STATE OF OREGON, Petitioner on Review, v. BRIAN G. HUBBELL, Respondent on Review
CC 18CR43198; CA A170143; SC S069092
In the Supreme Court of the State of Oregon
October 5, 2023
371 Or. 340
On review from the Court of Appeals.*
Argued and submitted September 23, 2022.
Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief
Zack Duffly, Duffly Law, LLC, Portland, filed the brief for amicus curiae Drug Policy Alliance. Also on the brief was Kellen Russoniello, Drug Policy Alliance, San Leandro, California.
Claire Powers, Oregon Justice Resource Center, Portland, filed the brief for amici curiae Oregon Justice Resource Center and Oregon Criminal Defense Lawyers Association. Also on the brief were Brittney Plesser, Karen Newirth, and Malori Maloney, Oregon Justice Resource Center, and Rosalind Lee, Oregon Criminal Defense Lawyers Association, Eugene.
*Appeal from Washington County Circuit Court, Theodore E. Sims, Judge. 314 Or App 844, 500 P3d 728 (2021).
Before Flynn, Chief Justice, Duncan, Garrett, and Masih, Justices, and Landau and Walters, Senior Judges, Justices pro tempore.**
GARRETT, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
**Balmer, J., retired December 31, 2022, and did not participate in the decision of this case. Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. DeHoog, Bushong, and James, JJ., did not participate in the consideration or decision of this case.
GARRETT, J.
In Oregon, it is generally unlawful “to manufacture or deliver a controlled substance.”
The trial court convicted defendant of delivery under
On appeal in this case, defendant argued that the evidence was insufficient to show delivery even under Boyd. The Court of Appeals, on its own initiative, undertook a reexamination of Boyd, overruled that case, and held that possession plus an intent to deliver, without more, is insufficient to show an “attempted transfer” for purposes of the completed crime of delivery of controlled substances, although it may establish a “substantial step” for purposes of the inchoate crime of attempt. State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021). Defendant‘s conviction was reversed.1 We allowed the state‘s petition for review, and now affirm the Court of Appeals.
I. BACKGROUND
The trial court found the state‘s evidence sufficient to prove beyond a reasonable doubt that defendant committed delivery
A. Historical Facts
Tigard police responded to a report that three individuals had overdosed at a hotel. Officers questioned one of those individuals and determined that the cause of the overdoses was a white powder that they had obtained from a room in a different hotel. Upon further investigation, the officers determined that the room was defendant‘s.
Based on that information, officers obtained a warrant to search defendant‘s hotel room. Inside a plastic tub, they found a lockbox that, in turn, contained several packages of white powder in plastic baggies. One package contained 23.78 grams of the powder. Another baggie contained .23 grams of the powder, and several other baggies contained exactly .04 grams each. A few additional baggies were empty but had white powder residue on them. Laboratory results later identified the white powder as the synthetic opioid fentanyl, a Schedule II controlled substance.3
At the time of the overdose incident and the warranted search, defendant was in jail in Columbia County. When he was later questioned by officers, he admitted that the fentanyl in the lockbox belonged to him.
At trial, the state presented evidence that the total quantity of fentanyl found in defendant‘s room was sufficient to supply in excess of 300,000 individual doses of the drug. A detective also testified that the amount of fentanyl found in some of the smaller packages found in the lockbox—.04 grams—is typical of what would be sold on the street either to end users or to dealers who would mix it with other drugs. From that evidence, the state argued that defendant had intended to traffic in fentanyl.
B. Legal Background
The state charged defendant with unlawful delivery of controlled substances under
In reliance on Boyd, the state argued at defendant‘s bench trial that the quantity of fentanyl found in defendant‘s possession and the evidence that the fentanyl had been packaged in preparation for transfer to others were sufficient to show that defendant had made an “attempted transfer” for purposes of the delivery statute,
On appeal, the parties initially reprised their arguments about whether the evidence was sufficient under Boyd to show that defendant had intended to transfer the fentanyl. The Court of Appeals then requested supplemental briefing on the validity of Boyd‘s central holding, viz., that possession with the intent to deliver is sufficient to establish an “attempted transfer.” Hubbell, 314 Or App at 847-48. Ultimately, that court undertook a reexamination of Boyd, held that that case had been wrongly decided, and reversed defendant‘s conviction for delivery. Id. at 867, 873. We thus turn to Boyd, and the decision below overturning it, as context for the arguments that the parties present to this court on review.
