(dissenting) — I dissent from the majority opinion for two reasons. First, I do not agree that the present rules on appeal should be interpreted to mean that the appellant should prevail in any criminal case where the respondent fails to file a brief and there has been a prima facie showing of error by appellant. In support of that interpretation the majority cites several civil cases in which CAROA 41(3), a predecessor to the current RAP rules, was construed. CAROA 41(3) provided that if a respondent failed to file a brief, the cause is "deemed submitted on its merits as to him." Because the CAROA rules have been replaced by the RAP rules and because the current rules do not contain the language found in CAROA 41(3), the interpretation given to that former rule should not be applied to the present rules.4
Even assuming that the current rules on appeal require a respondent to submit a brief, the penalty for failure to do so, in my judgment, is limited. The current rules simply say *834that a respondent "should" file a brief, RAP 10.2(c), and that a party may present oral argument only if the party has filed a brief. RAP 11.2(a). It would seem, therefore, that the penalty for failing to file a brief is the forfeiture of the right to argue. Perhaps, additionally, as the majority suggests, a monetary penalty may be imposed for failure to comply with the rules. RAP 18.9(a).5 Although it goes without saying that a respondent runs a risk in not filing a brief because the appellate court sees only "one side of the case," that does not mean that the ultimate penalty is that the appellant prevails simply by making a prima facie showing of error.
Our duty as an appellate court should be the same, whether or not the respondent submits a brief or makes oral argument. We must examine the assignments of error, and determine as best we can the merits of the case. While I share the majority's concern about the prosecutor's failure to file a brief, the rule favored by the majority could easily result in an injustice simply because the prosecutor erred.
However, regardless of what the scope of our review is in criminal cases where the respondent fails to file a brief, there is, in my judgment, no basis for reversing the conviction here. Although I recognize that there was error at the trial level, the error was clearly harmless.
As the majority points out, notwithstanding the trial court's efforts to keep error out of the trial, a witness said the word "again" in clear violation of the trial court's order in limine. Arguably, this could have implied to the jury that the defendant had a prior conviction or that he had committed prior bad acts. On the other hand, one could argue that the word "again" is ambiguous and could mean other things. Indeed, defendant's counsel made an offer of proof *835that the defendant meant something else when he said, "I did it again. . . ."6
Regardless of how the word "again" was interpreted by the jury, its introduction was harmless error when one looks at the entire trial record. Evidence of other crimes, even if wrongly admitted, is not error of constitutional magnitude. State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982). Thus, the test is whether the outcome of the trial would have been materially affected had the error not occurred. Robtoy, 98 Wn.2d at 44.
Here, the crime victim, Lorraine Taylor, described in substantial detail the acts that Wilburn committed. There was also additional evidence supporting her assertion that she had been raped, such as the existence of bloodstains in the home and the fact that she made excited utterances to various witnesses that were generally consistent with her testimony at trial. Furthermore, Wilburn made the admission "I did it. . .1 need treatment." Balanced against this, there is only Wilburn's testimony that he started toward the bedroom on the night in question and that he remembered nothing between that time and when the police awakened him the next morning. The case is not, as the majority suggests, a case which turns on the credibility of Taylor versus Wilburn. Taylor describes a rape at the hands of Wilburn. Wilburn says, in essence, he doesn't recall but suggests that if intercourse took place it was consensual. In light of those facts the verdict was not affected by the error. I would affirm.
Reconsideration denied July 15, 1988.
Although the courts in Hobart Corp. v. North Cent. Credit Servs., 29 Wn. App. 302, 303, 628 P.2d 842 (1981) and Stott v. Cervantes, 23 Wn. App. 346, 595 P.2d 563 (1979) have applied the prima facie rule subsequent to the adoption of RAP rules, these courts did not discuss the fact that the RAP rules do not contain the same language as CAROA 41(3).
I see no reason why the court could not now order respondent to file a brief in order to aid us in our determination of the merits of the case.
Defense counsel made an offer of proof that the defendant meant he had cheated on his wife again when he stated, "I did it again. ..."