(dissenting). The majority errs in hold*306ing that the complainant’s statements to the police officer were inadmissible under the excited utterance exception because there was no independent evidence of a forcible criminal sexual assault.
The requirement of forced sexual relations, bruising, signs of force, ripped or torn undergarments, or other witness corroboration, as proof that something out of the ordinary occurred evokes the long discredited notion that a person must be injured in order to be a rape victim. The issue is not whether there was "independent” evidence of a startling event. Properly understood, the issue is simply whether the trial judge’s determination of relevancy, i.e., that it was more likely than not that a sexual assault occurred, was erroneous.
The condition of the victim, the defendant’s possession of the victim’s underwear and shoes, the victim’s three subsequent consistent statements, including her allegations of attempted intimidation,1 and the victim’s preliminary examination testimony provided far in excess of the preponderance standard required by MRE 104. Thus, it is unnecessary to reach the questions whether a proffered excited utterance "standing alone” may be used to establish the happening of the startling event, ante, p 271, and whether the statements were properly admitted under the excited utterance exception.2
However, I am not persuaded that there was sufficient evidence to support the defendant’s con*307victions of first-degree criminal sexual conduct. Therefore, I would reverse the convictions and remand for entry of convictions of third-degree criminal sexual conduct and for resentencing or for a new trial in accordance with this opinion.3
i
The defendant was convicted by a jury of two counts of first-degree criminal sexual conduct4 and was sentenced to life in prison. The victim, the complainant in the case, was forced to perform and submit to acts of cunnilingus and fellatio at the defendant’s home in the early morning hours of August 5, 1983._
*308At approximately 5:30 a.m. on that day, Officer Connors of the Southfield Police Department testified that while on routine patrol he observed the victim running down the side of Nine Mile Road in a disheveled state, and pulled over to investigate the situation. He stated that the woman was running in a manner that was a fast walk to a run and that she kept looking back over her shoulder as she ran.
He testified further that the woman’s dress was twisted on her body, that she wore no shoes, that she was crying, and that when he pulled next to her, she tried to get into the car before he could unlock the door. The officer further testified that, at first, the victim was crying so hard she could not even indicate what the problem was, but that after three to five minutes she said that she had been sexually assaulted at a house on Plumbrooke by a man named "Norman.”
The victim stated that she had gone with a male friend to the defendant’s house at two o’clock that morning and that another female was present at the house when they arrived. After her friend left, the defendant came downstairs and ordered both women to remove their clothing. The victim said both she and the other woman refused at first, and then the defendant forcibly took her clothing off, grabbed her, slapped her around and threatened her with bodily harm. The defendant ordered the women to perform oral sex on each other and after more threats and some "roughhousing” the victim complied with the defendant’s orders.
The victim then stated that the defendant grabbed her and forced her to go upstairs to his bedroom where he ordered her to perform oral sex on him. When she refused he threatened her again, grabbed her head and forced his penis in *309her mouth. The victim then pretended to have to go to the bathroom, and instead ran downstairs, grabbed her dress, threw it on, and ran out the door.
After telling the officer what had happened, he reported that the victim continued crying, clutched her hands, and appeared to be in a "trance-like” state, depressed, and, as the officer described it, "very numb.”5 Trial testimony established that the defendant was arrested when he left his home later the same morning, carrying a small cloth bag in which the victim’s panties and shoes were found,6 and that when the police searched the house they found the victim’s brassiere.
After leaving the hospital, the victim gave a statement to a detective in the police department in which she repeated the story she had told the officer earlier that day. That afternoon the victim received two telephone calls from people she believed to be acting on the defendant’s behalf. They asked her to drop the charges.
Around midnight of the same day, one of the persons that had called and another person representing himself as an attorney came over to the victim’s apartment. They blamed the victim for what had happened and told her that the defendant was a very big and powerful man, and that *310he had beaten cases before, even a "natural life” murder case just a year ago.7
The next day, a Saturday, the victim and the two gentlemen who had visited her the previous night went to the 46th District Court to see about getting the charges dropped, but the court was closed. On Monday, when two detectives contacted the victim after having been informed that she had sought to have the charges dropped, she told the police about the calls and visits and that she feared for her safety. Despite these contacts the victim reaffirmed the facts alleged in her initial contact with Officer Connors and gave a third statement to the officers.8
On August 9, 1983, the victim for the fourth time stated that a sexual assault had occurred. At this time she gave a lengthy statement again detailing the sexual assaults, related that calls were made to her regarding the charges against the defendant, and described the midnight visit of the two men.9 This statement was taped and transcribed.
*311At the preliminary examination, the victim changed her story and testified that the charged sexual assaults did not occur, although she admitted making statements to that effect to the police.10
Prior to trial, the defense counsel made a motion in limine to preclude the prosecution from using the statements made to the police officer immediately after the alleged sexual assault.11 The trial judge found the testimony admissible under the excited utterance exception.
At trial, the victim testified that the alleged sexual assaults never occurred, and, further, that she did not remember making a statement to that effect in the early morning hours on August 5, 1983.12 The victim acknowledged, however, that *312she had told the officer the defendant slapped her, and that she had run out of the house without all her clothes because she was frightened. She also stated that she did not remember what she had told the detectives during the taped interview, either about the assault or the threats which were made to her afterwards. The taped statement was admitted into evidence for the purpose of impeachment.
