State v. Hubbell

                                      844

Argued and submitted November 12, 2020; conviction for delivery of a controlled
   substance reversed and remanded for entry of a conviction for attempted
   delivery of a controlled substance, remanded for resentencing, otherwise
                          affirmed September 29, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     BRIAN G. HUBBELL,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR43198; A170143
                                   

     Defendant appeals a judgment of conviction for delivery of a controlled substance that was based on the theory that his possession of a large amount of
fentanyl, some of which was individually packaged, was sufficient to prove a
“Boyd delivery.” See State v. Boyd, 

, 

, rev den, 

 (1988) (holding that “attempted transfer” for purposes of the definition
of “delivery” in ORS 475.005(8) incorporates the meaning of the inchoate crime
of attempt under ORS 161.405(1)). In light of recent Court of Appeals decisions
casting doubt on Boyd’s reasoning and its resort to ORS 161.405 as a definition
of the word “attempted,” the court requested supplemental briefing from the parties with regard to whether Boyd was plainly wrong in its construction of ORS
475.005(8). In supplemental briefing, defendant argues that Boyd is inconsistent
with legislative intent and plainly wrong, and that the legislature intended “the
ordinary definition of an overt act by which the actor means to accomplish the
thing ‘attempted,’ especially when the actor is unsuccessful through interruption, prevention, or other circumstance.” The state, for its part, argues that Boyd
was correctly decided because the legislature intended to criminalize possession
with intent to distribute; that, even if the court were to disagree, it should not
overrule Boyd as plainly wrong; but that, even if it did, defendant’s conviction
should nevertheless be affirmed under the ordinary meaning of “attempted.”
Held: Boyd’s leap—defining the word “attempted” within a substantive statute
to be the inchoate crime of attempt—was not just wrong but plainly wrong. After
employing the usual methodology for construing statutes (something that did
not happen in Boyd), it was readily apparent that the legislature meant for the
word “attempted” in ORS 475.005(8) to capture an unsuccessful transfer, not to
combine the inchoate and completed crimes of delivery of a controlled substance
in the way that Boyd did. Accordingly, the court overruled Boyd, applied the ordinary meaning of “attempted” transfer to the record in the case, and concluded
that the state’s evidence was legally insufficient to prove the crime of delivery
of a controlled substance. However, because the evidence was legally sufficient
to show a substantial step toward the completed crime of delivery, the court
reversed and remanded for entry of a conviction for the lesser-included crime
that the state did prove: the inchoate crime of attempted delivery of a controlled
substance.
     Conviction for delivery of a controlled substance reversed and remanded for
entry of a conviction for attempted delivery of a controlled substance; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                           845

   Theodore E. Sims, Judge.
   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.
   Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   JAMES, J.
   Conviction for delivery of a controlled substance reversed
and remanded for entry of a conviction for attempted delivery of a controlled substance; remanded for resentencing;
otherwise affirmed.
846                                           State v. Hubbell

        JAMES, J.
         Three decades ago, in State v. Boyd, 

,

, rev den, 

 (1988), we were asked to
decide whether evidence of possession of a large amount of
drugs, along with evidence of intent to sell them, was sufficient to prove the completed crime of delivery of a controlled
substance. “Delivery” is defined by ORS 475.005(8) as
   “[T]he 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.”

In Boyd, after observing that “delivery” was defined to include
the “attempted transfer” of drugs, we turned—without
any examination of the text, context, or legislative history of
ORS 475.005(8)—to the meaning of “attempt” that the legislature supplied for the inchoate crime of attempt under
ORS 161.405(1). That statute defines an attempted crime
by looking to whether the defendant intentionally engaged
in conduct that constituted a “substantial step toward commission of the crime.” In this way, we defined “attempted
transfer”—an act—by grafting in the statute for the inchoate crime of attempt. And so was born an Oregon oddity, the
“Boyd delivery,” a bootstrapped doctrine where possession of
drugs with the intent to sell them constitutes a substantial
step toward the crime of delivery and, hence, the attempted
crime becomes the completed crime of delivery of a controlled
substance.
         Since then, Boyd’s holding has influenced not only
the way drug crimes have been prosecuted and charged, but
how they have been sentenced. It has also made Oregon an
outlier. As a consequence of Boyd, the ordinary hierarchy of
offenses in Oregon—that completed crimes are more serious
and punished more severely than inchoate crimes, see ORS
161.405—does not hold true for the crime of delivery of a
controlled substance. Rather, for the past 30 years, the completed crime of delivery and the inchoate crime of attempted
delivery have been treated as one and the same, which has
had sentencing ramifications for the charged offense and for
a convicted defendant’s criminal history.
Cite as 

 (2021)                             847

          Recently, though, we had occasion to revisit Boyd
and our characterization of ORS 161.405 as a “definition”
of the word “attempt.” In two cases, the parties asked us
to expand Boyd’s reach by, once again, grafting the inchoate crime of attempt as the definition of “attempt” within a
statute. See, e.g., State v. Rapp, 

