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JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Anthony E. Victors, was charged by complaint on July 12, 2002, with committingthe offense of domestic battery (720 ILCS 5/12--3.2(a)(2) (West 2002)). The complaint alleged thaton July 12, 2002, he knowingly made physical contact of a provoking nature with the victim,Veronica DelValle. Following a bench trial, defendant was found guilty and sentenced to one yearof probation with conditions, including 130 days of county jail time, credit for time served, and finestotaling $110. Defendant timely appeals, contending that (1) the record fails to establish that hevalidly waived his right to a trial by jury; (2) the trial court erroneously admitted DelValle's hearsaystatements under the "excited utterance" exception to the hearsay rule; and (3) his $100 fine for thedomestic violence conviction should be held to be satisfied by $5-per-day credit for the time he spentin custody. We reverse and remand.

The trial court set the matter for trial on February 13, 2003. On February 13, 2003, the trialcourt continued the scheduled jury trial to February 18, 2003. On the morning of February 18, theattorneys appeared before the trial court and answered ready for trial. When the trial court inquired whether the trial would be a "jury or bench," defense counsel replied that it would be a "Jury." Thetrial court then told the attorneys to return at 1:30 p.m. Later that morning, however, defensecounsel returned to the courtroom and stated to the trial court, "Your Honor, I had a chance to speakwith my client. He'd like to go with a bench trial."

When the case was called at 1:30, the trial court conducted a bench trial. The State called aswitnesses Carl Doerr and his wife, Maria. The Doerrs testified that on July 11, 2002, they werestaying in room 108 of the Extended StayAmerica in Downers Grove. They knew that defendant andDelValle, along with her baby, were occupying room 106.

The Doerrs testified that at approximately 12:30 a.m., they heard a disturbance coming fromroom 106. The head of their bed was against the wall that separated their room from room 106. TheDoerrs then heard a "slapping-type" sound, followed by several "thumping" sounds against thecommon wall. They also heard defendant speak in a loud, angry tone, and Carl Doerr hearddefendant call DelValle a "little ignorant bitch." The Doerrs testified that they had spoken to bothdefendant and DelValle in the past and thus recognized their voices. Defendant also said to DelValle "just because you have a kid doesn't mean you know anything in life." The Doerrs heard DelVallereply "Please stop." Carl Doerr then called the police and spoke with the police upon their arrival.The Doerrs later saw DelValle in the hallway, whom they described as appearing disheveled. CarlDoerr testified that DelValle had a red mark on her neck.

The only other witness to testify at trial was Downers Grove police officer Robert McMahon. McMahon testified that he was on duty on July 11, 2002, at approximately 12:30 a.m., when heresponded to a report of a domestic battery at the Extended StayAmerica. When McMahon arrived,he spoke with Carl Doerr for approximately three to five minutes before knocking on the door ofroom 106. Defendant opened the door and McMahon informed defendant that the police hadreceived a complaint of an argument and asked what was happening. McMahon entered the roomand spoke with defendant while a backup officer escorted DelValle to the hallway. As DelVallepassed McMahon, he observed that she was crying.

McMahon spoke with defendant while the backup officer spoke with DelValle. McMahontestified that defendant told him that he and his girlfriend had an argument. After approximately fiveminutes, McMahon spoke with DelValle. He testified that her demeanor was the same as when hehad first seen her; she was crying, upset, and "frightful in her face." He did not observe any bruisesor injuries on her.

The State sought to elicit from McMahon the statements DelValle made on the scene aboutwhat had happened. Defense counsel objected, based on hearsay. The State responded that thestatements were admissible under the "excited utterance" exception to the rule against hearsay. Defense counsel objected, arguing that the State had not laid the requisite foundational elements toestablish the "excited utterance" exception because there was no evidence presented to establish a"triggering event" that brought about the excited utterances. The trial court allowed the testimonyof McMahon, but reserved its ruling on the admissibility of the statements.

