(concurring in part and dissenting in part):
I concur that the military judge erred in refusing to admit the testimony of A1C Gilbert concerning whether SrA Stachum asked appellant to provide him with steroids. A1C Gilbert would have testified that he overheard SrA Stachum ask appellant if he could “hook him up.” Such testimony should have been admitted to impeach the testimony of SrA Stachum that he never asked appellant to provide him with steroids.
In addition, A1C Gilbert should have been permitted to testify that appellant complained to A1C Gilbert that SrA Stachum kept bugging appellant about obtaining steroids. A1C Gilbert’s testimony would not have been hearsay, but, rather, would have constituted a prior consistent statement offered to rebut a motive to misrepresent, as well as a description of appellant’s state of mind.
However, I dissent from the majority’s conclusion that the military judge’s suppression of A1C Gilbert’s testimony was harmless error. The majority states that the testimony of the appellant established beyond a reasonable doubt that appellant had a predisposition to commit the offense. This would be true for the offense of use or possession of steroids. However, appellant was charged with and found guilty of the distribution of steroids. Our superior court has held that evidence of use or possession of drugs to show predisposition to sell drugs is “questionable.” United States v. Wind, 28 M.J. 381, 382-83 (C.M.A.1989) (“Many people who possess or use drugs never sell them; and so some courts have held that, if an accused is tried for selling drugs and asserts an entrapment defense, evidence of his prior use or possession is inadmissible to establish his predisposition.” See, e.g., United States v. Watson, 489 F.2d 504 (3d Cir.1973); United States v. Ewbank, 483 F.2d 1149 (9th Cir. 1973); United States v. Venus, 15 M.J. 1095 (A.C.M.R.1983)).
The majority correctly notes that appellant used steroids prior to coming into the Air Force. However, no evidence was admitted to indicate that appellant had ever distributed steroids prior to his entry into the Air Force. Such evidence of a prior incident of drug distribution by appellant would have been admissible under Mil.R.Evid. 404 to show why the government witness approached appellant to buy drugs and to rebut any suggestion that appellant was entrapped by that same government witness. See United States v. Acosta, 49 M.J. 14, 19 (1998).
It is clear from the record of trial that appellant was in possession of a small amount of anabolic steroids. However, possession of a small amount of illegal drugs is insufficient to show predisposition to sell. See United States v. Hunt, 34 M.J. 765, 768 (A.C.M.R.1992); United States v. Venus, 15 M.J. 1095 (A.C.M.R.1983); United States v. Lubitz, 34 M.J. 9 (C.M.A.1991) (summary disposition).
Although not mentioned by the majority, appellant’s possession of an anabolic steroid guide may be considered evidence of a predisposition to use or possess steroids. Appellant testified that he acquired the guide through an ad in Muscle magazine and used it to write a paper on the pros and eons of the use of steroids. Appellant certainly knew how to use steroids and did use them prior to entering the Air Force.
Similarly, the seizure of the gel caps and the syringes may be evidence of a predisposition to use steroids. According to the immunized testimony of Amn Hillhouse, appellant purchased the gel caps and syringes along with the steroids during the controlled buy on 9 July 1998. However, the controlled buy did not take place until after the suggestion of the purchase was first raised either by the appellant or SrA Stachum.
Appellant admitted that he would have purchased steroids for his own use had he the money to do so. As with his pre-Air Force use of steroids, this testimony simply evidences appellant’s predisposition to possess and use steroids, not to distribute them. The majority notes that even when appellant distributed the steroids to SrA Stachum, he did so for the purpose of being able to use some of them himself. I disagree with the *794majority’s statement that the testimony of the appellant established beyond a reasonable doubt that appellant had a predisposition to commit the offense of distribution of steroids. Appellant had the predisposition to possess and use steroids. The appellant, by his own admission, wanted to use steroids. However, the issue of whether the appellant had a predisposition to distribute steroids is not established beyond a reasonable doubt by the testimony of appellant, given the impeaching nature of A1C Gilbert’s testimony to the statements concerning inducement by the government agent, SrA Stachum.
The defense of entrapment arises when “the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.” Rule for Courts-Martial (R.C.M.) 916(g). At trial, the question of appellant’s predisposition to distribute had, as its focus, the question of who first raised the issue of the purchase of the steroids by appellant for SrA Stachum. Appellant testified that SrA Stachum continually asked him to provide him with steroids. SrA Stachum testified that he never asked appellant to provide steroids.
