State v. Curiel, 504 P.3d 629

Defendant Jose Alonso Curiel and victim RA (spouses); RA called 9-1-1 saying Curiel hit her 5–6 times with an open hand and kicked her. Responding officers interviewed RA within 24 hours.
RA described a brief ‘‘stingy shock’’ sensation, rated pain ~2/10 and lasting under a minute; no testimony of marks, bruises, or lasting impairment.
RA told officers about relationship history (Curiel controlling, goes through her phone, aggressive when drinking, prior abuse, refused counseling); some of those statements were admitted at trial under OEC 803(26) and others excluded by the trial court.
Jury convicted Curiel of fourth-degree assault (ORS 163.160) and harassment constituting domestic violence (ORS 166.065); the convictions were merged and a single judgment entered on Count 1.
On appeal Curiel argued (1) insufficient evidence of the statutorily required ‘physical injury’ (i.e., ‘substantial pain’) for fourth-degree assault, and (2) erroneous admission of certain out-of-court statements under the OEC 803(26) domestic-violence hearsay exception.
The court reversed the Count 1 conviction (insufficient proof of substantial pain) and held the admission of the challenged hearsay was erroneous and not harmless as to Count 2, so reversed and remanded that count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proved the element ‘physical injury’ ("substantial pain") for 4th-degree assault	Victim’s report she was struck 5–6 times and kicked and that her jaw was ‘‘popping’’ allowed a reasonable inference of substantial pain	Victim described only a short, minor ‘‘sting’’ (2/10), no marks/impairment; evidence insufficient to prove substantial pain	Reversed — evidence insufficient to establish ‘substantial pain’ required for ORS 163.160
Whether certain out-of-court statements were admissible under OEC 803(26) (domestic-violence hearsay exception)	OEC 803(26) admits statements that ‘‘purport to narrate, describe, report or explain’’ a domestic-violence incident made within 24 hours; the challenged statements explain/contextualize the incident and are admissible	Statements were background/backstory occurring outside the incident window and do not ‘‘explain’’ the particular incident within the 24‑hour rule; admission was hearsay error	Court erred admitting them: "purport" + "explain" mean conveying a reason/cause/account for the incident; on this record the statements did not do so. Error not harmless as to harassment verdict — reversed and remanded

State v. Casey, 346 Or 54 (standard for reviewing judgment-of-acquittal denial)
State v. Long, 286 Or App 334 (definition of ‘substantial pain’ — degree and duration)
State v. Johnson, 275 Or App 468 (‘‘sting’’ pain insufficient for ‘substantial pain’)
State v. Soto-Martinez, 315 Or App 79 (circumstantial evidence may support substantial pain when non-speculative)
State v. Lobo, 261 Or App 741 (standard of review for hearsay admissibility rulings)
State v. Gaines, 346 Or 160 (statutory interpretation principles)
State v. Szoke, 212 Or App 491 (harmless-error analysis)
State v. Davis, 336 Or 19 (harmless-error standard guidance)