State v. Christopher, 507 P.3d 821

Defendant Steve Garland Christopher was tried by jury and convicted of unlawful delivery of methamphetamine (Count 1); acquitted of possession (Count 2); criminal forfeiture (Count 3) was decided against him by the court and is not challenged on appeal.
At trial the prosecutor argued, and the jury was instructed under, the Boyd theory that an inchoate attempted delivery can satisfy the statute’s "delivery" element for ORS 475.890.
After trial, this court decided State v. Hubbell, which overruled Boyd and held that "attempted delivery" under the controlled substances statutes means an unsuccessful or incomplete transfer, not an inchoate attempt.
The jury in Christopher’s case could have convicted based on the now-rejected Boyd theory; the state conceded error on the dispositive issue and the appellate court reviewed for plain error under the law at the time of appeal.
The court concluded the instructional error was plain and not harmless, reversed the conviction on Count 1, and remanded for a new trial on that count; the remaining convictions were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instruction allowed conviction based on Boyd inchoate-attempt theory	Instruction properly permitted delivery as argued; supports conviction	Instruction misstated law; Boyd theory invalid under Hubbell	Court held error plain because jury could rely on Boyd; reversed Count 1
Whether appellate court should apply law at time of trial or appeal	Trial-era precedent supported Boyd; error not preserved	Law at time of appeal (Hubbell) controls; error plain	Court applied Hubbell and corrected error on appeal
Whether failure to raise issue below forfeits review	State argues issue not preserved; shouldn’t be corrected	Raising below would have been futile given existing precedent	Court exercised discretion to correct plain error (citing Jury)
Sufficiency of evidence plain-error claim	State contends evidence supports conviction regardless	Defendant challenged sufficiency; court rejected first supplemental claim	Court rejected defendant’s sufficiency plain-error challenge (not dispositive)

State v. Hubbell, 314 Or App 844 (2021) (overruled Boyd; "attempted delivery" means an unsuccessful or incomplete transfer)
State v. Boyd, 92 Or App 51 (1988) (held inchoate attempted delivery could satisfy "delivery")
State v. Fischer, 315 Or App 267 (2021) (describes attempted transfer as incomplete or unsuccessful)
State v. Jury, 185 Or App 132 (2002) (appellate plain-error correction may apply when law changes on appeal)