, 

, rev den, 

 (2020) (“attempting to elude
a police officer”); State v. Stockert, 

, 

, rev den, 

 (2020) (“attempt to take” wildlife). In both cases, after considered analysis, we declined
the invitation to build upon Boyd’s legacy, explaining that
ORS 161.405 was not a definition of the word “attempt” but
rather a provision setting out the elements of a separate,
inchoate crime. Instead of importing the meaning from that
statute, we looked to a contextually appropriate definition
of “attempt”—one that preserved the ordinary hierarchy of
offenses.
          With our decisions in Rapp and Stockert, the settled rule in Boyd became more unsettling—an outlier that
was decided without textual and contextual examination,
appears to run counter to the intent of the legislature in
adopting the criminal code and providing for a hierarchy
of completed versus attempted crimes, and has sweeping
consequences for Oregonians who have been charged with
and convicted of the completed crime of delivery on a Boyd
theory. See State v. O’Hare, 

, 362 n 4, 

 (2021) (noting that, although the defendant did not
challenge the correctness of Boyd in that case, “there are
reasons to question that conclusion,” particularly in light
of Stockert and Rapp). In short, when the state invited us
to walk out further on the branch of reasoning supplied by
Boyd, it revealed that, not only would the branch not support additional weight, but it might be hollow at its core.
          This appeal, like many before it, involves a question
as to the sufficiency of the evidence to support a Boyd theory of delivery, and the parties initially briefed the case in
terms of whether the evidence satisfied the Boyd standard.
However, in light of our recent decisions casting doubt on
Boyd’s underpinnings, and given that in this case we were
being asked to build upon Boyd, we requested that the state
and defendant provide supplemental briefing addressing
848                                          State v. Hubbell

whether our decision in Boyd was consistent, in the first
instance, with legislative intent under our ordinary principles of statutory interpretation. Having received that additional briefing, we now conclude that Boyd’s leap—defining
the word “attempt” within a substantive statute to be the
inchoate crime of attempt—was not just wrong but plainly
wrong; it was a statutory interpretation with “deficiencies
[that] are apparent with even a basic exploration of the text
and context of the statute, let alone its legislative history.”
State v. Civil, 

, 

 (2017).
After employing our usual methodology for construing statutes (something that did not happen in Boyd), it is readily
apparent that the legislature meant for the word “attempted”
in ORS 475.005(8) to capture an unsuccessful transfer, not
to combine the inchoate and completed crimes of delivery
of a controlled substance. Accordingly, we overrule Boyd,
apply the ordinary meaning of “attempted” transfer to the
record in this case, and conclude that the state’s evidence
was legally insufficient to prove the crime of delivery of a
controlled substance. However, because the evidence was
legally sufficient to show a substantial step toward the completed crime of delivery, we reverse and remand for entry
of a conviction for the lesser-included crime that the state
did prove: the inchoate crime of attempted delivery of a controlled substance.
                    I. BACKGROUND
A.    Factual Background
         Police responded to a call that three people had
overdosed at a hotel room in Tigard, Oregon, and they determined that the likely cause of the overdoses was pure fentanyl powder. One of the people who overdosed told police
that the fentanyl came from a container in defendant’s room
at a different hotel in Tigard. At the time, defendant was
incarcerated in the Columbia County Jail.
         Police obtained and executed a search warrant for
defendant’s room, where they found a rubber container at
the foot of his bed. When police opened the container, they
found shirts on top of the contents, which included video
games, movies, books, family photos, and a black and silver
lockbox. Police opened the lockbox and found a knitted cap,
Cite as 

 (2021)                            849

and inside the cap were several plastic zip lock baggies. One
of the baggies contained almost an ounce of what appeared
to be a pure white powder. Another smaller baggie contained
.23 grams of the same powder. Four more baggies contained
.04 grams of the same powder, and one also included methamphetamine. The cap also contained three or four empty
baggies with white powder residue.
         The crime lab later identified the white powder as
fentanyl, a synthetic opioid that is about 50 times stronger
than morphine. According to the detective who investigated
the overdoses, fentanyl is prescribed for pain management
in patch form containing 25 to 75 micrograms or in pill
form containing 100 to 400 micrograms (for terminally ill
patients). On the street, the pure form, a white powder, is
mixed with highly cut heroin to boost its effectiveness or
used to make counterfeit Oxycontin tablets. Fentanyl is
not commonly sought on its own because it is so dangerous
and because the high is less pleasant and does not last as
long as from heroin. For that reason, it is more often sold to
dealers.
         The amount of fentanyl found in defendant’s room
was never tested for purity, but one ounce of pure powder
would have been equivalent to 375,000 microgram doses at
75 micrograms per dose. The amount in the four small baggies, .04 grams, was consistent with either a user amount
or sale to street-level dealers to mix with other drugs. The
detective estimated the street value of the fentanyl found in
defendant’s room to be in the $1,000 to $3,000 dollar range.
         The detective spoke with defendant at the jail after
the warrant was executed, telling him about the overdoses
and asking about the fentanyl. Defendant told the detective
that the fentanyl had been in his possession for some time.
He said that he got it from an ex-girlfriend whose associate in the military had obtained it “through the dark web
from China.” According to defendant, he had not delivered
or distributed the fentanyl “because he knew the dangers of
it and didn’t want to be responsible for anyone’s death.” He
said that it had been in the tub since he obtained it, that
he was preparing to move, and that he had moved the tub
from another location to the hotel room and had plans to
850                                         State v. Hubbell

