State v. Merrill

“In Hendricks [we held] “that a limited interruption of breathing can constitute a material impairment of physical condition for purposes of proving physical injury under the assault statute.” State v. Hendricks, 273 Or App 1, 359 P3d 294 (2015), rev den, 358 Or 794 (2016).”

Defendant appealed a judgment of conviction on two counts: (1) felony fourth-degree assault constituting domestic violence (ORS 163.160) and (2) felony strangulation constituting domestic violence (ORS 163.187). On appeal, defendant primarily argued against the holding of Hendricks as wrongly interpreting the requirement of a “physical injury” necessary in an assault charge and similarly intended in a strangulation charge. Defendant asserted that the legislative history of ORS 163.187 displays that the “temporary restriction of a person’s breath or blood (without more) did not constitute physical injury.” The state responded in remarking on the ambiguity of the strangulation charge. Their explanation was that, while strangulation could be prosecuted under an assault charge, the creation of a separate charge without the explicit requirement of a physical injury was intentional in making strangulation easier to prosecute.  In Hendricks [we held] “that a limited interruption of breathing can constitute a material impairment of physical condition for purposes of proving physical injury under the assault statute.” State v. Hendricks, 273 Or App 1, 359 P3d 294 (2015), rev den, 358 Or 794 (2016). The Court held that after looking at the legislative history of ORS 163.187, it did appear that both the assault statute and the strangulation statute were “intended to treat different conduct in a similar manner.” However, the bar to overruling precedent is only met when the ruling was plainly erroneous. As similar cases like Ofodrinwa exist with their own competing interpretations of the statute and are not at odds with Hendricks, this holding will not be overturned. State v. Ofodrinwa, 353 Or 507, 520, 300 P3d 154 (2013).

Affirmed.