STATE v. RIVERA (2000)

oRDER MODIFYING OPINION

On November 3, 1999, the Washington Supreme Court granted discretionary review of our opinion, State v. Rivera, 95 Wash.App. 132, 974 P.2d 882 (1999), and remanded for reconsideration of the harmless error analysis contained in that opinion.   On reconsideration, we agree that a portion of the harmless error analysis should be withdrawn and replaced.   Accordingly it is hereby

ORDERED that the paragraph discussing harmless error, which appears on the last published page of our opinion at 95 Wash.App. 132, 139, and at 974 P.2d 882, 886, is hereby withdrawn.   It is further

ORDERED that in place of the aforesaid withdrawn paragraph, the following is hereby substituted, with only the underlined language changed from the original:

Nevertheless, we hold that the trial court's error was harmless.   In determining if a nonconstitutional error of this type is harmless, we evaluate whether it is more probable than not that the error materially affected the outcome of trial.  Johnson, 90 Wash.App. at 74, 950 P.2d 981;  United States v. Jones, 159 F.3d 969, 979 (6th Cir.1998).   See State v. Rivers, 129 Wash.2d 697, 706, 921 P.2d 495 (1996).   Here, the evidence, including the testimony of three eyewitnesses other than Nelson, the surveillance videotape, and photographs,

Detective Pfitzer testified about the surveillance tape and a photograph obtained from it and identified a “black colored object that could be a knife” in Rivera's hand. leads to the conclusion that the exclusion of Rivera's prior crimes would not have resulted in a different verdict.

It is further ORDERED that our opinion shall otherwise remain as originally filed.