In Boyd, the defendant had possessed a large quantity of heroin and had admitted that she intended to sell it. 92 Or App at 53. She challenged her conviction for delivery of controlled substances on the ground that the record lacked any evidence that she had sold or attempted to sell the heroin. The Court of Appeals considered for the first time whether
“possession of [a] large amount of [controlled substances], not for personal use but for sale, constitutes attempted delivery within the meaning of *** [
After reaching that conclusion, the Boyd court took note of the defendant‘s argument that Oregon, when otherwise adopting the Uniform Controlled Substances Act (UCSA), had not enacted the prohibition on “possession with intent to deliver,” which is a feature of the UCSA that has been enacted in most other states and by the federal government. Id. That is, the UCSA separately criminalizes possession, possession with intent to deliver, and delivery—yet Oregon law penalizes only possession and delivery. The defendant in Boyd argued that to allow a conviction for delivery, based only on evidence that a person possessed a controlled substance with the intent to deliver it, would have the effect of creating the crime that the legislature had declined to create. The Boyd court rejected that argument:
“There is no indication that the Oregon legislature intended to punish an attempt to transfer a controlled substance other
than as the completed transfer. It did so without enacting the distinct crime of possession with intent to deliver, because that crime, considering the meaning of ‘attempt,’ is included in the definition of ‘delivery[.]‘”
In this case, the Court of Appeals disavowed its earlier decision in Boyd as “plainly wrong,” Hubbell, 314 Or App at 860, and faulted its analysis in several respects. The fundamental flaw in Boyd, the court explained, was the “unexamined assumption” that the meaning of “attempted transfer” in the delivery statute is to be found by referring to the entirely separate inchoate crime of “attempt” in
In explaining why Boyd‘s assumption about the meaning of “attempted transfer” was incorrect, the court below noted that
Having concluded that Boyd should be overruled, the Court of Appeals proceeded to construe the phrase “attempted transfer.” Id. at 864, 868. Consulting dictionary definitions of both “attempted” and “transfer,” in the light of other context and the statutory phrase “from one person to another,” the court concluded that an “‘attempted transfer’ appear[s] to describe an unsuccessful effort to cause the controlled substances to pass from one person to another.” Id. at 868-69. The court further reasoned that the phrase contemplates “a particular act of transferring, not possession with a more generalized intent to deal the drugs at some undetermined point in the future.” Id. at 870. Thus, where a person possesses a controlled substance with such an intent but has not yet tried to effectuate a transfer, the person cannot be guilty of the completed offense of delivery, although that same conduct may constitute a substantial step toward delivery and thus support liability for the inchoate crime of attempt. Id. at 870-71.
Returning to the facts of this case, the Court of Appeals concluded that the state‘s evidence readily supported a finding that defendant had “possessed an exceptionally large amount of fentanyl for the purpose of dealing,” and thus had taken a substantial step toward the crime of delivery. Id. at 871-72. The evidence did not, however, support a finding that defendant had “made some effort to cause the controlled substances to pass from one person to another.” Id. at 872. Because no “actual, constructive or attempted transfer” had occurred, the court reversed defendant‘s conviction for delivery and remanded for entry of a conviction for attempted delivery. Id. at 873.
The state petitioned for review, which we allowed.
II. ANALYSIS
The legal question on review is whether the evidence is sufficient to permit
We begin with the text, which is the best evidence of the legislature‘s intent. Id. at 171. The delivery statute makes it unlawful for a person “to manufacture or deliver a controlled substance.”
The dictionary defines “attempt” as both a verb and a noun. The verb “attempt” is defined as follows:
“to make an effort to do, accomplish, solve, or effect <~ to swim> <~ a problem>—often used in venturous or experimental situations sometimes with implications of failure.”
Webster‘s Third New Int‘l Dictionary 140 (unabridged ed 2002).5 We are interpreting “attempted” as used in the statute—an adjective modifying a noun. The adjective is derived from the past participle of the verb “attempt.” See id. Thus, we find the definition of the verb most pertinent to our analysis: “to make an effort to do, accomplish, solve, or effect.” Id.
Of the several definitions of “transfer” found in the dictionary, the one relevant for these purposes is “the
conveyance of right, title, or interest in either real or personal property from one person to another by sale, gift, or other process.” Webster‘s at 2427. It also means “the act of transferring,” and transferring is defined as “to carry or take from one person or place to another,” or “to cause to pass from one person or thing to another.” Id. at 2426-27.
