YOUNG, J., concurring in part and dissenting in part. I concur in the majority's ruling on appellant's first assignment of error. Concerning appellant's second assignment of error, I agree with the majority that the ruling by the magistrate to deem Quentin unavailable, as well as the attendant attitude of the magistrate in making the ruling, should be strongly disapproved. I must respectfully dissent, though, because while such a ruling should be criticized, it was harmless in light of the substantial facts supporting the magistrate's and trial court's decisions awarding appellee residential custody of Quentin.
The majority is correct that the magistrate's blanket ruling was contrary to the spirit of the Rules of Evidence. Nonetheless, the majority fails to properly consider those issues which are central to a proper analysis of the effects of the magistrate's ruling. In light of the final decision of the magistrate, discussion of these issues demonstrates that the magistrate's erroneous ruling did not so affect *Page 476 appellant's rights as to deprive him of the "complete and full hearing to which he was entitled."
First, the majority references Evid.R. 601 without providing any application of the rule to the facts of this case. Under Evid.R. 601,3 the competency of a child under ten years of age must be established. The majority is correct that when a party seeks to present the testimony of a child under ten years of age, that party must be given the opportunity to establish the child's competence to testify. State v. Clark (1994), 71 Ohio St.3d 466,469, reconsideration denied (1995), 71 Ohio St.3d 1467.
The magistrate's ruling deemed Quentin unavailable to testify by declaring him incompetent, but appellant made no attempt to establish Quentin's competency. In fact, the discussions between the magistrate and appellant's counsel demonstrate that appellant was not attempting to present any testimony by Quentin. At no time did appellant object to this ruling by the trial court. In his brief before this court, appellant concedes that "[Quentin] Tyler would not, probably, be a competent witness, due to his age and susceptibility." Before the magistrate, appellant only sought to challenge subsequent hearsay testimony presented by appellee. At no time did appellant indicate that he wished to call Quentin as a witness, nor did he make an offer of proof to establish Quentin's competence.
Thus, the majority's decision that the trial court's ruling prevented appellant from being able to examine Quentin regarding the hearsay testimony presented by appellee is not supported by the record. Before one could reach such a conclusion, one would have to find that appellant sought to call Quentin to testify, and there is nothing in the record to support such a conclusion. The majority's finding that a substantial right of appellant, to cross-examine hearsay testimony, was affected is predicated on itsassumption that appellant would call Quentin as a witness. In short, even though appellant failed to assert this right in the proceedings below, the majority is now asserting this right on his behalf.
The majority apparently determined that the hearsay statements admitted were central to the magistrate's final decision on custody, even though the record contradicts any such conclusion. The majority states:
The magistrate apparently attempted to circumvent the erroneous ruling by holding that appellant's animosity, rather than the hearsay testimony, was the crux of the decision. The trial court then adopted the magistrate's decision, *Page 477 stating "[i]t does not appear that this hearsay evidence had any affect [sic] on the magistrate's decision."
The judgment entries of both the magistrate and the trial court were unambiguous expressions of their decisions and the reasons for their decisions. A trial court "speaks through its entry" and "[w]e must accept the judgment entry as a correct and unambiguous expression of the trial court's resolution" of the case. Nortonv. Liapis (Sept. 27, 1999), Butler App. No. CA99-03-068, unreported, at 8-9.
A proper analysis of the effect of the admitted hearsay statements upon the proceedings below demonstrates that no substantial right of appellant was so affected as to require a new hearing. The majority is correct that twenty-four hearsay statements were admitted as a result of the magistrate's declaration that Quentin was unavailable. Much of this hearsay testimony concerned statements by Quentin which reflected his then-existing state of mind or emotions.
Hearsay statements which reflect the declarant's then-existing mental, emotional, or physical condition are admissible pursuant to Evid.R. 803,4 by which the declarant's availability is immaterial. Much of the admitted hearsay testimony concerned statements by Quentin that he was either afraid of appellant or that he did not want to visit with appellant. The majority reasons that these statements are inadmissible because they "reflect" Quentin's state of mind, rather tham being statements "of" his state of mind. Such a distinction seems to go against case law and the very purposes of Evid.R. 803(3).
Under the majority's reasoning, unless a declarant uses the proper words to convey his or her state of mind, such statements are not admissible. Other courts have consistently found otherwise. In Statev. Awkal (1996), 76 Ohio St.3d 324, certiorari denied (1997), 519 U.S. 1096, 117 S.Ct. 776, the Supreme Court of Ohio, discussing State v. Apanovitch (1987), 33 Ohio St.3d 19, stated
this court discussed the admissibility of evidence reflecting a victim's fearful state of mind. However, the court limited this type of testimony to that reflecting the state of mind of the victim, but not the reasons underlying that state of mind. (Emphasis added.)
Awkal, 76 Ohio St.3d at 331. *Page 478
This reasoning is in accord with earlier decisions. In State v.Simko (1994), 71 Ohio St.3d 483, rehearing/reconsideration denied, 71 Ohio St.3d 1476, certiorari denied (1995),516 U.S. 831, 116 S.Ct. 103, the supreme court affirmed the decision of an appellate court which upheld admission of statements which were "`arguably relevant' to show that appellant was distraught and that he was following Mary Jane Johnson on the night before the shooting." Id. at 491. The court found that the admission of such evidence under Evid.R. 803(3) was "supportable."Id. This testimony included statements that the victim was scared and that she had changed her telephone number because appellant had continued to call her, even after being told to stop. Id. Even in Apanovitch, 33 Ohio St.3d 19, which the majority cites, the Supreme Court of Ohio noted that statements "to the effect" that the declarant was scared or apprehensive are admissible. Id. at 21. Nothing in these cases, or in the purpose of Evid.R. 803(3) — to admit otherwise reliable and spontaneous statements reflecting the declarant's state of mind — seem to support the majority's assertion that it is the words used, not the state of mind conveyed, which governs admissibility.
