¶1 concurring. I concur in judgment because I believe the evidence of guilt is overwhelming. I write separately to express my concern with the majority’s expansive interpretation of Evid. R. 803(4).
¶2 One must always be mindful that the Evidence Rules are to be construed to state the common law of Ohio unless the rule clearly indicates that a change is intended. Evid. R. 102.
¶3 Evid. R. 601, which restates, nearly verbatim, R.C. 2317.01, provides in part:
“Every person is competent to be a witness except:
“(A) Those of unsound mind, and children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and trans *48 actions respecting which they are examined, or of relating them truly …
¶4 The hearsay exception for statements made for purpose of medical diagnosis or treatment (Evid. R. 803[4]) is founded on the premise that such statements are reliable because of the declarant’s motive to tell the truth because his treatment will depend in part upon what he says. But if the declarant is “incapable of receiving just impressions of the facts … or of relating them truly” how can the declarant’s historical statement be received as truthful when told to a doctor?
¶5 The majority is saying that a declarant is competent to tell a doctor what happened, even though he is not competent to tell the trier of fact. It is difficult for me to accept this contradiction, especially in a criminal case which has confrontation implications. I would be less troubled if the declarant were available to testify. At least in that situation the trier of fact would be able to compare the hearsay statement with the in-court statement.
¶6 It seems to me that the majority is applying what Professor Irving Younger once called “the guilty SOB theory of admissibility.” In other words, if you need the evidence to get a conviction — let it in.