The parties agree, as do we, that the two definitions together indicate that the plain meaning of an “attempted transfer” of controlled substances is an unsuccessful or incomplete effort to accomplish the passing of controlled substances from one person to another. That does little to resolve the dispute, however, because the parties disagree about how broadly to understand the “effort” involved in transferring controlled substances. If one understands the delivery of controlled substances to involve a series of steps, the parties disagree about which steps are relevant to determining whether an “attempted transfer” has occurred.
The state argues that the evidence shows an effort to effectuate a transfer here because defendant took meaningful steps “toward” that end, such as acquiring an extremely large quantity of fentanyl and holding it in divisible quantities suitable for sale. The state reasons that defendant‘s failure to initiate the “final step” in the transfer process—the change of physical possession from one person to another—does not negate the significance of those earlier steps.
Defendant responds that the focus of the word “transfer” is on the act or acts that cause a thing to be passed from one person to another. And, because “attempted” modifies
As a textual matter, both parties’ arguments are plausible. The dictionary definitions tell us that an attempted transfer is an effort to bring about a change in possession. But those definitions seem to permit both the state‘s view—that a person can attempt the transfer by initiating a series of steps that culminate in the physical act of transferring—and defendant‘s narrower view—that attempting a transfer means making an effort to engage in the act itself. As we next explain, however, context and legislative history suggest that defendant‘s view is more consistent with legislative intent.
We consider the term “attempted transfer” in light of the provision as a whole. First, that term appears in the phrase “the actual, constructive or attempted transfer *** from one person to another.”
An oft-invoked principle of statutory construction is that, when a word appearing in a list or grouping is capable of more than one meaning, the meaning that is more consistent with the other words in the group may better reflect legislative intent. See, e.g., State v. McCullough, 347 Or 350, 361 & n 8, 220 P3d 1182 (2009) (so describing noscitur a
sociis). Given the choice between an expansive understanding of “attempted transfer” that includes steps preliminary to engaging in the act of transferring, versus a more limited understanding that focuses on that act itself, the statute‘s references to other transfers that were completed tends to suggest that the narrower focus is appropriate. That reading is further reinforced by the statutory phrase “from one person to another,” as well as by the use of the definite article “the” before the phrase “actual, constructive or attempted transfer.”
In short, the full text of
The state‘s contextual argument to the contrary relies, as did Boyd, on
We agree with the state‘s observation that the meaning of “attempt” is not addressed anywhere in Oregon‘s criminal law, other than in the statute defining the inchoate crime of attempt. But we draw a different conclusion from that observation. If the legislature had intended that the word “attempt” (or “attempted“) would have a particular meaning across the Criminal Code when used to modify conduct, the natural location for the legislature to have provided such a definition would have been one or more of the several places in the Criminal Code that supply general definitions. E.g.,
A further reason to doubt that the legislature intended for “attempted transfer” to derive its meaning from
Important context for our construction of the delivery statute also includes the fact that the statute is situated within a comprehensive scheme regulating controlled substances. The crime of delivery is part of chapter 475 of the Oregon Revised Statutes, and that chapter is entitled “Uniform Controlled Substances Act” (“Oregon‘s Controlled Substances Act“). See
When the legislature adopts a uniform act, the context of the statute includes the uniform act, its official commentary, and interpretations from other jurisdictions that existed at the time of enactment of the Oregon law. See Dept. of Human Services v. J. S., 368 Or 516, 528, 495 P3d 1245 (2021) (“The context of a uniform act includes its official commentary.“); OR-OSHA v. CBI Services, Inc., 356 Or 577, 593, 341 P3d 701 (2014) (explaining that case law existing at the time of enactment interpreting the text of a statute borrowed from another jurisdiction “may be consulted” as context). However, when the Oregon version of a statute contains different wording from the uniform act, we presume that the difference is significant. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 179, 818 P2d 1270 (1991) (“We generally give meaning to the difference between an Oregon statute and the statute or model code from which it was borrowed.“).
Section 401(c) of the UCSA separately addresses the offense of simple possession, making it unlawful “knowingly or intentionally to possess a controlled substance.” Id. § 401(c), 9 ULA at 887. Simple possession is classified as a misdemeanor.
The commentary explains that difference in penalty structure: “The penalty structure is broken down according to the schedule of the substance involved and the particular unlawful act, since it is felt that trafficking offenses involving certain types of drugs constitute a greater danger to the public and are deserving of stiffer penalties.” Id. § 401 comment, 9 ULA at 887. The commentary further explains that the simple possession subsection “has been drafted specifically to provide for a lesser penalty for simple possession than is provided for the trafficking and illicit manufacturing type offenses under subsections (a) and (b).” Id.
