State v. Merrill

107

Submitted February 13, 2019, affirmed March 18, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

NICHOLAS PATRICK MERRILL,

Defendant-Appellant.

Multnomah County Circuit Court

16CR54578; A165105

463 P3d 540

Defendant appeals from a judgment of conviction for felony fourth-degree

assault constituting domestic violence, ORS 163.160, and felony strangulation

constituting domestic violence, ORS 163.187. Raising three assignments of error,

defendant argues that the trial court erred in its denial of his motion for judg-

ment of acquittal as to assault. This is the first of two opinions issuing today

in which a defendant asserts that State v. Hendricks, 273 Or App 1, 359 P3d

294 (2015), was wrongly decided, arguing that, in light of legislative history, a

temporary interruption of breathing is legally insufficient to constitute a physi-

cal injury or impairment of condition for purposes of assault, thus requiring the

strangulation and assault verdicts to merge. Held: The evidence was legally suf-

ficient to support a conviction of assault. Additionally, in contrast with the defen-

dant’s argument in State v. Mailman, 303 Or App 101, 463 P3d 20 (2020), defen-

dant’s failure to challenge Hendricks below does not preclude consideration of

that argument on appeal. Moreover, it is possible to prove the elements of assault,

without also necessarily proving all the elements of strangulation. Thus, the two

do not merge, and the trial court did not err.

Affirmed.

Kenneth R. Walker, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Zachary Lovett Mazer, Deputy Public Defender,

Office of Public Defense Services, filed the briefs for

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Leigh A. Salmon, Assistant Attorney

General, filed the briefs for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

James, Judge.

JAMES, J.

Affirmed.

108 State v. Merrill

JAMES, J.

Defendant appeals from a judgment of conviction

for felony fourth-degree assault constituting domestic vio-

lence, ORS 163.160, and felony strangulation constituting

domestic violence, ORS 163.187. On appeal, defendant’s first

and second assignments of error both concern the interplay

between the strangulation and fourth-degree assault stat-

utes.1 Defendant acknowledges that both assignments are

controlled, in part, by our opinion in State v. Hendricks, 273

Or App 1, 359 P3d 294 (2015), rev den, 358 Or 794 (2016),

wherein we held that the act giving rise to a count of stran-

gulation under ORS 163.187—for example, a temporary

blockage of airflow—can also constitute a material impair-

ment of physical condition for purposes of proving physical

injury under the assault statute, ORS 163.160. Additionally,

in Hendricks, we declined to consider the undeveloped argu-

ment that assault and strangulation convictions based on

the same act should merge, pursuant to ORS 161.067(1):

“Beyond a single conclusory assertion, defendant develops

no cogent argument as to why, given the context and legis-

lative history of the strangulation statute, ORS 163.187—

which was enacted long after the fourth-degree assault

statute, ORS 163.160—its textually unique ‘impeding

the normal breathing or circulation of the blood’ element

is qualitatively and functionally embraced within the

‘physical injury’ element of fourth-degree assault. Accord-

ingly, we decline to consider that inadequately developed

contention.”

Hendricks, 273 Or App at 16 (footnotes and citation omitted).

Defendant argues, however, that Hendricks was

wrongly decided, and we should disavow it. In his first

assignment, defendant challenges the trial court’s denial

of his motion for judgment of acquittal as to assault, argu-

ing that Hendricks’s holding—that a limited interruption of

breathing can constitute a material impairment of physical

condition for purposes of proving physical injury under the

assault statute—was plainly erroneous in light of legisla-

tive history not presented to us in Hendricks, and should

therefore be disavowed. We decline to do so. Additionally,

1

We reject defendant’s third assignment of error without discussion.

Cite as 303 Or App 107 (2020) 109

we conclude that the evidence here, viewed in the light most

favorable to the state, as is the standard on a motion for

judgment of acquittal, was legally sufficient to support a

conviction of assault.

In his second assignment of error, defendant pres-

ents the more developed merger argument absent from

Hendricks, arguing that both the mens rea and actus rea com-

ponents of strangulation are “subsumed” under the assault

statute, and that, in light of Hendricks, “every strangulation

is also, by definition, an assault” and, accordingly, merger

is required under ORS 161.067(1). We conclude otherwise.

