Background

• Hernandez was tried and convicted by a jury of: unlawful delivery of heroin (Count 1), unlawful possession of heroin (Count 2), unlawful delivery of methamphetamine (Count 3), and unlawful possession of methamphetamine (Count 4), each alleged to involve a substantial quantity.
• At trial the State’s theory for Counts 1 and 3 relied on State v. Boyd (possession with intent to deliver constituting "delivery").
• After trial this court decided State v. Hubbell, which overruled Boyd and held that "attempted transfer" in the definition of delivery requires a particular act of transferring, not mere possession with a generalized intent to deal.
• On appeal Hernandez argued the trial court plainly erred by allowing Counts 1 and 3 to go to the jury because the evidence was legally insufficient under Hubbell.
• The State conceded that, in light of Hubbell, the evidence was insufficient to sustain conviction for delivery on Counts 1 and 3; the court exercised discretion to correct the unpreserved error.
• The court concluded the jury necessarily found a "substantial step" toward delivery, reversed the completed-delivery convictions on Counts 1 and 3, remanded to enter convictions for attempted delivery of heroin and methamphetamine, and remanded for resentencing; the remainder of the convictions were affirmed.

Issues

Key Cases Cited

• State v. Hubbell, 314 Or. App. 844 (clarifies "attempted transfer" requires a specific act of transferring; overrules Boyd)
• State v. Boyd, 92 Or. App. 51 (previously treated possession with intent as delivery)
• State v. Carr, 319 Or. App. 684 (jury finding of guilt on completed offense can show a substantial step supporting attempt)
• State v. Jury, 185 Or. App. 132 (discretion to correct unpreserved plain-error sufficiency challenges)