Oregon adopted the UCSA‘s prohibition on simple possession and, like the UCSA, treated that offense as a lesser crime than delivery and manufacture. Or Laws 1977, ch 745, § 15;
Defendant argues that the legislature‘s failure to enact the crime of possession with intent to deliver, when it otherwise adopted the UCSA‘s prohibition on delivery or manufacture
The state resists that inference, arguing that there is no indication that the 1977 legislature was aware that the UCSA contained the “possess with intent” wording, so the legislature‘s failure to include that wording does not reflect a conscious choice to reject it. The state also points out that the bill‘s sponsors declared that the intent in adopting Oregon‘s Controlled Substances Act was to create “uniformity” with the UCSA, which treats “possession with intent” as a trafficking-level crime that is different and more serious
than simple possession. That, the state argues, lends support to the view adopted in Boyd, namely, that the legislature intended for Oregon to criminalize possession with intent, but envisioned that it would be accomplished by having possession with intent treated as an “attempted transfer.” See Boyd, 92 Or App at 53-54 (applying the principle of a “substantial step” drawn from the attempt statute,
We are not persuaded by the state‘s arguments, for several reasons. The parties have identified no legislative history, and we are aware of none, explaining why the 1977 legislation, Senate Bill (SB) 904, omitted the “possess with intent to manufacture or deliver” wording that appears in the UCSA. The state has cited legislative history reflecting that the legislature generally intended to adopt the uniform act. See, e.g., Exhibit 3, Senate Committee on the Judiciary, SB 904, Apr 7, 1977 (fact sheet accompanying statement of Senator Stephen Kafoury) (explaining that SB 904 “proposes enactment of the UCSA” and is intended to create “uniformity” with federal law). But, as the state acknowledges, the same legislator also explained that SB 904 “incorporates many of the unique features of existing Oregon law and further modifies the UCSA based upon the collective judgment of the subcommittee and the bill‘s sponsors.” Id.
It is also significant that, although SB 904 omitted the phrase “possess with intent,” that phrase was included in the version of the bill that the legislature first considered four years earlier, in the 1973 session. House Bill (HB) 2003 (1973) (like the UCSA, making it unlawful “to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance“). The 1973 session adjourned without the bill becoming law, and the proposed bill in 1977 did not contain the “possess with intent” phrase. SB 904, Feb 24, 1977 (original bill). No legislative history from either the 1973 session or the 1977 session explains the removal of that phrase.
Ultimately, the lack of an affirmative explanation for why the legislature omitted a key phrase from the UCSA does not allow this court to infer that there is no significance
to the omission. See Ashley, 312 Or at 179 (“We generally give meaning to the difference between an Oregon statute and the statute or model code from which it was borrowed.“). That would be true even without the evidence that the “possess with intent” wording was initially part of the 1973 bill. But the evolution of the legislation over multiple sessions in the 1970s8 at least raises the possibility that the elimination of the “possess with intent” wording was one of the ways in which SB 904 “modifie[d] the UCSA based upon the collective judgment of the subcommittee and the bill‘s sponsors,” as Senator Kafoury explained.
The state‘s contrary interpretation of the text and legislative history requires us to conclude that the 1977 legislature intended to criminalize possession with intent to deliver just like the UCSA did, but that, instead of taking the straightforward path of copying the UCSA wording—as it did in other respects9—the legislature instead chose an unusual and indirect route: It made a material change to the operative UCSA provision and then assumed that the change would have no effect because subsequent readers would know to draw on the concept of an inchoate attempt crime from an entirely different part of the Oregon Criminal Code. All without explanation. We decline to draw that
counter-intuitive inference in the absence of stronger evidence than the expressed intent to create “uniformity” with the UCSA. Such generalized expressions cannot control over the differences in the text that the legislature chose to enact.
The state‘s view of the context and history also does not fully account for the difference between the UCSA and the wording that the legislature enacted. As noted, the UCSA provides that “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” UCSA § 401, 9 ULA at 886 (emphasis added). The entire italicized phrase was omitted from
For the reasons we have explained, we reject the state‘s contention that conduct which would make a person liable for attempting the crime of delivering a controlled substance necessarily rises to the level of an “attempted transfer” for purposes of the completed crime of delivering a controlled substance. The text of
with the larger context and history of Oregon‘s Controlled Substances Act, which shows that the Oregon legislature declined to include the phrase from the UCSA that would have treated “possession with intent to deliver” as tantamount to delivery.
