an alleged assault at a home and a name on the red lake indian reservation and at the end of the alleged encounters between mr graves and his significant other l k he left the home firing several shots that apparently alerted the attention of someone within hearing to call nine one one it's unclear how much time passed between the shots and the call but even assuming it's relatively quick it was approximately thirty minutes before an officer responded to the when even greater than thirty minutes have passed for instance in one case where the victim was a nine year old child it was up to an hour to an hour and fifteen minutes and there are other cases however were even a more immediate statement has been found not to be an excited utterance because evidence pointed to the person's ability to fabricate like in the demarche case although the child had said very quickly to her mother that she had been abused they found it wasn't an excited utterance because excitement of a moment as this court said in the market shocks still the reflective faculties so that somebody doesn't have the time or the inclination to fabricate and in this case within the thirty minutes that passed there was every single opportunity and motive to create or fabricate that undermines the reliability of the statement first of all there is no evidence in this case that the victim l k was under continuing excitement from the moment of  is absolutely true that when the officer arrived at her home she was crying she was upset she was angry she herself testified that that reaction was angry and upset about the fight but not continually fearful not continually under anxiety that is not what put her in stress she also attributed some of her continuing crying or new crying when the officer arrived to her pregnancy hormones and then that adding to her emotionality in this case unlike any of the cases relied on by the by the government there is a period of still and comb between the alleged firing of the shops and the assault and the time when the police arrive this is a case where the record establishes that at a minimum she went back to bed i described that as going back to sleep i can suggest that she was sleeping but certainly returned to her bedroom lay down turned off the lights and was quiet until the police showed up so there is that opportunity for reflection  important fact here and this contrast this case very sharply with the broom case relied on by the government is that l k did not call nine one one she wasn't in enough anxiety fear apprehension or stress to pick up the phone and call anyone now judge granted an interesting analysis of the district court saying that if anything that supported the admissibility because she didn't know that the police were coming so she wasn't sitting there thinking out what she was going to say but i think that misses the relevance of not making the nine one one call which is that she wasn't continuously scared she wasn't continuously under stress she didn't call for help she went back to bed none of the cases relied on by the government have any evidence of that continue or that opportunity for calmness in the iron shell case this court has described that the continuing condition must be quote such that no reflection or deliberation is possible and in this case there was plenty of opportunity for reflection and deliberation in addition your honor i'd suggest that in this case the court should have paid more attention to l case own characterization of why she made the statement that she made and of her opportunity to fabricate she s about the fight but that she wasn't continuously upset or under fear well the district court considered the testimony of the officer on the scene in trying to determine whether she was under a continuing state of excitement the district court did not consider her own characterization of how she was feeling at the time in deciding whether it fell within the exception finally your honor i'd like to talk briefly about a couple of the cases relied on the government by the government because i think they are although certainly instructive easily distinguishable i'd like to start with the broom case which i think admittedly is on the closest to all fours with the current case it's also a case where some victim of alleged domestic violence called the police and said that her significant had threatened her with a gun however there are several things that make the bring case an excited utterance that don't apply here first of all it was a mere passage of ten minutes between the alleged incident and the arrival between the nine one one call and the arrival of the officers on the scene she told almost exactly the same story when she herself made the nine one one call asking for help reaching out for help that she then told ten minutes later when the officer arrived and she was still she had made the call she was waiting for the police and she was sitting at the table crying there is no evidence of that time of quietude that we see in the present case and there is strong evidence that she was upset as indicated by her making the nine one one call in addition in the brain case the nine one one call i corroborated by another person's nine one one call a young child who was present at the scene who reported something very similar but with the government's case looks like without evidence it's our position that the government would not have been able to secure the guilty verdict in this case it's a close call at best the government relies very heavily on mr graves own statement about what happened in the incident but i think the government relies too much on that mr graves admitted that they had arguments he admitted that he had a gun and he admitted that she pushed it away when he raised it up but there was never any evidence other than her statement that he had pointed it at her or threatened other than it's hearsay statement or threatened to harm her with it and that's why it's such a critical piece of evidence also in this case her testimony and his testimony are very consistent about a lot of what happened i mean his statement in the interview what's different is excited alleged excited utterance to the officer who read on the scene so this isn't a case where there is substantial extrinsic evidence supporting this excited utterance and that's why i think it presents such an important question how the district court seemed to make  distinction sort of ok up to this point it's no longer an excited utterance how long was that period of her speaking to the officer that counted as that excited under it for the record i apologize i don't have that passage of time at my fingertips i think that the distinction the district court made was when when it there was some gathering of evidence and in sitting down and asking formal questions so the district court did make i think  the weather that the excitement is continuous and it isn't that only one of the one of the factors that we have set out there to be taken into consideration yes it is one of several factors your honor but i would suggest that there is not a case that i found where you all held that it was not continuous excitement and still allowed it to apply so it's almost a prerequisite factor in this case are you are you contending that the district court did not take into account that fact i'm saying he gave it the wrong way to reached an inappropriate conclusion about whether  yes your honor and i would point the court to the marrow bone case which is a case where a teenager alleged sexual assault and among other things the court considered that the