(concurring in part and dissenting in part):
I concur with the majority’s conclusion that Mr. Davenport’s testimony amounted to testimonial hearsay. I also agree that the specification of Charge III fails to state an offense and must be set aside. However, for the reasons I discuss below, I would affirm the findings of guilt for Charge I and Charge II and their respective specifications.
We review de novo whether a constitutional error is hannless beyond a reasonable doubt. United States v. Kreutzer, 61 M.J. 293, 299 (C.A.A.F.2005). In assessing constitutional error, the question is not whether the admissible evidence is sufficient to uphold a conviction but ‘“whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)). Among the factors we consider are: (1) The importance of the testimonial hearsay to the prosecution’s ease; (2) Whether the testimonial hearsay was cumulative; (3) The existence of other corroborating evidence; (4) The extent of confrontation permitted; and (5) The strength of the prosecution’s *644case. United States v. Sweeney, 70 M.J. 296, 306 (C.A.A.F.2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
After the military judge properly admitted the portions of Mr. Davenport’s testimony describing the process he used in analyzing the DNA samples and that Senior Airman (SrA) CA’s sample contained semen, the only issue in dispute was whether the sexual activity was consensual. The crux of the appellant’s argument is the portion of Mr. Davenport’s testimony explaining that the appellant’s DNA matched the semen found in SrA CA’s sample led to his conviction. I disagree. Given SrA CA’s fresh complaint and identification of the appellant as her attacker, this case was not about whether the appellant and SrA engaged in sexual intercourse. The sole issue before the panel members was whether SrA CA consented to the sexual activity.
While trial defense counsel ably argued to the military judge that Mr. Davenport’s testimony was testimonial in nature, he took a completely different approach during his cross-examination of Mr. Davenport before the members. Rather than implying that Mr. Davenport was simply repeating Mr. Fisher’s initial findings or attempting to show that the DNA findings were not accurate, trial defense counsel instead emphasized that the DNA results could not indicate whether the sexual interactions were consensual or where they might have taken place. In fact, during her findings summation, trial defense counsel’s fleeting reference to DNA consisted of the following:
Now, another thing that they gave you was a whole bunch of numbers and all these things with DNA evidence. We barely had any questions for the DNA expert because ultimately his boy parts were on her girl parts. Her girl parts were on his boy parts. That doesn’t tell us anything else.
It doesn’t tell us whether or not she was consenting. It doesn’t tell us whether or not she was actively engaging in intercourse. It doesn’t tell us where the sex occurred. Nobody can tell us where the sex occurred except'for what Airman [CA] remembers after [she] blacked out for four or five hours. That didn’t tell you much of anything.
Given the facts and circumstances of this case, trial defense counsel chose to focus their strategy on whether SrA CA was in fact substantially incapacitated as the Government contended, whether she consented to sexual intercourse with the appellant, and whether her complaints were the product of her regretting her decisions. Trial defense counsel’s approach was reasonable under the circumstances and we will not second guess this decision. However, it does diminish the argument that he was materially prejudiced by his inability to cross-examine the original analyst. Having viewed the entire record and balancing the Van Arsdall factors, above, I am convinced that Mr. Davenport’s repetition of testimonial hearsay was harmless beyond a reasonable doubt. Therefore, I must respectfully dissent.