At the close of the prosecution’s case, the defense rested without presenting proofs. The jury was instructed on the elements of first-degree criminal sexual conduct on two separate theories,13 *313and also on the lesser included offense of third-degree criminal sexual conduct.14 The defendant was found guilty of first-degree criminal sexual conduct on both counts, fellatio and cunnilingus, and the trial judge sentenced the defendant to a term of life imprisonment.15_
*314On appeal, the defendant’s convictions were affirmed,16 and this Court remanded the case to the Court of Appeals for further consideration of the excited utterance issue, and, in particular, the defendant’s argument that the complainant’s statements should not have been admitted as excited utterances because the statements themselves were the only evidence that an event capable of provoking an excited utterance had occurred.17
On remand, the panel indicated that it had not *315specifically addressed the argument that there was no independent proof of the startling occurrence due to the abundant independent evidence of such an event, which was established in the record.18 They concluded the statements were properly admitted, and, thus, it was for the jury to decide whether they believed if the events described in the statements actually had transpired.
This Court granted leave to appeal the following issues:
(1) Whether the complainant’s initial statements to the responding police officer were properly admitted as excited utterances under MRE 803(2);
(2) Whether there was sufficient evidence to support the conviction of first-degree criminal sexual conduct;
(3) Whether the jury instruction on the mental anguish element of the offense was error requiring reversal; and
(4) Whether the trial court erred by allowing the *316prosecutor to impeach the complainant’s recantation with evidence that she had received threats that included references to other crimes committed by the defendant.19
ii
We note initially that we believe the majority’s conclusion regarding the excited utterance20 stems from a misapprehension of what evidence the trial judge may consider in the MRE 104 determination.
The majority states that the issue is whether "statements may be admitted when there is no independent evidence, direct or circumstantial, of the underlying startling event . . . .” Ante, p 271. The majority then concludes that there was no evidence other than the victim’s statement that the startling event occurred, and that the most that was established by the independent proof was a "stressful event with sexual connotations.”21 Ante, p 299.
*317The majority purports to acknowledge that the "extrinsic” evidence available to the trial court in determining admissibility under MRE 104 is not limited to evidence that would be admissible at trial and that a trial judge is not bound by the Rules of Evidence except those with respect to privileges when resolving preliminary factual questions concerning the admissibility of extrajudicial declarations under MRE 104(a).22 However, because the majority proceeds on the erroneous assumption that the trial judge must determine whether the startling event occurred without considering the statement itself, it has converted the Rule 104 inquiry into a corpus delicti rule in which the trial judge must find "independent evidence” of the happening of the event in order to permit the jury to determine whether the event occurred.
Rule 104 of the Michigan Rules of Evidence, identical to Rule 104 of the Federal Rules of Evidence, provides, in part:
(a) Questions of admissibility generally. Prelimi*318nary 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 subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Thus, the Rules of Evidence governing trials do not govern hearings under MRE 104(a) to determine the admissibility issue.23
In United States v Matlock, 415 US 164, 174-175; 94 S Ct 988; 39 L Ed 2d 242 (1974), the United States Supreme Court held that the district court erred in excluding from evidence as inadmissible hearsay out-of-court statements made to the officers at the time of the search to determine the issue of consent at a suppression hearing. Id., p 172. Despite the fact that at the hearing the witness denied that she gave consent to search, the Court held that the trial judge was entitled to consider the fact that the witness had made three prior consistent hearsay statements indicating that she had authority to give consent and to give *319them "such weight as his judgment and experience counsel.”24 Id., p 175.
As in Matlock, no reason has been advanced in the instant case to doubt that the four statements to which the police officers testified at the hearing had, in fact, been made. The victim herself admitted making the statements, and it was reasonable for the trial judge to consider them in the relevancy determination, given their consistency with each other and the corroborating physical evidence. Moreover, the trial court was entitled to consider the fact that the victim had been threatened and had thereafter repeated her initial version of the offense in finding that the startling event occurred. In this connection Justice Brickley fails to observe that the relevant inquiry was not whether the intimidation attempts originated with the defendant but rather whether the fact that the victim repeated her original version of the event after those attempts bore on the Rule 104(a) issue as to whether it was more likely than not that the startling event occurred. Finally, the determination of preliminary fact on which relevancy turns, i.e., that it was more likely than not that the startling event had occurred, was supported by the facts (admissible also on the issue of guilt) that when the defendant emerged from the home on the morning of the rape, he was carrying her panties and shoes and that her brassiere was found in his bedroom.
The purpose of the Rule 104(a) determination, in the present context, is only to determine whether the preliminary fact has been shown by a prepon*320derance of evidence,25 not to establish the defendant’s guilt.26 It is clear that the majority’s formulation of the rule fails to take into account myriad relevant facts which, although not admissible as proof of guilt, supported the trial court’s determination.
The majority draws its extrinsic evidence analysis from decisions holding conspirator statements inadmissible unless there is independent proof of the conspiracy. Support for an analysis of MRE 104 that would impose a similar requirement on the excited utterance hearsay exception is undermined by the fact that the United States Supreme Court has not similarly construed FRE 104(a), and that our own court’s construction of this hearsay exception is based on specific language in MRE 801(d)(2)(E).