move it to a new location. After the interview, defendant was
arrested.
B.    Procedural History
      1.   Trial proceedings
         Defendant was charged with unlawful possession of
a Schedule II controlled substance, ORS 475.752(3)(b) (making it unlawful for any person knowingly or intentionally
to possess a controlled substance), and unlawful delivery of
a Schedule II controlled substance under ORS 475.752(1)(b)
(making it unlawful “for any person to manufacture or
deliver a controlled substance”). Defendant waived the right
to a jury, and the case was tried to the court. Defendant
essentially conceded that the state had proved the possession charge, and the parties focused instead on the delivery
charge. The state, relying on Boyd, argued that the court
should find defendant guilty based on “the idea that possession with intent to deliver constitutes delivery even when
no actual transfer is shown.” In the state’s view, it could be
inferred from the large amount of fentanyl, coupled with
the prepackaging (the small baggies with .04 grams), that
defendant intended to transfer the drugs.
          Defendant, meanwhile, argued that Boyd required
more than prepacking to give rise to an inference of intent
to deliver, and he moved for a judgment of acquittal on that
basis. According to defendant, the record included no evidence as to “who, when, or why the bags were broken up
at all,” nor was there any evidence of other materials commonly associated with the transfer of controlled substances,
such as scales, cutting agents, pill presses, unused packaging materials, or transaction records. Without that evidence,
defendant argued, there was no “substantial step” toward
the delivery of a controlled substance. He further argued
that a “substantial step” required an affirmative act moving
toward a delivery “today, tomorrow, at some time in the near
future rather than just at some point.”
        The trial court rejected defendant’s arguments,
explaining that it was not aware of any authority requiring the state to prove beyond a reasonable doubt that the
prospective sale was going to occur within a specified time
Cite as 

 (2021)                                 851

period. The court explained that defendant “had several
baggies with user-size quantities prepared and ready to go,”
and it found him guilty on both counts. The court merged
the guilty verdicts and entered a single conviction for delivery of a controlled substance, the more serious of the two
offenses. See ORS 475.752(1)(b) (making possession a Class C
felony).
    2. Issues on appeal
         Defendant appealed that judgment, assigning error
to the trial court’s denial of his motion for a judgment of
acquittal on the delivery count. In his opening brief, he
developed the same arguments that he had raised below:
that proof of a Boyd delivery requires more than a large
amount of drugs, even if some are prepackaged; and that,
even if he intended to transfer some of the fentanyl at some
future time, the state still needed to prove that he had taken
a substantial step toward that future transfer.
         In response, the state directed us to previous cases
in which we had affirmed convictions on a Boyd theory
where there was evidence of a large quantity of controlled
substances, inconsistent with personal use, along with
packaging materials. State v. Newsted, 

,

 (2019); State v. Alvarez-Garcia, 

, 

 (2007). Beyond that, the state argued
that defendant misunderstood the import of Boyd’s incorporation of the “substantial step” standard:
        “Defendant’s argument misconstrues the relationship
   between the intent to transfer and the substantial step
   toward delivery. In a case of possession with intent to
   deliver, ‘intent to transfer’ and ‘substantial step’ are not
   separate elements. … If the evidence supports a finding
   that defendant possessed fentanyl and intended to transfer
   it, then the evidence supports a delivery conviction.”
        Defendant then filed a reply brief in which he
asserted that the state was mistaken and that “intent to
transfer” and “substantial step” are separate elements, relying on cases involving the inchoate crime of attempt. He
further argued that, to the extent that Alvarez-Garcia and
Newsted “appear to conflate the intent and substantial step
analyses,” they were wrongly decided.
852                                                        State v. Hubbell

         As the issues were framed by the parties’ initial briefing, we were asked to clarify the holding in Boyd
with respect to how, exactly, the “substantial step” element
of ORS 161.405 melds with the elements of the completed
crime of delivery. But in the meantime, we issued two decisions that prompted us to ask an even more fundamental
question about Boyd’s holding before attempting to explicate
it in this case: Was it correct to look to ORS 161.405 in the
first place?
         The first of those two decisions was Stockert, which
involved hunting offenses under the wildlife statutes, ORS
chapters 498 and 496. 

. The relevant statutes defined “hunt” to mean “to take or attempt to take any
wildlife” but did not provide a definition of “attempt.” 

(emphasis added); ORS 496.004(10) (defining “hunt”). In the
absence of a definition of “attempt,” the state pointed us to
Boyd, arguing that “the word ‘attempt’ in ORS 496.004(10)
refers to the inchoate crime of attempt defined in the criminal code by ORS 161.405(1).” 

.
         We rejected the state’s effort to import ORS 161.405
into the definition of “hunt.” We explained that the state was
generally correct that, for purposes of interpreting statutes
covering wildlife offenses, we would look to definitions in the
criminal code “unless the context requires otherwise.” See
ORS 161.035(2).1 But we nonetheless declined the invitation
to follow Boyd’s lead in treating ORS 161.405 as an applicable definition. We pointed out that, not only did the context
of the wildlife statutes “demonstrate[ ] that the legislature
intended to use the word ‘attempt’ in its ordinary sense to
capture what it means to engage in the process of hunting,
rather than in its legal sense of defining inchoate crime,” but
that Boyd took “an approach that does not comport with the
statutory construction methodology we would be required
to apply were we confronted with the case today.” 

