(concurring) — The State charged Sharon Freigang with second degree assault.12 It alleged that she had pointed a gun at a neighbor, George Iuliano,13 while ranting about another neighbor, Todd O’Mealy.
Iuliano testified before trial there had been no assault. He also submitted an affidavit in which he stated, “Mrs. Freigang never pointed the shotgun at me, and I was never afraid for my safety because of the gun.”14
Freigang moved to dismiss under State v. Knapstad.15 She argued that the State’s evidence was insufficient to support a finding of assault.
The State responded with a police report in which the investigating officer described his interview of Iuliano an hour or two after the incident. According to the officer’s report, Iuliano said that Freigang had come out on her porch “with a shotgun and pointed it at him[,]”16 causing him to be “in fear for his life . . . .”17 As far as the record shows, Iuliano was not excited while speaking to the officer.
The other item of evidence was a declaration in which O’Mealy described a conversation between him and Iuliano on the night of the incident. According to O’Mealy, “Iuliano said that Ms. Freigang scared him with a shotgun, and he was scared she was going to shoot him because she mistook *507him for me, Todd O’Mealy.”18 As “Iuliano was explaining what had happened he was upset and very excited, and it appeared that he had been frightened by what had just happened.”19
Confusingly, the trial court held two hearings before two different judges in two different cause numbers.20 The first judge ruled that Iuliano’s statement to the officer was inadmissible hearsay. Neither judge ruled on the admissibility of Iuliano’s statement to O’Mealy. Both judges ruled that Freigang’s motion should be granted and the second degree assault charge dismissed. The State then filed this appeal.
In a criminal case, a defendant may challenge the sufficiency of the evidence at various stages of the litigation process. As we explained in State v. Jackson:21
In a criminal case, a defendant may challenge the sufficiency of the evidence (a) before trial, (b) at the end of the State’s case in chief, (c) at the end of all the evidence, (d) after verdict, and (e) on appeal. In each instance, the court takes the evidence and the reasonable inferences therefrom in the light most favorable to the State.
Before trial, a court examines sufficiency based on facts supplied by affidavit. At the end of the State’s case in chief, a court examines sufficiency based on the evidence admitted at trial so far. At the end of all the evidence, after verdict, or on appeal, a court examines sufficiency based on all the evidence admitted at trial. Each succeeding basis is more complete, and hence better, than the one before.
*508Regardless of when a court is asked to examine the sufficiency of the evidence, it will do so using the best factual basis then available. For this reason, a defendant who presents a defense case in chief “waives” (i.e., may not appeal) the denial of a motion to dismiss made at the end of the State’s case in chief, and a defendant who goes to trial may not appeal the denial of a Knapstad motion. This does not mean that a defendant is barred from claiming insufficiency at a late stage of the proceedings, merely because he or she failed to do so earlier; it does mean, however, that the claim will be analyzed using the most complete factual basis available at the time the claim is made.[22]
State v. Knapstad supplies the pretrial procedure for challenging the sufficiency of evidence. In the words of the Knapstad court itself, it was “clarifying] the procedures for pretrial dismissals of criminal charges for insufficiency of evidence to support a conviction.”23
When a defendant challenges the sufficiency of evidence, the court must first determine admissibility. The reason, of course, is that one must know what the evidence is before one can decide whether the evidence is sufficient to take the case to a jury. When a defendant challenges sufficiency during or after trial, admissibility takes care of itself, for the court will already have ruled on it to the extent it is contested. But when a defendant challenges sufficiency by a pretrial Knapstad motion, the court will need to determine admissibility to the extent it is contested, then turn to sufficiency.
The trial court in this case properly ruled that Iuliano’s hearsay statement to the investigating police officer was not admissible. The statement was hearsay, and nothing in the record even suggests that it might have been within a hearsay exception.
The remaining question, not considered by either judge, was whether Iuliano’s hearsay statement to O’Mealy was *509admissible. The answer was yes if the statement fell within a hearsay exception, but no if it did not.
