State v. Robertson , 336 Or. App. 479 ( 2024 )

No. 859 November 27, 2024 479
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRYAN JEFFREY ROBERTSON,
Defendant-Appellant.
Yamhill County Circuit Court
21CR24618; A178231
Ladd J. Wiles, Judge.
Argued and submitted October 30, 2024.
Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Rolf C. Moan, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
TOOKEY, P. J.
Conviction on Count 1 reversed; remanded for resentenc-
ing; otherwise affirmed.
480 State v. Robertson
TOOKEY, P. J.
Defendant appeals a judgment convicting him of
Count 1, delivery of methamphetamine, ORS 475.890,1 and
Count 3, possession of methamphetamine, ORS 475.894,2
raising two assignments of error. In his first assignment of
error, defendant argues that the trial court erred in denying
his motion for judgment of acquittal on Count 1, arguing
that “delivery requires proof of an unsuccessful transfer, not
merely a substantial step with the intent to transfer.” The
state responds that defendant’s conviction for delivery was
proper because “defendant possessed controlled substances,
intended to deliver them to another, and made an effort to
engage in the act of transferring them.” (Internal quotation
marks omitted.) In his second assignment of error, defen-
dant argues that “[t]he trial court erred when it refused to
merge Count 3 with Count 1 for a single conviction for deliv-
ery of methamphetamine.” The state concedes that error.
For the reasons articulated below, we conclude that
the evidence against defendant is insufficient to support
a conviction for delivery of methamphetamine. In light of
that conclusion, we do not reach the question of merger. We
reverse defendant’s conviction for delivery of methamphet-
amine, remand for resentencing, and otherwise affirm.
I. FACTS
We briefly summarize the relevant facts, which are
not in dispute. Defendant was arrested just after 1:15 pm
while in possession of approximately 10 grams of metham-
phetamine. The methamphetamine was divided between
four small plastic baggies: two individually packaged “eight
1
ORS 474.890(1) provides:
“Except as authorized by ORS 475.005 * * *, it is unlawful for any person to
deliver methamphetamine.”
ORS 475.005(8) provides:
“ ‘Deliver’ or ‘delivery’ means the actual, constructive or attempted transfer,
other than by administering or dispensing, from one person to another of a
controlled substance, whether or not there is an agency relationship.”
2
ORS 475.894(1) provides:
“It is unlawful for any person knowingly or intentionally to possess meth-
amphetamine unless the substance was obtained directly from, or pursuant
to, a valid prescription or order of a practitioner while acting in the course of
professional practice, or except as otherwise authorized by ORS 475.005 * * *.”
Nonprecedential Memo Op: 336 Or App 479 (2024) 481
balls” (about an eighth of an ounce or 3 grams) and two indi-
vidually packaged “teeners” (about a sixteenth of an ounce
or 1.5 grams). Defendant also had three empty small plastic
baggies. Officers confiscated and searched defendant’s cell
phone, on which they found a text message conversation
between defendant and “Bill.” That conversation started the
previous afternoon:
Bill: “Hey u busy?”
Defendant: “No what are u needing”
Bill: “It’s late now txt u tomorrow a ball if u can .week
days have to be at house by 900”
Defendant: “I just got your text”
Bill: “I can meet u tomorrow after work done by 330pm”
There is no reply message from defendant.
At defendant’s jury trial, multiple officers involved
in the case testified that the total amount of methamphet-
amine that defendant possessed, along with the manner in
which it was packaged, was indicative of drug dealing. The
officers also testified that a single “user amount” of meth-
amphetamine is typically a “teener” or less.
II. DISCUSSION
A. Defendant’s First Assignment of Error
In his first assignment of error, defendant contends
that “the trial court erred when it denied defendant’s motion
for judgment of acquittal on Count 1, delivery of metham-
phetamine.” In reviewing a trial court’s denial of a motion
for judgment of acquittal, we view “the evidence in the light
most favorable to the state to determine whether a rational
trier of fact, accepting reasonable inferences and reason-
able credibility choices, could have found the essential ele-
ment[s] of the crime beyond a reasonable doubt.” State v.
Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den,
514 US 1005 (1995); see also State v. O’Hare, 309 Or App 357,
361, 481 P3d 953 (2021) (articulating the same standard in
reviewing the denial of a defendant’s motion for judgment of
acquittal of a delivery charge).
482 State v. Robertson
Under ORS 475.890(1), “it is unlawful for any per-
son to deliver methamphetamine.” The definition of “deliver”
encompasses “the actual, constructive or attempted transfer
* * * from one person to another of a controlled substance[.]”
ORS 475.005(8). In order to be liable for the crime of deliv-
ery of a controlled substance via an “attempted transfer,” an
individual’s conduct must be “directly connected to the act
or acts by which a controlled substance changes possession.”
State v. Hubbell, 371 Or 340, 359, 537 P3d 503 (2023).
This case was tried after the Court of Appeals
decided State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021),
which was later affirmed by the Oregon Supreme Court,
Hubbell, 371 Or at 343. Hubbell overturned a prior decision,
State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or
77, 763 P2d 731 (1988), under which a defendant could be
convicted for the completed crime of delivery of a controlled
substance using an interpretation of the phrase “attempted
transfer” analogous to the definition of the lesser, inchoate
crime of attempted delivery.3 Hubbell, 371 Or at 342-343.
Hubbell now makes clear “that a person has engaged in an
‘attempted transfer’ if the person has made some effort to
undertake the act or acts of causing controlled substances
to pass from one person to another[,]” but that “[s]teps pre-
ceding such an effort are insufficient to show an attempted
transfer, even if they are consistent with a generalized
intent to distribute the controlled substance in the future.”
Id. at 359 (emphasis in original). Specifically, “evidence that
a person possessed a large quantity of a controlled substance
and had a general intent to transfer it at an undetermined
future time” is insufficient to prove an “attempted transfer.”
Id. at 360. “Some additional evidence that the person made
an effort to engage in the act of transferring is required.” Id.In this case, defendant contended at trial, and now
renews his argument, that the evidence is insufficient to
support a conviction for delivery of methamphetamine via
an “attempted transfer,” under the Court of Appeals deci-
sion in Hubbell. According to defendant, “possession of
3
ORS 161.405(1) provides that:
“A person is guilty of an attempt to commit a crime when the person inten-
tionally engages in conduct which constitutes a substantial step toward com-
mission of the crime.”
Nonprecedential Memo Op: 336 Or App 479 (2024) 483
drugs and evidence of the intent to deliver does not consti-
tute the completed crime of delivery of controlled substance.
* * * [An attempted transfer] does not occur unless the per-
son actually tries and fails to transfer the drugs to another
person.” In response, the state contends that that evidence
is consistent with an “attempted transfer” under the holding
in Hubbell because, in the state’s view, defendant “made an
effort to engage in the act of transferring” the methamphet-
amine to “Bill.”
There is no dispute that defendant “possessed a
large quantity of” methamphetamine, or that the packaging
of that methamphetamine indicates that defendant “had a
general intent to transfer it at an undetermined future time.”
Hubbell, 371 Or at 360. The state focuses its argument on
what is, in the state’s view, “additional evidence that [defen-
dant] made an effort to engage in the act of transferring,”
id., including the following facts: that at least one of the
baggies of methamphetamine found on defendant’s person
is consistent with the quantity requested by “Bill,” and that
text messages support an inference that defendant intended
to transfer methamphetamine to “Bill” on the same day that
defendant was arrested.