As we explain, the two statutes proscribe differing mental

states, and acts that can often, but need not always, overlap.

We conclude that strangulation, as defined by ORS 163.187,

is not subsumed under assault, as defined by ORS 163.160,

and therefore affirm.

“In considering a trial court’s ruling on a motion for

judgment of acquittal, we state the facts in the light most

favorable to the state, reviewing ‘to determine whether a

rational trier of fact * * * could have found the essential

element of the crime beyond a reasonable doubt.’ ” State v.

Pucket, 291 Or App 771, 772, 422 P3d 341 (2018) (quoting

State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert

den, 514 US 1005 (1995)) (omission in original). When a trial

court’s denial of a motion for judgment of acquittal depends

on its interpretation of a statute, this court reviews the trial

court’s interpretation for legal error. State v. Stewart, 282

Or App 845, 848, 386 P3d 688 (2016). Whether two guilty

verdicts merge into a single conviction is an issue of law. See

State v. Crotsley, 308 Or 272, 280, 779 P2d 600 (1989) (hold-

ing that separate first- and third-degree convictions could

be imposed for a single act of rape or sodomy as a matter

of law); State v. Glazier, 253 Or App 109, 115, 288 P3d 1007

(2012), rev den, 353 Or 280 (2013).

Much of defendant’s argument on appeal is legal,

and not factually dependent. On those arguments that are

factually dependent, many of the critical facts are undis-

puted. G and defendant had been married for 14 years and

had two children. The incident underlying the charges

occurred on August 30, 2016. Defendant and G had been

110 State v. Merrill

arguing for some time over domestic matters. When G got

home, the children were either outside on the patio or watch-

ing TV on the couch close to the kitchen and patio. G went to

the patio, which was close to the kitchen window. Defendant

opened the window and screamed and yelled at G. G went

to a bedroom and lay down on the bed. Defendant followed

G back, continued to yell at her, and screamed at her to “get

out.” Defendant approached G, put his hands around her

throat, and pushed her into the pillow. She screamed but no

sound came out because she could not get air. She described

the incident as “very fast.”

Defendant threw G on the hardwood floor injuring

her knee. One of the children saw defendant put his hands

around G’s neck and throw her down. G heard the child

scream, and the child then jumped on defendant and started

hitting him. Defendant did not hurt the child. He went to a

closet, grabbed a bottle of vodka, and left. G called 9-1-1. She

told the operator that she was trying to leave her husband,

that he just grabbed her by the throat and threw her to the

ground, and that he had just grabbed a bottle of vodka and

gone outside. G declined medical assistance.

Officers on the scene after the incident did not take

pictures of G’s neck but observed redness with “thumb kind

of imprints” that were consistent with G’s description. In

addition, G called her friend Neve that night and told Neve

about what happened. The next day, Neve met with G and

observed a slight puffiness and redness on the sides of G’s

neck.

At the close of the state’s case, defendant moved

the trial court to require the state to elect, for purposes of

fourth-degree assault, whether it was proceeding on a the-

ory that defendant caused physical injury to G’s knee or that

defendant caused physical injury by strangling G. Rather

than elect, the state opted to present both theories, and

request a jury concurrence instruction.

Defendant responded by moving for a judgment of

acquittal on the strangulation theory of assault. Defendant

summarized the state’s evidence of strangulation and

argued that “there was no indication that it would rise to

the definition of physical injury as the potential of either

Cite as 303 Or App 107 (2020) 111

impairment of her physical condition or substantial pain, as

required under the definition for physical injury.”

The state argued, based on Hendricks, that “stran-

gulation and impairment of the breathing is in and of itself

impairment of a bodily function * * *.” In response, defen-

dant reviewed Hendricks and argued that,

“for physical injury to occur there, they are talking about

more than just a fleeting act. And the evidence that you

heard was very—was distinguishable from the evidence in

this case. This is a case where somebody put, the evidence

was, a pillow over their face. It talked about a longer period

of not being able to breathe, et cetera.”

The court noted that the time period in Hendricks

was “[f]ive seconds.” Defendant argued that it was still “a

longer period. My recollection is that [G] said for just a cou-

ple of seconds. It’s a very different fact scenario.” Defendant

agreed that, in some cases, strangulation could constitute

physical injury, but argued that “this particular case is not

the case.”