In Bourjaily v United States, 483 US 171; 107 S Ct 2775; 97 L Ed 2d 144 (1987), the Court eliminated the requirement that the underlying conspiracy must be proven independent of the hearsay conspirator’s statements as a condition for admission of the statements. The Court held that under FRE 104 the trial court may consider "any evidence whatsoever” (id., p 178) except that which is privileged, including the content of the hearsay *321statements themselves to determine preliminarily, the existence of the conspiracy and the defendant’s participation in it (at least where there was corroboration of the hearsay). The Bourjaily Court observed that "[i]f the opposing party is unsuccessful in keeping the evidence from the factfinder, he still has the opportunity to attack the probative value of the evidence as it relates to the substantive issue in the case.” Id., 483 US 180.
While the majority observes that People v Vega, 413 Mich 773; 321 NW2d 675 (1982), requires independent evidence of a conspiracy, and "militates in favor of reading a similar requirement into the excited utterance rule,” ante, p 282, it fails to observe the significance of the fact that Vega is based on language added to the federal equivalent of MRE 801(d)(2)(E) requiring independent proof of the conspiracy.27 The excited utterance exception, MRE 803(2), is, by contrast, identical to its federal counterpart, and it is clear under federal precedent that the "independent” proof requirement imposed by the majority does not obtain.28 In any event, once it is recognized that *322the 104(a) ruling need not rest on admissible evidence, it is unnecessary to look to Vega as analogous authority. There is ample "relevant evidence of the happening of the event.
The majority does not argue that a sexual assault is not a startling event, or that a statement made by a woman, found running down a road at approximately 5:30 a.m. wearing no shoes or underwear, with her dress twisted on her body, that she had been sexually assaulted, was made while still under the stress caused by the event. What divides us is the majority’s assumption that MRE 104 requires that the startling event must be shown independently of the statement. Ante, p 295. While it is true that a minority of jurisdictions hold that a startling event cannot be shown from the making of the statement, these cases do not stand for the proposition that the trial court may not consider the fact that the statement was made in deciding preliminary admissibility.
The majority’s superimposition of an independent proof requirement and its failure to recognize that all of the evidence, including hearsay, adduced at the preliminary hearing may be considered in determining admissibility, undoubtedly accounts for the fact that there are no cases cited in the lead opinion, including the case claimed to be directly on point, in which the courts have found any corroborating evidence and not admitted the statements under the excited utterance exception.29 *323For example, in People v Leonard, 83 Ill 2d 411, 418-419; 415 NE2d 358 (1980), the court, in reversing the lower court’s decision and admitting the statements, held that any circumstantial evidence under circumstances which appear reliable is sufficient corroboration of the underlying startling event. Furthermore, the lower court’s reliance on Truck Ins Exchange v Michling, 364 SW2d 172 (Tex, 1963), was misplaced because in Michling, the only evidence offered to prove that the deceased employee suffered an injury arising out of his employment was a statement to that effect given by his widow, and there also was strong evidence to suggest its unreliability. Id.
Courts that have relied on Michling do so only in situations in which there is absolutely no evidence to corroborate the event or the statement.30 Ante, pp 285-286. Thus, the majority’s discussion of Michling is inapplicable to the case before this Court, and, therefore, there is no support for the majority’s conclusion that the condition of the *324victim,31 the defendant’s possession of her clothes and shoes,32 the victim’s testimony at the preliminary examination affirming that she had made subsequent consistent statements, even after intimidating contacts had been made, is insufficient corroboration of the underlying event.33
Finally, even if the majority’s approach were correct,34 and the circumstances surrounding the *325incident were the only corroborating evidence of the underlying event, the victim’s disheveled appearance, fresh complaint and hysteria corroborated35 her description of the event,36 and the statement was properly admitted.37
Professor McCormick observed with regard to excited utterances that, as is uniquely illustrated *326in this case, the "testimony on the stand, given at a time when his powers of reflection and fabrication are operative, is at least no more reliable than his out-of-court statement.” McCormick, Evidence (3d ed), § 297, p 855. Thus, whether and why the victim subsequently recanted the allegation does not make the statement inadmissible under the excited utterance exception,38 and the excited utterance should be given the same force and effect as the in-court testimony of the rape victim.
In sum, whether statements will be admitted under the excited utterance exception is within the trial court’s sound discretion.39 Under the facts of this case, it cannot be said that the trial court abused that discretion in admitting the victim’s statements as spontaneous or excited.40 The trial court as well as the Court of Appeals on remand41 correctly noted that there was more evidence than the victim’s declaration itself that a startling event had occurred. Accordingly, the statements were properly admitted at trial.
*327Ill
The second issue is whether there was sufficient evidence42 to support the defendant’s convictions for first-degree criminal sexual conduct which, in this case, requires sexual penetration with another, the use of force or coercion, and personal injury to the victim. MCL 750.520b(l)(f); MSA 28.788(2X1X0.
Resolution of this issue requires that the Court decide whether "a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den 449 US 885 (1980). After reviewing the evidence in the light of the Hampton standard, we disagree with the Court of Appeals that the essential element of personal injury43 was proven beyond a reasonable doubt.
