506 P.3d 505
Or. Ct. App.2022Background
- Defendant (Buell) was convicted of delivery of methamphetamine (Count 1) after police found ~4 pounds of meth, a scale, and sandwich bags; his phone showed texts about acquiring drugs.
- Defendant filed a pro se supplemental assignment of error challenging sufficiency of evidence for delivery; the Court of Appeals initially rejected those pro se assignments without discussion and affirmed in part.
- Defendant petitioned for reconsideration, arguing the court overlooked State v. Hubbell, decided shortly before Buell’s opinion, which changed the interpretation of “attempted transfer” in ORS 475.005(8).
- In Hubbell the court held that merely taking a substantial step toward delivery supports attempted delivery, but proof of an effort to cause an actual transfer is required for delivery.
- Applying Hubbell, the court concluded Buell’s evidence supported attempted delivery (inchoate) but not completed delivery; it reversed Count 1 and remanded to enter attempted-delivery conviction, reversed Counts 6 and 7 and remanded for resentencing, and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to sustain conviction for delivery of a controlled substance (ORS 475.890 and ORS 475.005(8)) | State: possession of large quantity, scale, packaging, and text messages sufficed to infer a delivery and support completed offense | Buell: evidence only shows steps toward distribution (possession, packaging materials, inquiry texts), not an effort to cause an actual transfer; under Hubbell that supports attempted delivery only | Court reversed Count 1 for delivery and remanded to enter conviction for attempted delivery; Counts 6 and 7 reversed and remanded for resentencing; otherwise affirmed |
Key Cases Cited
- State v. Hubbell, 314 Or App 844 (court interpreted ORS 475.005(8) to require proof of an incomplete or unsuccessful transfer for delivery; mere substantial steps support attempted delivery)
- State v. Boyd, 92 Or App 51 (prior approach treating substantial-step test as satisfying delivery; overruled by Hubbell)