STATE OF OREGON, Plаintiff-Respondent, υ. MICHAEL WAYNE WESLEY, JR., Defendant-Appellant.
Lane County Circuit Court 19CR58352; A173334
Lane County Circuit Court
Argued and submitted May 4, 2022; June 22, 2023
326 Or App 500 (2023) | 533 P3d 786
R. Curtis Conover, Judge.
petition for review denied November 2, 2023 (371 Or 511)
STATE OF OREGON, Plaintiff-Respondent, υ. MICHAEL WAYNE WESLEY, JR., Defendant-Appellant.
Lane County Circuit Court 19CR58352; A173334
533 P3d 786
Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 2),
Conviction on Count 2 reversed and remanded for entry of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
R. Curtis Conover, Judge.
Joanna Hershey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Pagán, Judge, and Armstrong, Senior Judge.
SHORR, P. J.
Conviction on Count 2 reversed and remanded for entry of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
Pagán, J., concurring in part and dissenting in part.
Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 2),
I. BACKGROUND FACTS3
In the early morning of September 1, 2019, defendant was driving a Chevrolet truck northbound on Interstate 5 in Lane County. An Oregon State Police (OSP)
After the deputy pursued the truck through Eugene at speeds up to 90 miles per hour, the truck slowed as if it was “experiencing some sort of mechanical failure” and eventually crashed into a tree. Both the driver‘s door and passenger door opened simultaneously “like they were both getting ready to bail from the truck.” Both defendant, who fell out of the driver‘s side, and a female passenger, Klein, were arrested.
The OSP officer arrived less than 30 seconds after the crash and saw, through the open driver‘s door, a handgun secured to the top of the steering сolumn. A small black nylon bag with part of a black and white bandana sticking out from it was also attached to the steering column. Inside the bandana was a methamphetamine rock “about the size of [the officer‘s] fist.” In the same area was another black and white bandana, also containing a large quantity of methamphetamine. A clear glass pipe containing white residue was found between defendant and the car. On the floorboard of the driver‘s side of the truck, the officer found a zippered pouch, which contained more methamphetamine; another black zipper pouch similar in size to a compact disc case that contained a “smaller amount of methamphetamine with several small plastic baggies, a small bindle of a dark brown tar-like substance consistent with heroin,” a digital scale, and rubber gloves; and three prescription bottles with the names ripped off of them. The baggies were “very small, clear Ziploc bags“; the officer testified that “[a] lоt of times I‘ve seen those in recent arrests where they are used for package [or] sale to divvy up [drugs] into smaller amounts.” In addition, the officer found $1,160 in cash in defendant‘s wallet, which was located in an open compartment on the driver‘s side door. In total, police seized 380
Based on those events, defendant was tried before a jury and convicted of the offenses stated above. He appeals from the judgment of conviction, raising eight assignments of error and four supplemental assignments of error.
II. ANALYSIS
A. Jury Unanimity Issues
In his fifth, sixth, and seventh assignments of error, defendant contends that the trial court erred in instructing the jury, over his objection, that “at least 10 jurors must agree on your verdict,” and in accepting nonunanimous verdicts on Counts 3 and 5. As the state concedes, and we agree, Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (holding that the Sixth Amendment requires jury unanimity to convict a criminal defendant of a serious offense), requires reversal of those counts. Accordingly, we reverse and remand Counts 3 and 5. As to the remaining counts, for which the jury returned unanimous verdicts, the error is not reversible because it does not constitute structural error, and it is harmless beyond a reasonable doubt. State v. Flores Ramos, 367 Or 292, 305, 334, 478 P3d 515 (2020).