. Among other things, we cited the concurring
   1
     ORS 161.035(2) provides:
       “Except as otherwise expressly provided, or unless the context requires
   otherwise, the provisions of chapter 743, Oregon Laws 1971, shall govern the
   construction of and punishment for any offense defined outside chapter 743,
   Oregon Laws 1971, and committed after January 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.”
Cite as 

 (2021)                                 853

opinion in United States v. Havis, 

 (6th Cir
2019) (Sutton, J., concurring in denial of en banc reconsideration), which differentiated between the use of the word
“attempt” in its ordinary sense in federal controlled substances laws and those laws that refer to the inchoate crime
of attempt. 

.
         Shortly after Stockert, we decided Rapp, in which
the question was whether the crime of fleeing or attempting
to elude a police officer implicitly incorporates the requirement that the defendant has acted intentionally. 

. In that case, the state took the opposite approach
that it had taken in Stockert and Boyd. In response to the
defendant’s contention that the legislature would have
understood “attempt” to be a term of art that incorporated
concepts associated with inchoate crimes—specifically, the
requirement of an intentional mental state—the state distinguished between completed crimes that use “attempt”
and inchoate offenses:
      “The state asserts that the crime identified in ORS
   811.540(1) is not an inchoate crime and, therefore, an
   intentional mental state is not incorporated into the statute. The state views the statute as defining the crime of
   attempting to elude a police officer as ‘a substantive crime
   that is complete once a person knowingly continues to drive
   and avoids compliance with a pursuing officer. … In other
   words, the attempt to elude is, itself, the injury or harm
   described in the offense, not a substantial step toward
   some other offense.’ ”
Rapp, 

.
         We agreed with that distinction between a substantive crime that uses the term “attempt” and the principles
encompassed by the inchoate crime of attempt:
       “The sources on which defendant relies do suggest that,
   in 1963, the state could charge a defendant with an attempt
   to commit an act that, if completed, would be a statutorily
   defined crime—and that, if the state did so, it would have
   to prove that the defendant undertook that attempt intentionally. But those sources relate to inchoate crimes; they
   do not speak to the type of statute at issue here—a statute
   that defines a crime in terms of an attempted act. We have
   recently held that the mere inclusion of the word ‘attempts’
854                                              State v. Hubbell

   in a statute does not always signify legislative intent to
   use that word in the sense associated with inchoate crimes.
   See [Stockert, 

] (concluding that the legislature used the word ‘attempt’ in a statute ‘in its ordinary sense …, rather than in its legal sense of defining
   inchoate crime’). And, in our view, nothing in the text of
   ORS 811.540(1) evinces a legislative intent to incorporate ideas associated with inchoate crimes—in particular,
   the requirement of an intentional mental state—into the
   statute.”
Rapp, 

 (emphasis added). We then went
on to conclude that the phrase “attempts to elude” could
not be parsed in the way that the defendant proposed, and
that it instead described “a course of conduct—attempting
to escape the notice of police—that constitutes a completed
crime if undertaken knowingly.” 

.
        In light of Stockert and Rapp, we invited supplemental briefing from the parties on the following questions:
      “(1) Is the approach in Boyd consistent with legislative
   intent, as evidenced by the text, context and, if relevant
   and available, legislative history of ORS 475.005(8)? If not,
   is Boyd ‘plainly wrong’ under the standards set forth in
   [Civil, 

]?
       “(2) If Boyd was correct to look to the inchoate crime
   of attempt for the meaning of the word ‘attempted’ in ORS
   475.005(8), does the inchoate crime of attempted delivery of
   a controlled substance exist in Oregon and, if so, what are
   its elements?
      “(3) If the word ‘attempted’ in ORS 475.005(8) is not
   defined according to the inchoate crime of attempt, what
   definition of ‘attempted’ most accurately reflects legislative
   intent? Based on the definition you propose, how would that
   affect this case?”
         The parties subsequently supplied that briefing.
To summarize their respective positions, defendant argues
that Boyd’s construction of ORS 475.005(8) is inconsistent
with legislative intent and plainly wrong, and that the legislature intended “the ordinary definition of an overt act by
which the actor means to accomplish the thing ‘attempted,’
especially when the actor is unsuccessful through interruption, prevention, or other circumstance.” The state, for its
Cite as 

 (2021)                              855

part, argues that Boyd was correctly decided because the
legislature intended to criminalize possession with intent
to distribute; that, even if this court were to disagree, we
should not overrule Boyd as plainly wrong; but that, even if
we did, we should still affirm defendant’s conviction under
the ordinary meaning of “attempt.”
                     II. DISCUSSION
         With that background, we begin our analysis of the
key questions in this case: (1) Should we adhere to Boyd’s
importation of the inchoate crime of attempt for purposes of
defining “attempt” in ORS 475.005(8)? (2) If Boyd is plainly
wrong, what does “attempt” mean for purposes of that statute? (3) Under a correct interpretation of “attempt,” was the
state’s evidence in this case sufficient to support a conviction
for that crime? And (4) if the evidence was insufficient to
prove the completed crime of delivery, what is the correct
disposition in this case? We address each of those questions
in turn.
A.   Overruling 