What the foregoing discussion should also make clear is that today‘s holding is limited. In light of the parties’ arguments and the facts of this case, it is sufficient for us to say what an “attempted transfer” is not: It is not established by evidence that a person possessed a large quantity of a controlled substance and had a general intent to
In this case, the record is legally insufficient to prove that defendant made an effort to transfer fentanyl. The record shows that defendant possessed a nonuser amount of fentanyl and that some of the fentanyl was packaged in a manner consistent with an intent to deliver it. What the record lacks is evidence that defendant had taken additional steps to engage in conduct that would cause the fentanyl to change hands. There is no evidence that potential buyers had been identified, specifically or generically, or that defendant had taken steps to identify or solicit buyers
or to otherwise engage in transferring conduct (such as transporting the fentanyl or communicating with others about a transfer).10 Defendant was in jail in another county at the time, which also tends to cut against an inference that defendant was making an effort to transfer the fentanyl. (The state could have countered that fact with evidence that, before or during his incarceration, defendant had engaged in such an effort, but no such evidence was presented.) In short, the evidence, even viewed in the light most favorable to the state, permits no inference greater than that defendant possessed a quantity of fentanyl consistent with trafficking and had the intent to transfer it in the future. That is insufficient to show an “attempted transfer” for purposes of the completed crime of delivery. Accordingly, defendant‘s conviction for delivery must be reversed.
Having reversed the conviction for delivery, the Court of Appeals remanded the case for entry of a conviction for the lesser-included offense of attempted delivery of a controlled substance. That disposition raises two distinct questions: (1) whether the evidence is sufficient to support a conviction for the inchoate crime of attempted delivery, and (2) if so, whether this court should direct that the conviction be entered, as opposed to remanding for the trial court to consider in the first instance whether to convict defendant of that crime.11
As to the first question, we conclude that the evidence is sufficient to convict defendant of the inchoate crime of attempted delivery.
The crime of attempt has two elements: (1) intentional conduct that (2) constitutes a substantial step toward the commission of the crime. See State v. Walters, 311 Or 80, 84, 804 P2d 1164, cert den, 501 US 1209 (1991). Conduct is intentional when a person “acts with a conscious objective to
cause the result or to engage in the conduct so described.”
The legislative history surrounding the enactment of the inchoate attempt statute indicates that the legislature anticipated that, at least in some circumstances, possession of an item might, by itself, constitute a substantial step. The Commentary to the Criminal Code specifically provides examples of “acts which should not be held insufficient as a matter of law to constitute a substantial step,” which include “possession of materials to be employed in the commission of the crime, [and possession of which could] serve no lawful purpose of the actor.” Commentary § 54 at 51.
Defendant argues that the evidence shows nothing more than “mere preparation” for the crime of delivery, and that attempt liability requires the existence of an identified “transferee.” We disagree. Defendant took perhaps the most consequential step necessary to traffic in illegal drugs, which is to acquire them. Defendant held enough fentanyl to supply in excess of 300,000 doses. We need not resolve whether possession of that quantity constitutes a substantial step by itself, because the state presented additional evidence of defendant‘s conduct that advanced and verified the existence of a criminal purpose—the fentanyl had been prepackaged for sale. Such conduct rises beyond the level of “mere preparation” and constitutes a substantial step toward committing the crime of delivery. Accordingly, the evidence is sufficient to convict defendant of the inchoate crime of attempt.
Moreover, we conclude that, under these circumstances, the trial court in effect did convict defendant of
attempted delivery, so it is unnecessary to remand for the trial court to consider in the first instance whether to convict defendant of that crime. The parties and the trial court proceeded from the understanding that Boyd controlled, and that liability for the crime of delivery could be established by a “substantial step” toward delivery. The trial court explained that “the issue is whether or not there‘s any under the Boyd *** case[], whether there‘s any sort of substantial step towards the *** attempt to delivery.” The court then proceeded to explain that “possession of materials which can serve no lawful purpose of the actor under the circumstances is sufficient *** to constitute a substantial step.” Finally, the court found that defendant‘s possession of multiple prepackaged bags of fentanyl constituted a substantial step. With that understanding of the record, we conclude that the trial court made all the requisite findings for defendant‘s conviction for inchoate attempt and that that is the conviction that the trial court would have entered but for Boyd, which allowed the conviction to be entered for the completed crime instead.12
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.