667

On appellant’s petition for reconsideration filed December 1; reconsideration allowed, former disposition withdrawn, opinion (

,

(2021)) modified and adhered to as modified, conviction on Count 1 reversed and remanded for entry of a conviction for attempted delivery of a controlled substance, convictions on Counts 6 and 7 reversed, remanded for resentencing, otherwise affirmed February 24, 2022

STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL PAUL BUELL, Defendant-Appellant. Marion County Circuit Court 18CR32915; A170329

Petitioner seeks reconsideration of State v. Buell,

,

(2021), insofar as the Court of Appeals rejected without discussion a pro se supplemental assignment of error challenging the sufficiency of the evidence sup- porting his conviction for delivery of methamphetamine, ORS 475.890 (Count 1). Defendant contends that reconsideration of that assignment of error is warranted on the ground that the court overlooked its decision in State v. Hubbell,

,

(2021), decided two weeks before it issued the decision in this case. Held: As in Hubbell, the evidence at trial allowed for a reasonable inference that defendant had taken a substantial step toward a transfer of con- trolled substances, but not for a finding that defendant’s endeavors had advanced so far toward the completed crime that he had actually made an effort to cause the transfer. The court therefore allowed reconsideration, reversed defendant’s conviction on Count 1, and remanded for entry of a judgment of conviction for the lesser-included offense of attempted delivery on that count. Beyond that change, the court adhered to its opinion, in which it reversed the convictions on Counts 6 and 7, remanded for resentencing, and otherwise affirmed. Reconsideration allowed; former disposition withdrawn; opinion modified and adhered to as modified; conviction on Count 1 reversed and remanded for entry of a conviction for attempted delivery of a controlled substance; convictions on Counts 6 and 7 reversed; remanded for resentencing; otherwise affirmed.

J. Channing Bennett, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, for petition. Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge. 668 State v. Buell

LAGESEN, C. J. Reconsideration allowed; former disposition withdrawn; opinion modified and adhered to as modified; conviction on Count 1 reversed and remanded for entry of a conviction for attempted delivery of a controlled substance; convictions on Counts 6 and 7 reversed; remanded for resentencing; other- wise affirmed. Cite as

(2022) 669

LAGESEN, C. J. Petitioner seeks reconsideration of our prior deci- sion in this matter, State v. Buell,

,

(2021), insofar as we rejected without discussion a pro se supplemental assignment of error challenging the suffi- ciency of the evidence supporting his conviction for delivery of methamphetamine, ORS 475.890 (Count 1). Buell,

(rejecting without discussion the assignments of error raised in the pro se supplemental brief). Defendant contends reconsideration of that assignment of error is war- ranted on the ground that we may have overlooked our deci- sion in State v. Hubbell,

,

(2021), decided just two weeks before we issued our decision in this case. ORAP 6.25(1)(e). According to defendant, when his pro se supplemental assignment of error is considered under Hubbell, he is entitled to reversal of his conviction for deliv- ery of methamphetamine and a remand for entry of a judg- ment of acquittal or, alternatively, for entry of a judgment of conviction for the lesser-included offense of attempted deliv- ery of methamphetamine. On closer inspection of defendant’s arguments in his pro se supplemental brief, we agree. In fact, defendant’s pro se arguments now appear prescient in light of Hubbell, something we overlooked when we affirmed his conviction for delivery without discussing his pro se challenge to it. We therefore allow reconsideration, reverse defendant’s convic- tion on Count 1, and remand for entry of a judgment of con- viction for the lesser-included offense of attempted delivery on that count. We otherwise adhere to our prior decision. As defendant correctly notes, in Hubbell, we over- ruled State v. Boyd,

,

, rev den,

(1988). Boyd had relied on the statute defining the inchoate crime of “attempt,” ORS 161.405(1), to conclude that an “attempted transfer” within the meaning of the stat- ute defining the offense of “delivery,” ORS 475.005(8), meant taking a “substantial step” toward transferring controlled substances. As we recognized in Hubbell, that approach had little footing in the text, context, and legislative history of ORS 475.005(8), and effectively resulted in what should have been treated as the inchoate, lesser-included crime of 670 State v. Buell

attempted delivery being treated as the completed offense of delivery. Hubbell,

. Instead, when ORS 475.005(8) is properly construed, an “attempted transfer” requires proof of an “incomplete or unsuccessful transfer” of a controlled substance from one person to another.

. That is, “If a defendant has tried to actually transfer a controlled substance to another person, that defendant will be guilty of the completed offense, regardless of whether the transfer itself was successful. But, where a person merely has taken a substantial step toward the crime of delivery but has not yet attempted the transfer itself, the defendant will have committed the inchoate crime of attempted delivery of a controlled substance.”

. Applying that standard in Hubbell, we concluded that the evidence was insufficient to support the defendant’s conviction for delivery but was sufficient to support a con- viction for the lesser-included offense of attempted delivery. We explained that the “exceptionally large amount of fen- tanyl” in the defendant’s possession, together with pack- aging materials for smaller doses, “gives rise to an infer- ence that the drugs were acquired and possessed for future transfer,” something that would be sufficient to support a finding that the defendant had taken a “substantial step” toward the crime of delivery, making him guilty of the inchoate crime of attempted delivery.

. The evi- dence was not, however, sufficient to support a conviction for delivery because there was no evidence allowing for “an inference that [the] defendant made some effort to cause the controlled substance to pass from one person to another.”

. Applying that standard here leads to the same outcome. The evidence at trial showed that defendant pos- sessed an extremely large quantity of methamphetamine— four pounds, which equates to approximately about 17,000 individual doses. Defendant also possessed a scale and an open box of sandwich bags, something commonly used to package drugs. Defendant’s cell phone reflected that on two occasions—about a month before he was discovered with the Cite as

(2022) 671

drugs and then, again, the day before—he had received text messages asking about acquiring drugs. The phone also showed that he had responded to the message a month ear- lier but did not show a response to the message a day earlier. As in Hubbell, this evidence would allow for a rea- sonable inference that defendant had taken a substantial step toward a transfer of controlled substances by acquir- ing and possessing amounts indicative of distribution and materials usable for packing individual portions. It would not, however, allow for a finding that defendant’s endeavors had advanced so far toward the completed crime that he had actually made an effort to cause the transfer of some or all of the methamphetamine in his possession to another person. At best, the text messages would allow the inference that defendant had future buyers waiting, but not an inference that he had put a transfer in motion as is required under Hubbell’s construction of ORS 475.005(8). Accordingly, as in Hubbell, we reverse defendant’s conviction for delivery but remand for an entry of a judgment of conviction for attempted delivery of methamphetamine. Beyond this change, we adhere to our opinion, in which we reversed the convictions on Counts 6 and 7, remanded for resentencing, and otherwise affirmed. Reconsideration allowed; former disposition with- drawn; opinion modified and adhered to as modified; con- viction on Count 1 reversed and remanded for entry of a conviction for attempted delivery of a controlled substance; convictions on Counts 6 and 7 reversed; remanded for resen- tencing; otherwise affirmed.