State v. Curiel , 316 Or. App. 215 ( 2021 )

215
Argued and submitted March 4; reversed as to Count 1, reversed and remanded
as to Count 2 December 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSE ALONSO CURIEL,
Defendant-Appellant.
Lane County Circuit Court
18CR72114; A171263
504 P3d 629
Defendant appeals a judgment of conviction for fourth-degree assault
(Count 1), ORS 163.160, entered after the trial court merged the jury’s verdicts
finding him guilty both of that charge and harassment constituting domestic
violence (Count 2), ORS 166.065. On appeal, he assigns error first to the trial
court’s denial of his motion for judgment of acquittal on the fourth-degree-assault
charge on the grounds that the evidence was insufficient to establish all elements
required by ORS 163.160. Second, defendant assigns error to the trial court’s
admission of certain out-of-court statements under OEC 803(26), the domes-
tic violence exception to the hearsay rule. Held: The court erred in denying the
motion for a judgment of acquittal because the evidence was insufficient to sup-
port a finding of physical injury. The court’s admission of hearsay statements was
also in error because the state did not demonstrate that those statements met the
requirements for admission under the OEC 803(26) hearsay exception. That error
was not harmless.
Reversed as to Count 1; reversed and remanded as to Count 2.
Bradley A. Cascagnette, Judge.
Nora Coon, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed as to Count 1; reversed and remanded as to
Count 2.
216 State v. Curiel
LAGESEN, P. J.
Defendant appeals a judgment of conviction for
fourth-degree assault (Count 1), ORS 163.160, entered after
the trial court merged the jury’s verdicts finding him guilty
both of that charge and harassment constituting domestic
violence (Count 2), ORS 166.065. On appeal, he assigns error
to the trial court’s denial of his motion for judgment of acquit-
tal on the fourth-degree-assault charge, and to the trial
court’s admission of certain out-of-court statements by the
victim under OEC 803(26), the domestic violence exception
to the hearsay rule. We conclude that the trial court erred in
both respects and, further, that the error in admitting the
challenged statements was not harmless. Accordingly, we
reverse the conviction on Count 1, and reverse and remand
with respect to Count 2.
Except as noted the facts are not disputed. Defen-
dant and RA are married. In October 2019, RA called 9-1-1
to report that defendant had hit her five to six times and
kicked her in her side. Springfield Police Officers Harbert
and Bazer, along with Sergeant Grice, responded. Bazer,
who was joined by Grice at some point, interviewed RA. At
the time, RA “was visibly upset. She would cry off and on
throughout [the] conversation.” She reported that defendant
struck her face five to six times with an open hand, which
caused her to feel a “stingy shock.” At the time of the inter-
view, she reported that her “jaw continued to pop.”
Bazer wrote up the police report for the incident. It
included the statements that the victim made about defen-
dant’s conduct, in addition to statements that she made
about their relationship and other aspects of defendant’s
conduct:
“[RA] told me that [defendant] is very controlling and
limits her contact with friends. She stated that she only
has one friend now that she has been with [defendant].
[RA] told me he frequently goes through her phone and
keep[s] tabs on where she is. While I was at the apartment
I noticed [RA] had a dog and asked her if [defendant] is ever
aggressive towards the dog and she told me that if the dog
misbehaves he will kick it. [RA] told me that [defendant]
has been abusive towards her in the past but she keeps
hoping he will change.
Cite as 316 Or App 215 (2021) 217
“[RA] told me that when [defendant] drinks he becomes
aggressive. She told me that he will start fights with ran-
dom people and will also become aggressive with her. She
told me that most of the previous incidents have been when
he is drinking. She told me that she has tried to get him to
go to counseling but he refuses to go * * *. She told me her
mother was abused when she was growing up and that’s
why she thinks she lets him get away with it.”
Before trial, defendant filed a motion in limine to
exclude RA’s statements to Bazer. Defendant argued that
those statements were inadmissible hearsay and were not
otherwise admissible under OEC 803(26), the domestic vio-
lence exception to the hearsay rule. Specifically, defendant
argued that RA’s statements did not have sufficient indi-
cia of reliability and that some of RA’s statements did not
describe the incident. Additionally, defendant asserted that
some of those statements constituted inadmissible evidence
of defendant’s prior bad acts. The state responded by argu-
ing that the statements were relevant and admissible to
rebut a claim of self-defense by defendant, and that it fell
within the domestic violence hearsay exception.