In his eighth assignment of error, defendant contends that the trial court also erred under Ramos in accepting the jury‘s nonunanimous findings on the subcategory factors the state alleged with respect to Count 2 (unlawful delivery of methamphetamine), specifically, whether the offense involved “substantial quantities” of the drug,
B. Unlawful Delivery of Methamphetamine
At trial, the state relied on a “Boyd” theory of delivery to prove the crime of unlawful delivery of methamphetamine as alleged in Count 2, presenting evidence that defendant was in a car with a large amount of methamphetamine, a firearm, $1,160 in cash, plastic gloves, baggies, and a scale.6 See State v. Boyd, 92 Or App 51, 55, 756 P2d 1276 (1988), rev den, 307 Or 77 (1988), overruled by Hubbell, 314 Or App at 848 (2021) (holding that possession of a large quantity of drugs with the intent to deliver constitutes a substantial step toward delivery and thus is sufficient to constitute the completed crime of delivery as an “attempted transfer” under the definition of “delivery” in
In Hubbell, which was decided after defendant filed his opening brief in this case, we overruled Boyd, concluding that merely taking a substantial step toward a transfer of a controlled substance does not constitute the completed crime of delivery, only the inchoate crime of attempted delivery. Hubbell, 314 Or App at 867, 870-71. We held that delivery by an “attempted transfer,” see
“[i]f a defendant has tried to actually transfer a controlled substance to another person, that defendant will be guilty
of the completed offense, regardless of whether the transfer itself was successful. But, where a person has merely taken a substantial step toward the crime of delivery but has not yet attempted the transfer itself, the defendant will have committed the inchoate crime of attempted delivery of a controlled substance.”
Having so concluded, we agreed with the defendant that the state‘s evidence was not legally sufficient to establish the crime of delivery. Id. at 872. However, we concluded that the evidence—namely, that the defendant possessed “an exceptionally large amount of fentanyl,” which was enough for “hundreds of thousands of individual doses,” as well as “separate packaging for smaller doses“—was legally sufficient to support a finding of a substantial step toward the completed crime of delivery. Id. at 871-72. That is, the evidence did “strongly corroborate a purpose of dealing drugs, advance that purpose, and provide verification of the purpose.” Id. at 872. Accordingly, we reversed and remanded for entry of a conviction for attempted delivery of a controlled substance, the offense that the defendant “should have been convicted of committing rather than the completed crime.” Id. at 873.
In light of that development in the law, defendant filed supplemental briefing challenging his conviction on Count 2. In his combined argument on four supplemental assignments of error, defendant essentially contends that, given Hubbell, the state‘s evidence was insufficient to prove the transfer element of the offense of delivery of methamphetamine, and we therefore must reverse his conviction on Count 2 as plain error.7 The state concedes that the evidence was insufficient to show a transfer under Hubbell, and
As an initial matter, we readily accept the state‘s concession that the trial court‘s entry of a conviction for the completed crime of delivery of methamphetamine was plain error under Hubbell and agree that it is appropriate to exercise our discretion to correct the error. See, e.g., State v. Dippre, 320 Or App 317, 321, 512 P3d 835 (2022); State v. Hernandez, 320 Or App 270, 271-72, 512 P3d 475 (2022); State v. Carr, 319 Or App 684, 690, 511 P3d 432 (2022).
The real dispute between the parties is over the appropriate remedy for the error. Under Article VII (Amended), section 3, of the Oregon Constitution, we may remand for entry of a judgment of conviction for a lesser-included crime such as attempt when the jury necessarily found all the elements of that offense. State v. Lopez, 151 Or App 138, 142, 949 P2d 1237 (1997), rev den, 326 Or 465 (1998). “A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”
The state contends that—just as in Hubbell—the record here supports a conviction for attempted delivery of methamphetamine, pointing out that defendant was found to be in possession of a large quantity of the drug, as well as drug packaging materials, over $1,000 in cash, and a firearm. In addition, defendant possessed those items while driving around in a car, which, the state contends, “is a common method of delivering drugs.” Thus, in the state‘s view, although the evidence did not establish a completed
Defendant asserts that we cannot determine on this record that the jury necessarily found that defendant took a “substantial step” toward delivery of methamphetamine—thus permitting the entry of a conviction for attempted delivery—for two reasons. First, defendant contends that the evidence is not sufficient to support such a finding and that the case is therefore more like State v. Fischer, 315 Or App 267, 269, 500 P3d 29 (2021), than Hubbell. Second, he contends that, because the jury was not unanimous on specific subcategory facts alleged with respect to Count 2, we cannot conclude that the jury unanimously found the facts necessary to establish attempted delivery. We consider, and reject, each argument in turn.
