State v. O’Hare

The possession of “tools of the trade” might, in some circumstances, be sufficient to support a conviction for delivery of methamphetamine under ORS 475.890, depending on what those tools were, how many were possessed, and the surrounding context. However, to conclude that so little—mere possession of things that could be used to deliver drugs—could support a delivery conviction would “unlawfully punish a defendant for the status of being a drug dealer rather than for the act of transferring or attempting to transfer controlled substances.”

Defendant was convicted of unlawful delivery of methamphetamine. During trial, defendant moved for a judgment of acquittal and argued that the evidence—an individual-user amount of methamphetamine, a pipe with residue, a scale, matches, and some baggies—was insufficient to support her conviction. On appeal, defendant assigned error to the trial court’s denial of her motion. The state contended that “defendant’s possession of materials commonly used in connection with the transfer of controlled substances” was sufficient evidence. Under ORS 475.005(8), unlawful “delivery” for the purposes of ORS 475.890 means the actual, constructive, or attempted transfer of a controlled substance. A person is guilty of an attempted transfer—and thus a completed delivery—“when the person intentionally engages in conduct which constitutes a substantial step toward the transfer of a controlled substance.” State v. Boyd, 92 Or App 51, 52-54, 756 P2d 1276, rev den, 307 Or 77 (1988) (internal citations omitted). The Court concluded that “[p]ossession of the tools of the drug trade such as baggies and scales, standing alone, does not allow for the nonspeculative inference that a person has taken a substantial step toward a particular transfer of methamphetamine.” Thus, the Court held that “although defendant possessed a quantity of methamphetamine that could have been sold, the jury’s inference that defendant intended to sell it was speculative.” Because no other evidence suggested defendant had the requisite intent to transfer, the Court concluded that the trial court erred in denying defendant’s motion for judgment of acquittal. Reversed and remanded for resentencing.