.   The “plainly wrong” standard
         Under the principle of stare decisis, courts assume
that their “fully considered prior cases are correctly decided,”
which means that “the party seeking to change a precedent
must assume responsibility for affirmatively persuading [the
court] that [it] should abandon that precedent.” Farmers Ins.
Co. v. Mowry, 

, 

 (2011) (internal
quotation marks omitted). In other words, adherence to considered precedent is presumptive, and we will not “lightly
overrule” our precedent, including those cases construing
statutes. Civil, 

; accord Mowry, 

 (describing the prudential principles undergirding
stare decisis, including stability and predictability, consistency, reasonable expectations of parties, and the central
tenant that “courts should treat like cases alike”).
         At the same time, as we explained in Civil, we have
a competing obligation to reach what we regard as a correct interpretation of a statute. 

 at 406 (citing Assoc. Unit
Owners of Timbercrest Condo. v. Warren, 

,

 (2012)). To balance those potentially competing
856                                             State v. Hubbell

interests, we ordinarily will not overrule a previous construction of a statute unless we conclude that it is “plainly
wrong,” a “rigorous standard grounded in presumptive fidelity to stare decisis.” Id.
      2. The flaws in Boyd’s approach
         As we turn to whether Boyd meets the “plainly
wrong” standard, we begin by noting that it presents the
type of case where Oregon courts are more “open to reconsidering earlier case law” construing a statute: that is, an
earlier construction in which we “failed to apply our usual
framework for decision or adequately analyze the controlling
issue.” Warren, 

. Boyd, as noted earlier, incorporated ORS 161.405(1) as the meaning of “attempted” with
virtually no analysis on that point. This was the sum of
our explanation regarding the incorporation of the inchoate
crime:
       “The relevant inquiry in this case is whether possession
   of the large amount of heroin, not for personal use but for
   sale, constitutes attempted delivery within the meaning of
   the ORS 475.005(8), which does not define either attempted
   transfer or attempt. The provisions of the Oregon Criminal
   Code of 1971, ORS 161.005 to ORS 167.820, are therefore
   applicable. See ORS 161.035.
       “ORS 161.405(1) provides:
      “A person is guilty of an attempt to commit a crime when
   the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”

 (footnote setting out the text of ORS
161.035 omitted). In other words, we went from the provisions of the Oregon Criminal Code being applicable, to ORS
161.405(1) being an applicable definition, without any explanation at all as to why that was the case.
         From there, having not considered the text or context, we jumped to the Commentary to the 1971 Criminal
Code with regard to the meaning of “substantial step,”
based on our unexamined assumption that ORS 161.405(1)
defined the word “attempt” for purposes of the criminal code;
that commentary supplied “examples of acts which should
not be held insufficient as a matter of law to constitute a
Cite as 

 (2021)                                   857

substantial step,” including “ ‘(e) possession of materials to
be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve
no lawful purpose of the actor under the circumstances,’ ”
and “ ‘(f) possession, collection or fabrication of materials
to be employed in the commission of the crime, at or near
the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose
of the actor under the circumstances[.]’ ” 

 at 54 (quoting
Commentary to the Criminal Code of 1971, § 54, at 49-50)
(emphases added). Based on that commentary, we agreed
with the state that “the fact that defendant possessed the
large amount of heroin together with her admission that she
acquired it in order to sell it amounts to evidence that she
had taken a substantial step toward the commission of the
crime of delivery of a controlled substance.” Id. (emphasis
added).
         It was only after reaching that conclusion that
we addressed the defendant’s argument that the legislative history of ORS 475.005(8) pointed the opposite way
and revealed a pertinent variation between the Uniform
Controlled Substances Act (UCSA) and the version that
Oregon ultimately adopted. The defendant argued:
       “[T]he Oregon legislature intended to penalize only possession and delivery of controlled substances but not possession with intent to deliver, which is a distinct crime, and
   that the state’s evidence was relevant only to possession,
   but not to delivery. The uniform act separately penalizes
   delivery, possession with intent to deliver and possession.
   9 Uniform Laws Annot., § 401(a), (c). The Oregon act separately penalizes delivery and possession, but not possession with intent to deliver. ORS 475.992(1), (4). The definition of ‘delivery,’ in relevant part, is the same in both acts.
   9 Uniform Laws Annot., § 101(f); ORS 475.005(8).”
Boyd, 

.
         However, because we were operating on the assumption that the legislature meant to incorporate ORS 161.405(1),
we were not persuaded by that argument:
      “There is no indication that the Oregon legislature
   intended to punish an attempt to transfer a controlled
858                                               State v. Hubbell

   substance other than as the completed transfer. It did so
   without enacting the distinct crime of possession with
   intent to deliver, because that crime, considering the meaning of ‘attempt,’ is included in the definition of ‘delivery.’
   There was no error.”