Officer McMahon testified that he advised DelValle that the police had received a report ofa domestic situation, and he asked her what happened. According to McMahon, DelValle told himthat she and defendant had begun arguing after defendant's former wife or girlfriend had called. DelValle stated that the argument escalated when defendant pushed her head against a door andpulled her hair. Defendant then began punching her in the lower back with his fist. When DelVallemoved to the couch, defendant began choking her. Defendant then stopped and apologized. DelValle signed a complaint and McMahon placed defendant under arrest. DelValle did not testify.

Both sides rested, and the trial court granted the attorneys until the next morning to researchthe issue of the admissibility of the purported "excited utterances." The next morning, the trial courtheard arguments on defendant's continuing objection to McMahon's testimony about DelValle'salleged statements. Defense counsel argued that the statements were not excited utterances becauseMcMahon was the second officer with whom DelValle had spoken. The trial court ruled that thestatements were admissible as excited utterances.

Following closing arguments, the trial court found defendant guilty of domestic battery. Therecord reflects that a signed jury waiver form was filed with the circuit clerk on the afternoon ofFebruary 19. Defendant timely appeals following the trial court's denial of his posttrial motion.

On appeal, defendant first contends that the trial court erred when it conducted a bench trialon the domestic battery complaint when the record failed to establish that he had knowingly andunderstandingly waived his right to a jury trial. In support of this contention, defendant argues that,when his attorney informed the trial court that defendant wished to proceed with a bench trial, it wasdone out of his presence and, further, it was done on the day his jury trial was scheduled to begin. Defendant also argues that he was never admonished by the trial court that he was giving up the rightto a jury trial. Further, defendant argues that, although he did sign a jury waiver form, that form wasnot filed until after the conclusion of the bench trial and did not in and of itself constitute a knowingand understanding waiver of his right to a jury trial.

We note that defendant is raising this issue for the first time. Usually, errors not objected toduring trial or raised in a posttrial motion are considered waived. People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, under Supreme Court Rule 615(a), this court may review plain errorsaffecting substantial rights, even if those errors were not identified during trial or presented in aposttrial motion. 134 Ill. 2d R. 615(a). The right to a trial by jury is a fundamental right. U.S.Const., amend. VII. The question of a knowing waiver of the fundamental right to a jury trial isconsidered under the plain error doctrine. In re R.A.B., 197 Ill. 2d 358, 363 (2001). Whether adefendant knowingly and understandingly waived his right to a jury trial is a question of law. R.A.B.,197 Ill. 2d at 362. Therefore, our standard of review is de novo. R.A.B., 197 Ill. 2d at 362.

In a criminal case, a defendant is entitled to a trial by jury unless that right is "understandinglywaived by defendant in open court." 725 ILCS 5/103--6 (West 2002). Further, in criminal cases,jury waivers should be in writing. 725 ILCS 5/115--1 (West 2002). However, the failure to file awritten jury waiver does not require reversal so long as the defendant's waiver was made inaccordance with section 103--6 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS5/103--6 (West 2002)). Thus, under the Code, a defendant waives his or her right to a jury trial onlyif the waiver is made understandingly and in open court. People v. Scott, 186 Ill. 2d 283, 285 (1999),citing People v. Tooles, 177 Ill. 2d 462, 468 (1997). When it comes to an oral waiver, a knowingand understanding waiver can be found only if, in the defendant's presence and without an objectionfrom the defendant, "defense counsel expressly advises the court" that the defendant desires toproceed by way of a bench trial. People v. Eyen, 291 Ill. App. 3d 38, 41 (1997). The law imposesno requirement that the record affirmatively show that the trial court advised a defendant of his orher right to a jury trial or that he or she was advised of the consequences of his or her waiver. People v. Frey, 103 Ill. 2d 327, 332 (1984). At the minimum, though, our supreme court has stated,there can never be a valid jury waiver where the defendant was not present in open court "when a jurywaiver, written or otherwise, was at least discussed." Scott, 186 Ill. 2d at 285. Finally, our supremecourt has held that a written jury waiver, standing alone, is insufficient to prove a valid waiver of theright to a jury trial. Scott, 186 Ill. 2d at 285.

