(concurring in the result):
This case should be resolved on the basis of harmless error. I agree with Senior Judge Darden’s resolution of Issue I. On Issue II, I am not convinced that evidence of the prior sexual molestation of the victim by “Jerry” around the time of the charged offenses was barred by Mil.R.Evid. 412, Manual for Courts-Martial, United States, 1984, or any other evidentiary rule. The time and nature of the prior sexual assault are, after all, similar to the charged acts. See United States v. Bear Stops, 997 F.2d 451, 455-57 (8th Cir.1993); cf. United States v. Powers, 59 F.3d 1460,1470 (4th Cir.1995).
Aso, a sexual assault on a victim in my view is not “sexual behavior” engaged in by the victim as provided in Mil.R.Evid. 412. The challenged evidence was not evidence of prior promiscuity on her part. See Commonwealth v. Baxter, 36 Mass.App.Ct. 45, 627 N.E.2d 487, 491 (1994). Moreover, it was not offered for a purpose prohibited by Mil. R.Evid. 412, i.e., sexual predisposition. See generally United States v. Begay, 937 F.2d 515, 521 (10th Cir.1991). Instead, it was offered to show that the victim may have confused her father with “Jerry” in remembering these events.
However, any error in this regard I would find harmless beyond a reasonable doubt. For the above purpose, the probative value of this incident by itself was minimal. See Commonwealth v. Syrafos, 38 Mass.App.Ct. 211, 646 N.E.2d 429, 433 (1995).