Due to the suppression of A1C Gilbert’s testimony, the crucial issue in the case rested upon a swearing contest by appellant and SrA Stachum. In trial counsel’s closing argument, he emphasized that, when comparing the testimony of appellant and SrA Stachum, the only credible evidence is SrA Stachum telling the court members the truth and the idea to sell the steroids began with the appellant. Entrapment questions frequently turn on the factfinders’ assessment of witness credibility. See United States v. Collier, 1 M.J. 358 (C.M.A.1976); United States v. Jursnick, 24 M.J. 504 (A.F.C.M.R.1987); United States v. O’Donnell, 22 M.J. 911 (A.F.C.M.R.1986). Here, the members rejected the entrapment defense, apparently believing the testimony of the government agent over that of the accused. The testimony of A1C Gilbert, impeaching the testimony of SrA Stachum and corroborating appellant’s testimony, in the words of the majority opinion, “goes directly to the heart of the appellant’s entrapment defense.” Given the importance of such evidence, I cannot concur with the majority’s conclusion that “the military judge’s suppression of A1C Gilbert’s testimony was harmless error” under Article 59(a), UCMJ.
The military judge erred in suppressing the testimony of A1C Gilbert, which went “to the heart of the appellant’s entrapment defense.” This error “materially prejudiced] the substantial rights of the accused.” Article 59(a), UCMJ. Given the crucial nature of this evidence to the issue of whether appellant had a predisposition to distribute steroids or whether he was entrapped by the actions of a government agent, the suppression of such evidence constituted harmful error.
Additionally, in reviewing the record for factual sufficiency, I am not convinced of appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). The majority has held that the testimony of A1C Gilbert was erroneously suppressed. A review of the record, pursuant to Article 66(c), UCMJ, 10 U.S.C. § 816, necessarily includes a review of the admitted evidence, as well as the erroneously suppressed evidence, to determine factual sufficiency. Although Turner and Article 66(c) do not address the issue of what constitutes a “record,” Turner is clear that, pursuant to the factfinding power conferred upon a service court of appeals, Article 66(c) “requires that court to evaluate not only the sufficiency of the evidence but also its weight.” Turner, 25 M.J. at 325. Therefore, where this court has held that evidence was erroneously suppressed at trial, it is required for this court to make “an explicit finding as to whether from their review of the record [including the suppressed evidence] they are convinced beyond a reasonable doubt of appellant’s guilt.” See id. I am not convinced of guilt beyond a reasonable doubt.
Finally, the majority analyzes this case under an abuse of discretion standard, rather than applying the “harmless error beyond a reasonable doubt” due errors rising to a constitutional level. The majority concedes that “[i]f we were to conclude that the military judge inappropriately denied a material and relevant defense witness, the appellant’s con*795viction would have to be reversed unless we are convinced beyond a reasonable doubt that the error was harmless. United States v. Miller, 47 M.J. 352, 359-60 (1997).” In Miller, our superior court relied upon their earlier decision in United States v. Brown, 41 M.J. 1, 4 (C.M.A.1994), in which the court set forth the standard as to when to apply the “beyond a reasonable doubt” standard to a harmless error analysis. In Brown, the court found that the military judge’s erroneous evidentiary ruling precluded appellant from presenting a defense based on evidence of pertinent character traits under Mil. R.Evid. 404(a)(1). Id. The court emphasized that “[tjhis was an error of Constitutional dimension, going to the heart of appellant’s defense. We are unable to conclude beyond a reasonable doubt that the error was harmless.” Brown, 41 M.J. at 4. (emphasis added).
Just as the denial of a material witness (Miller) or prevention from introducing evidence of pertinent character traits (Brown) constitute errors of Constitutional dimension, here, the erroneous suppression of vital testimony of A1C Gilbert, goes “to the heart of the appellant’s entrapment defense.” See Brown, 41 M.J. at 4. Such an error is, therefore, “an error of Constitutional dimension” requiring this court to determine whether “beyond a reasonable doubt ... the error was harmless.” Id. Applying the proper standard of harmful error beyond a reasonable doubt, I would hold that the erroneous suppression of the testimony is not harmless beyond a reasonable doubt.
I, thereby, respectfully dissent and would reverse the conviction for distribution of steroids.