 (emphasis added).
         The fact that Boyd’s analytic path does not track
our current methodology is not, by itself, sufficient reason
to abandon it. See generally Mastriano v. Board of Parole,

, 

 (2007) (“The absence of a
PGE-style examination of legislative intent does not deprive
a prior statutory interpretation of its ordinary effect as a
precedent.”). But here, Boyd’s departure from our ordinary
methodology—that is, an examination that begins with the
text and context of the statute—is indicative of a deeper
problem. Boyd did not merely reach a conclusion based on
an unexamined or unexplained assumption; it reached one
based on a fundamentally incorrect assumption about ORS
161.405.
         Simply put, ORS 161.405(1) cannot plausibly be
understood as a generally applicable definition of the word
“attempt” for purposes of Oregon’s criminal code—something
that is apparent after even a cursory look at the text of that
statute and its context. ORS 161.405 provides, in full:
      “(1) A person is guilty of an attempt to commit a crime
   when the person intentionally engages in conduct which
   constitutes a substantial step toward commission of the
   crime.
      “(2)    An attempt is a:
      “(a) Class A felony if the offense attempted is any
   degree of murder, aggravated murder or treason.
       “(b)   Class B felony if the offense attempted is a Class A
   felony.
       “(c) Class C felony if the offense attempted is a Class B
   felony.
      “(d) Class A misdemeanor if the offense attempted is a
   Class C felony or an unclassified felony.
      “(e) Class B misdemeanor if the offense attempted is a
   Class A misdemeanor.
Cite as 

 (2021)                                                859

       “(f) Class C misdemeanor if the offense attempted is a
    Class B misdemeanor.
       “(g) Violation if the offense attempted is a Class C misdemeanor or an unclassified misdemeanor.”2
         As we recently noted in O’Hare, “ORS 161.405 is not
a definitional provision; it is a provision that delineates the
substantive elements of the inchoate crime of attempt.” 

 (emphasis added); see Rapp (“ORS 161.405(1),
like former ORS 161.090 (1963)[, repealed by Or Laws 1971,
ch 743, § 432,] speaks to attempts to commit other crimes
that the legislature has defined, not to the use of the word
‘attempts’ in the definition of a substantive crime itself.”).
The legislature knows how to define specific terms that
appear throughout other statutes, including the criminal code. See, e.g., ORS 161.015 (providing general definitions for what various terms “mean” in ORS chapter 743,
Oregon Laws 1971, and ORS 166.635, unless the context
requires otherwise). Nothing about ORS 161.405 suggests
that it is that type of definitional provision. Subsection (1)
is not phrased in terms of what “attempt” “means” or “is”
in the criminal code generally, or in terms of when a person
“attempts” an act. Rather, it is expressly phrased in terms of
when a “person is guilty of an attempt to commit a crime”—in
other words, when the state has proved the elements of the
inchoate offense. (Emphasis added.) Subsection (2) then sets
forth the crime classification for “an attempt,” confirming
that the statute delineates a specific type of offense.
         Additional statutory context, as well as the Criminal
Code Commentary, leave no doubt that ORS 161.405(1) was
intended to describe the elements of the inchoate crime of
attempt, not supply a general definition of what it means to
“attempt” a particular act. For instance, ORS 161.425 provides, “In a prosecution for an attempt, it is no defense that
it was impossible to commit the crime which was the object
of the attempt where the conduct engaged in by the actor
would be a crime if the circumstances were as the actor
believed them to be.” (Emphases added.) And the Criminal

    2
      ORS 161.405(2) was amended in 2019 to reflect degrees of murder but
otherwise reads as it did when it was first added to the criminal code in 1971. See
Or Laws 2019, ch 635, § 15a.
860                                          State v. Hubbell

Code Commentary explains that the section that became
ORS 161.405 “deals with two of the major problems arising
out of the crime of attempt—what intent is required for the
crime of attempt and at what point is the attempt criminal,
i.e., when does mere preparation cease.” Commentary § 54
at 51 (emphasis added). See also id. at § 54 at 52 (explaining
that existing provisions of the law had dealt “generally with
the crime of attempt but are very sketchy on the elements of
the offense”).
         What is equally plain from the text and context of
ORS 161.405 is that the inchoate crime of attempt—like the
crimes of solicitation, ORS 161.435, and conspiracy, ORS
161.450—was intended to be separate from, and less serious
than, the underlying crime. See ORS 161.405(2) (providing
for classification of the attempted crime based on the principal crime); ORS 161.485(3) (“A person shall not be convicted
on the basis of the same course of conduct of both the actual
commission of an offense and an attempt to commit that
offense or solicitation of that offense or conspiracy to commit
that offense.”); accord State v. Kimbrough, 

