500 P.3d 29
Or. Ct. App.2021Background
- Defendant convicted of four drug offenses (including delivery of heroin and methamphetamine near a school, and possession counts) and one theft; appealed after trial court denied judgment of acquittal on delivery charges.
- At arrest, defendant had 4.28 grams of heroin in three regurgitated bindles (42 user amounts) and 8.91 grams of methamphetamine in her handbag (89 user amounts).
- She regurgitated the heroin after ingesting half a bottle of hydrogen peroxide taken without payment from a store; no distribution packaging, scales, cutting agents, or transaction records were found.
- No identifiable buyer, no clear plan or imminent transaction, and only limited evidence of contact with a man in a car in the store parking lot.
- Appellate court held the evidence insufficient to prove transfer or a substantial step toward delivery for Counts 1 and 2; reversed those convictions and remanded for resentencing; affirmed the possession (Counts 3–4) and theft (Count 5) convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for delivery within 1,000 feet of a school (Counts 1–2) | State: Possession of large quantities permits inference of delivery/constructive delivery. | Fischer: Possession alone, without evidence of an effort to transfer or distribution indicia, is insufficient. | Reversed — evidence insufficient to prove transfer/constructive delivery. |
| Whether conduct constituted delivery or only attempt / inchoate offense (role of Boyd doctrine) | State: Constructive delivery (attempted transfer) supports delivery conviction under prior doctrine. | Fischer: Under current law, attempted transfer requires some effort to cause substances to pass to another; mere possession does not suffice. | Court applied Hubbell (overruling Boyd): need evidence of effort to cause transfer; here none. |
| Jury instruction on unanimity | State: Instruction given was adequate. | Fischer: Instruction failed to require unanimous verdict on dispositive theory. | Error found in instruction; harmless beyond a reasonable doubt for Counts 2–5 (unanimous verdicts); Count 1 reversal rendered one unanimity challenge moot. |
| Special immunity jury instruction under ORS 475.898(2) (possession counts) | State: Instruction not required under facts. | Fischer: Requested instruction should have been given. | Assignment rejected without discussion; possession convictions otherwise affirmed. |
Key Cases Cited
- State v. Boyd, 92 Or App 51 (1988) (earlier Court of Appeals formulation treating "constructive delivery" or "attempted transfer" as supporting delivery convictions)
- State v. Hubbell, 314 Or App 844 (2021) (overruled Boyd; delivery requires evidence of an effort to cause substances to pass to another)
- State v. Flores Ramos, 367 Or 292 (2020) (discussed harmlessness analysis for jury unanimity errors)