State v. Dippre, 512 P.3d 835

Defendant arrested and tried on Count 1: unlawful delivery of methamphetamine, and Count 2: unlawful possession of methamphetamine; a third count (heroin) was dismissed at trial.
Police found 12.77 grams of methamphetamine in one bag, a scale in the same bag, unused plastic baggies and tin foil elsewhere in the vehicle, and drug-use paraphernalia (syringes, pipes).
At trial the court instructed the jury that unanimity was required for both guilty and not-guilty verdicts; defendant had requested a unanimous-jury instruction and did not object to the court’s instruction. The jury convicted unanimously.
After trial the state conceded that, under recent Oregon law (Hubbell overruling Boyd), the evidence did not support a completed delivery conviction based merely on possession and distribution-related paraphernalia.
The Court of Appeals reversed the delivery conviction, directed entry of a conviction for attempted delivery (a lesser-included inchoate offense), remanded for resentencing, and otherwise affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury-unanimity instruction (plain error)	Instruction was incorrect but any error invited by defendant’s request or was harmless because jury convicted unanimously	Instruction was plain error because Oregon law allows nonunanimous acquittals (10‑2 or 11‑1); trial court should have so instructed	Any error was harmless where the jury returned a unanimous guilty verdict; Martineau controls
Validity of delivery conviction under Boyd/Hubbell	State conceded Boyd-based theory is no longer valid under Hubbell; delivery conviction was erroneous	Conviction for delivery could stand because possession + distribution tools prove delivery	Trial court plainly erred entering delivery conviction; state conceded the error
Permitting State to argue Boyd theory at trial	State argued delivery could be proven from possession and instruments for delivery	Defendant argued that arguing a Boyd theory was plain error post-Hubbell	Court accepted state’s concession and did not need to resolve this supplemental claim
Remedy: reverse vs. remand for attempted delivery	State asked court to remand for entry of attempted-delivery conviction	Defendant sought reversal of delivery conviction and relief	Court directed entry of attempted-delivery conviction (lesser-included), remanded for resentencing

Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (Sixth Amendment requires unanimous guilty verdicts in state criminal trials)
State v. Ross, 367 Or 560 (Or. 2021) (explaining Ramos and that Oregon law still permits nonunanimous acquittals)
State v. Hubbell, 314 Or App 844 (Or. Ct. App. 2021) (overruled Boyd; delivery requires proof of an attempted transfer, not mere possession)
State v. Boyd, 92 Or App 51 (Or. Ct. App. 1988) (formerly held possession and intent to sell could support delivery conviction; overruled by Hubbell)
State v. Martineau, 317 Or App 590 (Or. Ct. App. 2022) (harmless-error analysis where jury convicted unanimously despite instruction error)
State v. Newsted, 297 Or App 848 (Or. Ct. App. 2019) (possession plus delivery materials can constitute a substantial step toward delivery)
State v. Fischer, 315 Or App 267 (Or. Ct. App. 2021) (post-Hubbell: facts insufficient to direct entry of attempted-delivery conviction)
State v. Buell, 317 Or App 667 (Or. Ct. App. 2022) (remanded for entry of attempted-delivery conviction where quantity and delivery materials supported substantial-step finding)