(concurring):
I concur with Chief Judge Roan’s analysis and conclusion, but I write separately in order to ensure I have framed the issue on which I believe this case ultimately turns - the standard we are to apply when addressing the prejudice caused by Confrontation Clause errors.
I also write separately to respectfully note my disagreement with our dissenting colleague’s conclusion as to prejudice. He essentially says the DNA evidence was not important because the appellant did not contest that he and Senior Airman (SrA) CA had sex; rather his defense was limited to consent or mistake of fact as to consent. Had the defense not objected to Mr. Davenport’s testimonial hearsay at the outset, I would find this conclusion more persuasive. However, as the case played out, once the military judge ruled against the appellant on the admissibility of Mr. Davenport’s statement linking the sample he tested to the appellant, it would have been beyond benign futility— indeed it would likely have been affirmatively detrimental to the appellant’s case — to argue the appellant did not have sex with SrA CA. Accordingly, to the extent the appellant resorted to litigating consent, the sequence of events sti’ongly suggests that he did so only because the trial judge’s decision to admit Mr. Davenport’s testimonial hearsay left him no alternative.
With regard to the standard we apply, if I were to evaluate the case now before us on factual and legal sufficiency grounds, I would have little hesitation affirming the findings and sentence for many of the reasons trial counsel addressed in closing argument. The record contains evidence that the appellant was interested in SrA CA, that with knowledge of her intention to get drunk on her birthday he followed her movements and eventually connected with a very intoxicated SrA CA at a bar later that night. When SrA CA’s friend tried to remove her from the appellant’s lap to take her home, the appellant resisted, telling the friend, “I’ll take care of her.” The friend ultimately removed SrA CA, but the appellant continued to follow up on SrA CA’s activities using social media until she stopped responding to posts sometime after 0253 hrs, when the appellant posted to her Facebook page: “hay [******] u had a good night_u were alllll f[* *]kered up..no f[* *]kin doubt-hope u got home safe ... thank tiff for me.”
Approximately two hours later, the victim awakened to someone violating her. She testified that although there was little light in the room she was able to see his features “like a black and white photo” and was able to identify the appellant through touch and visual recognition of certain items he was wearing, including a beanie cap, glasses, a coat, and a pair of jeans. Later, when questioned about his activities the night of the assault, the appellant was, to even an untrained interrogator, evasive and demonstrably untruthful in his responses. The video of his interrogation was entered into evidence.
Read in isolation, the “harmlessness beyond a reasonable doubt” test as articulated in Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), could be understood to be a less exacting standard than that which we must apply. In Harrington, the Supreme Court stated the test for harmless error could be satisfied where there is overwhelming evidence of guilt. Id. Harrington, a Caucasian, was convicted along with three non-Caucasians, for their participation in an attempted robbery and murder. The Court reviewed the case to determine whether the admission of two of the participants’ written confessions implicating the appellant, over his objection at trial, constituted a non-harmless Confrontation Clause violation. Discussing the issue, the court recounted the evidence against Harrington at trial:
*643Petitioner made statements which fell short of a confession but which placed him at the scene of the crime. He admitted that [another participant] was the trigger man; that he fled with the other three; and that after the murder he dyed his hair black and shaved off his moustache. Several eyewitnesses placed petitioner at the scene of the crime. But two of them had previously told the police that four [African-Americans] committed the crime. [One of the participants in the crime, who testified at trial] placed [Harrington] in the store with a gun at the time of the murder.
... Harrington himself agreed he was there. Others testified he had a gun and was an active participant. [The participants’ whose confessions were admitted] did not put a gun in his hands when he. denied it. They did place him at the scene of the crime. But others, including Harrington himself, did the same. Their evidence, supplied.through their confessions, was of course cumulative.
Id. at 252-54, 89 S.Ct. 1726 (footnote omitted).
The Court went on to reemphasize its admonition, previously noted in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), “against giving too much emphasis to ‘overwhelming evidence’ of guilt.” Harrington, 395 U.S. at 254, 89 S.Ct. 1726. Further confirming its position, the Court noted, “We do not depart from Chapman ; nor do we dilute it by inference. We reaffirm it.” Id.
Although the case against the appellant was certainly solid, it was not as overwhelming as was the case against Harrington, at least up until the point at which the trial judge admitted Mr. Davenport’s testimony. On the contrary, the primary point to which Mr. Davenport testified was that DNA evidence established what amounts to a near mathematical certainty that the appellant— not just a nameless sample he tested for comparative purposes — had sex with SrA CA. The demonstrative exhibits trial counsel used during closing argument underscored this point.
Moreover, the weight of authority represented in the other cases construing “harmlessness” in this context, as referenced by the Chief Judge above, confirms that in order for us to affirm the conviction we must find not merely that the Government would have secured a conviction absent the wrongly admitted evidence. Rather, we may not affirm if there is a “ ‘reasonable possibility ’ ” that the erroneously admitted evidence “‘might have contributed to the conviction.’ ” United States v. Blazier, 69 M.J. 218, 227, (C.A.A.F.2010) (quoting Chapman, 386 U.S. at 23, 87 S.Ct. 824) (emphasis added).
On the facts of this ease as presented, I believe it is simply impossible to unring the DNA evidence bell in a fashion that would enable us to find no reasonable possibility that Mr. Davenport’s testimony might have contributed to the conviction. I therefore respectfully concur.