The Court of Appeals considered it unnecessary to address the defendant’s claim that there was insufficient evidence of mental anguish because there was sufficient evidence of other personal injury. We disagree. The prosecutor did not claim at trial or in his brief to the Court of Appeals that the personal injury sustained by the victim under count one was other than mental anguish. In addition, in regard to count two, the prosecutor claimed that the evidence of either mental anguish, or, alternatively, of aiding and abetting was *328sufficient in and of itself to sustain the defendant’s conviction of first-degree criminal sexual conduct without any showing of personal injury.
To support a finding of personal injury on the basis of mental anguish, the record must contain "either direct evidence of intensified mental suffering, such as specific testimony on the point from the victim, or perhaps circumstantial evidence of such suffering, as an inference properly to be drawn from other facts in the record.” People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985).
In most instances, testimony of the victim at trial as to her mental state during the assault, and either for a short or long term thereafter, will be introduced from which the factfinder may find that the victim experienced "extreme or excruciating pain, distress, or suffering of the mind.” Id., p 259. In the peculiar factual posture of the present case, such evidence was not forthcoming.
In Petrella, this Court firmly rejected the premise that there is a normal or natural emotional reaction to being raped which might be compared to the reaction that would support a finding of mental anguish. There we concluded, however, that evidence that the victim was upset, screaming, and crying during and after the act, and that she was still upset and crying after she arrived at her own apartment, was insufficient evidence standing alone to prove mental anguish.
The mental anguish proof in the instant case which consisted of testimony that the victim was hysterical for three to five minutes and appeared to be numb at the hospital is not as strong as that which was found insufficient in Petrella. We observe that there are here, as in Petrella, facts from which aggravated emotional distress might have been inferred. In Petrella, those facts were that the victim was the defendant’s natural daughter; *329in this case, that the victim was forced to perform and to submit to cunnilingus in the defendant’s presence. However, as in Petrella, there is no testimony that this fact exacerbated the complainant’s distress. We conclude that this record does not contain sufficient evidence of intensified mental distress.
The evidence was not sufficient to support submission of the mental anguish/personal injury element of first-degree criminal sexual conduct as to count one. As to count two, we are unable to determine from the general verdict whether the jury reached its conclusion on the mental anguish theory or the aiding and abetting theory.
However, since the jury’s verdict of guilty of first-degree criminal sexual conduct necessarily found the lesser included offense of third-degree criminal sexual conduct which requires the elements of penetration and force or coercion,44 the proper remedy in this case is a reduction of the degree of the convictions. See People v Patterson, 428 Mich 502 (1987). Accordingly, I would reverse the convictions of first-degree criminal sexual conduct, and remand the case to the trial court for entry of convictions of third-degree criminal sexual conduct and for resentencing.45
If, however, the prosecuting attorney is persuaded that justice would be better served, then, *330upon notification to the trial court before resentencing, the trial court shall vacate the judgment of convictions and grant a new trial on the charge of first-degree criminal sexual conduct in count two of the complaint.46
CONCLUSION
The trial court properly admitted the statements of the victim to the police officer into evidence under the excited utterance exception. The inability to use a corroborated excited utterance as proof of the startling event is an invitation to the intimidation of witnesses and victims. That is neither required by law nor consistent with sound policy.
The jury rejected the victim’s later explanations, apparently discrediting them on the basis of substantial evidence of intimidation. The jury found beyond a reasonable doubt that a sexual assault had occurred. I would urge the Court to consider very carefully the message sent by the opinion to a citizenry all too frequently fearful of becoming involved in a criminal proceeding.
However, although the statements were properly admitted, the evidence was insufficient to support the defendant’s convictions of first-degree criminal sexual conduct. I would remand to the trial court in accordance with this opinion._
The record contains information regarding three visits made to the complainant’s home within twenty-four hours of the sexual assault by people who asked her to drop the charges against the defendant and informed her that the defendant was a big man who had killed before, and the victim’s statement that she thought she would be in physical danger if she proceeded with the charge. See ante, pp 276-278.
MRE 803(2).
Where one of two alternative theories of guilt is legally insufficient to support a conviction, and where it is impossible to tell upon which theory the jury relied, the defendant may be retried on the second theory which could support a conviction. See, for example, People v Grainger, 117 Mich App 740, 755; 324 NW2d 762 (1982).
The prosecutor may, upon notification of the trial court before resentencing, request that the court vacate the convictions and grant a new trial on the charge of first-degree criminal sexual conduct in count two. People v Jenkins, 395 Mich 440, 443; 236 NW2d 503 (1975).
We do not address whether the prosecutor’s alternative theory of first-degree criminal sexual conduct in count two, on the ground that the defendant was aided or assisted by one or more persons, would support a conviction. MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii).
Similarly, we find it unnecessary to address the issue raised by the defendant that the jury instruction on the element of mental anguish was error requiring reversal.
In regard to the defendant’s remaining issue, the trial court did not err in allowing the prosecutor to impeach the victim’s recantation with evidence that she had received threats that included references to other crimes committed by the defendant. It clearly was proper to inform the jury regarding those efforts, and the trial judge cautioned the jury that the admission of evidence of earlier statements made by the victim had been permitted solely for the purpose of testing or judging the believability of the testimony which the victim made under oath, and not as evidence to prove any of the elements of the crime.