Defendant has filed a motion with this court to cite additional authority, and we grant themotion. The additional authority is the recently decided case of People v. Elders, 349 Ill. App. 3d573 (2004). In Elders, the defense counsel, in various pretrial hearings where the defendant was notpresent, told the trial court that the trial would be a bench trial. At a later hearing, where thedefendant was present, defense counsel stated, " 'This is Kenneth Elders before the Court. He is setfor a bench trial today.' " Elders, 349 Ill. App. 3d at 575. The defendant did not object. On the daythe case was scheduled for trial, the case proceeded directly to a bench trial without any mention ofjury waiver. The trial court found the defendant guilty. After making its findings, the trial courtrealized the defendant had not signed a jury waiver. Defense counsel told the trial court that thedefendant indicated he wanted to sign a jury waiver, and the defendant signed a jury waiver in opencourt. Elders, 349 Ill. App. 3d at 576-77.

The reviewing court reversed, determining that the one reference made to a bench trial whenthe defendant was present at the pretrial hearing did not constitute a sufficient discussion of a jurywaiver or demonstrate that the defendant knew he could choose between a jury or a bench trial. Elders, 349 Ill. App. 3d at 584. The reviewing court stated that the defendant was not given anopportunity to demand or waive a jury trial. Elders, 349 Ill. App. 3d at 584. With respect to thesigned jury waiver, which was completed after the conclusion of the bench trial, the court relied onScott, 186 Ill. 2d 283, where the written jury waiver was filed but found to be of no importancebecause of other factors involved in the case. The Elders court particularly focused on the lack ofany discussion with respect to a jury waiver in the defendant's presence. Elders, 349 Ill. App. 3d at583-84.

We also find instructive the case of People v. Eyen, 291 Ill. App. 3d 38 (1997), in whichdefense counsel asked for a bench trial at a pretrial hearing when the defendant was not present. Thequestion of the defendant's jury waiver was not raised by the trial court or the parties on the day oftrial. Eyen, 291 Ill. App. 3d at 40. The defendant also never signed a jury waiver. Eyen, 291 Ill.App. 3d at 41. On appeal, the reviewing court found that the defendant did not validly waive his rightto a jury trial. Eyen, 291 Ill. App. 3d at 43. The reviewing court reasoned, when nothing was everstated in the defendant's presence suggesting that he had a choice between a bench or a jury trial, thedefendant could not be deemed to have agreed with his attorney's participation in a bench trial. Eyen,291 Ill. App. 3d at 43. Because the defendant did not make a knowing and understanding oral orwritten waiver of his right to a jury trial, the reviewing court reversed the defendant's conviction andremanded the case for a new trial. Eyen, 291 Ill. App. 3d at 43.

In the present case, we conclude defendant did not make a knowing and understanding waiverof his right to a jury trial. The record reflects that until the morning of trial, defendant was scheduledfor a jury trial. Later that same morning, however, defense counsel advised the trial court thatdefendant had requested a bench trial. The record reflects that defendant was not present at this time. That afternoon, a bench trial commenced immediately, without comment. As in Elders and Eyen, thetrial court did not discuss the right to a jury trial in defendant's presence. See Elders, 349 Ill. App.3d at 583-84; Eyen, 291 Ill. App. 3d at 40. In both Elders and Eyen, the reviewing court found thatthe discussion and waiver of a jury trial outside the defendant's presence did not constitute a knowingand understanding waiver of the jury trial by the defendant himself. Elders, 349 Ill. App. 3d at 584;Eyen, 291 Ill. App. 3d at 43. Here, the record does not indicate that defendant was present when hiscounsel indicated that defendant would "like to go with a bench trial." The trial court failed toadmonish defendant about the jury waiver, and the record reflects that the trial court never addresseddefendant in open court about the consequences of waiving his right to a jury trial. We conclude thatdefense counsel's statement to the trial court on the day of trial, outside defendant's presence, did notconstitute a knowing and understanding waiver by defendant of his right to a jury trial. See Elders349 Ill. App. 3d at 584; Eyen, 291 Ill. App. 3d at 43.