The trial court granted defendant’s motion in part
and denied it in part. The court excluded the statements
about the dog, about fights with random people, and about
RA’s mother, concluding both that those statements did not
“further explain[ ] this act of domestic violence and [were]
overly prejudicial to the Defendant.” The court ruled that
the remainder of the statements were admissible under
OEC 803(26), including: “that [defendant] is very controlling
and limits [RA’s] contact with friends”; that RA “only has one
friend now that she has been with [defendant]”; that defen-
dant “goes through her phone and keep[s] tabs on where she
is”; that defendant “has been abusive towards her in the
past but she keeps hoping he will change”; that defendant is
aggressive when he drinks and that most previous incidents
had been when defendant was drinking; and that defendant
has refused counseling.
During the trial, Bazer recounted RA’s statements
about defendant’s conduct, in addition to the other statements
that the trial court had ruled admissible. Grice’s testimony
corroborated Bazer’s testimony about RA’s statements, adding
218 State v. Curiel
that RA said that defendant was possessive and controlling;
that defendant goes through her phone; that there was past
abuse; that the abuse had been escalating; and that when
defendant drinks, he becomes aggressive. Grice explained
that RA made these statements in response to Bazer and
Grice “mining for information about the relationship.”
RA also testified. Consistent with her earlier descrip-
tion of the pain inflicted by defendant being a “stingy shock,”
she described that “it is like when you hit your funny bone
on something and you get that, like, sting and you’re like,
ow, but then it goes away.” She characterized her level of
pain as being “2 out of 10” and the duration of the pain as
being short, “less than a minute.” She denied that her jaw
was “popping” during the police interview, explaining that
she “touched the side of [her] face to show where [defendant]
came into contact with [her] face.” She further testified that
when Bazer asked if defendant went through her phone,
she said “yeah, but we have each other’s phone passwords”
so it was not “an issue.” She also testified that she did not
remember saying that defendant can be aggressive.
The jury found defendant guilty on both counts, and
the court merged the guilty verdicts and entered a single
judgment of conviction on Count 1. Defendant appeals. As
noted, he assigns error to the denial of his motion for judg-
ment of acquittal on Count 1 and the admission of certain of
the victim’s out-of-court statements.
Judgment of acquittal. We review the denial of
a motion for judgment of acquittal to determine whether,
viewing the evidence in the light most favorable to the state,
a rational factfinder could have found all the elements of the
charged crime beyond a reasonable doubt. State v. Casey,
346 Or 54, 56, 58, 203 P3d 202 (2009).
ORS 163.160(1) defines the crime of fourth-degree
assault as “[i]ntentionally, knowingly or recklessly caus[ing]
physical injury to another.” In turn, ORS 161.015(7) defines
the term “physical injury” as “substantial pain” or “impair-
ment of physical condition.” Defendant contends that the
evidence is insufficient to support a finding that he caused
the victim either “substantial pain” or “impairment of phys-
ical condition.” The state concedes, and we agree, that the
Cite as 316 Or App 215 (2021) 219
evidence is insufficient to support a finding of physical
impairment. The question is whether it is sufficient to sup-
port a finding of “substantial pain.” We conclude that it is
not.
“The phrase ‘substantial pain’ refers both to the
degree and the duration of pain subjectively experienced by
a victim.” State v. Long, 286 Or App 334, 340, 399 P3d 1063
(2017). To qualify, “pain must be ample or considerable, and
not fleeting or inconsequential.” Id. at 341 (internal quota-
tion marks omitted). Here, the direct evidence of the victim’s
pain level—that it resulted in a “stinging shock”—does not
allow for a finding that her pain rose to the qualifying level.
State v. Johnson, 275 Or App 468, 469, 364 P3d 353 (2015),
rev den, 358 Or 833 (2016) (accepting state’s concession that
the victim’s testimony that the defendant’s slap caused her
to feel a “sting” was insufficient to demonstrate “substan-
tial pain”). Although direct evidence of a victim’s pain is not
required to support a finding of “substantial pain,” when the
only evidence is circumstantial, it must be reasonable—that
is, nonspeculative—to infer that the pain experienced by
the victim was, in fact, “ample or considerable.” Long, 286
Or App at 341-42. In this instance, it would be speculative
to infer from the circumstantial evidence that defendant’s
assault of the victim resulted in pain greater than what the
victim described. The only evidence about the assault is the
victim’s statements that defendant struck the victim five or
six times with an open hand and kicked her. There is no
direct evidence about how hard defendant struck or kicked
the victim. The only circumstantial evidence on that point
is the evidence that the victim’s jaw continued to “pop” as
she spoke with police, something that allows for the infer-
ence that defendant hit her hard enough to cause that effect
but that does not, in any nonspeculative way, speak to the
quality of the pain that the victim experienced. There also
is no evidence that the hitting or the kick resulted in any
marks, bruises, or other injury that would make it reason-
able to find that the victim’s pain was greater than how she
described it. That is something that differentiates this case
from others in which we have concluded that the circum-
stantial evidence was sufficient to support a finding of sub-
stantial pain. See State v. Soto-Martinez, 315 Or App 79, 81,
220 State v. Curiel
499 P3d 108 (2021). For that reason, we reverse defendant’s
conviction for fourth-degree assault.