, 

 (2018) (“attempt,” as described in ORS 161.405, is
an “inchoate” offense because it “may result in a conviction
even when no substantive crime has been completed”). As
the Commentary states, “One notable change worked by the
draft section is that it eliminates as an element of the crime
of attempt that the attempt must be unsuccessful. [ORS
161.485] deals with the situation where the state seeks conviction on both the inchoate and the principal offense by prohibiting conviction for both.” Commentary § 54 at 52.
         Considering the structure of the criminal code,
which carefully delineates between an inchoate and completed crime, there is no plausible argument supporting the
idea that the legislature intended ORS 161.405 to provide
a generic definition of attempt that would create a “crime
within a crime” in other statutes that use the word “attempt,”
thereby eviscerating the very distinction that the 1971 code
intended to create when it spelled out the elements of the
inchoate crime of attempt and separated the conviction and
punishment of attempted, versus completed, offenses. Boyd
was plainly wrong in making the leap to ORS 161.405 as a
generally applicable definition of “attempted.”
Cite as 

 (2021)                            861

          In fact, the state does not appear to defend that
aspect of Boyd—that is, the state does not argue that ORS
161.405 can be directly imported as the applicable definition for the word “attempted” in ORS 475.005(8) by operation
of ORS 161.035(2). Instead, the state offers a subtly different explanation for why Boyd nevertheless correctly relied
on the “substantial step” test. According to the state, the
1977 legislature that enacted ORS 475.005(8) would have
been aware that “attempt” was a term of art in the law.
And, when it used the phrase “attempted transfer” in ORS
475.005(8), it had in mind the meaning of “attempt” that the
legislature had used when it enacted the criminal code just
six years earlier. According to the state, “[c]onsidering that
the term ‘attempt’ had a well-understood meaning, ushered
in by a significant change of Oregon’s legal landscape in the
area of criminal law, the legislature would have intended
‘attempted transfers’ to be consistent with the recently
enacted definition of attempt contained in ORS 161.405(1).”
         To the extent the state is attempting to salvage
Boyd by recasting its rationale, we decline that escape route.
Boyd did not hold that the meaning of “attempt” was merely
informed by or “consistent with” the meaning of “attempt”
in ORS 161.405, nor did we purport to adapt that definition to “attempted transfer” in a way that would avoid conflating the completed and inchoate crimes of delivery. What
we expressly held in Boyd was that an “attempted” transfer could be proved by “evidence that [the defendant] had
taken a substantial step toward the commission of the crime
of delivery of a controlled substance.” Boyd, 

(emphasis added). As we later held in State v. Fulmer, 

, 

 (1991), under Boyd, “[a]n attempt
to deliver, therefore, constitutes the same crime as a completed transfer.”
         To the extent that the state is offering a different
path to Boyd’s same holding, it still suffers from the same
basic flaw as Boyd’s approach, in that it equates the word
“attempted” and the crime of “attempt.” ORS 161.405(1) does
not define what it means for an act to have been “attempted,”
nor does it establish the meaning as a term of art beyond
the context of an inchoate offense. As explained above, the
meaning of attempt adopted in the 1971 criminal code was
862                                                         State v. Hubbell

specific to the context of the inchoate crime of attempt, and
it focused on whether the defendant’s conduct had advanced
past the stage of “mere preparation” and constituted a substantial step toward committing the crime. And it is in
that specific context that we have observed that the word
“attempt” can carry with it the well-established meaning in
ORS 161.405. See State v. House, 

, 

 (1978) (explaining, in the context of the use of the
word “attempt” in a charging instrument, that “ ‘[a]ttempt’
is a statutory word of art” that carries the meaning in ORS
161.405(1) for the inchoate offense).3
         There is no reason to believe that, when using the
phrase “attempted transfer,” the legislature understood the
word “attempted” to import the full meaning of the inchoate crime of attempt under ORS 161.405. If anything, the
“significant change” that was ushered in by the 1971 revisions to the crime of attempt suggests the opposite: Having
recently delineated clearly between the inchoate and completed crimes, why would the legislature have intended to
frustrate that newly established framework by defining
“attempted transfer” in a way that effectively merges the
two in the way that Boyd did?
         The state’s only answer to that question relies, like
Boyd, on sheer speculation about why Oregon did not include
“possession with intent to manufacture or deliver” in its
controlled substances statutes. The state acknowledges that
the legislative history of ORS 475.005(8) does not contain
any discussion of what constitutes an “attempted transfer,”
but it hypothesizes, as Boyd did, that the legislature understood that term to accomplish indirectly the same thing that
expressly criminalizing “possession with intent to deliver”
would have done directly. The state argues:

    3
      See also Merriam-Webster’s Unabridged Dictionary, https://unabridged.
merriamwebster.com/unabridged/attempted, last accessed Sept 23, 2021 (defining the adjective “attempted” as “characterized by an intent to commit and effort
taken to commit a specified crime that fails or is prevented <He was sentenced
to ten years in prison for attempted murder.> <an attempted armed robbery.>”
(Emphasis added.)); Black’s Law Dictionary 127 (6th ed 1990) (describing the different formulations of the inchoate crime of “attempt,” including “(c) purposely
does or omits to do anything which, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime”).
Cite as 

 (2021)                                 863

   “[T]here would be no reason to make possession with intent
   to deliver a separate crime since such evidence would be
   sufficient to constitute an ‘attempted transfer’ if ‘attempt’
   was given the meaning it has under ORS 161.405. Thus,
   the fact that the legislature did not adopt the UCSA’s prohibition on possession with intent to deliver supports an
   interpretation of the word ‘attempted’ in the statutory
   definition of ‘delivery’ as having the same meaning as the
   inchoate offense of ‘attempt.’ ”