The complaint charged the defendant with two counts of first-degree criminal sexual conduct under the following circumstances: the defendant effected sexual penetration through force or coercion, and the victim sustained personal injury, as proscribed by MCL 750.520b(l)(f) and 750.520b(2); MSA 28.788(2X1)© and 28.788(2)(2).
The victim was taken to the hospital but was not medically examined because there were no outward signs of injuries. In addition, the sexual acts alleged would not have produced trace evidence detectable with the standard rape kit since the victim stated the defendant had not ejaculated in her mouth.
Two officers were sent to the defendant’s house to secure the premises and not let anyone enter until the detectives came back with a search warrant. They knocked on the door and checked the doors and windows to see if they were locked. Although it appeared that no one was home, after approximately two hours the defendant left carrying a bag.
The presentence report indicated that in that case the defendant was charged with first-degree murder on September 15, 1980, and was found guilty by a jury on December 16,1980, of second-degree murder and possession of a firearm during the commission of a felony. He was sentenced to life in prison.
However, on June 10, 1982, the case was remanded for a new trial, and at that trial a jury found the defendant not guilty. In that case, the defendant and another person had allegedly gone to a residence and, while the other person waited in a car, the defendant allegedly went to the door, talked to the person who opened the door, and then shot him in the abdomen.
The presentence report included information that the defendant had been charged with third-degree criminal sexual conduct in 1984 and that the victim declined to prosecute. There was also one other report of another similar incident in which the victim did not wish to prosecute.
The police testified they were concerned for her safety and that they did not doubt that she should be lodged for her own protection. On the evening of August 9, after the taped statement was given, a material witness warrant was issued and the victim was taken into custody. However, she was released the next day.
The victim had first been taken to the Oakland County Prose*311cutor’s Office and offered protection, which she declined, and then returned to the Southfield police station where she gave the taped statement. She was offered protection in the form of relocation or under a witness protection program.
The preliminary examination was held on August 29, 1983, and the defendant was bound over to the circuit court to stand trial on the charges contained in the complaint and the warrant.
During the exam, the victim denied that anyone had forced her to do anything against her will the night she was at the defendant’s home. The court noted that the statements made to the officer the night of the incident were admissible and the fact that the victim now recanted indicated either that the victim was guilty of perjury at this examination, or that she was guilty of making a false police report.
On February 14, 1985, the motion to quash the information was argued before the circuit court where the defendant maintained that court lacked jurisdiction to try the instant case on the basis of fatal irregularities at the preliminary examination proceeding. However, the motion was denied because the trial judge decided that on the basis of the preliminary examination transcript, the totality of the evidence presented before the magistrate was of such a nature that the district judge had probable cause to bind over the matter, and thus did not abuse his discretion.
The victim also testified that she did not remember what it was she told the other officer later that same morning at the police station. She testified that she had gone to the defendant’s house on the night in question to supply the defendant with sex for money. She stated that she and the defendant had argued loudly about the money for five to ten minutes, and that the reason she ran out of the house was because the defendant had slapped her.
*312The other woman at the house that night testified that the victim was at the defendant’s house, but she did not recall seeing or hearing anything that would indicate something was wrong until the victim ran out of the house.
The trial judge instructed the jury:
The defendant here is charged with two counts of criminal sexual conduct in the first degree. The defendant pleads not guilty to both of these counts. To establish count one, the prosecution must prove each of the following elements beyond a reasonable doubt. First, that the defendant engaged in an oral sexual act with [the victim], that is, a touching between the mouth of one party and the sex organs of the other. It is alleged in this case in count one that the sexual act was committed by a touching of [the victim’s] mouth with the penis of the defendant, this is fellatio.
Second, that the defendant caused personal injury to the complainant. Personal injury means bodily injury, bodily injury can be mental anguish, mental anguish means suffering which occurs at the time of the alleged act.
Third, that the defendant used force or coercion to commit the sexual act. The term force or coercion means the use of actual force, by actual physical force by the defendant or any action or threats sufficient to create a reasonable fear of dangerous consequences. It is sufficient for us, if the defendant overcame the complainant through the actual application of physical force or physical violence or it is also sufficient for us, if the defendant made the complainant submit by threatening to use force or violence on the complainant and the complainant believed that the defendant had the present ability to carry out those threats.
To establish count two, criminal sexual conduct in the first degree, the prosecution must prove each of the following ele*313meats beyond a reasonable doubt. First, that the defendant forced [the victim] to engage in an oral sexual act with another person. That is, the touching between the mouth of one party and the sex organs of the other. It is alleged in count two that the sexual act, cunnilingus, was committed by the touching of [the victim’s] mouth with the vagina of [the other person] or vice versa.
[The second and third elements of count two under this theory are the same as the second and third elements of count one.]
An alternative way in which the People can establish criminal sexual conduct in the first degree in count two is to prove first, that the defendant forced [the victim] to engage in an oral sexual act with another person. That is the touching between the mouth of one party and the sex organs of another. It is alleged in count two that the sexual act, cunnilingus, was committed by touching of the mouth of [the victim] to the vagina of [the other person] or vice versa.
Second, that before or at the time of the alleged act, the defendant was aided or assisted by one or more persons. It is sufficient if such other person or persons either performed any acts or gave encouragement which aided in the commission of the crime.
Third, that the defendant used force or coercion to have the victim commit the sexual act.