The trial court denied defendant’s motion. In its

closing argument, the state presented two theories of “phys-

ical injury” for purposes of assault, either (1) substantial

pain and/or impairment of physical condition based on the

injury to G’s knee, or, alternatively, (2) impairment of phys-

ical condition based on “the act of the strangulation itself”

(i.e., the Hendricks’s theory). The trial court gave a concur-

rence instruction. It also submitted a verdict form asking

the jury, if it convicted defendant on the assault count, to

indicate the theory of assault on which it had concurred.

The jury convicted defendant of assault, concurring on the

Hendricks’s theory, and this appeal followed.

On appeal, defendant renews the argument he

made before the trial court that the facts surrounding the

strangulation adduced by the state do not meet the stan-

dard, under Hendricks, for either impairment of her physical

condition or substantial pain, as required under the defini-

tion of physical injury. In addition, defendant argues, for the

first time on appeal, that Hendricks was wrongly decided

and should be disavowed. The state does not argue that

the argument is unpreserved but responds on the merits.

112 State v. Merrill

Despite this, however, we have an “independent obligation

to determine whether an argument advanced on appeal was

preserved at trial.” Vokoun v. City of Lake Oswego, 189 Or

App 499, 508, 76 P3d 677 (2003), rev den, 336 Or 406 (2004)

(citing State v. Wyatt, 331 Or 335, 344-46, 15 P3d 22 (2000)).

This obligation must be satisfied even when a failure to pre-

serve an argument has not been asserted by the opposing

party. Wyatt, 331 Or at 346-47; see also State v. Slight, 301

Or App 237, 241, 456 P3d 366 (2019) (holding same).

As a general rule, claims of error that were not

raised in the trial court will not be considered on appeal.

Wyatt, 331 Or at 343. The purposes of preservation are to

give “a trial court the chance to consider and rule on a con-

tention, thereby possibly avoiding an error altogether or cor-

recting one already made, which in turn may obviate the

need for an appeal.” Peeples v. Lampert, 345 Or 209, 219,

191 P3d 637 (2008) (citation omitted). The rule also ensures

fairness to opposing parties, by requiring that “the positions

of the parties are presented clearly to the initial tribunal”

so that “parties are not taken by surprise, misled, or denied

opportunities to meet an argument.” Davis v. O’Brien, 320

Or 729, 737, 891 P2d 1307 (1995) (internal quotation marks

and citation omitted).

However, principles of preservation do not dictate

that parties pursue futile actions. When controlling author-

ity is squarely on point, a party need not always compel a

trial court to announce the obvious—that the court is bound

by such precedent—to later challenge the reasoning of that

precedent before the appellate court that announced it. As

the Oregon Supreme Court noted in State v. Bonilla, 358 Or

475, 483, 366 P3d 331 (2015),

“[a] preliminary issue, not raised by the parties, is

whether the state’s failure to advance that theory before

the trial court and the Court of Appeals precludes the state

from relying on it before this court as a basis for upholding

the trial court’s ruling on defendant’s motion to suppress.

We conclude that it does not. * * * [I]t likely would have

been futile for the state to raise a consent-based apparent

authority theory before the Court of Appeals, because that

court previously had held that only actual authority can

satisfy the consent exception. * * * As a practical matter,

Cite as 303 Or App 107 (2020) 113

the state was in a poor position to make its consent-based

apparent authority argument to any Oregon tribunal other

than this court, which has not directly addressed that

issue.”

(Internal citations omitted.)

In keeping with Bonilla, we will consider a litigant’s

challenge to existing law—one that asks us to disavow our

precedent—even though that argument was not raised at

trial, only when (1) raising the issue at trial would have

been futile because the trial court was obligated to follow

controlling precedent, and (2) the failure to alert the trial

court and all parties to the challenge to controlling prec-

edent did not result in any unfair advantage or surprise.

Those criteria are met in this this case.

Here, defendant was in a poor position to advocate

before the trial court that Hendricks was wrongly decided.

