State v. Wesley

“After [State v. Hubbell, 314 Or App 844, 870-871, (2021)], where a person has taken a substantial step toward delivery of a controlled substance, but has not yet attempted the transfer itself, the person will have committed the inchoate crime of attempted delivery of a controlled substance, rather than delivery.”

Defendant was convicted, inter alia, unlawful delivery of methamphetamine (Count 2), unlawful possession of heroin (Count 3), and felon in possession of a firearm (Count 5). Defendant assigned error to the trial court’s acceptance of nonunanimous verdicts on Counts 3 and 5. Defendant also argued on appeal that the State provided insufficient evidence to prove the transfer element on Count 2, and that his unanimous conviction on that count was plain error. The Court reversed and remanded on Counts 3 and 5 because ‘the Sixth Amendment requires jury unanimity to convict a criminal defendant of a serious offense.” Ramos v. Louisiana, 140 S Ct 1390 (2020). As to Count 2, the State conceded that the evidence presented at trial was insufficient to prove delivery and was thus plain error; however, the State argued that the evidence was sufficient to prove the lesser offense of attempted delivery. “After [State v. Hubbell, 314 Or App 844, 870-871, (2021)], where a person has taken a substantial step toward delivery of a controlled substance, but has not yet attempted the transfer itself, the person will have committed the inchoate crime of attempted delivery of a controlled substance, rather than delivery.” Defendant argued that the record did not support that he took a substantial step toward delivery. The Court disagreed, holding that under Hubbell and its progeny, “a factfinder could reasonably infer from the evidence presented that defendant possessed the methamphetamine for future transfer.” The Court reasoned that although the large quantity of methamphetamine in Defendant’s possession was not apportioned into distributable amounts, the fact that he was also in possession of “small plastic baggies, which are commonly used to package drugs, a digital scale, plastics gloves, and over $1,000 in cash,” and the items were found in Defendant’s truck, provided strong corroboration that Defendant possessed the methamphetamine for the purpose of future delivery. 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.