The judge further instructed:
If you find the defendant not guilty, either count, that is criminal sexual conduct in the first degree, the two counts that we have here, you may consider whether the defendant is guilty of criminal sexual conduct in the third degree, a lesser included offense of first degree criminal sexual conduct.
Here’s the criminal sexual conduct in the third degree. To establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt. First, that the defendant engaged in an oral sexual act with the complainant. That is the touching between the mouth of one party and the sex organs of the other. It is alleged in this case that the sexual act was committed by a touching of the mouth of the complainant with the penis of the defendant and the mouth of [the victim] with the vagina of [the other person].
When sentencing the defendant the trial judge noted:
*314I also had the opportunity to sit through this trial and observe all the witnesses and hear the totality of the testimony. I am satisfied that on the date in question, the jury was correct in finding that an act did occur. In fact, two acts; ... I am satisfied that both those acts occurred and that they were extremely violent acts against both parties. Therefore, I am satisfied in the totality of the testimony and my observation of the pre-sentence report that you should be turned over to the Department of Corrections for a term of life.
I’m making this decision on the basis that I consider you a very violent person based on the testimony that I heard during trial and I am satisfied that it is important to keep you off the streets. I’m sentencing you under People v Cole [411 Mich 483; 307 NW2d 687 (1981)], wherein I’m sentencing you for the purpose of disciplining you and punishing you and also for the protection of society. I am satisfied that, in regards to item 3 of the People v Cole, that rehabilitation is no possibility in your regard. I am also — hopefully [sic] that others will be deterred from these violent acts against our fellow human beings.
People v Burton, unpublished opinion per curiam, decided March 12, 1987 (Docket No. 85654).
The Court of Appeals concluded that the trial court did not abuse its discretion when it admitted the victim’s statement into evidence as excited utterances, and that reversal was not warranted on this ground.
The panel also addressed the defendant’s other issues and found the evidence sufficient to support the defendant’s convictions of first-degree criminal sexual conduct. Further, although the panel agreed with the defendant that the jury instruction incorrectly described the degree of mental anguish necessary to constitute personal injury, they concluded manifest injustice did not result from the use of the erroneous jury instruction.
People v Burton, 430 Mich 891 (1988).
People v Burton, unpublished opinion per curiam of the Court of Appeals on remand, decided November 18, 1987 (Docket No. 102528),
[W]e note that when the officer spotted the victim running down the road she had no shoes on and her dress was twisted on her body. She kept looking back over her shoulder as she ran. When she spotted the patrol- car, she ran over to the vehicle and tried to get in before the officer could unlock the door. Initially, she was crying too hard to indicate what had happened.
After relating her story, while continuing to cry off and on, complainant repeated her story in a statement to another officer later that morning. Also that morning, the police arrested defendant while he was leaving his house. After arresting defendant, the police, armed with a search warrant, discovered complainant’s bra in the upstairs bedroom and her underpants and shoes inside a small cloth bag carried by defendant.
People v Burton, 430 Mich 891 (1988).
An excited utterance is defined as:
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. [MRE 803(2).]
The majority also claims that the testimony of Officer Connors cast serious doubt on the proposition that the complainant’s statements were spontaneous despite extensive questioning by Officer Connors and the passage of time. Ante, p 302. However, whether these factors deprived the statements of the requisite spontaneity is not addressed since the statements were otherwise inadmissible.
While the time between the startling event and the excited utterance and whether the declaration was made in response to a question are important factors, the application of the excited utterance exception depends "entirely on the circumstances of each case.” 6 Wigmore, Evidence (Chadbourn rev), § 1750, p 204. The facts do not show, as the trial court found, that the statements were a product of reflection and deliberation, or that the statements should have been excluded since *317the exact length of time between the event and the utterance was not established.
As all authorities recognize, MRE 104(a) permits the court to base its evaluation of the reliability of the statement on hearsay statements and other inadmissible evidence. Much of the structure of exclusionary rules of evidence has grown out of the courts’ attempts to shield the jury from all but reliable testimony and evidence. However, since the judge generally will be fully cognizant of the weakness of evidence by affidavit or hearsay, such weakness will be taken into account when evaluating its weight on the preliminary question in a suppression hearing. Thus, there is no real need to erect the structure of exclusionary rules. 1 Weinstein, Evidence, ¶ 104[02], p 104-22.
In addition, the degree to which a judge should depart from the rules of evidence will depend on the circumstances in each case. Where the preliminary fact is one that can be proved only “by the admission of the assertedly inadmissible evidence, for example, a judge may examine the contents of an excited utterance to determine if it relates to the startling event. 21 Wright & Graham, Federal Practice & Procedure: Evidence, § 5055, pp 274-275. See also McCormick, Evidence (3d ed), § 53, p 136, n 8.
The advisory committee note to Rule 104(a) gives examples of matters encompassed by the rule, unavailability of a hearsay declarant and the against-interest nature of a hearsay declaration. Thus, it has been recognized that the trial court may rely on hearsay statements made to doctors and nurses by a declarant deceased at the time of trial in deciding the declarant’s mental capacity under FRE 104(a). Huff v White Motor Corp, 609 F2d 286 (CA 7, 1979). In addition, hearsay evidence, including grand jury testimony oí a deceased witness may be considered, "as will all other relevant evidence,” making a Rule 104(a) determination of waiver on a confrontation issue. United States v Mastrangelo, 693 F2d 269, 273 (CA 2, 1982). In determining the status of records as business records, a court "may rely upon evidence which is wholly inadmissible, or is admissible only against certain parties, in determining whether or not the proffered documents meet the requirements of [the hearsay exception].” Zenith Radio Corp v Matsushita Electric Ind Co, 505 F Supp 1190, 1230 (ED Pa, 1980).
