United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2508

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas. 

Zeronical Rice, *

* [UNPUBLISHED]

Appellant. *

___________

Submitted: May 9, 2011

Filed: July 5, 2011

___________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

___________

PER CURIAM.

A jury found Zeronical Rice guilty of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). Rice appeals, arguing that the district court1

improperly applied the “excited utterance” hearsay exception, Federal Rule of

Evidence 803(2), to permit inadmissible hearsay evidence at his trial. We affirm.

1

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.
I.

Around midnight on February 16, 2007, Martha Jones dialed 911. She and her

son, Rice, were in a “heated argument” and, according to the 911 operator, Jamie

Bigelow, Jones said that Rice was hitting her and had a gun.

Bigelow dispatched Officer Adam Warford to Jones’s home. When he arrived

just minutes later, he found an “agitated” Jones, who told him that she and Rice had

been in an argument, that it had “gotten very heated,” that Rice “had left and come

back a short time later,” and that when he returned he had a gun, pointed it at her, and

threatened to kill her. Trial Tr. at 32:9-15. Officers later found Rice at a neighbor’s

house, sitting on a couch. After Rice was arrested, the officers lifted the cushions off

the couch and found a gun.

At trial, the government called Bigelow and Warford to testify to what Jones

had said to them that night.2

 Bigelow—over Rice’s hearsay objection3—testified:

A. I remember the specific call because it took me a minute to get

information. It was very difficult to get information from her, the

address, information I needed to dispatch the police officers, due

to them both yelling at each other.

Q. So your recollection is -- can you describe Ms. Jones’ state when

she was on the phone with you, her demeanor?

2

Although Jones was called by and testified for the government, she denied ever

saying that Rice had a gun, Trial Tr. at 62:8-13, 79:14-22, or even seeing a gun, id. at

70:2-11.

3

Rice has abandoned on appeal his trial-based objection that the admission of

Bigelow’s and Warford’s testimony violated his Confrontation-Clause rights.

-2-
A. Just very upset. It was hard to get her attention to me to answer

my questions that I needed answered.

Q. And exactly how did the phone call begin?

A. The phone call began, as I answered “911,” I could immediately

hear them arguing and yelling. . . . And as I struggled to get the

information as far as where they were at, the address to send the

officer, he was yelling at her.

Q. When you say “he,” can you clarify as to how you know who was

yelling at whom and who was making the phone call?

A. Yes. . . . Zeronical Rice was the one that was yelling at her. She

stated it was her son. . . . And at one point during the phone call

I heard what sounded like somebody hitting her. And she stated

that he had hit her. A normal question in a disturbance call would

be does that subject have weapons. . . . And she stated that he had

a gun.

Q. And you say “he.” Did she tell you --

A. She stated Zeronical had a gun and that he had hit her.

Trial Tr. at 19:19-20:18 (emphases added). 

Officer Warford told the jury what happened next: 

Q. Can you tell us whenever you encountered Ms. Jones what her

demeanor was like?

A. She was obviously agitated and in pain. Her tone of voice was of

a person who was very excited. You know, she was, like I said,

her face was swollen up, and she appeared to be grimacing as if it

was hurting her. She was very animated, and her arms were

moving around. She was angry.

-3-
Q. And why do you say she was angry?

A. Just her demeanor, her behavior, waving her arms around. Her

voice was elevated. I mean, she was talking louder than normal. 

She was talking quickly.

Q. And how long was it between the time that you were dispatched

and the time you arrived at the scene?

A. I can’t recall exactly. But I would have been -- on a Friday night,

I would have been in that area already, less than two minutes, had

to have been.

Id. at 30:23-31:13. Then—over Rice’s objection—Warford went on to recount how

Jones had told him about the argument and her son’s possession of a gun. Id. at 32:9-

15. 

The district court concluded that Jones’s statements to Bigelow and Warford,

while hearsay, could nevertheless be admitted as excited utterances under Federal

Rule of Evidence 803(2). The jury later found Rice guilty of being a felon in

possession of a firearm. On appeal, Rice argues that it was error not to exclude the

hearsay statements because the government failed to demonstrate that the excitedutterance exception applied. He asks that we reverse his conviction and remand the

case for a new trial.

II.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Fed. R. Evid. 801(c). “Hearsay is not admissible,” with certain exceptions. Fed. R.