We reject the State's contention that defendant's failure to object to a bench trial once thebench trial began constituted a knowing and understanding waiver. In Elders, the State argued thatthe "defendant should be deemed to have acquiesced because he did not object to proceeding to abench trial." Elders, 349 Ill. App. 3d at 584. The reviewing court rejected the State's argument,noting that the only time a bench trial was ever mentioned in the defendant's presence was at one ofthe many pretrial conferences. Elders, 349 Ill. App. 3d at 583-84. The court held that the defendant'ssilence when the bench trial began did not satisfy the jury waiver requirement unless the defendant,or defense counsel in the defendant's presence, made some affirmative act that waived a jury trial.Elders, 349 Ill. App. 3d at 584. Here, as in Elders, there was no affirmative act by defendant or by defense counsel in defendant's presence that would indicate defendant's knowing jury trial waiver. Thus, defendant's failure to object when the case proceeded to a bench trial is not sufficient indicationof his waiver of the right to a jury trial. See Elders, 349 Ill. App. 3d at 584.

We also reject the State's argument that defendant's signed jury waiver indicates a knowingand understanding waiver of a jury trial. A written jury waiver alone does not constitute a knowingand understanding waiver of the right to a jury trial. Scott, 186 Ill. 2d at 284. In Scott, the defendantexecuted a written jury waiver in his attorney's office, which was then filed outside the defendant'spresence. Scott, 186 Ill. 2d at 284. At no time in Scott, however, was the issue of jury waiveraddressed by the trial court in open court with the defendant present. Instead, the only mention ofa bench trial that occurred in the defendant's presence was on the day of trial, when defense counselstated, " 'And we would proceed to the bench trial today,' " to which the trial court responded," 'Okay, we'll proceed to bench trial, then?' " and " 'We will then proceed with the bench trial.' " Scott, 186 Ill. 2d at 284. The Scott court held there was no valid jury waiver, written or otherwise,because the defendant was not present in open court when the jury waiver was discussed. Scott, 186Ill. 2d at 285. The defendant did not acknowledge the written jury waiver in open court. Scott, 186Ill. 2d at 286. Thus, in the present case, by itself the signed jury waiver does not show that defendantknowingly and understandingly waived his right to a jury trial, particularly when here, as in Elders,the signed jury waiver appears to have been done after defendant was found guilty.

Finally, the State cites People v. Lombardi, 305 Ill. App. 3d 33 (1999), for the propositionthat, although the record does not indicate defendant was present, that does not mean he was notpresent. Although Lombardi does contain language to that effect, it was not dispositive in the court'sdecision to find a knowing jury waiver. Rather, and most important in distinguishing Lombardi fromthe instant case, the reviewing court focused on the trial court's extensive colloquy with the defendantat the conclusion of the trial but before judgment was entered. Lombardi, 305 Ill. App. 3d at 38-39. The trial court repeatedly asked the defendant if she was waiving her right to a jury trial and if sheknew and understood what she was doing. The trial court even went so far as to say a mistrial wouldbe declared and a jury trial would be held if she wanted to have one, even after the conclusion of thebench trial. Lombardi, 305 Ill. App. 3d at 39. In the instant case, no such discussion occurred. Wetherefore conclude that defendant did not knowingly and understandingly waive his right to a trial byjury, and we hold that defendant's conviction must be reversed and the case remanded for a new trial. Plain error occurred, and we cannot deem this error harmless. See Elders, 349 Ill. App. 3d at 584.

Because we are remanding for a new trial, we must address the issue of the admissibility ofDelValle's statements to McMahon, as the issue is likely to arise on retrial. Defendant contends thatthe trial court erred when it determined that the comments made by DelValle to McMahonconstituted "excited utterances" and fell under that exception to the hearsay rule. Further, defendantcontends that the trial court erred because the statements made by DelValle to McMahon, after shehad already spoken to another officer on the scene, were testimonial in nature and thus violated theconfrontation clause and the rule recently announced in Crawford v. Washington, 541 U.S. ___, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). In Crawford, the United States Supreme Court held that awitness's out-of-court statements that are testimonial are barred under the confrontation clause of thesixth amendment to the United States Constitution (U.S. Const., amend. VI) unless the witness isunavailable and the defendant had prior opportunity to cross-examine the witness, regardless ofwhether the statements are deemed reliable by the court. Crawford, 541 U.S. at ___, 158 L. Ed. 2dat 203, 124 S. Ct. at 1374; cf. In re C.M., 351 Ill. App. 3d 913 (2004) (Crawford ruling does notapply to civil cases).

