree murder. Under the unusual circumstances presented in this case, I conclude the district court abused its discretion by not at least questioning the juror to learn what the juror knew about the missing exhibit, how the information affected the juror, and whether the juror shared the information with other members of the jury.
*915Nevertheless, I do not believe this error affected the outcome of Leaper’s trial. The evidence against Leaper was overwhelming, considering that he was engaged in a physical fight with the victim moments before the victim’s death and two eyewitnesses identified Leaper as the shooter. Had the cassette tape containing Roderick’s prior inconsistent statements been played to the jury, presumably this would have damaged Leaper’s case even further. For these reasons, I conclude that Leaper’s conviction of second-degree murder should be upheld.