State v. Mailman

                                        101

                Submitted March 9, 2018, affirmed March 18, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 ANTHONY MORGAN MAILMAN,
                      Defendant-Appellant.
                   Union County Circuit Court
                       M21794; A162173
                                    

     Defendant appeals from a judgment of conviction for felony fourth-degree
assault constituting domestic violence, ORS 163.160; strangulation constituting
domestic violence, ORS 163.187; second-degree criminal mischief, ORS 164.354;
and second-degree disorderly conduct, ORS 166.025. This is the second of two
opinions issuing today in which a defendant asserts that State v. Hendricks, 

, 

 (2015), was wrongly decided, arguing that, in light of legislative history, a temporary interruption of breathing is legally insufficient to constitute a physical injury or impairment of condition for purposes of assault, thus
requiring the strangulation and assault verdicts to merge. Held: In contrast with
the defendant’s argument in State v. Merrill, 

, 

 (2020),
defendant’s failure to raise a challenge before the trial court that Hendricks was
wrongly decided precludes consideration of that argument on appeal.
    Affirmed.



    Russell B. West, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erin J. Snyder Severe, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
    JAMES, J.
    Affirmed.
102                                          State v. Mailman

        JAMES, J.
         Defendant appeals from a judgment of conviction
for felony fourth-degree assault constituting domestic violence, ORS 163.160; strangulation constituting domestic
violence, ORS 163.187; second-degree criminal mischief,
ORS 164.354; and second-degree disorderly conduct, ORS
166.025. On appeal, defendant raises three assignments of
error. We reject the first without discussion. In defendant’s
second assignment of error he challenges the denial of his
motion for judgment of acquittal, arguing that a temporary
interruption of breathing is legally insufficient to constitute
a physical injury or impairment of condition for purposes of
assault. In making that argument defendant asks us to disavow our decision in State v. Hendricks, 

, 

 (2015), rev den, 

 (2016), arguing that, in
light of legislative history, Hendricks was wrongly decided.
That argument mirrors the argument rejected in State v.
Merrill, 

, 

 (2020). We
do not revisit it here other than to briefly highlight a difference between this case and Merrill that bears on preservation. In defendant’s third assignment of error, he argues
that Hendricks compels the conclusion that guilty verdicts
for strangulation and assault merge. Again, that argument
mirrors the one rejected in Merrill, 

 and we reject it without additional discussion. Accordingly, we 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, 

, 

 (2018) (quoting State
v. Cunningham, 

, 

 (1994), cert den,

 (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, 

, 

 (2016). We state the facts in
accordance with that standard.
       Defendant and S were in a relationship, and S was
six months’ pregnant with their second child when they
Cite as 

 (2020)                                   103

got in an argument over defendant not coming home after
work. S went looking for defendant, spotted him in the car
of his friend, and followed them through La Grande. The
car stopped in an alleyway next to a Chevron station, and
defendant exited. S got out of her vehicle and the two began
yelling.
        S eventually got back into her vehicle, and defendant walked up to her open window and put his left hand
around her throat for five seconds. Defendant walked away
and said, “We’re done. It’s over.”
         S rolled up her window. Defendant then turned
around and punched the window, shattering the glass.
When officers arrived on the scene they noted that S had a
laceration near her eye and nose, and blood on her shoulder
from the shattered glass. She told the officers that defendant had choked her and tried to take her keys from the
ignition. The officers arrested S and cited defendant for disorderly conduct.
        The next day, S told officers that defendant had
slammed S’s head against the back seat and used his left
hand to “choke” her for a “couple minutes.” However, later,
S retracted that statement and indicated that she did not
“remember anything or which order it happened.”
        The state charged defendant with both assault and
strangulation, among other counts. At the close of the state’s
case, defendant made a motion for judgment of acquittal,
focusing that argument on the fact that S had apparently
recanted her statements that defendant had choked her. In
response to defendant’s motion for judgment of acquittal,
the prosecutor brought up Hendricks to the trial court:
       “Something that was not brought up, Judge, but the
   Court may have concerns about it, the assault issue, Judge,
   if there’s enough for physical injury. Physical injury being
   substantial pain or impairment of physical condition.
       “There’s a case from last year, State v. Hendricks, …
   [a]nd that basically stands for because [sic] when you strangle someone and cut off their airway you’re impairing their
   ability to breathe, which is a physical condition, and there’s
   no time duration required of how long that impairment has
104                                            State v. Mailman