In Fischer, the trial court denied the defendant‘s MJOA on charges of delivery of heroin and methamphetamine within 1,000 feet of a school. 315 Or App at 268. The only relevant evidence was that the defendant possessed large quantities of the drugs—specifically, she regurgitated three bindles of heroin, which constituted 4.28 grams or 42 user amounts, and she also had 8.91 grams of methamphetamine, the equivalent of 89 user amounts, in her handbag. Id. at 269. Noting that the drugs were not broken down into separate user amounts, there was no evidence of distribution packaging materiаls or transaction records, and there was no indication of a plan or impending transaction, we concluded that the trial court had erred in failing to grant the defendant‘s MJOA because there was insufficient evidence of the transfer element of the offenses. Id. “Similarly,” we held that the evidence was insufficient to show that the defendant took a substantial step toward commission of the crimes. Id. In other words, because the evidence was insufficient to support even a Boyd theory of delivery, the jury could not have lawfully found the elements of attempted delivery. Therefore, there was no basis for us to remand for conviction on the inchoate crime as we had done in Hubbell.
We are also not persuaded by defendant‘s second argument. As noted above, the state alleged several subcategory facts in connection with Count 2, facts that, if found by the jury, would enhance defendant‘s sentence on that charge.
Lastly, we briefly address the dissent‘s contention that, because the jury in this case was not instructed on the definitions of either “attempt” or “intent,” it is “a bridge too far” to conclude on this record that defendant intentionally engaged in conduct constituting a substantial step toward the commission of the crime of delivery of methamphetamine. 326 Or App at 521 (Pagán, J., dissenting). We agreе with the dissent that we must limit our exercise of our power under Article VII (Amended), section 3, to instances where the factfinder necessarily found the elements of the lesser-included offense at issue. See State v. Madison, 303 Or App 737, 743, 466 P3d 92 (2020) (“A crime is a lesser-included offense of another crime if either of two circumstances exist: (1) the elements of the lesser offense necessarily are
However, it is indisputable that Hubbell and its progeny concluded that, where a factfinder convicted a defendant of the crime of delivery based on a Boyd “attempted transfer” theory, a conclusion that was supported by the factual findings but invalid only due to the change in the law outlined in Hubbell, the factfinder also implicitly found that the defendant committed the inchoate crime of attempted delivery. See Hubbell, 314 Or App at 873 (“This case is unique in that, because of Boyd, defendant was essentially tried and found guilty of an attempt crime that had been erroneously elevated to a completed offense.“); see also Hernandez, 320 Or App at 272 (concluding that “the jury necessarily found that defendant took a ‘substantial step’ toward the commission of the crimes of delivery of heroin and methamphetamine“); Carr, 319 Or App at 693 (same); Buell, 317 Or App at 671 (remanding for entry of judgment for lesser-included offense of attempted delivery of methamphetamine where evidence sufficient to support that conviction but did not support conviction for delivery). We acknowledge that there is some room for differing opinions as to whether a jury can necessarily find the facts relevant to convict a defendant of the inchoate crime of attempted delivery when they were not instructed on the definitions of “attempt” or “intent,” and the Supreme Court may address or resolve that issue in its review of Hubbell. However, our existing case law requires remanding the instant case for entry of a conviction for attempted delivery. Defendant makes no argument that
C. Discovery Violations
In his first four assignments of error, defendant challenges the trial court‘s exclusion of two of his witnesses, denial of his request for a continuance, and failure to declare a mistrial. The trial court concluded, after hearing an offer of proof for each witness, that defendant had cоmmitted a discovery violation by failing to disclose the witnesses and that exclusion of those witnesses, rather than a continuance or mistrial, was the appropriate remedy for the discovery violation.
On appeal, we review the trial court‘s conclusion that there was a discovery violation for legal error. State v. Moss, 147 Or App 658, 663, 938 P2d 215 (1997). We are bound by the trial court‘s factual findings, if supported by evidence in the record; in the event no findings were made and the evidence allows facts to be decided in more than one way, we presume the facts were decided in a manner consistent with the trial court‘s ultimate conclusion. State v. Lindquist, 141 Or App 84, 87-88, 917 P2d 510 (1996). Finally, we review the trial court‘s choice of sanction for abuse of discretion. Id. at 89.
The obligation on the defense to disclose most evidence in a criminal trial arises as a matter of statute. Subject to exceptions not relevant here,
“the defense shall disclose to the district attorney the following material and information within the possession or control of the defense:
“(1) The names and addresses of persons, including the defendant, whom the defense intends to call as witnesses at the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than the defendant.
“(2) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests,
experiments or comparisons, that the defense intends to offer in evidence at the trial. “(3) Any books, papers, documents, photographs or tangible objects that the defense intends to offer in evidence at the trial.”
