State v. Fischer ( 2021 )

267
Argued and submitted November 24, 2020; convictions on Counts 1 and 2
reversed, remanded for resentencing, otherwise affirmed October 20, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHELLY MARIE FISCHER,
Defendant-Appellant.
Marion County Circuit Court
18CR30393; A170543
500 P3d 29
Donald D. Abar, Judge.
Joshua Crowther, Deputy Public Defender, argued the
cause for appellant. Also on the brief 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 DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Convictions on Counts 1 and 2 reversed; remanded for
resentencing; otherwise affirmed.
268 State v. Fischer
PER CURIAM
Defendant appeals from a judgment convicting
her of four drug offenses and one theft offense, raising five
assignments of error. We agree with her first and second
assignments that the trial court erred in denying her motion
for judgment of acquittal on charges of delivery of heroin and
of methamphetamine within 1,000 feet of a school, respec-
tively ORS 475.852 (heroin) (Count 1) and ORS 475.892
(methamphetamine) (Count 2). We reject without discus-
sion her third assignment that the court erred by denying
her special jury instruction under ORS 475.898(2), involv-
ing immunity from prosecution for possession of controlled
substances (Counts 3 and 4) in certain circumstances. We
agree with her fourth assignment that the trial court erred
in giving a jury instruction that failed to require a unan-
imous jury verdict, but, due to the jury’s unanimous ver-
dicts on Counts 2 through 5, we conclude that the error was
harmless beyond a reasonable doubt on those counts. State
v. Flores Ramos, 367 Or 292, 333-34, 478 P3d 515 (2020).
We do not reach her fifth assignment, challenging the
nonunanimous verdict on Count 1, because we reverse that
verdict with her first assignment of error. Accordingly, we
reverse defendant’s convictions as to the delivery charges,
Counts 1 and 2, remand for resentencing, and otherwise
affirm.
In this case, a full review of the facts would not
be of benefit to bench, bar, or public. It suffices to observe
that, at trial on the two delivery charges here, the prosecu-
tion alleged that defendant engaged in delivery of heroin or
methamphetamine based on what the prosecution termed
“constructive delivery” or what we formerly understood as
“attempted transfer” under ORS 475.005(8) as determined
in State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307
Or 77 (1988). The prosecution relied on the quantities of con-
trolled substances in defendant’s possession, rather than
the circumstances, to infer delivery.
Recently, in State v. Hubbell, 314 Or App 844, 867,
500 P3d 728 (2021), we overruled Boyd, and determined
that delivery by “an attempted transfer” is an incomplete
or unsuccessful effort to cause the controlled substances to
Cite as 315 Or App 267 (2021) 269
pass from one person to another. In other words, “the state’s
evidence must give rise to an inference that [the] defendant
made some effort to cause the controlled substances to pass
from one person to another.” Id. at 872. Where a person has
taken a substantial step toward the crime of delivery 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. Id. at 870-71.
In this case, defendant was in possession of 4.28
grams of heroin in three bindles that she recovered by
regurgitating them. The last bindle was regurgitated after
defendant drank half a bottle of hydrogen peroxide, which
she took without payment from a store. The three bindles
contained 42 user amounts. Her handbag held 8.91 grams
of methamphetamine—the equivalent of 89 user amounts.
The drugs were not broken down into separate user
amounts, and she lacked distribution packaging. Defendant
had no scales, cutting agents, unused packaging materials,
or transaction records. There was no identifiable recipient
of the drugs, and there was no indication of a plan or an
impending transaction.
On that record, we conclude that there was insuf-
ficient evidence of the element of transfer.1 Similarly, there
was insufficient evidence that defendant took a “substantial
step” toward the crime of delivery of a controlled substance
so as to support entry of a conviction for the lesser-included
crime of attempt.2 See ORS 161.405(1) (“A person is guilty of
an attempt to commit a crime when the person intention-
ally engages in conduct which constitutes a substantial step
toward commission of the crime.”). The trial court erred
when it failed to grant defendant’s motion for judgment of
acquittal on the charges of delivery of heroin and metham-
phetamine near a school.
1
Although the record includes testimony that defendant had had contact
with a man in a car in a parking lot outside the store, nothing further was in
evidence related to that contact.
2
In Hubbell, one baggie contained a full ounce of fentanyl, while one con-
tained .23 grams, and four baggies contained only .04 grams each. Three or four
empty baggies contained residue. 314 Or App at 849. There, the state contended
that, under the circumstances, defendant had taken a substantial step toward
the crime of delivery, and we agreed. Id. at 871, 873.
270 State v. Fischer
We reverse the conviction on the delivery offenses
(Counts 1 and 2) and otherwise affirm the conviction on pos-
session (Counts 3 and 4) and theft (Count 5).
Conviction on Counts 1 and 2 reversed; remanded
for resentencing; otherwise affirmed.