511 P.3d 432
Or. Ct. App.2022Background
- Defendant Elliot Satoru Carr was convicted by a jury of 22 offenses arising from conduct that included possession of methamphetamine and heroin, drug paraphernalia (scales, baggies), and related fraud and theft offenses.
- At trial the court instructed the jury that "ten or more jurors must agree" on each verdict and, for several counts, that ten jurors could agree either that defendant personally committed the offense or that he aided and abetted.
- The jury returned nonunanimous verdicts on Counts 1–4 and on the firearm-enhancement element of Count 5; convictions on Counts 6 and 13 were unanimous as to guilt but not unanimous as to theory (principal vs aider/abettor).
- Counts 19 (methamphetamine) and 21 (heroin) were tried as delivery offenses under a theory that included attempted transfer; evidence included controlled substances, scales, baggies, journal entries, and testimony that defendant sometimes sold drugs.
- The trial court classified Counts 19 and 21 as commercial drug offenses for enhanced sentencing (alleged to be "for consideration").
- On appeal the State conceded some errors; defendant raised challenges to the nonunanimous jury instruction, theory-of-liability unanimity, sufficiency of proof for completed delivery (post-Hubbell), and sufficiency of proof for the commercial-offense enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Nonunanimous jury instruction/verdicts (Counts 1–4; firearm enhancement on Count 5) | State concedes Ramos requires unanimous verdicts; trial instruction was erroneous. | Court erred by instructing jury that 10 jurors could decide guilt; verdicts must be unanimous. | Court accepted concession: reversed and remanded convictions on Counts 1–4 and the firearm-enhancement verdict on Count 5. |
| 2. Unanimity as to theory of liability (Counts 6 and 13) | State concedes error under Pipkin/Phillips and Ramos; jurors must agree on elements and theory. | Jurors must unanimously agree whether defendant acted as principal or aider/abettor. | Reversed and remanded convictions on Counts 6 and 13 because jurors were not unanimous on theory. |
| 3. Sufficiency for completed delivery (Counts 19 and 21) | State originally treated evidence as proving delivery (including attempted-transfer theory); concedes post-Hubbell that completed-delivery convictions were erroneous. | Hubbell requires evidence of an attempted transfer (some effort to cause substances to pass); evidence here did not show an actual attempted transfer. | Following Hubbell, evidence insufficient to prove completed delivery; convictions on Counts 19 and 21 reversed and remanded for entry of attempted-delivery convictions. |
| 4. Commercial-drug-offense enhancement ("for consideration") for Counts 19 and 21 | State argued evidence supported enhancement. | Villagomez requires proof of a completed sale or an existing agreement to sell; such proof is absent. | State conceded and court held evidence insufficient to prove "for consideration"; enhancement vacated; remand for resentencing. |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (Sixth Amendment requires unanimous jury verdicts for serious offenses)
- State v. Pipkin, 354 Or. 513 (Or. 2013) (jury must agree on each legislatively defined element; unanimity on elements required)
- State v. Phillips, 354 Or. 598 (Or. 2013) (when charging principal or aider/abettor, jurors ordinarily must agree on elements under each theory)
- State v. Hubbell, 314 Or. App. 844 (Or. Ct. App. 2021) ("attempted transfer" requires an inference that defendant made some effort to cause a controlled substance to pass; overruled Boyd)
- State v. Villagomez, 362 Or. 390 (Or. 2018) (to prove a commercial-drug-offense "for consideration," state must prove a completed sale or an existing agreement to sell)