State v. Hubbell, 500 P.3d 728

Background

Three people overdosed from fentanyl traced to a container in defendant Brian Hubbell’s hotel-room belongings; police later found large quantities of white powder (fentanyl) in multiple small baggies in Hubbell’s room.
Hubbell was incarcerated when the search occurred; he told police he possessed the fentanyl but denied distributing it.
He was charged with possession and delivery of a Schedule II controlled substance; at bench trial the court convicted him of delivery based on a Boyd theory (possession in large quantity + prepackaging can establish delivery).
On appeal the panel asked the parties to brief whether State v. Boyd’s importation of ORS 161.405’s inchoate-attempt test into the statutory definition of “delivery” was consistent with statutory text, context, and legislative intent.
The court concluded Boyd was plainly wrong: “attempted transfer” in ORS 475.005(8) means an unsuccessful/ incomplete transfer (an act), not the inchoate crime of attempt (a substantive offense).
Because the evidence showed a substantial step toward distribution but did not show an actual, constructive, or attempted transfer, the court reversed the delivery conviction, entered (remanded to enter) a conviction for attempted delivery, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hubbell)	Held
Whether Boyd correctly treated the word “attempted” in ORS 475.005(8) as the inchoate-crime definition in ORS 161.405	Boyd is correct because the legislature intended to criminalize possession with intent to distribute and would have understood “attempt” as the recently enacted inchoate-attempt concept	Boyd is inconsistent with the criminal code structure; “attempted transfer” should have its ordinary meaning (an unsuccessful transfer act)	Overruled Boyd: ORS 161.405 is not a general definitional provision; Boyd was plainly wrong
If Boyd is wrong, what does “attempted transfer” mean in ORS 475.005(8)?	(State) Even under the ordinary meaning the facts here would show an attempted transfer because of large quantity and prepackaging	(Hubbell) “Attempted transfer” requires an effort to cause the drugs to pass to another (identifiable effort/recipient/plan), which is lacking here	“Attempted transfer” means an unsuccessful/incomplete effort to transfer the substance (ordinary meaning modifies the act “transfer”)
Whether the evidence was sufficient to support a completed delivery conviction	The amount, packaging, and circumstances show intent and satisfy the relevant standard (and would under Boyd)	The evidence showed possession and intent but not an actual, constructive, or attempted transfer; therefore insufficient for delivery	Evidence insufficient for completed delivery but sufficient to prove a substantial step toward delivery (attempt in the inchoate sense)
Appropriate disposition if delivery conviction cannot stand	State: affirm under ordinary meaning or at least remand without vacating drug-related findings	Hubbell: judgment of acquittal on delivery; conviction only for possession	Court reverses the delivery conviction, directs entry of conviction for attempted delivery (lesser‑included), and remands for resentencing

Key Cases Cited

State v. Boyd, 92 Or App 51, 756 P.2d 1276 (Or. Ct. App. 1988) (originally held possession with intent + prepackaging could satisfy delivery by importing ORS 161.405; now overruled)
State v. Stockert, 303 Or App 314, 464 P.3d 151 (Or. Ct. App. 2020) (refused to import ORS 161.405 into a substantive statute; distinguished ordinary use of “attempt”)
State v. Rapp, 306 Or App 265, 473 P.3d 1126 (Or. Ct. App. 2020) (held the presence of the word “attempt” in a substantive statute does not automatically import inchoate‑attempt elements)
State v. O’Hare, 309 Or App 357, 481 P.3d 953 (Or. Ct. App. 2021) (explained ORS 161.405 delineates inchoate‑attempt elements rather than defining the word “attempt” across all statutes)
State v. Civil, 283 Or App 395, 388 P.3d 1185 (Or. Ct. App. 2017) (articulated the “plainly wrong” standard for overruling prior statutory‑interpretation precedent)
State v. Walters, 311 Or 80, 804 P.2d 1164 (Or. 1991) (describes the “substantial step” test for the inchoate crime of attempt)
State v. Fulmer, 105 Or App 334, 804 P.2d 515 (Or. Ct. App. 1991) (applied Boyd’s approach to equate attempted delivery with completed delivery)