(concurring). Because I am unpersuaded that the statements come within the general prohibition on character evidence to prove action in conformity with character,1 I agree with the majority’s holding that the admission of the two out-of-court statements made by the complainant to Mary Stevens are not precluded by the rape-shield statute. I write separately, however, to address the hearsay issue. At the preliminary examination, the prosecutor objected to the witness’ testimony on the basis of both hearsay and rape shield. On their face, the out-of-court statements are inadmissible hearsay. On remand, after proper objection, the trial court should make a factual determination regarding whether there is a sufficient nexus between the complainant’s statement of future intent and the act at issue.
The statements fall within the purview of the general ban on hearsay evidence because they are extrajudicial statements offered for the truth of the matter asserted. Unless the contested statements are found to come within one of the enumerated exceptions, the evidence is inadmissible. MRE 802.
The most likely exception allowing admission of the evidence is MRE 803(3), which states:
*332Then 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, 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.
The defense strategy in this case, and the issue sought to be proved by the hearsay statements, is consent. The state of mind at issue in this case is the complainant’s state of mind at the time the sexual activity took place. I agrée with the Court of Appeals dissent that evidence of the complainant’s state of mind at the time the statements were made are not probative of her actual state of mind at the time of the sexual activity.
Rather, the statements made by the complainant, indicating an intent to engage in sexual activity at an unspecified later date, are being offered to show that she later engaged in conduct consistent with her expressed intent.2
The leading case dealing with the issue of admissibility of statements of intent to show later conduct is Mutual Life Ins Co v Hillmon.3 Hillmon, a married man, had taken out three life insurance policies with his wife as beneficiary. In March, 1879, a man was shot. The victim was identified as Hillmon by the man who allegedly shot him. Mrs. Hillmon sued to recover *333the proceeds of the life insurance policies. The identification of the decedent as Hillmon was disputed. The insurance company claimed that the decedent was another man, Frederick Walters, who had disappeared at the same time. Offered as evidence were letters from Walters indicating his intention to leave with “a certain Mr. Hillmon, a sheep trader, for Colorado, or parts unknown to me.”4 5The letters were excluded as hearsay. The United States Supreme Court held that a declarant’s statement of intention is admissible to prove that the declarant subsequently acted in conformity with that intention where the act is a disputed material fact and that the letters should have been admitted. The Court stated:
The letters in question were competent not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention.5
However, the admissibility of statements of intention to show later conduct is not without limitation. Where the intention to be proved is only circumstantially relevant to prove the act at issue, there is a nexus requirement between the statement and the act:
When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of *334the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.[6)
Statements of intent to show later acts “derive [their] reliability and probative value from their nexus to the act itself.”6 7 In determining whether there is a sufficient nexus, the trial court considers the contemporaneity between the statement and the act, the opportunity for later reflection, and the relevance of the statements.8 Professor McCormick notes that a common thread running through cases admitting the evidence is that the “intent stated was quite concrete, e.g., to do a specific act at a specific time.”9 While McCormick acknowledges that specificity is not generally stated as a requirement, he notes that the absence of specificity detracts from the probative value of the evidence.
Of course, whether there is a sufficient nexus between the complainant’s statements and the act at issue is a preliminary question of fact to be determined by the trial court. MRE 104(a). The trial court is not limited by the Rules of Evidence in what it may consider in making its determination of admissibility, with the exception of privileges.
I concur in the majority opinion because the testimony is not precluded by the rape-shield statute. I write separately, however, to address the hearsay issue.
Weaver and Kelly, JJ., concurred with Boyle, J.Consistent with MCL 750.520j; MSA 28.788(10), MRE 404(a)(3) precludes all sexual conduct character evidence of the victim to prove action in conformity therewith, save for two exceptions.
MRE 803(3) does not explicitly address the question of admitting statements of intent to prove that the intended act was done. However, the Advisory Committee Notes to FRE 803(3), identical to MRE 803(3), state that the Hillmon rule, “allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed.”
145 US 285, 286; 12 S Ct 909; 36 L Ed 706 (1892).
Id. at 288.
Id. at 295-296.
Id. at 295.
United States v Hogan, 886 F2d 1497, 1512 (CA 7, 1989) (the out-of-court declarant’s statements were too vague and speculative to infer immediate action).
Id.
2 McCormick, Evidence (4th ed), § 275, p 236.