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State v. Hawn6/30/2000
ionable attitude on the part of the trial court. State v. Adams (1980), 62 Ohio St.2d 151.
Hearsay evidence, that is, evidence of an out-of-court statement or declaration made by a person other than the witness who testifies concerning it, is not admissible to prove the truth of the matter asserted. Evid.R. 801, Evid.R. 802. Specific exceptions to the rule against hearsay are provided by Evid.R. 803, which permits introduction of hearsay evidence to prove the truth of the matter asserted with respect to statements of a particular kind. Division (3) of Evid.R. 803 permits evidence of statements or declarations that the declarant made concerning his or her "then existing mental, emotional, or physical condition." Such statements are defined by the rule to include:
"A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."
Evid.R. 803(3) codifies a hearsay exception comprehended by the common law res gestae rule, which permitted evidence of utterances that form the verbal part of an act. That exception to the rule against hearsay was permitted for two reasons. First, because the act, not the utterance, was the object of the proof. Second, because the spontaneous nature of the utterance invested it with reliability.
Evid.R. 803(3) preserves the spontaneity factor of the res gestae rule by requiring that the declaration concern a "then existing" condition. The rule does not expressly require that an act be the object of the proof offered. However, to the extent that proof of a subsequent act is its object, the utterance must be relevant to prove the act. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401.
State of mind evidence is relevant to prove a subsequent act if and to the extent that it supports an inference that the declarant subsequently acted on or out of that state of mind to engage in particular conduct alleged. To satisfy that requirement, the actor's conduct must conform in one or more material ways with the state of mind he previously declared. Absent that nexus, the evidence lacks the quality of probability in relation to the purpose for which it is offered that Evid.R. 401 requires for relevant evidence.
Evidence that another person declared a state of mind that is in its nature and character consistent with conduct in which the actor is alleged to have subsequently engaged is not reasonably probative of a claim that the actor engaged in the conduct. Not having been made by the alleged actor, the declaration creates no probability that the actor was motivated by the prior state of mind he declared to subsequently engage in the conduct alleged. The separation of declarant and actor fatally undermines the basis of the inference which the evidence properly permits. Indeed, divorcing declarant from actor ignores the necessary unity of the two implied by the "verbal act" phenomenon that is the subject of the res gestae rule which Evid.R. 803(3) codifies.
The Supreme Court first permitted evidence concerning a murder victim's state of mind in State v. Apanovitch (1987), 33 Ohio St.3d 19. There, six witnesses had been permitted to testify, over the defendant's objection, that the victim was fearful or apprehensive of the defendant. Without e
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