STATE OF OREGON, Plаintiff-Respondent, v. JARED CHARLES DIPPRE, Defendant-Appellant.
Lincoln County Circuit Court 19CR65879; A172987
Court of Appeals of Oregon
June 15, 2022
320 Or App 317 (2022); 512 P3d 835
Submitted December 22, 2021; conviction for delivery of methamphetamine reversed and remanded for entry of a conviction for attempted delivery of methamphetamine, remanded for resentencing, otherwise affirmed June 15, 2022
Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine,
Conviction for delivery of methamphetamine reversed and remanded for entry of a conviction for attempted delivery of methamphetamine; remanded for resentencing; otherwise affirmed.
Amanda R. Benjamin, Judge pro tempore.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
SHORR, J.
Conviction for delivery of methamphetamine reversed and remanded for entry of a conviction for attempted delivery of methamphetamine; remanded for resentencing; otherwise affirmed.
SHORR,
Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 1),
We begin by addressing defendant‘s first assignment of error and his argument that the trial court plainly erred in instructing the jury that a unanimous verdict was required for not-guilty as well as guilty verdicts. This case was tried before thе United States Supreme Court held that the Sixth Amendment to the United States Constitution requires
to a unanimous jury instruction if defendant requested one. Defendant indicated that he was requesting one. During trial, the court instructed the jury that “[t]his being a criminal case, all twelve jurors must agree on the verdict.” Defendant did not objеct to that instruction.
As noted, Ramos held that the
On appeal, defendant argues that the trial court plainly erred in instructing the jury that it had to be unanimous and, relatedly, in failing to instruct the jury that it сould reach a nonunanimous 10-2 or 11-1 verdict to acquit. The state agrees that the instruction was incorrect. However, the state responds that we should not reach defendant‘s plain-error argument because defendant invitеd any error by requesting the unanimous-jury instruction. In the alternative, the state argues that any error was harmless because the jury convicted defendant by unanimous votes. We conclude that, even assuming the error was not invited, any error in instruсting the jury that it could only acquit defendant by a unanimous vote was harmless when the jury instead convicted defendant by a unanimous vote. Martineau, 317 Or App at 594-95. Defendant contends that a harmless-error analysis should not apply in these circumstanсes. The defendant in Martineau raised that identical argument, and we reject it here for the reasons expressed in our opinion in that case. Id. at 592-93.
We turn to defendant‘s supplemental assignments of error. As noted, defendant raises two supрlemental assignments of error that together contend that, pursuant to State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021), rev allowed, 369 Or 504 (2022), the trial court plainly erred in entering a conviction for delivery of methamphetamine, and in permitting the state to argue that defendant was guilty ofdelivery of methamphetamine based on evidence that he had possessed methamphetamine and certain instruments that could be used to deliver drugs.
The state first concedes that the trial court plainly erred in entering the delivery conviction, and we accept that concession. At the time of defendant‘s trial, Oregon law had, for over 30 years, treated evidence of possession of a large amount of drugs and the intent to sell them as sufficient to рrove the completed crime of delivery of a controlled substance. See State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or 77 (1988), overruled by Hubbell, 314 Or App at 848. The Boyd delivery doctrine was overruled by Hubbell, which determined that “attempted transfer” within the definition of “delivery” in
Here, defendant was found in possession of 12.77 grams of methamphetamine, a scale in a bag with the drugs, packaging materials such as baggies and tin foil, and implements of use such as syringes, pipes, and other paraphernalia. However, there was no evidencе that defendant or his codefendant, Beck, made an unsuccessful effort to pass those drugs to another person. Under the more recent law announced in Hubbell, the trial court plainly erred in entering defendant‘s conviction for unlawful delivery of methamphetamine for Count 1. Because we exercise our discretion and reverse defendant‘s conviction for delivery as plainly wrong, we need not consider defendant‘s second
Finally, we have authority, pursuant to the Oregon Constitution, to direct entry of a conviction for a lesser-included offense if we detеrmine that that conviction should have been entered by the trial court. Hubbell, 314 Or App at 873. The state contends that, rather than simply reversing defendant‘s conviction for delivery of methamphetamine,we should remand for entry of a conviction for the inchoate, lesser-included crime of attempted delivery. We agree.
A defendant commits the inchoate crime of attempted delivery of a controlled substance when that person takes a substantial step towards transferring a controlled substance. See
In Hubbell, after overruling Boyd and reversing the defendant‘s delivery conviction, we remanded the case for entry of a conviction for attempted delivery, which the jury necessarily found as a lessеr-included offense when convicting defendant of delivery. 314 Or App at 873. We concluded that the evidence was sufficient to support the conviction for attempted delivery. Id. We did the same in a subsequent case applying Hubbell called State v. Buell, 317 Or App 667, 671, 506 P3d 505 (2022), which we also remanded for entry of an attemрted delivery conviction. In both, the defendants possessed extremely large quantities of drugs (375,000 doses in Hubbell and 17,000 doses in Buell) along with other materials associated with controlled substances delivery (individual baggies in Hubbell and a scale, baggies, and text messagеs asking about acquiring drugs in Buell). Buell, 317 Or App at 670-71; Hubbell, 314 Or App at 849.
We reached the opposite conclusion in State v. Fischer, a post-Hubbell case where we reversed the defendant‘s Boyd-based delivery conviction and determined that the evidence was insufficient to direct entry of an attempted delivery conviction. 315 Or App 267, 268-69, 500 P3d 29(2021). In Fischer, the defendant possessed 42 doses of heroin and 89 doses of mеthamphetamine. Id. at 269. “The drugs were not broken down into separate user amounts, and she lacked distribution packaging. Defendant had no scales, cutting agents, unused packaging materials, or transaction records. There was no identifiable recipient of the drugs, and there was no indication of a plan or an impending transaction.” Id. That evidence, we concluded, was insufficient to establish that the defendant had taken a “substantial step” towards the crime of delivery. Id.
This case is more like Hubbell and Buell than Fischer. Defendant and Beck possessed 12.77 grams of methamphetamine, which was all in one bag and not individually packaged. Officers testified that a typical dose of the drug was “less than a gram,” that users commonly pоssess “1/16 of an ounce,” which is approximately 1.75 grams, and that the quantity discovered here and the scale found with the drugs was more consistent with dealing than personal use. A scale was discovered in a bag with the methamphetaminе, and unused plastic baggies and tin foil were found elsewhere in the vehicle. That evidence is legally sufficient to establish that defendant took a substantial step toward the crime of delivery, which the jury necessarily found in convicting dеfendant of the completed crime based on that evidence.
Conviction for delivery of methamphetamine reversed and remanded for entry of a