With this in mind, that hearsay testimony reflecting Quentin's then-existing mental or emotional state was admissible. The hearsay statements reflected Quentin's fear of being with appellant and his apprehension of leaving with appellant. It would seem that in a custody dispute, the child's fear of leaving to visit with his father would be a central concern of the trial court. The majority does not dispute this concern; instead only stating that Quentin apparently used the wrong words to convey his fears and that his statements should have therefore been excluded. I disagree.
This leaves fifteen allegedly improper hearsay statements. Of these, some were statements by Quentin that he did not feel loved, clearly an expression of his then-existing state of mind and emotion under Evid.R. 803(3). Another statement was a question by Quentin concerning appellee's alleged affairs, which was admitted for the fact that Quentin asked the question, not that appellee had affairs. This last statement was not being offered for the matter asserted and did not fall within the definition of hearsay in Evid.R. 801(C).5
Pursuant to Evid.R. 403(A),6 hearsay testimony which is otherwise admissible may be excluded if its probative value is "substantially outweighed" by its danger of *Page 479 unfair prejudice. Without question, testimony that Quentin was afraid of being with appellant, or that Quentin felt unloved, would weigh against appellant because it would tend to demonstrate that giving appellant residential custody of Quentin would not be in Quentin's best interest. However, these statements go directly to Quentin's best interest, and it cannot be said that they "unfairly prejudice" appellant.
The remaining hearsay statements concerned past actions, accusations, or threats made by appellant which would be excluded either by Evid.R. 8057 as improper double hearsay or by theApanovitch rule cited by the majority. The majority is correct in finding that the admission of these statements was error. Nonetheless, in light of the findings of the magistrate and trial court that appellant's own demeanor reflected that he would not support appellee's visitation and companionship rights, this hearsay testimony did not create such unfair prejudice as to deprive appellant of a fair hearing.
Appellant's testimony before the magistrate evidenced an obsession with appellee's past extra-marital affairs, and open hostility toward her as a result of this obsession. It was clear to the magistrate that, based upon this testimony, appellant would not be the parent most likely to honor visitation and companionship rights. Even though the admission of some of the hearsay was erroneous, appellant's own testimony, in and of itself, supports the magistrate's decision.
Other evidence presented at the hearing before the magistrate supported the magistrate's final decision. Appellee presented testimony that she would make the better residential parent. Appellee is presently Quentin's primary caregiver. She had recently changed her work hours so that she could spend more time with Quentin. Although appellee admitted to suffering from bouts of depression, she has sought medical treatment for this condition. In addition, there was evidence that Quentin often returned from his visits with appellant feeling hostile and withdrawn.
In light of appellee's non-hearsay evidence and the hostile demeanor of appellant's testimony, the magistrate's ruling that Quentin was not available to testify was harmless. Civ.R. 61.8 The trial court reached this exact conclusion. The *Page 480 trial court reviewed the objections to the magistrate's decision filed by appellant and considered the evidence presented before the magistrate. The trial court ruled that it was clear that the magistrate did not base the decision upon the hearsay presented, but upon appellant's own testimony and demeanor. The judgment of the magistrate and that of the trial court are both unambiguous and supported by the record. We are required to accept them as correct statements of the reasons for the decisions below. Norton at 8-9.
This court should not criticize the magistrate's decision at the expense of a proper analysis and resolution of the issues presented for our review. I must respectfully dissent from the majority's resolution of appellant's second assignment of error.
I would also address appellant's third, fourth, and fifth assignments of error, rather than deeming them moot. I would hold that the findings of fact challenged in appellant's third assignment of error, those relating to appellant's hostility toward appellee, have support in the record. With regard to appellant's fourth assignment of error, I would find that the judgment of the magistrate and trial court were not against the manifest weight of the evidence, especially in light of the substantial evidence presented by appellee that she would make the better residential parent and the testimony of appellant demonstrating his obsessive and hostile attitude towards appellee.
As to appellant's fifth assignment of error, I would find that the trial court properly overruled appellant's motion for a new trial. Appellant argues that he presented evidence that appellee had engaged in misconduct after the final hearing and that she had hired someone to kill him. Appellant also raised the errors asserted in his first four assignments of error in this appeal. The trial court found appellant's claims to be unsubstantiated or without merit, and I would affirm the trial court's decision to overrule appellant's motion for a new trial.
Accordingly, I would affirm the judgment of the trial court.
3 Evid.R. 601 states:
Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.
4 Evid.R. 803 states:
The following are not excluded by the hearsay rule, even though the declarant is available to testify:
* * *
(3) Then existing, mental, emotional, or physical condition
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, or 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.
5 Evid.R. 801(C) states:
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
6 Evid.R. 403(A) states:
Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
7 Evid.R. 805 states:
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
8 Civ.R. 61 states:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every state of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.*Page 481