Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION

MANNHEIMER, Judge.

Alexander L. Angasan was convicted of felony assault stemming from his shooting of Brandon Seybert. At trial, Angasan's attorney sought to introduce hearsay evidence of Angasan's exculpatory description of the shooting. It appears that Angasan offered this exculpatory account in a conversation with a neighbor sometime between fifteen minutes and one hour after the shooting.

Angasan's attorney argued that Angasan's exculpatory statement to the neighbor was admissible under Alaska Evidence Rule 803(2) as an "excited utterance". The trial judge, Superior Court Judge Fred Torrisi, disagreed. After examining the circumstances in which Angasan made his exculpatory statement, Judge Torrisi concluded that Angasan's statement was not the spontaneous product of excitement caused by the shooting, but rather was the product of Angasan's opportunity to reflect on what he would tell the neighbor.

As we explained in Sipary v. State, 91 P.3d 296 (Alaska App. 2004), when hearsay evidence is offered under the excited utterance exception, "the ultimate question is whether the proponent of the evidence has shown that the circumstances surrounding the utterance produce[d] a condition of excitement which temporarily still[ed] the speaker's capacity of reflection and produce[d] utterances free of conscious fabrication". 91 P.3d at 305-06. As we further explained in Sipary, the issue of the speaker's mental state at the time they made the statement is a question of fact — and, for that reason, "we will uphold the trial judge's conclusion on this issue unless that conclusion is shown to be clearly erroneous." Id. at 306.

There is substantial evidence in Angasan's case to support Judge Torrisi's ruling — evidence that Angasan engaged in many activities and conversations between the time he shot Seybert and the time he made the exculpatory statement to the neighbor. We note, in particular, the evidence that Angasan left the scene of the shooting, went to a friend's house, spoke with another friend, and then returned to the scene — where he retrieved the rifle used in the shooting, emptied the remaining rounds onto the lawn, and then put the rifle back. After that, Angasan went to the house of another friend, Orin Evanoff, and engaged in conversation with Evanoff. Following this conversation, Angasan returned a second time to the scene of the shooting, accompanied by Evanoff. After this visit to the scene, Angasan and Evanoff went to another residence, looking for the victim of the shooting. It was there that Angasan gave the exculpatory account of events to the neighbor.

We acknowledge that the precise amount of time between the underlying event and the statement describing that event is not necessarily determinative of whether the statement was a spontaneous product of excitement rather than reflection.1 But Judge Torrisi could properly consider the fact that, by the time Angasan gave his exculpatory version of events to his neighbor, a significant amount of time had elapsed since the shooting. Judge Torrisi could also properly consider the fact that, during this intervening time, Angasan was able to distance himself from any immediate threat, and was able to engage in conversation with other friends. All of this supports Judge Torrisi's conclusion that Angasan's statement to the neighbor was not the product of a state of excitement.

Based on this record, we uphold Judge Torrisi's finding concerning Angasan's mental state at the time of the statement. And for this reason, we uphold Judge Torrisi's ruling that Angasan's out-of-court statement was not admissible as an excited utterance under Evidence Rule 803(2).

We additionally note that, during the litigation of this issue, Angasan's attorney never apprised Judge Torrisi of the precise content of Angasan's statement to his neighbor. It is therefore unclear whether Angasan was actually prejudiced by the exclusion of this evidence. We note that, under Alaska Evidence Rule 103(a)(2), when a party wishes to preserve an objection to a trial judge's decision to exclude evidence, the party must "[make] the substance of the evidence ... known to the [trial] court by offer [of proof]" unless the substance of the excluded evidence "[is] apparent from the context".

Finally, we note that Angasan's attorney succeeded in introducing another exculpatory statement — a statement that Angasan made to his friend, Orin Evanoff, following the shooting. Evanoff testified, without objection, that Angasan told him that "he had to shoot [Seybert]" — that Seybert "was either going for his gun or [was] talking about getting his gun". According to Evanoff, "[Angasan] said he had no choice: he had to shoot him."

(The prosecutor, who was aware that Angasan's attorney intended to elicit this testimony from Evanoff, told Judge Torrisi that he had decided not to object "in order to move this case along".)

For all of these reasons, the judgement of the superior court is AFFIRMED.