                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JUL 8 1998
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                     No. 97-3353
                                                  (D.C. No. 97-CR-40010)
 JUDE T. AKINS,                                     (District of Kansas)

              Defendant-Appellant.



                          ORDER AND JUDGMENT            *




Before EBEL , HENRY , and BRISCOE , Circuit Judges.




                                INTRODUCTION

      In February 1997, a grand jury entered a one-count indictment charging

Jude T. Akins, a convicted felon, with violating 18 U.S.C. § 922(g) by possessing

a firearm. At trial, over Mr. Akins’s objection, the district court admitted

testimony from two police officers and from Ms. Lissie Purenell that on

December 29, 1996, Evelyn Culpepper and her children told them that Mr. Akins

      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
had threatened Ms. Culpepper with a pair of guns earlier that night. The jury

subsequently found Mr. Akins guilty as charged. Mr. Akins now appeals that

conviction, arguing that the district court erred by admitting the testimony of the

police officers and Ms. Purenell. Because the district court did not abuse its

discretion when it admitted this testimony, we affirm Mr. Akins’s conviction.

                                       DISCUSSION

       “Evidentiary decisions rest within the sound discretion of the trial court,

and we review those decisions only for an abuse of discretion.”      United States v.

Tome , 61 F.3d 1446, 1449 (10th Cir. 1995). Moreover, “[o]ur review is

especially deferential when the challenged ruling concerns the admissibility of

evidence that is allegedly hearsay.”      Id.

       The district court admitted each of the challenged statements under Fed. R.

Ev. 803(2), the excited utterance exception to the hearsay rule. Rule 803(2)

allows admission of “[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or

condition.” Thus, a statement is admissible as an excited utterance when:

       (1)    a startling event occurs;

       (2)    the declarant makes a statement while under the stress and
              excitement caused by the event; and

       (3)    the statement relates to the startling event.

See id. ; United States v. Zizzo , 120 F.3d 1338, 1355 (7th Cir.),   cert. denied , 118

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S. Ct. 566 (1997) ; see also Cole v. Tansy , 926 F.2d 955, 958 (10th Cir. 1991)

(utilizing the same three-pronged test to determine whether statement constituted

an excited utterance under New Mexico rules of evidence). Thus, we must

examine whether the statements of Ms. Culpepper and her children pass muster

under Rule 803(2).

I.       A Startling Event Occurred

         Ms. Purenell testified that on the night of December 29, 1996, she

witnessed Mr. Akins choking Ms. Culpepper. Aplt’s App. vol. II, at 37-38, 44,

51. This attack certainly qualifies as a startling event with respect to Ms.

Culpepper. However, because Ms. Purenell’s testimony is equivocal as to

whether Ms. Culpepper’s children witnessed this attack,     see id. at 38, we must

look elsewhere to see if the children experienced any other startling event that

night.

         However, we need not look far to find such an event. At trial, Sergeant

Craig Fox testified that when he arrived at Ms. Purenell’s home (the scene of the

altercation between Mr. Akins and Ms. Culpepper), Ms. Culpepper’s oldest child

told him that Mr. Akins had been carrying a pair of guns and had threatened to

shoot Ms. Culpepper.     See id. at 95. Ms. Purenell also testified that at least two

of Ms. Culpepper’s other three children made similar statements to the police.

See id. at 45. And we have no doubt that a child who has witnessed someone


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threatening to shoot his mother has experienced a startling event.

       Mr. Akins contends that we cannot rely on the children’s statements to

establish that a startling event occurred because there is nothing to corroborate

the children’s version of the events. However, Mr. Akins ignores the fact that

the children’s statements were, in fact, corroborated by the police’s subsequent

discovery of a pair of guns in a nearby tree.       See id. at 68-72. Moreover, their

version of events is further supported by Ms. Purenell’s testimony that she

witnessed a violent confrontation between Mr. Akins and Ms. Culpepper and by

Sergeant Fox’s testimony that the children appeared to be frightened when he

arrived on the scene. Thus, we need not reach the question of whether

uncorroborated statements, without more, may prove the occurrence of a startling

event for Rule 803(2) purposes.

II.    The Declarants Were Under The Stress Of A Startling Event When
       They Made Their Statements

       Mr. Akins next argues that neither Ms. Culpepper nor her children made

their declarations while they were “under the stress of excitement caused by the

event.” Fed. R. Evid. 803(2). In particular, he suggests that too much time

passed between the confrontation and the declarations for those declarations to

qualify as excited utterances under Rule 803(2).