The State claims that DelValle's out-of-court statements constitute excited utterances and thusfit an exception to the hearsay rule. We reject this claim. One of the requirements for an excitedutterance is the "absence of time to fabricate" the statement. People v. Smith, 152 Ill. 2d 229, 258(1992). Because of this "absence of time," the statement is deemed reliable. The declarant has nothad time to reflect on his or her situation and formulate a fabricated response. Before she spoke withMcMahon, DelValle had been questioned for approximately five minutes by the backup officer. Wedo not know how many or what type of questions were asked by the backup officer. The record doesnot reflect what occurred during DelValle's conversation with the backup officer and, although thisis just speculation, it is possible that she may have had opportunity to reflect on her statements,moving them outside the realm of excited utterances. Moreover, the backup officer was never evenidentified. In People v. Sommerville, 193 Ill. App. 3d 161 (1990), a woman who had been sexuallyassaulted spoke about the assault with her fiancé moments before speaking with a police officer. Attrial, the statements made to the police officer were admitted by the trial court. Sommerville, 193 Ill.App. 3d at 173. The reviewing court, however, reversed the trial court's ruling, holding in part thatthe intervening conversation with the fiancé had disqualified the statements from the "excitedutterance" exception. Sommerville, 193 Ill. App. 3d at 175. The instant case presents a similarscenario. The statements made by DelValle to McMahon, due to the intervening conversation withthe backup officer, do not fall under the "excited utterance" exception to the hearsay rule.

We next consider whether the statements are testimonial and, thus, as defendant contends,violate the confrontation clause. In Crawford, the defendant was charged with stabbing a man whoallegedly had sexually assaulted the defendant's wife. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at184, 124 S. Ct. at 1356. During police questioning, the wife gave a statement that implicated herhusband in the crime. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 185, 124 S. Ct. at 1358. At trial,the defendant's wife did not testify. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 185, 124 S. Ct. at1358. Her statement was admitted during trial pursuant to the hearsay exception for statementsagainst penal interest. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 185-86, 124 S. Ct. at 1358. Thedefendant was convicted, and he appealed, challenging the constitutionality of the State's use of hiswife's statement. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 187, 124 S. Ct. at 1359.

The Court's analysis began by noting that the confrontation clause provides criminaldefendants the right to be confronted by the witnesses against them. Crawford, 541 U.S. at ___, 158L. Ed. 2d at 187, 124 S. Ct. at 1359; see U.S. Const., amend. VI. The Court then discussed thehistory of the confrontation clause and its own case law on the subject. It concluded by reaffirmingthat "[t]estimonial statements of witnesses absent from trial have been admitted only where thedeclarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369. Applying this principle to thesituation at issue in Crawford, the Court determined that the wife's statement to the detectives wastestimonial in nature and, thus, because it did not meet the two requirements of the common-lawexception, the statement was inadmissible. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 203, 124S. Ct. at 1374.

We note that the Crawford Court declined to specifically define "testimonial." Crawford, 541U.S. at ___, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court listed several examples of evidencethat it considered to be testimonial, such as affidavits, custodial examinations, or other similar pretrialstatements that a declarant would reasonably expect to be used by the prosecution. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. The Court, however, stated that "[s]tatementstaken by police officers in the course of interrogations are also testimonial." Crawford, 541 U.S. at___, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364.

Since Crawford was announced, Illinois courts have considered what Crawford meant by "testimonial." For example, in People v. Thompson, 349 Ill. App. 3d 587 (2004), the reviewing courtheld that statements made by a domestic violence victim in an order of protection, which wereintroduced at trial, violated the Constitution's confrontation clause. Thompson, 349 Ill. App. 3d at594. Referring to the statements made in the order of protection, the reviewing court stated that thestatements were testimonial and thus barred under the sixth amendment, since the victim was notunavailable to testify and the defendant did not have a prior opportunity to cross-examine. Thompson, 349 Ill. App. 3d 594.