The Court observed that the Rules of Evidence normally applicable at criminal trials do not apply with full force to proceedings in which the judge himself is considering the admissibility of evidence, and that Rule 104 was consistent with the views of various authorities on evidence. Id., p 174.
While the question what standard of proof the judge is to use in deciding preliminary questions of fact is not specified in MRE 104(a), it appears that the standard is "a preponderance of the evidence,” which means that it is more likely than not that the event described occurred. 21 Wright & Graham, n 22 supra, § 5053, p 262. See also Miller v Keating, 754 F2d 507 (CA 3, 1985).
The rationale for the use of the excited utterance exception to the hearsay rule lies in its purported reliability, premised on a finding that there is no opportunity for contrivance at the time the statements were made. People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979). The key to the exception is that the statements are made before there is time to contrive or misrepresent and while the "nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” People v Ivory Thomas, 14 Mich App 642, 650; 165 NW2d 879 (1968).
The lead opinion notes that the failure of an independent proof requirement, would "lift [hearsay] by its own bootstraps to the level of competent evidence,” Vega, supra, p 780, quoting Glasser v United States, 315 US 60; 62 S Ct 457; 86 L Ed 680 (1942). However, the United States Supreme Court observed in Bourjaily, supra, that Glasser was decided before Congress enacted the Federal Rules of Evidence in 1975, and, concluded "To the extent that Glasser meant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a).” Bourjaily, 483 US 181. Any rule barring consideration of the hearsay statements per se during preliminary fact finding was not required in determining the existence of the conspiracy. Id., 483 US 180.
Wetherbee v Safety Casualty Co, 219 F2d 274 (CA 5, 1955); Lampe v United States, 97 US App DC 160; 229 F2d 43 (1956), cert den 359 US 929 (1959) (circumstantial evidence inferred from the victim’s condition such as injuries or state of shock is admissible evidence). See also anno, Criminal law — res gestae-principal act, 38 ALR4th 1237. There are no cases which support the conclusion of the lead opinion that there must be independent evidence of the startling event for purposes of the excited utterance exception.
In Commonwealth v Barnes, 310 Pa Super 480; 456 A2d 1037 (1983), the court observed that the extrajudicial statement was the only evidence that any crime had been committed, noting that a search of the defendant’s apartment conducted within twenty minutes of the alleged robbery failed to produce any part of the money alleged to have been stolen, an observation inconsistent with the situation in this case in which the victim’s brassiere was discovered where she said it would be discovered in the excited utterance. Id., p 485.
See also People v Straight, 430 Mich 418, 425; 424 NW2d 257 (1988), citing McCormick, n 22 supra, and 4 Weinstein, Evidence, ¶ 803(2)[01], pp 803-87 to 803-89.
*323The lead opinion cites the following cases as examples of situations in which courts did not admit statements under the excited utterance exception because there was no independent evidence of the startling event. However, the cases actually are examples of situations in which the statements could not be considered reliable because they were not the product of the type of event which is considered sufficiently startling under the exception, or there was no evidence of excitement, or there was no way for the court to determine the time lapse between the statement and the event.
In Brown v United States, 80 US App DC 270; 152 F2d 138 (1945), the court found "no evidence in the child’s story or, otherwise, that she actually suffered mental disturbance,” inferring that had the child evidenced excitement, the statements would have been admissible. Further, Rogers v Saginaw B C R Co, 187 Mich 490; 153 NW 784 (1915), was not a situation in which a party attempted to use the statement itself to establish its own spontaneity. Ante, p 280. In that case the Court did not admit the statements because there was no evidence of when the event took place and, therefore, it was not possible to determine whether the declarant had time to contrive or reflect before making utterances. See also People v Cunningham, 398 Mich 514; 248 NW2d 166 (1976). See also Jones v United States, 97 US App DC 291; 231 F2d 244 (1956).
See, for example, Richardson v Green, 677 SW2d 497 (Tex, 1984).
While the admissibility of statements made by a victim after the commission of a sex crime depends upon a variety of factors, it is incontrovertible that an important factor is the condition of the victim at the time of the particular utterance. 29 Am Jur 2d, Evidence, § 719, p 786.
The fact that the victim was dazed, excited, hysterical, bruised or disheveled when making the statements is noted in practically every case where the utterances are held admissible. See, for example, People v Zysk, 149 Mich App 452; 386 NW2d 213 (1986); see also People v Hungate, 27 Mich App 496; 183 NW2d 634 (1970); People v Usher, 121 Mich App 345; 328 NW2d 628 (1982).
The majority disregards the fact that the victim’s underclothes and shoes were found in the defendant’s possession and, instead, notes these facts as insufficient proof that something out of the ordinary occurred.
See United States v Moore, 791 F2d 566, 570 (CA 7, 1986). In Moore, like the case before this Court, the occurrence of the startling event was corroborated by evidence other than the resulting excited utterance, specifically the appearance, behavior and condition of the declarant. See also 4 Weinstein, Evidence, ¶ 803(2)[01], p 803-87.
