¶1dissenting.
¶2I respectfully dissent as to the majority’s conclusion that the defendant is entitled to a new trial on first degree kidnapping because the trial judge spoke only to the foreman of the jury in the courtroom without bringing the entire jury in. I believe State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), is distinguishable from this case. Absolutely nothing in substantive law or recitation *351of facts was exchanged. The judge simply ascertained what the jurors wanted and then allowed them to see all of the evidence requested. The dangers outlined in Asheshould be avoided, but a fair trial and verdict should not be overturned because of what might have happened. I interpret N.C.G.S. § 15A-1233(a) (1988) to mean that if the judge grants the jury’s request to review certain testimony, then the entire jury should be brought back into the courtroom to have the testimony read to them from the transcript. They should not have to all come in the courtroom to see evidence. Frequently, the practice now is for notes requesting evidence to be sent out of the jury room by the bailiff and pieces of evidence to be sent back in without any juror coming into the — courtroom. If testimony is to be read, all the jurors must be brought back into the courtroom and the reading must take place on the record. As to the sending in of pieces of evidence, according to the majority’s interpretation, if the jury requested to view a piece of evidence, for example, a shoe, the entire jury would have to be brought back in to see it. This is neither required nor should be, as evidence can be sent to the jury room without disrupting the jurors by having them all come back out. It is no longer necessary to have consent of the parties for the judge to send evidence to the jury room.
¶3Assuming for the sake of argument that it was error for the judge to speak to the foreman, it was certainly, under the facts of this situation, harmless. This conviction for kidnapping should stand.
¶4I concur with the majority that the trial court should have instructed on attempted second degree rape as there was testimony by the defendant that penetration had never occurred but that it had been attempted. We are bound by State v. Wright, 304 N.C. 349, 283 S.E.2d 502 (1981).