State v. O'Hare, 481 P.3d 953

Defendant Dana O’Hare was arrested after a Bi-Mart loss-prevention employee opened her backpack and later discovered a red pouch containing .79 g methamphetamine, a meth pipe with heavy residue, a small digital scale with white residue, multiple small clean baggies, a larger sandwich bag, and matches.
Charged with unlawful delivery of methamphetamine (ORS 475.890), unlawful possession of methamphetamine, and third-degree theft; tried by jury; the state argued attempted transfer (delivery) based on the items found.
At close of the state’s case, O’Hare moved for judgment of acquittal on the delivery charge for insufficiency of the evidence; the trial court denied the motion and the jury convicted on all counts.
On appeal O’Hare renewed the insufficiency challenge to the delivery conviction and additionally, in a supplemental brief, challenged a jury instruction that allowed conviction by 10 jurors (though the verdicts were unanimous).
The appellate court held that the evidence was insufficient to support a delivery conviction because inferring intent to transfer from a user amount plus paraphernalia was speculative; reversed the delivery conviction and remanded for resentencing; all other convictions were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to convict for delivery (attempted transfer)	Possession of a user-amount meth that was ‘‘on the steep side’’ plus tools commonly used to sell (scale, baggies) permits a reasonable juror to infer a substantial step toward delivery.	The evidence (user amount, unsealed/unpackaged for sale, pipe with residue, soot, matches, a scale and clean baggies) supports personal use; inferring intent to transfer is speculative.	Reversed delivery conviction: tools + small user amount did not strongly corroborate intent to transfer; inference of attempted transfer was too speculative.
Jury instruction permitting 10-juror convictions	Instruction allowed nonunanimous verdicts (state relied on correctness or harmlessness).	O’Hare argued instruction was erroneous and required reversal.	Claim foreclosed: convictions rendered by unanimous verdicts are not reversed for that instructional error (citing controlling precedent); other convictions affirmed.

State v. Walters, 311 Or 80 (Or. 1991) (a "substantial step" must strongly corroborate criminal purpose)
State v. Miller, 196 Or App 354 (Or. Ct. App. 2004) (standard for reasonable inferences and limits on stacking inferences)
State v. Boyd, 92 Or App 51 (Or. Ct. App. 1988) (used definition of inchoate attempt to define "attempted transfer")
State v. Stockert, 303 Or App 314 (Or. Ct. App. 2020) (interpreting the ordinary meaning of "attempt" in statutory context)
State v. Rapp, 306 Or App 265 (Or. Ct. App. 2020) (similar analysis on meaning of "attempts" in statute)
State v. Pollock, 189 Or App 38 (Or. Ct. App. 2003) (offer to sell can be a substantial step where intent is explicit)
State v. Shewell, 178 Or App 115 (Or. Ct. App. 2001) (user amount + paraphernalia supported delivery where other contextual evidence of sales existed)
State v. Sargent, 110 Or App 194 (Or. Ct. App. 1991) (soliciting another to commit delivery can be a substantial step)
State v. Borden, 307 Or App 526 (Or. Ct. App. 2020) (standard of review for denial of judgment of acquittal)
State v. Flores Ramos, 367 Or 292 (Or. 2020) (instructional error permitting nonunanimous verdicts does not require reversal where verdicts were unanimous)
State v. Kincheloe, 367 Or 335 (Or. 2020) (same principle regarding nonunanimous-verdict instruction)