We are the first court with authority to meaningfully

respond to such an argument, either by affirmance, modifi-

cation, or disavowal of such precedent. Finally, we can per-

ceive no unfair disadvantage or surprise to the state by a

failure to advance that argument at trial. State v. Mailman,

303 Or App 101, 463 P3d 20 (2020) (decided this same day

and reaching a different conclusion where state was preju-

diced by a failure to object at trial). Accordingly, we consider

defendant’s argument that Hendricks was wrongly decided,

despite defendant raising that argument for the first time

on appeal. We turn now to the merits.

ORS 163.160(1) defines assault as follows:

“A person commits the crime of assault in the fourth

degree if the person:

“(a) Intentionally, knowingly or recklessly causes

physical injury to another;

“(b) With criminal negligence causes physical injury

to another by means of a deadly weapon; or

“(c) With criminal negligence causes serious physical

injury to another who is a vulnerable user of a public way,

* * * by means of a motor vehicle.”

114 State v. Merrill

ORS 163.187 defines strangulation as follows:

“(1) A person commits the crime of strangulation if the

person knowingly impedes the normal breathing or circu-

lation of the blood of another person by:

“(a) Applying pressure on the throat, neck, or chest of

the other person; or

“(b) Blocking the nose or mouth of the other person.” 2

As defined, both assault and strangulation are Class A mis-

demeanors that can be elevated to a felony by the presence

of certain circumstances. Those circumstances appear sepa-

rately in each statute but largely mirror each other.

Because assault requires a “physical injury,” we

have held that ORS 163.160(1) is limited to those circum-

stances where “some form of external violence * * * produces

a harmful effect upon the body”—that is, circumstances

which involve “the infliction of actual physical injury”—but

not “[p]etty batteries not producing injury.” State v. Capwell,

52 Or App 43, 47 n 3, 627 P2d 905 (1981) (emphasis added).

ORS 161.015(7), in turn, defines “physical injury” as the

“impairment of physical condition or substantial pain.”

Thus, evidence establishing either an impairment of a phys-

ical condition or substantial pain will support an assault

conviction. State v. Poole, 175 Or App 258, 261, 28 P3d 643

(2001).

In Hendricks we interpreted “impairment of a phys-

ical condition” in the context of impeding breathing. 273 Or

App at 12. There, the defendant covered the victim’s face

with a pillow for about a second, momentarily cutting off her

breathing. Id. at 4. The victim pushed the defendant, but

the defendant placed the pillow over her face again. Id. That

second instance lasted for about five seconds. Id. According

to the victim’s testimony during those five seconds she felt

that she could not breathe and feared that the defendant

was going to kill her. Id.

2

ORS 163.187 has been amended since defendant committed this crime.

However, the amendments to ORS 163.187 do not apply to offenses committed

before January 1, 2019. Because those amendments do not affect our analysis, we

refer to the current version of the statute in this opinion.

Cite as 303 Or App 107 (2020) 115

On appeal, the defendant in Hendricks argued that

“[i]nterfering with a person’s breathing by blocking the

person’s nose and mouth for one to five seconds does not,

without more, constitute physical injury.” Id. at 7 (brack-

ets in original). We disagreed, distilling two “common and

consistent” principles from our decisions on physical injury:

“(1) The impairment must be material, and not merely

de minimis; and (2) materiality is a function of a variety of

case-specific circumstances, including the character, degree,

and duration of the asserted impairment.” Id. at 11-12. We

further emphasized that

“[t]he distinction between legally insufficient de mini-

mis effect and actionable impairment may depend on a

combination of variables. Consider, for example, the differ-

ence between a slight five-second decrease in hearing and a

total five-second cessation of cardiac function. Or the differ-

ence between a moderate five-second reduction in hearing

and a moderate reduction of hearing over a period of hours

or days. The nature of the affected bodily function or organ,

the degree of effect, and its duration may all properly bear

on the assessment of legally sufficient impairment.”

Id.