In People v Coleman, 116 Ill App 3d 28; 451 NE2d 973 (1983), the statements were not held "inadmissible because there was insufficient evidence of an underlying startling event.” Ante, p 284. Instead, the court did not believe that the argument itself was a sufficiently startling event. Further, the court noted that even assuming that the argument was a startling event, there was no indication of the length of time between the "startling event” and the decedent’s statements to her mother. Id.
The lead opinion maintains the initial inquiry is whether an excited utterance standing alone may be used to establish the underlying startling event. Ante, p 280. However, whether proof of the startling event may be made by the statement itself is largely an academic question since in most cases, as in the instant case, proof is furnished either by testimony of witnesses other than the declarant, or by circumstantial evidence that something out of the ordinary occurred. McCormick, n 22 supra, p 855. See also Weinstein, n 29 supra, p 803-34.
While in some jurisdictions the statement might have been taken as sufficient proof that an exciting event occurred, a review of the case law reveals that there really is no minority rule per se that *325allows a startling event to be established when the sole evidence is the statement even without evidence of stress or excitement on the part of the declarant.
It is remarkable that the majority finds that neither the condition of the victim, nor the fact that when the defendant was apprehended leaving his home he was carrying the victim’s underwear and shoes, nor that her brassiere was found in the defendant’s bedroom when the search was conducted, are sufficient to sustain admissibility as a preliminary matter when a jury concluded beyond a reasonable doubt that such was the fact.
When a statement that is hearsay is offered under the excited utterance exception, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of utterance that he did not reflect or did not have an opportunity to reflect on what he was saying. United States v McLennan, 563 F2d 943 (CA 9, 1977), cert den 435 US 969 (1978). The record does not support any serious doubt that the victim in this case was in a state of excitement as indicated by the victim’s nervousness, shaking, and her crying and sobbing, to the point where she could not even talk to the officer. Thus, the trial court correctly concluded the declarant was still under the influence of the event when she described the sexual assault to the police officer.
The cases cited in the majority opinion as examples of situations in which the Court required independent evidence to prove the existence of the underlying event involve situations in which the court considered the physical condition of the victim in determining whether the declarant had time to contrive or reflect when an appreciable time had lapsed between the event and the statement. Ante, pp 286-289.
For example, in People v Hungate, n 31 supra, p 498, the defendant contended that so much time had elapsed between the alleged abortion and statement that the statement could not possibly be spontaneous. The Court noted the physical condition of the declarant was sufficient evidence to support a finding that a startling event was spontaneous despite the fact that so much time had elapsed, and that it appeared the statement was not a deliberate and considered answer to a leading question. Id., pp 499-500. See also People v Mosley, 74 Mich App 145, 148; 254 NW2d 33 (1977), in which the Court, when admitting testimony that the victim had stated that her husband "did this to her,” relied on the fact that there was evidence of physical violence to infer the event because the victim died immediately after making the statement.
It is clear from the record that the victim was intimidated by the visits and calls regarding the charge she had brought against the defendant, the violent manner in which the defendant had treated her during the criminal act, and by the issuance of the material witness warrant by the police. Without the excited utterance there would have been no proofs against the defendant and the lack of proofs in this case appear to have resulted from intervening threats against the victim, made either at the defendant’s direction or on his behalf, which caused her to recant her story.
See, for example, People v Hungate, n 31 supra, and People v Mosley, n 37 supra.
Thus, it is not necessary that the prosecution establish either a majority rule or a disposition on the part of Michigan courts to allow an excited utterance to prove the underlying event in order to justify the admission of the victim’s statements in the present case. The conclusion that the prosecutor is using the victim’s statement as its own foundation for a finding of a startling event or occasion is without merit or any factual support.
The Court of Appeals did not, as the lead opinion asserts, decline to address the issue whether there was independent evidence of a startling event. Ante, p 278.
In this case, while defense counsel did not make a motion for a directed verdict, this Court has held that in a criminal case a motion for directed verdict or a postverdict motion is not required to preserve a sufficiency claim. People v Patterson, 428 Mich 502, 514-515; 410 NW2d 733 (1987). Cf. Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987), reh den 429 Mich 1213 (1987).
Personal injury is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease or loss or impairment of a sexual or reproductive organ.” MCL 750.520a(j); MSA 28.788(1)©.
The victim did indicate in her statements to the police that there were sexual penetrations effected by means of force and coercion and this constitutes sufficient evidence to support convictions of third-degree criminal sexual conduct. MCL 750.520d(l)(b); MSA 28.788(4)(1)Q3). See People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977), in which the Court found that where the aggravating circumstance is force or coercion and personal injury under a charge of first-degree criminal sexual conduct, second-, third-, and fourth-degree criminal sexual conduct were necessarily included offenses. Id., p 708. See also People v Secreto, 81 Mich App 1, 3; 264 NW2d 99 (1978), lv den 406 Mich 1019 (1979).
People v Jenkins, n 3 supra, p 443.
The alternate theory offered by the prosecutor in order to establish criminal sexual conduct in the first degree in count two was that at the time of the act the defendant was aided or assisted by one or more persons. See MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii). We express no opinion as to whether the statute contemplates a situation such as that described in the incident with the other woman.