State v. Merrill, 463 P.3d 540

Defendant and victim (G) were married; on Aug. 30, 2016 defendant grabbed G by the throat, placed a pillow over her face (briefly impeding breathing), threw her to the floor injuring her knee, and left; a child witnessed the throat-grabbing.
Officers observed redness and thumb-like marks on G’s neck; a friend saw mild puffiness and redness the next day; G declined medical aid.
Defendant was charged with felony fourth-degree assault (ORS 163.160) and felony strangulation (ORS 163.187); the state proceeded on two assault theories (knee injury or impairment from strangulation) and obtained convictions on both counts with jury concurrence on the strangulation-based assault theory.
At trial defendant moved for judgment of acquittal as to the strangulation theory of assault; the trial court denied the motion and submitted a concurrence instruction; defendant appealed.
On appeal defendant argued (1) Hendricks was wrongly decided and a brief interruption of breathing cannot constitute the “physical injury” required for assault, and (2) strangulation convictions necessarily merge into assault; the court addressed preservation and the merits and affirmed.

Issue	State's Argument	Merrill's Argument	Held
Sufficiency of evidence for assault based on strangulation	Hendricks permits temporary breathing interruption to be a material impairment; here evidence of airway impediment plus neck marks supports assault	Brief/very short interruption cannot satisfy "physical injury"; Hendricks should be disavowed	Affirmed: under Hendricks materiality is case-specific; marks + inability to breathe suffice for a rational juror to find physical injury
Whether Hendricks should be disavowed (legislative history)	Legislative history is equivocal; stare decisis favors prior appellate statutory interpretation	Legislative history shows legislature thought brief strangulation wasn’t assault; Hendricks is plainly erroneous	Declined to disavow Hendricks: legislative history is not dispositive; stare decisis requires clear showing of plain error
Merger under ORS 161.067(1) (are strangulation and assault the same offense?)	Statutes have distinct elements and mental states; can punish both	Post-Hendricks every strangulation is an assault, so convictions must merge	No merger: elements differ (statutory means and mens rea); it is possible to prove assault without proving statutory strangulation, so separate punishments allowed

State v. Hendricks, 273 Or App 1 (2015) (held temporary blockage of breathing can be a material impairment of physical condition supporting assault)
Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same for double jeopardy/merger purposes)
State v. Tucker, 315 Or 321 (1993) (lesser‑included/merger principles under Oregon law)
State v. Ofodrinwa, 353 Or 507 (2013) (use of subsequent legislative enactments in statutory interpretation)
State v. Ciancanelli, 339 Or 282 (2005) (stare decisis and burden to justify overruling precedent)
State v. Bonilla, 358 Or 475 (2015) (futility exception to preservation when a tribunal is bound by controlling authority)