Hearsay exception for statements related to domes-
tic violence. As a matter of procedure, although we have
reversed defendant’s conviction for fourth-degree assault,
the only conviction entered, we must address defendant’s
challenge to the admission of certain of the victim’s hear-
say statements. That is because the jury also found defen-
dant guilty of harassment constituting domestic violence,
although that verdict was merged with the fourth-degree
assault verdict. If the court erred, and the error affected the
verdict on that charge, then defendant would be entitled to
a new trial on that count. Otherwise, on remand, the proper
course would be to enter judgment of conviction on the jury’s
harassment verdict.
The particular issue before us is whether the trial
court erred in concluding that certain statements that the
victim made to the police officers responding to her 9-1-1 call
were admissible under OEC 803(26), the domestic violence
exception to the general bar on the admission of hearsay in
a trial. That provision states, in relevant part:
“The following are not excluded by [OEC 802, the rule
against hearsay], even though the declarant is available as
a witness:
“* * * * *
“(26)(a) A statement that purports to narrate, describe,
report or explain an incident of domestic violence, as
defined in ORS 135.230, made by a victim of the domestic
violence within 24 hours after the incident occurred, if the
statement:
“(A) Was recorded, either electronically or in writing, or
was made to a peace officer * * *; and
“(B) Has sufficient indicia of reliability.
“(b) In determining whether a statement has sufficient
indicia of reliability under paragraph (a) of this subsection,
the court shall consider all circumstances surrounding the
statement. The court may consider, but is not limited to,
the following factors in determining whether a statement
has sufficient indicia of reliability:
Cite as 316 Or App 215 (2021) 221
“(A) The personal knowledge of the declarant.
“(B) Whether the statement is corroborated by evidence
other than statements that are subject to admission only
pursuant to this subsection.
“(C) The timing of the statement.
“(D) Whether the statement was elicited by leading
questions.”
On appeal, defendant assigns error to the trial
court’s admission of the following statements by the victim,
as introduced through Bazer:
• That defendant “is very controlling and limits her
contact with friends.”
• That the victim “only has one friend now that she
has been with [defendant].”
• That defendant “frequently goes through her phone
and keep(s) tabs on where she is.”
• That when defendant “drinks he becomes aggres-
sive.”
• That the victim has “tried to get him to go to coun-
seling but he refuses to go.”
In defendant’s view, those statements were not
admissible under OEC 803(26) because the things they
described did not occur within the 24-hour period preceding
the victim’s report to police. In other words, defendant reads
OEC 803(26) to be quite narrow, allowing the admission only
of those statements that directly related the facts of a specific
incident of domestic violence occurring within the 24-hour
period prior to the statements. The state urges a broader
interpretation, contending that the 24-hour limitation does
not “place a time limitation of what the victim was describ-
ing,” but, instead, simply requires that any statements that
otherwise “purport[ ] to narrate, describe, report or explain”
a domestic-violence incident be made within 24 hours of the
incident. The parties also argue extensively over the mean-
ing of the word “explain,” and whether the challenged state-
ments, which do not, on their face, directly describe the inci-
dent, can nonetheless be ones that “explain” the incident.
222 State v. Curiel
We review a trial court’s determination that hear-
say evidence is admissible for legal error. State v. Lobo, 261
Or App 741, 751, 322 P3d 573, rev den, 355 Or 880 (2014).
Whether the trial court properly admitted the disputed hear-
say evidence under OEC 803(26)(a) depends on the interpre-
tation of that rule, which is codified as ORS 40.460(26)(a).
To determine a statute’s meaning, we apply Oregon’s well-
established framework for statutory interpretation and
examine its text and context, as well as any relevant legis-
lative history with which we have been supplied or that we
have obtained on our own. See State v. Gaines, 346 Or 160,
171-73, 206 P3d 1042 (2009) (outlining the methodology).
Although the parties’ arguments have focused
largely on the OEC 803(26)’s requirement that any state-
ments sought to be admitted be made by a victim within
24 hours of the incident in question, and what bearing that
time limit has on the meaning of the word “explain,” we con-
clude that the ordinary meanings of the words “purport”
and “explain” sufficiently communicate the legislature’s
intended standard. We start and largely end with the text,
because “there is no more persuasive evidence of the intent
of the legislature than the words by which the legislature
undertook to give expression to its wishes.” Id. at 171 (inter-
nal quotation marks omitted).
