(concurring in the result):
A military judge must weigh the probative value of relevant evidence against such dangers as unfair prejudice, confusion, and delay. See Mil.R.Evid. 403. However, this balancing process is undertaken only with respect to evidence whose reception is not otherwise prohibited by the Military Rules of Evidence. Thus, the first question to be answered is whether the evidence of appellant’s reputation as a “bully” was inadmissible under any of the other Rules.
Mil.R.Evid. 404 states in pertinent part: (a) Character evidence generally. Evidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide or assault case to rebut evidence that the victim was an aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Mil.R.Evid. 607, 608, and 609.
Therefore, if evidence of appellant’s character trait as a “bully” was offered by the Government for the purpose of proving that he “acted in conformity therewith on” the date of the alleged assault, then it was inadmissible except to rebut evidence that *177appellant was peaceable. From my reading of the defense evidence — including appellant’s own testimony — I have been unable to identify anything which might be construed as evidence of good character as to peaceableness. To be sure, Shields asserted that he was not the aggressor on this occasion; but that falls far short of a claim that his character was peaceable.
I observe that, prior to the Government’s introduction of evidence that Shields had a reputation as a “bully,” evidence had been received that appellant’s alleged victim, Private Jeffrey Mooney, would become belligerent and rowdy when he drank and that, when drinking, he had tried to start fights with appellant on prior occasions. To allow the defense to attack the alleged victim’s character for peaceableness but simultaneously to preclude admission of government evidence that appellant also was a violent person seems one-sided and unfair. While a risk exists that the prosecution evidence will tend to prejudice the trier of fact, there is a countervailing risk that, if the evidence is not admitted, the factfinder will labor under a serious misconception.
An argument might be made that, after the defense has offered evidence of a victim’s belligerent character, the evidence of the accused’s- violent traits may be offered for the purpose of proving that, on this occasion, the victim did not act in accord with his traits of character — and not directly for the purpose of proving that the accused acted pursuant to his own character traits. This hypertechnical argument, though, still depends on the premise that the accused was behaving in his characteristic manner at the time of his encounter with the alleged victim. Thus, it cannot easily be reconciled with Mil.R.Evid. 404(a).
The primary reason to accept this argument would be the same as that which underlies doctrines like “curative admissibility”* and “opening the door” — namely, to avoid prejudice to a party by allowing his adversary to create a misconception on the part of the factfinder. On that ground, I believe admission of this evidence can be supported.
However, even if admission of this evidence were error, appellant was not prejudiced thereby. The only testimony that Shields had the reputation of “[bjeing a bully” came from PFC John B. Haran, III — who was a friend and apparently a roommate of appellant’s victim and had been drinking with him on the evening of the alleged assault. Character testimony from this single source probably would be given little weight by the factfinder, in view of the amount of other evidence in this case. Moreover, on the basis of the ruling that Haran’s testimony was admissible, defense counsel later persuaded the military judge to receive evidence about the belligerency of Private Donald Cioffi — to whom the defense was seeking to transfer blame for the attacks on Private Mooney, the alleged victim. Thus, appellant benefited from defense evidence that would seem to be inadmissible under a literal reading of MihR.Evid. 404(a) but which was, nonetheless, received because of the judge’s earlier ruling as to the evidence of appellant’s belligerence.
To summarize, I conclude: (a) although appellant offered no evidence as to his own character for peacefulness, the defense introduction of evidence of the victim’s violent character authorized the reception of evidence of appellant’s reputation as a “bully” in order to avoid misleading the factfinder; and (b) even if this evidence of appellant’s character should have been excluded, its admission was harmless error in light of the other evidence in this record of trial.
See generally 1 Wigmore, Evidence § 15 (Tillers rev. 1983).