State v. Mailman, 463 P.3d 20

Defendant (Mailman) and victim (S) were in a relationship; S was pregnant.
During an altercation in a car alley, Mailman put his hand around S’s throat for about five seconds and then punched and shattered S’s car window, producing lacerations and bleeding.
Police observed S’s cuts and blood; S initially said Mailman choked her, later gave inconsistent statements.
Mailman was charged with strangulation (ORS 163.187), fourth‑degree assault as domestic violence (ORS 163.160), and other offenses; the state prosecuted the assault based on the choking theory (not the window injuries).
At trial Mailman moved for judgment of acquittal largely invoking S’s recantation; the prosecutor relied on State v. Hendricks to argue that a temporary interruption of breathing suffices as a physical impairment for assault; the court denied the motion and the jury convicted on all counts.
On appeal Mailman asked the court to disavow Hendricks, argued insufficiency of evidence, and argued the strangulation and assault convictions should merge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of challenge to Hendricks	State: Defendant failed to raise Hendricks‑is‑wrong argument at trial; appellate review should be barred.	Mailman: Like Merrill/Bonilla, futility exception permits raising a challenge to precedent for the first time on appeal.	Court: Preservation required here; unlike Merrill, the state could have presented an alternative assault theory (window lacerations) if alerted, so surprise would be unfair. Review denied.
Sufficiency of evidence for strangulation/assault	State: Under Hendricks, cutting off airway—even briefly—impairs physical condition and supports assault and strangulation convictions.	Mailman: Temporary interruption of breathing is legally insufficient; evidence was insufficient (victim recanted).	Court: Viewing evidence in state’s favor, a rational juror could find strangulation and assault; judgment of acquittal properly denied.
Merger of strangulation and assault convictions	State: Convictions are distinct; Hendricks does not compel merger.	Mailman: Hendricks (or its logic) requires that strangulation and assault merge because both rest on the same physical impairment.	Court: Rejected defendant’s merger argument (as in Merrill) and affirmed convictions.

State v. Hendricks, 273 Or App 1 (court of appeals decision adopting that brief airway interruption can constitute impairment for assault)
State v. Merrill, 303 Or App 107 (court of appeals decision addressing similar Hendricks‑based challenges and preservation)
State v. Bonilla, 358 Or 475 (Oregon Supreme Court: explains when raising futile trial objections may be excused on appeal)
State v. Hart, 222 Or App 285 (discusses that lacerations can constitute physical injury for fourth‑degree assault)
Davis v. O’Brien, 320 Or 729 (addresses unfair surprise and opportunities to meet an argument in preservation context)