In applying those principles to the facts of Hendricks

we specifically declined to announce a bright line rule:

“Thus, the question reduces to whether, notwithstand-

ing the combination of the first two considerations, the

durational aspect was so brief as to preclude, as a matter of

law, a reasonable juror from finding the requisite material

impairment of bodily function. Obviously, completely, forci-

bly preventing someone from breathing for a minute would

be sufficient—but for a matter of seconds? We cannot, and

will not, pretend to pronounce a ‘principled’ distinction

between one second—or three seconds—or five. However,

we can, and do, hold that where, as here, the duration of

complete preclusion of breathing was sufficient to cause

the victim to fear for her survival, a reasonable juror could

find that the duration of defendant’s conduct was sufficient

to have materially impaired the victim’s bodily function.

Accordingly, the trial court did not err in denying the

[motion for judgment of acquittal], and we affirm defen-

dant’s conviction on Count 4 for fourth-degree assault.”

Id. at 12-13.

116 State v. Merrill

In this case, defendant urges us to disavow

Hendricks based, predominantly, on an argument relying

on legislative history. As defendant argues, “the legislative

history of ORS 163.187 demonstrates that the legislature

believed that the temporary restriction of a person’s breath

or blood (without more) did not constitute physical injury.”

As an example, defendant notes the staff measure summary

to House Bill (HB) 2770A—the bill that created the crime of

strangulation in 2003:

“The crime of assault requires ‘physical injury.’ ORS

161.015 defines ‘physical injury’ as impairment of physi-

cal condition or substantial pain. To meet the definition of

‘physical injury’ there needs to be bruises, cuts, and pain.

Although strangling or suffocation can easily cause death,

it is unusual to find bruises or cuts on the victim as a result

of the strangulation or suffocation.”

Additionally, defendant notes testimony in support

of HB 2770A, such as that from Deputy District Attorney

Gina Skinner:

“Currently, there is a large hole in where the law exists to

be able to prosecute these cases. * * * Primarily, the charges

that are used now, sometimes is a misdemeanor assault

four, which requires that we prove that the defendant

caused physical injury to another person. Physical injury

being the impairment of physical condition or substantial

pain. * * * So, in order to go forth on physical injury, we’re

going to have to have some bruising or some kinds of deep

cuts or some kind of testimony from the victim that there’s

substantial pain.”

Audio Recording, House Committee on Judiciary, HB

2770A, Mar 13, 2003, at 18:04 (testimony of Deputy District

Attorney Gina Skinner), https://olis.leg.state.or.us (accessed

Mar 10, 2020).

The state responds that the legislative history is

more uncertain than defendant presents and supports an

alternative inference that the legislature understood that

strangulation might be prosecutable under assault but

wanted to create a new crime—one without the physical

injury component—to make such prosecutions easier. For

example, the state notes testimony by Representative Floyd

Prozanski, the sponsor of HB 2770A:

Cite as 303 Or App 107 (2020) 117

“When you get in front of a jury of 6 or 12 individuals, you

need to actually prove the physical injury component. It’s

very difficult many times in these type of cases to actually

get them to understand because they can’t physically see

the result of the injury [from strangulation] and the, for

whatever reason, the statements that are made by the vic-

tim are not always as compelling as they need to be.”

Audio Recording, Senate Committee on Judiciary, HB

2770A, June 12, 2003, at 26:45 (testimony of Rep Floyd

Prozanski), https://olis.leg.state.or.us (accessed Mar 10,

2020).

In considering defendant’s proffered legislative his-

tory, we are mindful that nothing prevents the legislature

from enacting multiple statutory provisions penalizing the

same act and that the enactment of a new statute on a sub-

ject does not automatically displace previous statutes gov-

erning the same conduct. State v. Ofodrinwa, 353 Or 507,

520, 300 P3d 154 (2013); Messick v. Day, 86 Or 366, 369-70,

168 P 628 (1917). Further, in general, “[t]he views legislators

have of existing law may shed light on a new enactment,

but it is of no weight in interpreting a law enacted by their

predecessors.” DeFazio v. WPPSS, 296 Or 550, 561, 679 P2d

1316 (1984); see also Comcast Corp. v. Dept. of Rev., 356 Or

282, 327, 337 P3d 768 (2014) (“What later legislators thought

is irrelevant to what an earlier legislature intended with

an enactment[.]”). “A later legislature’s interpretation of an

earlier legislature’s intent may be incorrect.” South Beach

Marina, Inc. v. Dept. of Rev., 301 Or 524, 531 n 8, 724 P2d

788 (1986). Thus, “[t]he proper inquiry focuses on what the

legislature intended at the time of enactment and discounts

later events.” Holcomb v. Sunderland, 321 Or 99, 105, 894

P2d 457 (1995) (citation omitted).

