State v. Serbin

State v. Hubbell, 314 Or. App. 844 (2021) held that the crimes of possession and delivery merge because the crime of delivery cannot be committed without the crime of possession.

Defendant appealed his conviction for both delivery and possession of methamphetamine and heroin. Defendant argued that State v. Hubbell, 314 Or. App. 844 (2021) held that the crimes of possession and delivery merge because the crime of delivery cannot be committed without the crime of possession. On appeal, the court agreed with Defendant because Hubbell held that the phrase “attempted transfer” required more than “attempted delivery.” Therefore, the court reversed and remanded his crimes of possession to be merged with his crimes of delivery. Under ORS 161.067(1) “... [did] (3) each statutory ‘provision’ require ‘proof of an element that the others do not.’” The court reasoned that a “substantial step” test was not sufficient to prove a completed crime of delivery. Post-Hubbell, the court reasoned that “attempted transfer” meant an unsuccessful or incomplete transfer and does not constitute a crime without actual possession. While the court acknowledged criminal enterprises, those actions may constitute a crime different from delivery as defined by ORS 475.005(8). REVERSED AND REMANDED IN PART; OTHERWISE AFFIRMED.