At most, those facts show that defendant engaged in
steps preceding or intended to facilitate an effort to transfer
controlled substances to another person. But the evidence
falls short of supporting a finding that defendant engaged
in an “effort to undertake the act or acts of causing” meth-
amphetamine to be transferred to another person. That
is, even though defendant possessed enough methamphet-
amine to indicate a generalized intent to sell; that metham-
phetamine was packaged in multiple individual quantities
consistent with “user amounts;” and defendant had engaged
in some conversation about an “eight ball,” defendant had
not yet “made an effort to engage in the act of transferring”
an “eight ball” to “Bill,” because he had not yet made an
effort to relinquish control of the methamphetamine in his
possession.
We decline to comment on any facts necessary to
constitute an “attempted transfer.” See Hubbell, 371 Or at
360 (“Transfers of controlled substances take varying forms,
484 State v. Robertson
* * * and what is necessary for an ‘attempted transfer’ will
depend on the circumstances.”). But we note that the follow-
ing facts are dispositive in our determination that, in this
case, there is insufficient evidence of an “attempted trans-
fer.” The text messages between defendant and “Bill” show
that defendant never confirmed any part of “Bill’s” requested
order and had yet to take any physical act constituting an
effort to transfer the methamphetamine. Defendant was
arrested just after 1:15 pm, and the evidence does not sup-
port an inference about what defendant would have other-
wise done with the methamphetamine after 3:30 pm beyond
mere speculation. Finally, there is no evidence that defen-
dant was at or close to any delivery location at the time of
his arrest. In sum, there is insufficient evidence connecting
the “eight balls” in defendant’s pocket to the act of defendant
delivering “Bill’s” order.4 Accordingly, we conclude that, even
when viewed in the light most favorable to the state, the
evidence is insufficient to support a conviction for delivery of
methamphetamine via an “attempted transfer.”
B. Defendant’s Second Assignment of Error
In his second assignment of error, defendant con-
tends that the trial court erred when it refused to merge
Count 3, possession of methamphetamine, with Count 1,
delivery of methamphetamine, for a single conviction for
delivery of methamphetamine. As noted, the state concedes
that that is error under State v. Serbin, 324 Or App 792, 801,
527 P3d 794 (2023) (concluding that “[d]elivery, as defined
4
The instant case is similar to State v. Carr, in which the evidence—showing
that the defendant was in possession of drugs, packaging materials, and other
drug paraphernalia; was known to sell drugs from time to time; and was plan-
ning to sell drugs to someone on the same day that he was arrested—was insuffi-
cient to support a conviction for delivery via an “attempted transfer.” 319 Or App
684, 692-93, 511 P3d 432 (2022), rev den, 371 Or 771 (2023); see also State v. Buell,
317 Or App 667, 670-71, 506 P3d 505 (2022), rev den, 371 Or 771 (2023) (in which
the defendant possessed 17,000 user amounts of methamphetamine, possessed
packaging materials, and had traded text messages with potential buyers; we
concluded the same); State v. Fischer, 315 Or App 267, 269, 500 P3d 29 (2021),
rev den, 371 Or 771 (2023) (in which the defendant possessed 42 user amounts of
heroin and 89 user amounts of methamphetamine, but had not taken any addi-
tional steps toward selling those substances; we concluded the same); State v.
Tacia, 330 Or App 425, 436-37, 543 P3d 713 (2024) (in which we determined that,
although the defendant “had a dealer quantity of methamphetamine, baggies,
and a scale” and had been “transporting the drugs by car,” “there was no evidence
of any effort * * * to actually transfer the methamphetamine to another person”).
Nonprecedential Memo Op: 336 Or App 479 (2024) 485
by ORS 475.005(8), requires possession, as defined by ORS
161.015(9)”). However, in light of our resolution of defen-
dant’s first assignment of error, reversing his conviction on
Count 1, that issue no longer bears on the resolution of this
case. Thus, although, “[o]ur disposition is not intended to
foreclose any merger issues that might arise on remand,”
Hubbell, 314 Or App at 873 n 11, we do not further address
defendant’s second assignment of error.
Conviction on Count 1 reversed; remanded for
resentencing; otherwise affirmed.