       As a threshold matter, we note that the government introduced ample

evidence to support the district court’s conclusion that at the time Ms. Culpepper

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and her children made their statements, they were still under the stress of the

excitement caused by confrontation between Mr. Akins and Ms. Culpepper. For

instance, Sergeant Fox testified that at the time Ms. Culpepper spoke with him,

“[s]he was very visibly shaken, she was trembling, almost crying as she spoke to

me, [and] had a look and a sound of fear in her voice.” Aplt’s App. vol. II, at 92;

see also id. at 43 (“[s]he was scared”), 60 (“she appeared to be nervous and

scared”), 101 ([s]he was still shaken up”). Similarly, both Sergeant Fox and Ms.

Culpepper testified that at the time the Culpepper children made their statements,

they appeared to be “scared.”      See id. at 40-43, 94; see also id. at 61, 63

(describing children’s demeanor as “excited”). Mr. Akins offered no evidence to

contradict any of this testimony.

       It is not clear how much time passed between the confrontation and when

Ms. Culpepper and her children made their statements. However, the record does

establish that both Ms. Culpepper and her children made their statements after the

police had arrived on the scene.     See, e.g. , id. at 45, 63-64, 93. Officer Howard

Montalvo, the only police officer who testified regarding this issue, stated that he

arrived approximately fifteen to twenty minutes after he received the call from

the dispatcher.   Id. at 58. And by the time Officer Montalvo arrived, several

other police officers, including Sergeant Fox (the only other officer who testified

at trial regarding the statements of Ms. Culpepper and her children) were already


                                              5
on the scene. Id. Thus, even were we to assume that: (1) several minutes passed

between the time Ms. Purenell summoned the police and the time the dispatcher

called Officer Montalvo; (2) a full twenty minutes passed between the call and

the time that Officer Montalvo arrived; and (3) Ms. Culpepper and her children

did not make their statements to Officer Montalvo and Sergeant Fox until several

minutes after Officer Montalvo’s arrival, this would mean that less than an hour

elapsed between the confrontation and the time that Ms. Culpepper and her

children made their statements.

       We have previously stated that “lapse of time does not necessarily negative

the existence of an excited state.”   Garcia v. Watkins , 604 F.2d 1297, 1300 (10th

Cir. 1979). Thus, we have held that so long as the evidence demonstrated that a

declarant made an out-of-court statement while still under the stress of a startling

event, that statement was admissible as an excited utterance notwithstanding the

fact that the declarant made the statement nine hours,   see United States v.

Rosetta , 1997 WL 651027, at **2 (10th Cir. Oct. 20, 1997), or even a full day,

see United States v. Farley , 992 F.2d 1122, 1126 (10th Cir. 1993), after the

startling event. Consequently, the fact that an hour may have elapsed between

the confrontation and the time that Ms. Culpepper and her children made their

statements will not remove those statements from purview of Rule 803(2), since

the unrefuted evidence demonstrates that Ms. Culpepper and her children were


                                            6
still experiencing the stress and excitement caused by the confrontation at the

time they made their statements.

III.   The Declarations Related To A Startling Event

       The final requirement for admission under Rule 803(2) is that the out-of-

court statement must “relat[e] to a startling event.” Fed. R. Evid. 803(2). The

statements of Ms. Culpepper and her children easily clear this hurdle, as all of

those statements related to the confrontation between Mr. Akins and Ms.

Culpepper. See Aplt’s Brief at 7-8.

       Mr. Akins also offers a last, novel argument: that the district court should

have excluded the testimony of Ms. Purenell and the two police officers because

at trial these witnesses did not directly quote Ms. Culpepper and her children but,

rather, only paraphrased their statements. However, Rule 803(2) does not require

witnesses to have photographic memories. Thus, we will not exclude the

testimony of Ms. Purenell and the police two officers merely because these

witnesses did not quote Ms. Culpepper and her children verbatim.




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                                  CONCLUSION

      In sum, the district court did not abuse its discretion when it admitted the

testimony of Ms. Purenell, Sergeant Fox, and Officer Montalvo regarding the

out-of-court statements of Ms. Culpepper and her children. And although neither

Ms. Culpepper nor her children were available to testify at trial, because the

district court acted within its discretion in admitting the testimony regarding their

out-of-court statements, the admission of this testimony did not run afoul of

either the Fifth or Sixth Amendment.   See, e.g. , Haskell v. United States Dep’t of

Agric. , 930 F.2d 816, 820 (10th Cir. 1991) (holding that the district court did not

violate a party’s due process or confrontation rights when it admitted business

records that were co-authored by an individual who was unavailable to testify at

trial). Accordingly, we hereby AFFIRM the judgment of the district court.



                                                           Entered for the Court,


                                                           Robert H. Henry
                                                           Circuit Judge




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