¶1 concurring in part and dissenting in part.
¶2 I concur in portions of the principal opinion. However, with respect to the second assignment of error, I concur for reasons other than those stated in that opinion. With respect to the third, sixth and seventh assignment of error, I dissent.
¶3 In the second assignment of error, appellant asserts that the trial court erred by excluding his audiotaped confession from evidence. I do not find it necessary to determine whether the written and taped confessions are separate and distinct or two parts of one whole. Evid.R. 106 provides:
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissable [sic ] and which ought in fairness to be considered contemporaneously with it.” (Emphasis added.)
¶4 Thus, I see no purpose to distinguish an unadmitted portion of a writing previously admitted from “any other writing or recorded statement.” Clearly, it was an abuse of discretion not to admit the tape pursuant to Evid.R. 106. That having been said, I note that the taped confession was not proffered at trial as required by Evid.R. 103. The record on appeal contains only a portion of the recording. Absent such a proffer, we have no way to determine whether the exclusion was prejudicial. Appellant waived the error he asserts in the second assignment of error.
¶5 In resolving the issues raised by the third assignment of error, I find it unnecessary to apply the common-law hearsay exceptions announced in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220. These exceptions need not be employed (nor the exception currently found in Evid.R. 807) when another hearsay exception is applicable. I find that the testimony in question was admissible as an “excited utterance” under Evid.R. 803(2). In this case, the victim of Count Three of the indictment testified that when she told her cousin she had been molested, her cousin instinctively responded by saying that appellant had also molested her. In this regard, it is the revelation of molestation rather than the molestation itself which constitutes the startling event which resulted in the hearsay statement. As the statement was properly admissible under Evid.R. 803(2), we should not reverse the judgment of the trial court. While I agree that the court improperly ruled the testimony admissible under Evid.R. 801(D)(1)(c), we are not permitted to reverse a correct judgment because erroneous reasons were assigned as its basis. Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 174. Accordingly, I must dissent from the principal opinion’s resolution of the third assignment of error as I would overrule it.
¶6*750 The sixth assignment of error asserts that the trial court improperly admitted double hearsay. See Evid.R. 805. The contested testimony consisted of a counselor testifying as to what the victim’s mother told him the victim had told her. I agree with the conclusion in the principal opinion that hearsay evidence was improperly admitted below. I find, however, that appellant was not prejudiced by the admission due to the remaining overwhelming evidence of appellant’s guilt as discussed in my resolution of the seventh assignment of error. Even if the hearsay evidence had been excluded, substantial evidence as to every element of all three offenses was presented by the state such that the jury could find appellant guilty beyond a reasonable doubt. Thus, I would overrule the sixth assignment of error as the improper admission did not alter the outcome of the trial.
¶7 In the seventh assignment of error, appellant argues that the judgment of conviction for rape was against the manifest weight of the evidence as there was no evidence of penetration. I agree with the principal opinion’s conclusion that neither fellatio nor cunnilingus requires penetration. This conclusion, as to fellatio, is supported by State v. Long (1989), 64 Ohio App.3d 615, 618, 582 N.E.2d 626, 628, and given the definition of “cunnilingus,” see Webster’s New World Dictionary (3 College Ed. 1988) 338, I find Long equally applicable here.
¶8 The principal opinion sustains the seventh assignment of error based upon its resolution of the third and sixth assignments of error. Based upon the third and sixth assignments of error, the principal opinion holds that the state failed to present substantial, competent, credible evidence upon which the trier of fact could find all the elements of Counts One and Two proven beyond a reasonable doubt. I disagree. Appellant’s written confession contained admissions of both rape and gross sexual imposition committed against his stepdaughter. The investigator for the prosecutor’s office also testified that appellant admitted the incidents to him. I note that Count Three of the indictment is also established by this evidence. These sources are independent of the alleged errors in the third and sixth assignments of error. Accordingly, I find there was substantial, competent, credible evidence going to all the elements of all the offenses.
¶9 Based upon the foregoing, I would affirm the judgment of the trial court.
¶10 concurring.
¶11 I concur in the opinion and judgment of reversal, but I would also add a comment about the second assignment of error regarding the taped confession. I concurred in Waughtel, supra, but I believe the issue here is different. In that case, there was a taped confession and a transcript of the tape, not as we have here, two confessions.
¶12 Appellee did have the right to introduce only the written confession, but appellant had a similar right to introduce the taped one. We are opening the door to mischief by holding that where a confession is taped and a second confession is obtained in writing, the original taped confession becomes inadmissible. Whether there are any inconsistencies is for the jury. The applicable rule here is Evid.R. 401, relevancy, not Evid.R. 1002, best evidence.
¶13 To my mind, one of the best protections to ensure the validity and accuracy of the subsequent written confession is the sure and certain knowledge by the officer taking the written confession that the original tape will always be admissible.
¶14 Thus, I concur.