State v. Merrill

• Court: Court of Appeals of Oregon
• Citation: 463 P.3d 540,303 Or.App. 107
• Docket Number: A165105
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Nicholas Patrick MERRILL, Defendant-Appellant.
• Decision Date: 18 March 2020

303 Or.App. 107

463 P.3d 540

STATE of Oregon, Plaintiff-Respondent,

v.Nicholas Patrick MERRILL, Defendant-Appellant.

A165105

Court of Appeals of Oregon.

Submitted February 13, 2019.

March 18, 2020

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.

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. On appeal, defendant's first and second assignments of error both concern the interplay between the strangulation and fourth-degree assault statutes.¹ Defendant acknowledges that both assignments are controlled, in part, by our opinion in State v. Hendricks , 273 Or. App. 1, 359 P.3d 294 (2015), rev. den. , 358 Or. 794, 370 P.3d 502 (2016), wherein we held that the act giving rise to a count of strangulation under ORS 163.187 —for example, a temporary blockage of airflow—can also constitute a material impairment 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 argument 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 legislative 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. Accordingly, we decline to consider that inadequately developed contention."

Hendricks , 273 Or. App. at 16, 359 P.3d 294 (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, arguing 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 legislative history not presented to us in Hendricks , and should be therefore be disavowed. We decline to do so. Additionally, 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 presents the more developed merger argument absent from Hendricks , arguing that both the mens rea and actus rea components 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 P.3d 341 (2018) (quoting State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (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 P.3d 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 P.2d 600 (1989) (holding 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 P.3d 1007 (2012), rev. den. , 353 Or. 280, 298 P.3d 30 (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 undisputed. 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 arguing for some time over domestic matters. When G got home, the children were either outside on the patio or watching 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 theory 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 impairment of her physical condition or substantial pain, as required under the definition of for physical injury."

The state argued, based on Hendricks , that "strangulation and impairment of the breathing is in and of itself impairment of a bodily function * * *." In response, defendant 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 couple 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 "physical 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 physical condition based on "the act of the strangulation itself" (i.e. , the Hendricks ’s theory). The trial court gave a concurrence 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 standard, under Hendricks , for either impairment of her physical condition or substantial pain, as required under the definition 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.

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 P.3d 677 (2003), rev. den. , 336 Or. 406, 84 P.3d 1082 (2004) (citing State v. Wyatt , 331 Or. 335, 344-46, 15 P.3d 22 (2000) ). This obligation must be satisfied even when a failure to preserve an argument has not been asserted by the opposing party. Wyatt ...