The exception that might have applied is the one for excited utterances. It provides that a statement shall not be excluded as hearsay, even though the declarant may be available to testify, if the statement “relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”24
The question usually at the core of this exception is whether the declarant was excited by the event or condition at the time of his or her statement.25 Whether a particular declarant is excited on a particular occasion is a hearsay-related question of preliminary fact controlled by ER 104(a).26 Like other hearsay-related questions of preliminary fact, it is decided by the trial judge, who is not bound by the rules of evidence (except those with respect to privileges). Thus, the judge can take the information he or she needs to decide the question from sources such as the oral assertions of counsel, affidavits, or, in the judge’s discretion, “the making of an offer in question and answer form.”27 At the end of the ER 104(a) hearing, the judge decides the disputed preliminary question according to a preponderance of the information presented.28
*510Assuming without holding that this court may sometimes decide a question of preliminary fact that the trial court has neglected to consider, it should not do that here. Whether Iuliano was excited when he spoke to O’Mealy is a question of major importance in this case. In Iuliano’s affidavit, he said that “Freigang never pointed the shotgun at me, and I was never afraid for my safety!,]”29 from which a lack of excitement might be inferred. When Iuliano previously testified in open court, he described speaking with O’Mealy, but he said nothing about being excited.30 Only O’Mealy has alleged that Iuliano was excited, and it might be inferred that he has a personal interest in seeing Freigang prosecuted. Under these particular circumstances, the tribunal that decides whether Iuliano’s statement qualifies as an excited utterance should have — and exercise — the discretion to require both Iuliano and O’Mealy to appear in person at the ER 104(a) hearing, for that is the only way to assess, weigh, and balance the credibility of each. The trial court possesses that discretion under ER 103(b), whereas we do not. For the foregoing reasons, but only for the foregoing reasons, I concur with the majority that we *511should remand to the trial court with directions to (a) conduct an ER 104(a) hearing, (b) decide whether Iuliano’s hearsay statement is admissible, and (c) grant or deny Freigang’s Knapstad motion accordingly.31
Review denied at 149 Wn.2d 1028 (2003).
The State actually filed this charge twice, under two different cause numbers. It seems to have done that because the trial court ordered severance, even though the more normal procedure would simply have been to hold two trials in the same cause number. Accordingly, I view the two cause numbers as if they were one.
The State also charged two misdemeanors and certain enhancements, but those are not pertinent to this appeal.
Clerk’s Papers (CP) at 120.
107 Wn.2d 346, 729 P.2d 48 (1986).
CP at 5.
CP at 5.
CP at 60.
CP at 60.
The procedure used in this case was confused as well as confusing. One judge severed the second degree assault count from other counts not pertinent here. Instead of scheduling two trials under the same cause number, the State refiled the second degree assault under a new cause number. The result was two Knapstad hearings before two different judges under two different cause numbers. I treat the two hearings as one, which is how they should have been treated in the first instance.
State v. Jackson, 82 Wn. App. 594, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997) (and cases cited therein).
Jackson, 82 Wn. App. at 607-09 (citations omitted).
107 Wn.2d at 347.
ER 803(a)(2).
For a fuller discussion of all the questions inherent in the exception, see State v. Chapin, 118 Wn.2d 681, 826 P.2d 194 (1992).
ER 104(a) provides:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the Rules of Evidence except those with respect to privileges.
ER 104(b) is not pertinent here.
ER 103(b).
Bourjaily v. United States, 483 U.S. 171, 176, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) (hearsay-related questions of preliminary fact); United States v. Franco, 874 F.2d 1136, 1139 (7th Cir. 1989) (same); Condon Bros. v. Simpson Timber Co., 92 Wn. App. 275, 285-89, 966 P.2d 355 (1998) (same). See also State v. Karpenski, 94 Wn. App. 80, 102-04, 971 P.2d 553 (1999) (competency-related questions of preliminary fact); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 n.10, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Although the statement in the text is *510trae for many preliminary questions of fact, it is not true for all such questions. See Karpenski, 94 Wn. App. at 102; Condon, 92 Wn. App. at 289 n.38.
CP at 120.
When asked whether he had warned O’Mealy about Freigang on the night in question, Iuliano testified, “I told him she had a shotgun in her hand, but I think she was trying to defend herself because she thought it was Todd ... .” Report of Proceedings (RP) at 20. He then went on:
Q: Did you go down to Mr. Todd ©’Mealy’s house?
A: No, I didn’t go to his house.
Q: Did you go down to see him?
A: No, I didn’t go down to see him.
Q: Did you see Mr. O’Mealy?
A: Yeah.
Q: Did you warn Mr. O’Mealy about what had happened?
A: I just said she had a shotgun.
Q: Did you advise him he shouldn’t go back in that direction?
A: Well, I don’t think he did. ...
RP at 21.
Nothing in this opinion, or in the majority’s as I understand it, is intended to imply that an accused can be convicted on hearsay alone under Washington Constitution article I, section 22 (“accused shall have the right... to meet the witnesses against him face to face”). As far as I am aware, that question has not been raised or argued since the decision in State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998), and I have not considered it here.