Illinois courts have provided some guidance toward a working definition of "testimonialevidence." For example, in People v, Foss, 201 Ill. App. 3d 91 (1990), the reviewing court stated,"[e]vidence includes all the means by which any alleged matter of fact is established or disproved,"and "is further defined as any species of proof legally presented at trial through the 'medium ofwitnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief inthe minds of the court or jury.' " Foss, 201 Ill. App. 3d at 94-95, quoting Black's Law Dictionary 498(5th ed. 1979). Further, in In re the Application of the County Treasurer and Ex Officio CountyCollector, 87 Ill. App. 2d 133, 137 (1967), the reviewing court stated, "evidence *** includes all themeans by which any alleged matter of fact is established or disproved. Testimony is not synonymouswith evidence; the latter is a more comprehensive term." We also note that, according to Black's LawDictionary, evidence is said to be testimonial when "elicited from a witness in contrast todocumentary or real evidence." Black's Law Dictionary 1476 (6th ed. 1990). From these authorities,we believe that, depending on the context and circumstances of the case, testimonial evidenceencompasses out-of-court statements that are offered to establish or disprove an element of theoffense charged or a matter of fact.

Accordingly, we believe that, under the circumstances in the present case, the testimony givenby McMahon regarding the statements made to him by DelValle violated the rule articulated inCrawford. DelValle's statements to McMahon were out-of-court statements made in response topolice questioning while the police were conducting an investigation into the possible commission ofa crime. McMahon testified that DelValle told him defendant had pushed her, punched her, andchoked her. The State offered this testimony to establish an element of the offense of domesticbattery. Under Crawford, this constitutes testimonial evidence. Crawford, 541 U.S. at ___, 158 L.Ed. 2d at 193, 124 S. Ct. at 1364. Because DelValle's out-of-court statements were testimonialevidence, they are inadmissible under the sixth amendment. See Crawford, 541 U.S. at ___, 158 L.Ed. 2d at 197, 124 S. Ct. at 1369.

Pursuant to Crawford, when statements are testimonial in nature and the declarant is absentfrom trial, those statements may be admitted only when the declarant is unavailable and the defendanthad a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at ___, 158 L. Ed. 2dat 197, 124 S. Ct. at 1369. In the present case, we have concluded the statements are testimonial innature. The record does not reflect whether DelValle was available. She simply did not presentherself in court on the day of the trial and thus did not offer her own testimony. The record also doesnot reflect that defendant ever had any prior opportunity to cross-examine DelValle about herstatements. Because the exception does not apply, statements pertaining to what DelVallepurportedly told McMahon should have been barred under the sixth amendment's confrontationclause. On retrial, the State may not present this type of testimony from McMahon, regarding out-of-court statements that are testimonial in nature and do not fit the common-law exception. However,if DelValle appears at retrial, she may of course testify as to what happened to her on July 12, 2002.

Last, defendant requests that he receive $5 credit for each of the days that he was in custodyprior to sentencing. Defendant maintains that he was in custody in excess of 20 days, and the trialcourt did not afford him any credit in the sentencing order. Pursuant to section 110--14 of the Code(725 ILCS 5/110--14 (West 2002)), "[a]ny person incarcerated on a bailable offense who does notsupply bail and against whom a fine is levied on conviction of such offense shall be allowed a creditof $5 for each day so incarcerated upon application of the defendant." The State confesses error. Therefore, defendant was entitled to satisfaction of his fine. On retrial, should defendant be foundguilty and a fine imposed, then defendant should be entitled to credit pursuant to section 110--14 ofthe Code.

For the foregoing reasons, we reverse the judgment of the circuit court of Du Page Countyand remand the case for a new trial.

Reversed and remanded.

McLAREN, J., concurs.