Defendant contends, correctly, that the principle is

not absolute, and, relying on Ofodrinwa, argues that some-

times later legislative enactments should be given weight

in construing earlier legislative intent. 353 Or at 509. In

Ofodrinwa, the defendant argued that the phrase “does

not consent” in second-degree sexual abuse referred only

to situations where the victim does not actually consent,

and not where the victim only lacked capacity to consent.

Id. The Supreme Court disagreed, concluding that “does not

118 State v. Merrill

consent” covered both scenarios. Id. In reaching that conclu-

sion, the court looked at the legislature’s 1991 amendment

of the 1971 statute. Id. at 525. The 1991 amendment not

only reclassified the degrees of sexual abuse, but also added

an age-related defense. Id. at 528. The age-related defense

provided that, where “the victim’s lack of consent was due

solely to incapacity to consent by reason of being less than

a specified age, it is a defense that the actor was less than

three years older than the victim[.]” Id. at 525. As the court

observed, “[o]nly one conclusion can be drawn” from the

addition of that defense: The 1991 legislature understood

the phrase “does not consent” to include incapacity to con-

sent due to age. Id.

The state disputes Ofodrinwa’s application in this

case, arguing that Ofodrinwa is limited to subsequent leg-

islative revisions to the same statute, and does not support

using a subsequent legislature’s enactment of one statute

as evidence of a past legislature’s intent on another statute.

We need not resolve Ofodrinwa’s application here, because,

as we explain, even considering the legislative history sur-

rounding the 2003 enactment of the strangulation statute,

that history is not dispositive.

The parties in Hendricks offered no legislative his-

tory to assist us. Hendricks, 273 Or App at 16. In contrast,

here, defendant offers considerable legislative history that,

although contradictory in parts, and subject to competing

inferences, can be read to support defendant’s position that

the Oregon Legislative Assembly enacted the strangulation

statute to fill what it perceived as a “gap” in the Criminal

Code that prevented the prosecution of brief strangulation

under the then-existing laws, including the assault statute.

The legislative history presented by defendant is not with-

out persuasive appeal.

Our review of the legislative history of ORS 163.187

shows that it has repeatedly been modified by the legisla-

ture in an iterative process to have it match, or catch up

to, the changes over time in the assault statute, lending

an implication that the legislature has created two paral-

lel statutes intended to treat different conduct in a similar

manner. In our review of the various legislative hearings

Cite as 303 Or App 107 (2020) 119

over the years, we have found minimal indication that the

legislature considered brief interruptions in breathing to

be already penalized under the assault statute. In fact, the

strangulation statute was modified in 2018, three years

after Hendricks. Nothing in the legislative record indicates

that either the legislature, or the proponents and opponents

of the proposed changes to the strangulation statute, were

aware of Hendricks.

However, even acknowledging that some of the leg-

islative history surrounding the strangulation statute cuts

against the holding in Hendricks, the question of whether

we should disavow that precedent is another matter. “[T]he

principle of stare decisis dictates that [an appellate court]

should assume that its fully considered prior cases are cor-

rectly decided. Put another way, the principle of stare decisis

means that the party seeking to change a precedent must

assume responsibility for affirmatively persuading us that

we should abandon that precedent.” State v. Ciancanelli, 339

Or 282, 290, 121 P3d 613 (2005). As the Oregon Supreme

Court has noted, the motivating force behind the doctrine

of stare decisis is “ ‘moral and intellectual, rather than arbi-

trary and inflexible.’ ” Stranahan v. Fred Meyer, Inc., 331 Or

38, 54, 11 P3d 228 (2000) (internal quotation marks omitted).

While stare decisis draws on the same principles

regardless of the source of the law at issue, the weight a

court may give to stare decisis principles can differ. Stare

decisis is at its zenith in the area of statutory construction.