   to be. This case stands for any time you have a strangulation you also have an assault.”
        Defense counsel indicated that he was aware of
Hendricks and clarified that his motion was not challenging the viability of using an interruption of breathing as
a physical injury for purposes of assault but was rather
challenging the sufficiency of the evidence that S had
been strangled at all. The trial court denied the motion,
ruling
   “I’ve heard the testimony of the witnesses; I’ve heard the
   arguments of counsel. …
      “As far as the assault four, I find that there is enough
   evidence for a reasonable juror to find the defendant guilty.”
         Both the strangulation and the assault counts went
to the jury under the theory that the act of choking S constituted the assault. The state did not proceed under any
alternative factual basis—such as causing lacerations to S
by breaking the window. The jury convicted defendant on
all counts, including the strangulation and assault, and this
appeal followed.
          On appeal, defendant asks us to disavow our decision
in Hendricks, an argument not raised before the trial court.
Defendant argues that his failure to challenge Hendricks
before the trial court should not preclude our consideration
of that issue on appeal, or alternatively, defendant asks us
to consider the matter under the standards of plain error.
See, e.g., Ailes v. Portland Meadows, Inc., 

, 

 (1991).
         In Merrill we reached the merits of a similar challenge, relying on State v. Bonilla, 

, 

 (2015), and reasoning that
   “principles of preservation do not dictate that parties pursue futile actions. When controlling authority 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.”
Merrill, 

.
Cite as 

 (2020)                                     105

            We noted that, as in Bonilla, the defendant in
Merrill
      “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, modification, or disavowal of
      such precedent. Finally, we can perceive no unfair disadvantage or surprise to the state by a failure to advance that
      argument at trial.”

.
            Accordingly, we concluded that
          “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 precedent did not result in any unfair advantage or surprise.”

        In contrast to Merrill, where the state did not dispute
preservation, here the state argues that defendant’s failure
to raise a challenge before the trial court that Hendricks
was wrongly decided should preclude consideration of that
argument on appeal. We agree.
          In Merrill the factual circumstances of the encounter supported multiple potential theories of assault, both
of which were presented to the jury along with a concurrence instruction. It was clear from the verdict form that
the jury had been presented with, and rejected, all theories
except the one based on strangulation. Like Merrill, here
there were multiple potential theories of assault. Testimony
at trial indicated that police observed S with “bleeding lacerations.” Her eye was cut, her nose was bleeding, and she
had blood on her shoulder, all of which testimony established had occurred as a result of defendant smashing the
window. Such lacerations can, depending on their severity,
constitute physical injury for fourth-degree assault. State v.
Hart, 

, 

 (2008) (holding that
106                                         State v. Mailman

a half-inch “gash” on the back of the victim’s head could constitute “physical injury” for fourth degree assault).
          Had defendant indicated at trial that he was challenging the legal viability of relying on a temporary interruption of breathing as a basis of physical injury for purposes of assault, the state could have potentially insulated
itself from the consequences of any subsequent change in the
law by presenting an alternative theory for the assault—the
lacerations—just as in Merrill. Accordingly, we cannot be
confident that the failure to alert the parties at trial to the
legal challenge, even though the trial court was bound by
controlling precedent and could not have acted upon such
a challenge, would not result in the state having been “surprise[ed], misled, or denied opportunities to meet an argument.” Davis v. O’Brien, 

, 

 (1995)
(internal citation omitted). The potential for such unfair
surprise counsels against hearing such a challenge to precedent for the first time on appeal, whether under Merrill,
Bonilla, or under Ailes, and we accordingly reject it here.
        Affirmed.