concurring.
Morgan’s conviction for sexual assault in the second degree rested on the testimony of T.F. In his first appeal, Morgan argued that the trial judge, Superior Court Judge Thomas Jahnke, improperly excluded the testimony of witnesses who would have testified that *1281T.F. had made prior false accusations of sexual assault against other men. At his trial, Morgan questioned T.F. about whether she had falsely accused a man, Chris Bevis, of rape. T.F. denied that she had ever accused Bevis of rape and stated that anyone who had said she had made such an accusation would be lying.
In Morgan’s first appeal, we concluded that Judge Jahnke had applied the wrong standard in excluding the testimony of witnesses who, according to the offer of proof, would have testified that T.F. had made prior false accusations of sexual assault against other men.1 We remanded the case to the superior court to determine whether the evidence of T.F.’s alleged false accusations should have been admitted at Morgan’s trial. We directed the court to hear testimony from Morgan’s proposed witnesses and to determine if Morgan proved by a preponderance of the evidence that T.F. had knowingly made false accusations of sexual assault. In the event that Morgan presented evidence which met this standard, we directed the court to “re-determine Morgan’s guilt in light of this evidence.”2 Otherwise, the court was to affirm Morgan’s conviction.3
But our decisión remanding the case was predicated on the fact that Morgan had waived a jury trial and elected to have his case tried solely before Judge Jahnke. That is, our remand was based upon the assumption that Judge Jahnke could hear the evidence that T.F. had made prior false accusations and determine whether that evidence was admissible under the proper legal standard. If he determined that the evidence was admissible, Judge Jahnke could redetermine Morgan’s guilt, considering this additional evidence.
But Judge Jahnke retired and was unavailable to rehear the ease. The case was therefore assigned to Superior Court Judge Larry R. Weeks. Following an evidentiary hearing, at which Morgan’s witnesses testified, Judge Weeks concluded that Morgan had proven by a preponderance of the evidence that T.F. had falsely accused Chris Bevis of rape and that Morgan should have been allowed to present this testimony at his trial. Judge Weeks then reviewed the record of the evidence presented at Morgan’s trial and the. evidence which he had observed in the evi-dentiary hearing and concluded that the evidence established Morgan’s guilt beyond a reasonable doubt.
The procedure that Judge Weeks adopted conformed to our original decision remanding this case to the superior court. But our original decision was based on the assumption that Judge Jahnke, the sole finder of fact in Morgan’s trial, would be able to reevaluate the evidence. Had Morgan been convicted in a jury trial, we would have followed a different procedure. We would have remanded the case to the superior court to determine whether Morgan’s evidence that T.F. had falsely accused Bevis of rape was admissible under the proper legal standard. If the superior court determined that the evidence was admissible, we would have directed the superior court to determine, in light of the evidence presented at trial, whether the exclusion of this evidence might have changed the verdict in Morgan’s case. We would have then directed the superior court to grant Morgan a new trial if the evidence might have changed the verdict.
It is clear that excluding the evidence that T.F. had falsely accused Chris Bevis of rape could not be harmless error. If a jury believed this testimony, it would mean that T.F. had not only made a prior false accusation but had also lied at Morgan’s trial about making that false accusation. And T.F.’s testimony was critical to convicting Morgan. Therefore, if Morgan had been convicted in a jury trial, his conviction would have been reversed.
Because Judge Jahnke was not available to reevaluate Morgan’s case, it seems to me that we must evaluate this case in a similar manner to the procedure which we would use in reviewing a jury trial. Judge Jahnke erred in excluding the evidence that T.F. had falsely accused Bevis of rape. There is no *1282basis for us to conclude that the exclusion of this evidence did not affect the outcome of Morgan’s trial. We must accordingly reverse Morgan’s conviction.
. Id. at 340.
. Id.