As the Oregon Supreme Court has cautioned,

“[t]hat does not mean that we perceive no difference

between our task in interpreting a statute and our task in

interpreting a constitutional provision or a rule of common

law. * * * Our responsibility in statutory interpretation is

to ‘pursue the intention of the legislature, if possible.’ ORS

174.020(1)(a). After we have interpreted a statute, the leg-

islature’s constitutional role allows it to make any change

or adjustment in the statutory scheme that it deems appro-

priate, given this court’s construction of the statute (and,

of course, subject to constitutional limitations). The leg-

islature can—and often does—amend a statute that this

court has interpreted to clarify or change the statute or

120 State v. Merrill

otherwise to advance the policy objectives that the legisla-

ture favors.”

Farmers Ins. Co. v. Mowry, 350 Or 686, 697, 261 P3d 1 (2011).

That weight is especially strong when the statutory interpre-

tation at issue comes from an intermediate appellate court.

In such instances, there is not one, but two, bodies capable of

correction—the legislature, and the Supreme Court.

We will overrule prior statutory interpretation only

in extraordinary circumstances—when such prior interpre-

tation was plainly erroneous. “Such revisiting of statutory

construction precedent, while necessarily quite rare, usu-

ally occurs when our precedent cannot be reconciled with

the result that would follow application of a prescribed (or

subsequently prescribed) mode of analysis or when we are

presented with a qualitatively new, potentially dispositive

contention not previously raised and addressed.” State v.

Civil, 283 Or App 395, 416, 388 P3d 1185 (2017) (citation

omitted).

Here, we are not persuaded that Hendricks was

erroneous, let alone plainly erroneous. Even assuming we

could consider the legislative history presented by defen-

dant under Ofodrinwa, a point we do not decide, that history

would not be dispositive. It is subject to multiple compet-

ing interpretations and does not conclusively and defini-

tively establish a legislative intent at odds with Hendricks.

Accordingly, we decline to revisit Hendricks, and proceed to

its application in this case.3

Here, based on the state’s proffered evidence, defen-

dant grabbed G by the throat and exerted sufficient force to

cause her to be unable to breathe. And although the duration

of that encounter was described as “very fast,” the intensity

of the encounter was sufficiently severe that officers on the

scene later observed redness with “thumb kind of imprints”

on G’s neck, and the next day G’s neck was observed to be

3

We note, however, that defendant’s arguments here, and in particular the

compilation of extensive legislative history previously unpresented to us, rep-

resents precisely the type of “marshalling” of history, law and arguments “for,

and against, the precedent” that we expect of a litigant who is asking us to revisit

precedent. Larsen v. Nooth, 292 Or App 524, 536, 425 P3d 484 (2018), rev den, 364

Or 749 (2019) (James, J., concurring).

Cite as 303 Or App 107 (2020) 121

slightly puffy and red. The “physical injury” component

of assault under ORS 163.160 is assessed under the total-

ity of the circumstances to determine if the impairment is

material and not de minimis. “Materiality is a function of

a variety of case-specific circumstances, including the char-

acter, degree, and duration of the asserted impairment.”

Hendricks, 273 Or App at 11. Defendant’s focus on appeal

solely on the durational aspect does not encompass the whole

picture. Strangulation may give rise to “physical injury” that

is material through evidence of duration, or other character

or degree. Although the testimony here was that the duration

was “very fast,” in the light most favorable to the state, evi-

dence of marks visible for some significant period after the

incident is sufficient for a rational trier of fact to conclude

that a material, non-de minimis, physical injury occurred.

Finally, we turn to defendant’s second assignment

of error. There, he argues that, if Hendricks controls, then

the guilty verdict for strangulation must merge into a guilty

verdict for assault. We disagree.

ORS 161.067(1) provides:

“When the same conduct or criminal episode violates

two or more statutory provisions and each provision

requires proof of an element that the others do not, there

are as many separately punishable offenses as there are

separate statutory violations.”

This provision of the antimerger statute applies

to multiple statutory convictions, one of which is “sub-

sumed” under another, akin to a lesser included offense.

ORS 161.067(1) is Oregon’s statutory codification of the fed-

eral test developed in Blockburger v. United States, 284 US

299, 304, 52 S Ct 180, 76 L Ed 306 (1932), which held that,

“where the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the

other does not.” (Citation omitted.) See also State v. White,

346 Or 275, 298 n 5, 211 P3d 248 (2009) (Kistler, J., concur-

ring) (concluding, based on the legislative history of former

ORS 161.062(1) (1985), repealed by Or Laws 1999, ch 136,

§ 1, that ORS 161.067(1) codifies the Blockburger test).