Evid. 802. One such exception is an “excited utterance,” that is, “A statement relating

to a startling event or condition made while the declarant was under the stress of

-4-
excitement caused by the event or condition.” Fed. R. Evid. 803(2). When a hearsay

statement qualifies as an excited utterance, Federal Rule of Evidence 802 does not bar

its admission.4

Bigelow and Warford each testified that Jones had told them that Rice was in

possession of a gun the night of February 16, 2007. Because Jones’s statements to

Bigelow and Warford were not, of course, made “while testifying at the trial,” and

because those statements, as repeated by Bigelow and Warford at trial, were offered

for their truth, i.e., to prove that Rice did in fact possess a gun, they are hearsay.

When the government offers hearsay as evidence, it bears “the burden of

demonstrating that a hearsay exception is applicable.” Reed v. Thalacker, 198 F.3d

1058, 1061 (8th Cir. 1999). We review a district court’s decision to admit that

evidence for abuse of discretion only. See United States v. Phelps, 168 F.3d 1048,

1054 (8th Cir. 1999).

“For the excited utterance exception to apply, the declarant’s condition at the

time of making the statement must be such that the statement was spontaneous,

excited or impulsive rather than the product of reflection and deliberation.” Reed, 198

F.3d at 1061 (internal quotation marks omitted). This standard animates the theory

behind the exception, which “is simply that circumstances may produce a condition

of excitement which temporarily stills the capacity of reflection and produces

utterances free of conscious fabrication.” Advisory Committee’s Note on Fed. R.

Evid. 803(2). The district court’s task, therefore, was to determine whether the

declarant, in this case Jones, was “under the stress of excitement caused by” the

escalating argument with her son, Rice. Fed. R. Evid. 803(2). To that end: 

4

It might, of course, be excluded for other reasons, none of which are raised in

this appeal.

-5-
We have held that to determine whether a declarant was still under the

stress of excitement when he or she made a statement, we may consider

the lapse of time between the startling event and the statement, whether

the statement was made in response to an inquiry, the age of the

declarant, the physical and mental condition of the declarant, the

characteristics of the event, and the subject matter of the statement.

Reed, 198 F.3d at 1061.

Reviewing the relevant circumstances surrounding Jones’s two out-of-court

statements implicating Rice in the possession of a firearm, we conclude that the

district court did not abuse its discretion when it admitted them for their truth under

the excited-utterance exception. 

Jones’s first statement, made to Bigelow during the 911 call, was

contemporaneous with the startling event. As Bigelow testified, the argument was

ongoing at the time Jones placed the call, and it continued during the call. Indeed,

Bigelow testified that it took longer than normal for her to get information from Jones

and “[i]t was hard to get [Jones’s] attention” because Jones and Rice were still

“yelling at each other” and Jones was “[j]ust very upset.” Trial Tr. at 19:19-20:1. 

Additionally, at one point during the call, Bigelow heard what she thought was

someone hitting Jones, at which point Jones said that Rice “had hit her.” Id. at 20:9-

16. Furthermore, even though it appears that Jones’s statement that Rice “had a gun”

was made in response to Bigelow’s inquiry about whether Rice had “weapons,”

see id., we are not persuaded that Bigelow’s inquiry suddenly transformed Jones’s

condition from “spontaneous, excited or impulsive” to “reflecti[ve] and

deliberati[ve].” Reed, 198 F.3d at 1061. Given the circumstances—the 911 call, the

ongoing “heated argument,” the contemporaneous physical attack on the declarant,

and the 911-operator’s statement that the declarant was “[j]ust very upset”—we

cannot conclude that the district court abused its discretion when it admitted Jones’s

statement to Bigelow as an excited utterance. 

-6-
Nor does it appear that Jones’s “stress of excitement” had abated by the time

she made her statement to Warford just a few minutes later. As Warford testified,

Jones was “obviously agitated and in pain,” her face having “swollen up, and she

appeared to be grimacing as if it was hurting her.” Trial Tr. at 30:25-31:4. 

Furthermore, “[s]he was talking quickly” in an “elevated” or “louder than normal”

voice, and in the “tone . . . of a person who was very excited.” Id. at 30:25-31:1, 31:7-

8. Adding to that her “very animated” demeanor, that she was “waving her arms

around,” and Warford’s assessment that she “was angry,” id. at 31:3-6, there was

sufficient evidence to support the conclusion that her statement qualified as an excited

utterance. The district court therefore did not abuse its discretion when it admitted

Jones’s statement to Warford as such.

III.

The conviction is affirmed.

______________________________

-7-