As noted, OEC 803(26)(a) allows for the admission
of a hearsay “statement that purports to narrate, describe,
report or explain an incident of domestic violence, as defined
in ORS 135.230, made by a victim of the domestic violence
within 24 hours after the incident occurred,” if certain
other conditions are met. As framed by the parties’ argu-
ments, and the nature of the particular statements at issue,
which do not in any readily apparent way “narrate, describe
[or] report” the incident in question, the issue before us is
whether the challenged hearsay statements are admissi-
ble as statements that “purport[ ] to * * * explain” an inci-
dent of domestic violence, in particular, whether they are
statements that “purport[ ] to * * * explain” the incident that
formed the basis for the charges in this case.
Where, as here, the legislature uses words of com-
mon usage, we “ordinarily presume[ ] that [the] legislature
Cite as 316 Or App 215 (2021) 223
intended [the] terms to have plain, natural and ordinary
meaning.” Gaines, 346 Or at 175 (citation omitted). According
to Webster’s Dictionary, the verb “purport” in this context
ordinarily means “to convey, imply, or profess outwardly (as
meaning, intention, or true character) : have the often spe-
cious appearance of being, intending, claiming (something
implied or inferred) : impart, profess[.]” Webster’s Third New
Int’l Dictionary 1847 (unabridged ed 2002). Applying this
definition in the context of OEC 803(26), this means that the
exception authorizes the admission into evidence of state-
ments that “convey, imply or profess outwardly” a narration,
description, report, or explanation of a qualifying incident of
domestic violence.
Having identified the meaning of the word “pur-
port,” we turn to the word “explain.” According to Webster’s,
the ordinary meaning of the word “explain” in this context
is “to give reason for or cause of : account for <was unable to
~ his strange conduct>.” Id. at 801.
Taken together, then, a statement that “purports”
to “explain” an incident of domestic violence is one that
“convey[s], impl[ies] or profess[es] outwardly” the giving of
a reason for or cause of or “account[ing] for” an instance of
domestic violence occurring within the previous 24 hours.
We have examined the context of the provision, as
well as the legislative history, and do not see any indication
that the legislature intended its chosen words to convey a
different meaning other than the ordinary meaning.
Applying that standard here, the trial court erred
in admitting the challenged statements. Those state-
ments do not, on their face, “convey, imply or profess out-
wardly” the “giv[ing] [of a] reason for or cause of” or other-
wise “account[ing] for” the incident that led to the charges
against defendant. On their face, the statements appear
disconnected from the particular incident, and the factual
foundation laid by the state in support of the admission of
those statements does not allow the inference that they are
statements that “give reason for or cause of” or otherwise
“account for” the incident in question.
224 State v. Curiel
We can envision circumstances in which the record
would permit a foundational factual finding that a statement
that, on its face, did not address a particular incident was,
in fact, one that implied or conveyed a reason or cause for,
or otherwise accounted for, a particular domestic violence
incident. For example, in some factual contexts, it might be
reasonable to infer that a statement that a defendant was
controlling was a statement that implied or conveyed a rea-
son for, cause of, or accounting for, a particular domestic vio-
lence incident. In this case, however, the evidence developed
pretrial does not support that inference and the evidence
developed at trial tends to contradict that inference. That
evidence tends to suggest, if anything, that the challenged
statements did not state or imply a cause or reason for the
incident in question but, instead, may have been elicited
by general questions from the officers about the nature of
the parties’ relationship that did not address the incident
in question. Grice testified that while interviewing the vic-
tim, Bazer and he “both were asking questions about the
dynamic of the relationship,” and that one of those ques-
tions was “Is he possessive or controlling?” On remand, the
state may be able to lay a sufficient factual foundation for
the admission of some or even all of the challenged state-
ments; however, on this record, it is not reasonably inferable
that the statements convey or imply a cause of, reason for, or
account for, the incident at issue. Consequently, the admis-
sion of the statements was in error.
One last thing remains. The state argues that even
if the statements were admitted erroneously, the error was
harmless. We disagree. An error is harmless if there is
“ ‘little likelihood’ that the erroneously admitted evidence
‘affected the verdict.’ ” See State v. Szoke, 212 Or App 491,
492, 157 P3d 1239 (2007) (citing State v. Davis, 336 Or 19,
33, 77 P3d 1111 (2003)). Here, given the nature of the evi-
dence in question, which portrayed defendant in a highly
negative light, we cannot say there is little likelihood that
the trial court’s error in admitting it did not affect the jury’s
verdict on the harassment charge.
Reversed as to Count 1; reversed and remanded as
to Count 2.