¶1concurring specially.
¶2I am in full accord with the affirmance of James’ conviction, and I agree with practically all that is said in the majority opinion. It is my view, however, that the majority opinion speaks too broadly in rejecting the admissibility of the journal of L.H. under W.R.E. 801(d)(1)(B). The majority opinion in so doing makes the blanket statement that “the journal evidence was inadmissible hearsay.” Op. at 392. Although the State, in its appellate brief, clearly offers alternative theories of admissibility for the journal, the majority opinion forgoes any discussion of those theories.
¶3The State relies upon Johnson v. State, 930 P.2d 358, 361-62 (Wyo.1996), in which this Court said:
“[Djecisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court’s ruling, that ruling will not be reversed on appeal.” Tennant v. State, 786 P.2d 339, 343 (Wyo.1990) (citing Hopkinson v. State, 632 P.2d 79, 101 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982)). “Rulings on the admissibility of evidence are committed to the sound discretion of the district court and are not subject to appellate second guessing absent an abuse of discretion. Abuse of discretion occurs when a court’s decision, or decision-making process, exceeds the bounds of measured reason in light of those matters properly before that court.” Curl v. State, 898 P.2d 369, 373 (Wyo.1995) (citations omitted). Hearsay evidence is ordinarily inadmissible; however, it can be received in evidence if it falls within one of the exceptions to the hearsay rule found in the Wyoming Rules of Evidence and it bears sufficient indicia of reliability to avoid violation of the Confrontation Clause. Hopkinson, 632 P.2d at 132. “We will not reverse [a decision admitting hearsay] unless there is clearly no adequate basis in law supporting the trial court’s rulings. Thus, if we can conclude that the challenged evidence was properly admissible under any exception to the hearsay rule then we must affirm its admission into evidence.” Hopkinson, 632 P.2d at 129.
¶4The State suggests that the journal could be admitted pursuant to W.R.E. 803(5), which provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party[.]
¶5The State concedes that the record does not contain the normal foundation testimony, which would be expected to invoke this exception to the hearsay rule.
¶6We have ruled that a diary can be read from in a personal injury action to report the daily symptoms of the injured party. Rudy v. Bossard, 997 P.2d 480, 484 (Wyo.2000). There we said:
Under W.R.E. 803(5), a memorandum or record may be read into evidence by a *398witness as long as: the witness once had personal knowledge of the matter, the record or memorandum was prepared by the witness when it was fresh in her memory, the record or memorandum accurately reflected the witness’ knowledge, .and the witness did not have sufficient recollection at the time of the trial to enable her to testify fully and accurately. .31 Michael H. Graham, Federal Practice and Procedure: Evidence § 6756 (Interim ed.1997).
¶7Rudy, 997 P.2d at 484. The substance of these foundation requirements is incorporated in the rule, and they are set forth in a slightly different way in Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 443 (2d ed.1994).
¶8The State correctly points out that the journal was neither offered under this exception to the hearsay rule nor was a foundation made because of James’ insistence that it be received into evidence before.it was referred to by the witness. The situation created by James’ demand excuses the State, and the trial court, both from identifying the particular grounds for admissibility and providing a proper foundation. Neither of these features was addressed in the record because of what must be accepted as the agreement of James that the journal should be received into evidence.
¶9My separation from the majority position is that I would not conclude that the trial court erred in admitting L.H.’s journal into evidence. I would invoke and apply the rule set forth in Johnsonto justify the reading of the journal at trial pursuant to W.R.E. 803(5). This analysis then leads me to the conclusion that the plain error rule was not applicable because there was no error. Having articulated this difference with the rationale of the majority of this Court, I agree that James’ Judgment Upon Jury Verdict and Judgment of Acquittal, entered on February 18,1997, and James’ Sentence, entered on April 17,1997, should be affirmed.