Upon finding a violation, “the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse tо permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.”
1. Witness Martin
After the state concluded its case-in-chief and rested, defense counsel notified the court that “I was recently or today informed of a potential witness that would be able to talk about Miss Klein‘s10 previous involvement in drug trafficking activity and weapons possessions.” The next day, the state provided the court with an email stamped at 6:41 p.m. on the previous evening that provided a summary of the information a defense investigator had learned from witness Martin. The prosecutor represented that “that was the first and extent of discovery that the state has received in this case.” The state argued that Martin should not be
During direct examination in the offer, Martin explained that he had “known [defendant] since we were kids. In fact, I got him on [sic] first haircut.” Martin said that he had known Klein for a little more than a year and one-half and had seen her “[p]robably 13 or 14” times.
Martin testified that two days before the police pursuit and crash, he had met with defendant and Klein in defendant‘s truck, where they spent around an hour and one-half. As Martin was sitting in the backseat of the truck, Klein asked him to pass forward her handbag. In the process of handing the bag to Klein, Martin testified that he saw in the handbag a “large-framed handgun, dark in color,” a “CD case,” a “digital scale of some sort,” and some “bandanas that were tied together.” Finally, Martin explained that defendant did not have the use of his legs and had customized hand controls for the throttle and brake in his truck. In his opinion, because those hand controls were attached to the steering column, “[he did not] see how there could be a bag strapped to the steering column.”
During cross-examination, Martin stated that he had been friends with defendant for decades and had always been in touch with defendant‘s family. During the year before the incident of the pursuit and crash, Martin stated that he and defendant would often hang out” and “go have breakfast,” and that at least a couple of times, defendant came to help Martin when Martin had vehicle problems.
With respect to Klein, Martin testified that he had previously purchased methamphetamine from her, that “she had *** a controlling-type relationship” with defendant, and that it was Martin‘s belief that defendant “was acting basically аt the direction of Miss Klein.”
The court determined, based on Martin‘s testimony, that defendant “certainly knew of Mr. Martin‘s existence and whereabouts and what he may or may not have seen, certainly after September 1st, given the conversation that Mr. Martin indicated occurred in the truck on August 30th.” The court added that, “to the extent that it‘s suggested
“[defendant] did commit a discovery violation by not stating or announcing the possibility that Mr. Martin would become a witness—would be a witness prior to the state‘s resting its case in the middle of trial.
“I find that the only appropriate remedy here is to exclude Mr. Martin‘s testimony. That‘s even after having considered the alternative grounds of allowing a postponement for the state to investigate not only Mr. Martin‘s claims of what may have occurred on August 30th, the nature of Mr. Martin‘s other testimony concerning parties with Ms. Klein, how he knows her, the existence of any prior convictions.”
The factual findings made by the court regarding defendant‘s knowledge of Martin‘s whereabouts and likely evidence are supported by evidence in the record, and we are bound by them. See Lindquist, 141 Or App at 87 (“Defendant‘s knowledge and intent are questions of fact[;] we are bound by the trial court‘s factual findings, if supported by evidence in the record.“). Moreover, defendant‘s opening statement in trial suggested that the defense strategy was to blame Klein for the drugs in the truck, which supports an inference that the defense had some notion that it would present evidence of Klein‘s culpability—and therefore some idea about who could present that evidence.11 The trial court did not err by concluding that defendant committed a discovery violation when he failed to disclose the identity of Martin, who was known to him as a longtime friend and was present with defendant and Klein in defendant‘s truck within two days of the pursuit and crash.
In light of the timing of the revelation of Martin, plus the unavailаbility of a juror for an extension of the trial, the trial court did not abuse its discretion by excluding Martin from testifying at trial. The court considered
2. Witness Dupree
Immediately following the court‘s ruling on Martin, there was a brief recess. After returning, defense counsel stated,
“Your Honor, I hate to—I hate to do this. I also just got information about a gentleman named James Dupree. My investigator talked to him this morning. We had his name two days ago. ***
“It‘s Miss Klein‘s former landlord [who] has told [the investigator] that he evicted Miss Klein for dealing controlled substances out of her residence.”