PRESIDING JUSTICE O'MALLEY, specially concurring:

I agree that this case must be remanded because defendant did not waive his right to a trialby jury, but I disagree with the majority's resolution of the hearsay issues it anticipates will recur onremand. First, I disagree that DelValle's statements were not excited utterances. The majority statesvery little of the law governing the admission of excited utterances and in fact does not even lay outthe bare requisites for admission. Therefore, I will do so. The proponent of the statement mustdemonstrate: (1) the occurrence of an event or condition sufficiently startling to produce aspontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) that the profferedstatement related to the circumstances of the occurrence. People v. Williams, 193 Ill. 2d 306, 352(2000). Notably, defendant admits that the first and third elements were satisfied here--that is,DelValle's statements concerned a sufficiently startling event (a "heated argument," as defendant putsit). The remaining question is whether DelValle lacked time to fabricate. The majority inexplicablyignores the rule that the trial court has considerable discretion in determining whether to admit ahearsay statement as an excited utterance. People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1012(1999); People v. Gibson, 99 Ill. App. 3d 1068, 1076 (1981) ("Trial courts are vested withconsiderable discretion in admitting testimony which comes within the spontaneous declarationexception to the hearsay rule, for each case must rest on its own facts"). The majority does not recitethis standard of review and indeed appears not even to heed the standard implicitly. While themajority purports to issue an advisory opinion on how the trial court ought to rule if the relevant factson remand are not changed, the majority fails to consider how the trial court actually ruled on thefacts as they now stand. Though it owes deference to the trial court, the majority simply addressesthe arguments of the parties as if it were writing on a blank slate, failing to defer to--and indeedsimply ignoring--the trial court's ruling on this fact-intensive issue. The majority finds that the Statefailed to prove that DelValle lacked the time to fabricate her statements to McMahon. The majorityconsiders it conclusive that the State did not establish what transpired during DelValle's conversationwith the backup officer prior to her conversation with McMahon. Embarking on what it admits is"just speculation," the majority suggests: "[I]t is possible that [DelValle] may have had opportunityto reflect on her statements, moving them outside the realm of excited utterances." Slip op. at 11. It is rather alarming in itself to see a court of law base a decision on "just speculation," but themajority combines its speculation with a flawed understanding of the law. Knowing nothing aboutthe conversation between DelValle and the backup officer, the majority decides that DelValle's laterremarks to McMahon were not spontaneous because the prior conversation could have allowed hertime to reflect and fabricate. Thus, the majority holds that DelValle's statements should be excludedsimply because of an intervening conversation. This is clearly contrary to law. The supreme courthas "reject[ed] out of hand any contention that a declarant cannot make a spontaneous declarationto a person after having spoken previously to another." People v. House, 141 Ill. 2d 323, 386 (1990). In determining whether there has been sufficient time to fabricate, the "critical inquiry" is " ' "whetherthe statement was made while the excitement of the event predominated." ' [Citations.]" People v.Williams, 193 Ill. 2d 306, 353 (2000). McMahon testified that DelValle's demeanor when he spoketo her was the same as when he had arrived at the scene: she was distraught, frightened, and crying,and her voice quivered with emotion as she spoke. Since defendant does not dispute that DelValle'sstatements concerned an event that could produce an unreflecting remark, and there is no basis tobelieve that her level of excitement diminished before she spoke to McMahon, there simply is nowarrant for ruling that her statements are inadmissible as excited utterances.

The majority relies on People v. Sommerville, 193 Ill. App. 3d 161 (1990), where the courtheld that statements made by a sexual assault victim to a police officer in reference to the assault didnot constitute excited utterances because the victim had previously spoken at length about the attackto her fiancé, their conversation consisting of "detailed repetition of answers to *** successivequestions," which "removed the spontaneity and immediacy required for spontaneous declarations." Sommerville, 193 Ill. App. 3d at 175. Here, of course, there was no evidence of the content of theintervening conversation. The majority, resolving all doubts against the State, speculates that theconversation may have occurred like the one in Sommerville, and in so doing ignores the criticalquestion of whether DelValle was still under the excitement of the event when she spoke toMcMahon, the most direct evidence of which was her actual demeanor when speaking. Illinois courtshave recognized that a declarant's excitement from the triggering event can outlast an interveningconversation. See, e.g., House, 141 Ill. 2d at 386 (victim's statements to officer 2