State v. Torres ( 2023 )

711
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted December 20, 2022; in Case No. 20CR68263, conviction for delivery
of methamphetamine reversed and remanded for entry of judgment of conviction
for attempted delivery of methamphetamine, remanded for resentencing,
otherwise affirmed; in Case No. 21CR06016, affirmed January 11, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
VICTOR ISAIAS TORRES,
Defendant-Appellant.
Washington County Circuit Court
20CR68263, 21CR06016;
A176186 (Control), A176187
D. Charles Bailey, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
In Case No. 20CR68263, conviction for delivery of meth-
amphetamine reversed and remanded for entry of judgment
of conviction for attempted delivery of methamphetamine;
remanded for resentencing; otherwise affirmed. In Case No.
21CR06016, affirmed.
712 State v. Torres
ORTEGA, P. J.
Defendant appeals judgments of conviction in two
criminal cases, but his main argument on appeal pertains
to the sufficiency of the evidence as to one of the convictions
in one of the cases. In Case No. 20CR68263, defendant was
convicted of, among other things, unlawful delivery of a sub-
stantial quantity of methamphetamine. ORS 475.890. He
argues that the trial court plainly erred in entering a judg-
ment of conviction for that offense, because the state’s the-
ory of the offense was based on State v. Boyd, 92 Or App 51,
53, 756 P2d 1276, rev den, 307 Or 77 (1988), which this court
overruled in State v. Hubbell, 314 Or App 844, 847-88, 500
P3d 728 (2021), rev allowed, 369 Or 504 (2022). The state
concedes the error, and that concession is well taken. The
parties dispute the remedy though. As explained below, we
agree with the state that, based on this record, the proper
remedy is to remand for entry of a judgment of conviction
for attempted delivery of methamphetamine.1 We further
remand Case No. 20CR68263 for resentencing and other-
wise affirm. In Case No. 21CR06016, we affirm because
defendant has not raised any assignment of error as to that
case.
A detailed discussion of the facts is not necessary in
this case. Defendant contends that this case resembles State
v. Fischer, 315 Or App 267, 500 P3d 29 (2021). In Fischer,
we concluded that the state had presented insufficient evi-
dence of attempted delivery of controlled substances where
the only relevant evidence was that the defendant possessed
substantial quantities of the drugs, noting that “[t]he drugs
were not broken down into separate” dosages, the defendant
did not possess materials commonly used for packaging or
distribution of controlled substances, and “[t]here was no
identifiable recipient of the drugs, and there was no indica-
tion of a plan or an impending transaction.” Id. at 269.
Defendant is correct that in the present case, there
was no evidence that the methamphetamine was broken
down into separate doses nor that he possessed packaging
1
Our acceptance of the state’s concession obviates the need to address defen-
dant’s challenge to the jury instructions.
Nonprecedential Memo Op: 323 Or App 711 (2023) 713
or distribution materials. There was, however, evidence that
shortly before defendant’s arrest, he told a woman that he
was going to make money by selling methamphetamine in
his possession, communicated to her by text message that
he was going to meet with a named individual and sell him
some of the methamphetamine but that he had more, came
to her apartment, showed her the bag of methamphetamine,
and asked her to assist in selling some of it. Those facts dis-
tinguish this case from Fischer and provide legally sufficient
evidence that defendant took a “substantial step” toward the
completed crime of delivery of methamphetamine. See ORS
161.405(1) (a person who intentionally takes “a substantial
step toward commission of [a] crime” is guilty of attempt to
commit such crime).
In Case No. 20CR68263, conviction for delivery
of methamphetamine reversed and remanded for entry of
judgment of conviction for attempted delivery of metham-
phetamine; remanded for resentencing; otherwise affirmed.
In Case No. 21CR06016, affirmed.