Defense counsel admitted that they had “some vague information about someone [who] might be able to say something” before trial started, but that it had taken several days to finally connect with Dupree. That moment was the first that the defense had informed the state of Dupree. Defense counsel explained that he had only learned of the substance of what Dupree could testify to that morning.
The court considered an offer of proof consisting of the investigator‘s testimony regarding what Dupree would say if allowed to testify.
The investigator testified that she had been assigned to find Dupree in the past few days. In addition to searching for Dupree, the investigator was also searching for Klein to serve a subpoena for her to appear at the trial. Once the investigator had connected with Dupree, Dupree explained that he had rented a room to Klein, likely around the end of September, and that she had lived there for about a month. She was evicted after Dupree discovered that she was selling drugs, specifically “white and brown,” through
The trial court ruled that Dupree‘s testimony would also be excluded. The court noted that Klein had allegedly been evicted in October, “about the time *** when [defendant‘s] indictment was filed,” and that defendant “had some sort of relationship” with Klein. The court stated that it was making similar findings as it had made with regard to witness Martin, which we understand to mean that defendant must have been aware of Dupree and the testimony Dupree might be able to offer at a time well before trial. However, as explained below, that factual finding with regard to Dupree is not supported by the evidence, and therefore, we are not bound by it.
First, there is nothing in the record to suggest that defendant and Klein were in communication after the pursuit and crash, which is a logical prerequisite to finding that defendant was aware of Dupree or what Dupree could say about Klein‘s own drug dealing. The investigator relayed information indicating that Klein had not lived in Dupree‘s property until about a month after the incident and there was no suggestion that the circumstances surrounding her eviction were communicated to defendant. Indeed, at the time of trial, defendant‘s investigator was trying to find Klein to subpoena her to the trial, which supports an inference that defendant was not then in communication with Klein.
Moreover, the tenuous connection between defendant and Dupree, unlike the longtime friendship between defendant and Martin, does not allow for the same inference as existed with respect to defendant‘s knowledge of witness Martin. The record does not support a finding that defendant had sufficient information about either Dupree‘s identity or what Dupree could say vis-à-vis Klein to conclude that defendant (or counsel) could have “reasonably predict[ed]” that Dupree would be called as a witness. See State v. Young, 94 Or App 683, 689, 767 P2d 90 (1989) (explaining that disclosure obligation is triggered when defense can reasonably predict witness or evidence will be introduced at trial).
Becаuse there is no support in the record for the court‘s factual findings as to defendant‘s knowledge and intent, we conclude that the court legally erred in determining that there was a discovery violation with respect to witness Dupree.
However, we will affirm a judgment, notwithstanding an error, if there is little likelihood that the error affected the verdict—in other words, if the error was harmless. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Due to our disposition of other counts above, the only remaining counts to which Dupree‘s testimony would have been relevant are Counts 2 and 4 (unlawful delivery of methamphetamine and unlawful possession of methamphetamine).
We are not convinced that Dupree‘s testimony had any likelihood to affect the jury‘s verdicts on those counts. Whether or not Klein was evicted for dealing drugs from Dupree‘s apartment, more than a month after the pursuit and crash, has little bearing on whether defendant possessed methamphetamine or took a substantial step toward the delivery of methamphetamine at the time of thе pursuit and crash. Moreover, the jury was specifically instructed that “[p]ossession may be individual or joint. Therefore, two
Dupree‘s testimony would have suggested that Klein was a drug dealer. However, that evidence does not negate the substantial evidence in the record that defendant was also dealing drugs. In other words, even if the jury believed from Dupree‘s testimony that Klein was a drug dealer, the jury would at most have found that defendant and Klein were engaged in possession and attempted delivery of methamphetamine together, given the evidence of large amounts of methamphetamine, packaging materials, and a digital scale found in defendant‘s truck as well as $1,160 found in defendant‘s wallet. We note again that, significantly, a bandana containing a very large quantity of methamphetamine was attached to the steering column of defendant‘s truck. A second bandana with another large piece of methamphetamine wrapped inside of it was found in the driver‘s area near the steering column. And, defendant was the driver of the truck in control of the steering wheel. The error in excluding Dupree‘s testimony was harmless.
Conviction on Count 2 reversed and remanded for entry of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
PAGÁN, J, concurring in part, dissenting in part.
Although I agree with the majority opinion regarding the errors that were committed below, I disagree regarding the disposition of Count 2. Instead of remanding for entry of a judgment of conviction for attempted delivery of methamphetamine, I believe we are required to simply reverse and remand that count.