teenager i think kind of cynical about teenagers but that the teenager had a a proven motive and very good factual record in front of him that judge frank in front of him that the victim ok was extremely upset thirty minutes after the incident this was an incident where she'd been assaulted the victim the defendant had pointed the gun at or threatened to kill her he had then fired off five shots as he was leaving the residence from his loaded shotgun which is probably what alerted the neighbor to immediately call nine one one and the police showed up just thirty minutes later knocked on the door victim came to the door she was a visibly distraught had been crying was shaking uncontrollably in the words of the responding officer officer lyons this case is controlled in the government's view by brune i want  state the facts and they're obviously very factually similar but our case is even stronger than the broom case because counsel's point is there should not be any time for reflection in broun it was the victim who called the police and then there was a ten minute gap before the police showed up so that victim knew she was going to be giving a statement to a police officer momentarily she had time if she had the motive she had time to come up with something to falsely accuse this case our victim did not call the police and did not know that anyone had called the police on the policeman shows up unexpectedly unannounced thirty minutes later she has zero time to fabricate because she doesn't know anybody is coming and to answer your question judge kelly how long did it take in this first recitation three minutes and the officer testified that he was an inter eating or he simply said what's going on here and she was emotionally distraught and she started blurting out all this information he was not questioning her in fact he was still trying to make sure the scene was safe he was doing us a protective sweep of the house and she was just voluntarily stating that my boyfriend came he pointed the gun at me kicked in the door pointed the gun at me threatened to kill me shot off the gun and left in a gold cadillac and that was all within three minutes why not consider her explanation for her  state of mind i think the district court said well even if i correctly her on what i think the district court's even if i considered it i heard it i would it wouldn't change my mind about my ruling on the excited utterance but why not why not consider that as well i think that was an error i think it was an error i think he did consider what you're asking really is why didn't he put her on the stand then there was no requirement for him to put her on the stand he didn't have to listen to officer decisions normally are made proffers and briefs and oral argument all the time judge frank went beyond that because he's very careful and you heard from officer lyons and then and only then did the other side say well we want the victim to testify to this is what she say and everybody agree this is what she'll say and that proffer of her testimony can be found in the trams transcript of the evidentiary hearing at page  lines he probably was thinking that i know now that this victim is reconciled with the defendant she's about to have his baby there back together i understand why she might now say something different than before and in you thought the court should have deferred to the discretion of judge you know other words as you said when a judge has evidence even if it's conflicting we trust trial judges to make these decisions on plumeri questions  and you thought the court should defer to judge kyle in that case i suggest that this this court should defer to judge frank in this case because he got to see the live testimony now the judge says in his ruling that there was a continuous level of stress for this witness in the thirty five minutes as i read his ruling page thirty of the transcript is  maybe didn't go to sleep but she was quiet in the bedroom and reflecting what's your view of the record about what happened in this period between the incident and arrival of the officer well my view is that although there was no witness who could say what she was doing no outside witness we could say what she was doing during that thirty minutes that's typically the case in these cases i disagree with  that there has to be has to be a finding of continuous excitement i don't see that condition factor required in any of the cases in fact i mean the judge said there was a continuous flow and he was across he referred to quote the continuous level of her stress is that supported by the record well i think what he says is what i will permit to the extent i think just follows the rapid fire response by miss kingbird was not the result of  the continuous level her stress even in thirty five minutes the complete lack of time to flex to reflect i think what he's saying there if he's referring to the continued level of stress for the entire thirty five minutes and it's a little ambiguous whether it's a thirty five minutes or the three minutes he was talking to the officer but assume it's the latter the former that can be inferred because again well there was nobody w the entire thirty five minutes when the officer showed up she came to the door and was already excited i mean didn't take any what's the other uses for the notion that she went to the bedroom and was quiet for thirty minutes is that what she said or where is that come from said in the grand jury and would now say a trial she will indicate now that she was not afraid at the time of the incident she will testify about everything occur that occurred except the fact that the gun was pointed out or and that she was afraid when the gun was pointed  her do you think there's enough evidence here to make any error harmless or definitely definitely and that's why i noted in a footnote that my colleague hardly even mentioned the excited utterance in her closing argument she  focused mainly on the defendant's own admissions which as i cited my brief were really all we needed he admitted going there kicking in the door assaulting her in the bedroom  accusing her of being unfaithful having a ten to fifteen minute argument well he was brandishing this gun the entire time and he admitted that one point when he raised it and point it towards or she had to push the barrel away he admitted shooting off the gun while he was there and with those admissions combined with the first responders description of the victim's condition how she was totally uncontrollably  shaking and had been crying that supplies the necessary element that the defendant's admitted conduct caused her to have fear so even without the statement admitted  evidence there would have been enough but of course if it had been kept out a substantive evidence still to come in for impeachment because we call the victim and even knowing that she was going to recant we called her water up there she told her side of the and if it hadn't already come in a substantive evidence would come in as impeachment for a limited purpose but the point is either way the jury did or would have heard both of her versions of the story and they did hear both versions the version she told when she had no time to reflect and the version she told months later after she'd reconciled with the defendant and the verdict indicates that they believed the first version and the record supports that they should have ok very well thank you very your argument i think your time expired i think we understand the case so will consider it submitted then fil opinion you do course thank you very much