122 State v. Merrill

When considering issues of merger under ORS

161.067(1) a court looks to the statutory elements, not to

the factual circumstances recited in the indictment. State v.

Atkinson, 98 Or App 48, 50, 777 P2d 1010 (1989). However,

when a statute contains alternative forms for commission of

a single crime, we look to the indictment to determine which

form the state has charged and compare the elements actu-

ally pleaded. State v. Gray, 240 Or App 599, 609 n 4, 249 P3d

544 (2011). This includes comparing the mental states actu-

ally pleaded. See, e.g., Hendricks, 273 Or App at 14 (looking

to the mental states “as pleaded”).

In Hendricks the state had pleaded the assault

charge in the full terms of the statute, including all three

potential mental states of intentional, knowing, or reckless

conduct. In contrast, the state pleaded the count of strangu-

lation in the only manner provided by statute, with a mental

state of knowing. As such, we noted that, “[t]he two offenses

have different requisite culpable mental states—and a

crime that requires proof of a knowing mental state cannot

be the ‘lesser-included’ of a crime with a reckless mental

state.” Hendricks, 273 Or App at 14-15.

Here, despite the assault statute providing three

alternative mental states, the state pleaded assault under a

single mental state, i.e., knowing. That, in turn, corresponds

to the mental state of strangulation. Thus, the mental state

basis for antimerger articulated in Hendricks is inapplicable

here, based on the pleadings. However, Hendricks did not

preclude merger based solely on mental state, but also upon

the nature of the acts. As we said, and now reiterate:

“[T]he elements of strangulation, which require proof of

engaging in a specific means (applying pressure on the

throat or neck or blocking the nose or mouth) toward a

specific end (impeding normal breathing or circulation),

require different proof than the elements of fourth-degree

assault, the elements of which contemplate a vast array of

actions resulting, either directly or indirectly, in physical

injuries.”

Hendricks, 273 Or App at 15.

As the Oregon Supreme Court explained in State v.

Tucker, 315 Or 321, 331, 845 P2d 904 (1993), the “conditions

Cite as 303 Or App 107 (2020) 123

[requiring separate punishable offenses under former ORS

161.062 (1985)] are not met where one offense charged truly

is a lesser included offense of another offense charged, that

is, when the former has no elements not also present in

the latter, even though the latter has additional elements

not present in the former.” (Citation omitted.) Said another

way, for purposes of merger under ORS 161.067(1), a greater

offense renders another offense a “lesser included” and sub-

sumes it only where—focusing on the elements alleged in

the indictment, not the facts underlying them—there is

no way to have proven the elements of the greater offense,

without also and necessarily, proving all the elements of the

lesser offense. Accord Martinez v. Cain, 366 Or 136, 146,

458 P3d 670 (2020) (“In short, the requirement is met, and

the offenses will not merge, only if each statutory offense at

issue has a unique element not in common with the other

offenses.”).

Here, one can cause physical injury under the assault

statute through impairment of a condition—breathing—in

an unspecified, and unlimited number of ways. As an exam-

ple, one could envision the act of waterboarding, or, alterna-

tively, locking a person in a vacuum chamber, as qualifying

as an impairment of a physical condition that is more than

de minimis, as required under Hendricks. However, it is far

from certain that either situation would meet the definition

of strangulation under ORS 163.187, which is limited to

impeding breathing through specifically enumerated acts

such as “[a]pplying pressure on the throat, neck, or chest” or

“[b]locking the nose or mouth of the other person.”

In reality, facts underlying most assaults that

involved the blockage of airflow will also constitute stran-

gulation under ORS 163.187. But for merger, we do not look

to the facts underlying the charges, but the statutory ele-

ments charged. It is a comparison made in the abstract, not

in the factual realities of the case at hand. In short, because

it is possible to prove the elements of assault, without also

and necessarily proving all the elements of strangulation,

the two do not merge, and the trial court did not err.

Affirmed.