Here, with respect to the delivery of methamphetamine count, the jury was provided two relevant instructions. First, the jury was instructed that in order to find defendant guilty, they must conclude beyond a reasonable doubt that defendant “knowingly delivered methamphetаmine.” Second, as a definition, the jury was instructed that “deliver or delivery” means “[t]he actual, constructive, or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance.” During closing arguments, the state acknowledged that it had not shown “a transaction,” but the state explained that “possession with the intent to deliver constitutes delivery even when no actual transfer is shown.”
But the jury was not provided with an instruction on the meaning of “attempt” under
The majority remands with instructions to enter a judgment of conviction for attempted delivery of methamphetamine, but that disposition requires us to conclude from the record that the jury necessarily found that defendant intentionally engaged in conduct constituting a substantial step toward the commission of the crime of delivery of methamphetamine. For me, that is a bridge too far, especially given the jury‘s nonunanimous answer to the sentence enhancement question of whether the offense involved “substantial quantities of a controlled substance.” Based on the record, I believe that we can only speculate as to whether the jury would have found that defendant intentionally engaged in a substantial step towards the delivery of methamphetamine. From the amount of methamphetamine found, which was much less than the “exceptionally large amount of fentanyl” at issue in Hubbell, 314 Or App at 871, as well as the amount of cash found, and the other circumstances of the case, the jury could have concluded that defendant was preparing to deliver methamphetamine but had not attempted to do so. More importantly, the parties below never had an opportunity to develop the relevant facts or make arguments pertinent to that distinction, because the jury was never instructed regarding all of the elements of the crime of attempted delivery of methamphetamine.
Article VII (Amended), section 3, provides us with the extraordinary power to direct the entry of a judgment of conviction when we “can determine what judgment should have been entered in the court below,” but it is a power that
Underlying my concern about the majority‘s disposition of Count 2 is the notion that the litigants, not the court, are in control of what is being litigated. The state, through its district attorneys, alleges the crimes for which a defendant is being prosecuted. Armed with such knowledge, a defendant is empowered to enter a plea of guilty or not guilty, negotiate for a plea bargain, raise defenses, and preрare a defense for trial. Each side may propose jury instructions. UTCR 6.060. Those instructions, particularly the instructions addressing the elements of the charged crimes, define the playing field for the state and defendant alike. That is, the instructions explain exactly which elements the state proposes to prove beyond a reasonable doubt, and therefore, which elements the defendant must be prepared to defend
If we tacked true to the logic of Hubbell, we would be unable to say what the correct judgment in this case should have been. The factual findings that the jury must have reached in determining that defendant was guilty under the erroneous Boyd theory of delivery do not also mean that it found facts that constituted a substantial step. Possession of methamphetamine without evidence that proves beyond a reasonable doubt that the defendant engaged in intentional conduct that constituted a substantial step toward delivery is simply possession of methamphetamine—the crime of conviction in Count 4.
The majority‘s decision to remand for entry of a judgment of conviction of attempted delivery of methamphetamine, even though the jury was not instructed on all the elements of that crime, also implicates defendant‘s federal constitutional rights. “[T]he failure to submit a required element of an offense to the jury is a federal constitutional error.” State v. Perkins, 325 Or App 624, 630, 529 P3d 999 (2023) (citing Neder v. United States, 527 US 1, 8, 119 S Ct 1827, 144 L Ed 2d 35 (1999)). “[T]he omission of an element from the court‘s instructions deprived defendant of his right under the Sixth and Fourteenth Amendments to a jury determination on an element essential to guilt.” Perkins, 325 Or App at 630. In such cases, to affirm, we must be able to conclude that the error was harmless beyond a reasonable doubt. Id. at 630-31. Here, the error is related, but even more serious, because the jury was not instructed on all the elements of the crime and the jury did not convict defendаnt of attempted delivery of methamphetamine. Any discussion about what a jury would have found, based on the evidence that was presented, but with a theoretical, imagined jury deliberation, is, at best, a re-trying of the case with a new set of instructions for which only three judges are making a determination.3 Thus, the appropriate disposition of Count 2 is to reverse and remand for a new trial, to allow both
Respectfully, I concur in the majority opinion as to the errors below, but I dissent from the majority‘s disposition of Count 2.