533 P.3d 786
Or. Ct. App.2023Background
- Early-morning high-speed pursuit and crash of defendant’s truck; defendant (driver) and passenger Klein arrested.
- Police found large quantities of drugs and paraphernalia in the driver area: about 380 grams methamphetamine, 2.3 grams heroin, a glass pipe, small baggies, a digital scale, gloves, two bandanas each containing large meth rocks, a handgun on the steering column, and $1,160 in defendant’s wallet.
- Jury convicted defendant of (inter alia) unlawful delivery of methamphetamine (Count 2), unlawful possession of heroin (Count 3), and felon-in-possession of a firearm (Count 5); some verdicts and subcategory findings were nonunanimous after the court instructed that 10 jurors suffice.
- Defense failed to disclose two witnesses (Martin and Dupree) until after the state rested; the trial court excluded both as discovery-sanction remedies.
- Post-trial, defendant invoked State v. Hubbell (Court of Appeals overruling Boyd) in supplemental briefing, arguing delivery conviction (Count 2) was plain error because evidence showed only a substantial step (attempt), not a completed transfer. The state conceded insufficiency for delivery but argued remand to enter attempted-delivery conviction was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury unanimity instruction and nonunanimous verdicts (Counts 3 & 5) | Ramos requires unanimity; State concedes nonunanimous verdicts on these counts are invalid | Nonunanimous verdicts violate Sixth Amendment; reversal required | Reversed and remanded Counts 3 and 5 under Ramos; other unanimous verdicts unaffected as harmless |
| Nonunanimous jury findings on Count 2 subcategory/enhancement facts | State contended those findings either supported sentencing or could be retried | Defendant argued Ramos invalidated enhancement findings and affects conviction | Court agreed subcategory nonunanimous findings invalid under Ramos/Enloe; enhancements cannot be used unless retried |
| Sufficiency of evidence for delivery (Count 2) after Hubbell (overruling Boyd) | State conceded evidence insufficient to prove completed transfer but argued record supports attempted delivery; requested remand to enter attempted-delivery conviction | Wesley argued evidence insufficient to show a substantial step and that nonunanimous subcategory findings prevent concluding jury necessarily found attempt | Reversed Count 2 for plain error; remanded with instruction to enter conviction for attempted delivery because record legally supports substantial-step finding (Hubbell line of cases) |
| Exclusion of defense witnesses (Martin and Dupree) as discovery sanctions | State argued late disclosures prejudiced prosecution; exclusion appropriate | Wesley argued disclosures were not willful or predictable and exclusion was abuse; requested continuance or mistrial instead | Court upheld exclusion of Martin (defense knew of him); erred in excluding Dupree (no proof defendant knew) but deemed that error harmless given strong evidence of defendant’s possession/intent |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (Sixth Amendment requires unanimous jury verdicts for serious offenses)
- State v. Hubbell, 314 Or App 844 (Or. Ct. App. 2021) (overruled Boyd; substantial step toward transfer is attempted delivery, not completed delivery)
- State v. Boyd, 92 Or App 51 (Or. Ct. App. 1998) (possession with intent/indicia of distribution treated as attempted transfer for purposes of delivery theory; later overruled by Hubbell)
- State v. Enloe, 316 Or App 680 (Or. Ct. App. 2021) (Ramos requires unanimity for subcategory/enhancement findings)
- State v. Fischer, 315 Or App 267 (Or. Ct. App. 2021) (possession-only facts insufficient to show substantial step toward delivery)