State v. Buell

According to State v. Hubbell, 314 Or App 844, 870, 500 P3d 728 (2021), when ORS 475.005(8) is properly construed, an “attempted transfer” requires proof of an “incomplete or unsuccessful transfer” of a controlled substance from one person to another.

Defendant sought reconsideration of a decision in light of the court’s decision in Hubbell. The court concluded that applying the Hubbell standard to these facts “leads to the same outcome.” The evidence at trial showed that defendant “possessed an extremely large quantity of methamphetamine,” as well as “a scale and an open box of sandwich bags, something commonly used to package drugs.” According to State v. Hubbell, 314 Or App 844, 870, 500 P3d 728 (2021), when ORS 475.005(8) is properly construed, an “attempted transfer” requires proof of an “incomplete or unsuccessful transfer” of a controlled substance from one person to another. The court held that, as in Hubbell, “this evidence would allow for a reasonable inference that defendant had taken a substantial step toward transfer of controlled substances by acquiring and possessing amounts indicative of distribution and materials usable for packing individual portions.” However, the Court clarified that this evidence would not “allow for a finding that defendant’s endeavors had advanced so far toward the complete crime that he had actually made an effort to cause the transfer of some or all of the methamphetamine in his possession to another person.” Thus, the Court reversed defendant’s conviction for delivery but remanded for an entry of a judgment of conviction for attempted delivery of methamphetamine; otherwise affirmed.