         Setting aside the fact that there is no textual or
contextual reason to believe that the legislature would
have understood ORS 161.405 to be a generally applicable
definition of what it means to attempt a particular act as
opposed to a crime (the assumption on which the state’s and
Boyd’s reading depends), it is a further stretch to assume
that the legislature would have chosen such an indirect
route to criminalizing possession with intent to deliver as a
completed offense. Again, that is not how Oregon’s criminal
code works for any other crimes. Under the circumstances,
legislative omission of a phrase from a model act is not itself
enough to persuade us that ORS 475.005(8) was the place
that the legislature chose to effectively eliminate the generally applicable distinction between attempted and completed
crimes.
          To the contrary, as defendant points out, the legislature’s omission and variance from the UCSA is more indicative of a conscious policy decision not to criminalize “possess
with intent to manufacture or deliver” as part of the completed crime of delivery. The legislative history from 1977
does not explain exactly why the phrase “possess with intent
to manufacture or deliver” was not included in Oregon’s
version, but it does reflect that the differences between the
UCSA and Oregon’s version were “based upon the collective
policy judgment of the subcommittee and the bill’s sponsors.” Exhibit 3, Senate Committee on Judiciary, SB 904,
Apr 7, 1977 (stating that SB 904 “retains the basic control
mechanisms of the UCSA, but incorporates many of the
unique features of existing Oregon law and further modifies the UCSA based upon the collective judgment of the
subcommittee and the bill’s sponsors”). Normally, we would
not hesitate to give effect to that type of conscious departure
864                                                         State v. Hubbell

from a model act. E.g., State v. Carpenter, 

,

 (2019) (describing conscious choice to depart
from a model act). But, rather than give effect to the legislative choice to omit the phrase “possess with intent to manufacture or deliver,” Boyd adopted an implausible meaning of
“attempt,” reinserted what the legislature had omitted, and
thereby grafted a corrupted branch onto what otherwise,
potentially, could have been a healthy tree. See Comcast
Corp. v. Dept. of Rev., 

, 

 (2018)
(rejecting proposed interpretation that “would require this
court to insert” wording that the legislature chose not to
include); see also ORS 174.010 (courts are to “ascertain and
declare what is, in terms or in substance, contained therein,
not to insert what has been omitted, or to omit what has
been inserted”).4
      3. Abandoning Boyd
        With those deep analytical flaws in mind, we briefly
address the state’s contention that “a factor that heavily
weighs against overruling Boyd as plainly wrong is the
fact that Boyd is well-established in Oregon.” The state
explains that, “[i]n Oregon, trial courts and litigants have
relied on Boyd’s understanding of an ‘attempted delivery’
of controlled substances for over 30 years” and that “this
court has repeatedly affirmed, or recognized, Boyd’s holding about what attempted delivery means; moreover, despite
having opportunity to do so, the Oregon Supreme Court has
never weighed in on—much less overruled—Boyd.”
        All that is true, but it is not a reason to perpetuate
what was then—and is now—a plainly incorrect reading of
the statute. The effect of Boyd was to create a completed
delivery crime on a theory that the legislature did not contemplate and, in fact, appears to have consciously omitted
from the completed crime of delivery: possession with intent

    4
      It is also worth noting that ORS 475.752(1) makes it “unlawful for any person to manufacture or deliver” a controlled substance. (Emphasis added.) The
textual difference between Oregon’s statutes and the UCSA is not limited to “possession with intent to deliver”; the USCA also separately criminalizes possession
with intent to manufacture. If the legislature intended the roundabout method of
criminalizing “possession with intent to deliver,” it is not clear why it would have
omitted possession with intent to manufacture. The state offers no explanation
for why the legislature would have silently addressed one but not the other.
Cite as 

 (2021)                           865

to deliver. Depending on the controlled substance and the
circumstances of the offense, the difference between the
completed crime of delivery and an attempted crime of delivery can be the difference between a felony conviction and a
misdemeanor. See ORS 161.405(2)(d) (an attempt is a Class A
misdemeanor if the offense attempted is a Class C felony or
unclassified felony); ORS 475.752(1)(c) (making delivery of a
controlled substance in Schedule III a Class C felony, except
as otherwise provided in ORS 475.904 and 475.906). But in
every case, under the sentencing guidelines, the difference
between the completed offense and an inchoate offense is
two crime seriousness categories, which can have profound
effects on sentencing outcomes. See ORS 161.405(2) (crime
classifications for the inchoate crime of attempt); OAR 213-
004-0005 (“(1) A conviction for an attempted crime shall be
ranked on the Crime Seriousness Scale at two crime categories below the appropriate category for the completed crime.
A sentence imposed for an attempted crime shall not exceed
the maximum sentence permitted for such criminal conduct
under ORS 161.405.”).

         We note that, despite numerous Oregon statutes
using the word “attempt,” we can find no other instance
where we have defined that term by reference to the inchoate crime. Boyd creates unnecessary uncertainty for the
legislature—how exactly will we interpret the legislature’s
use of the term “attempt” within a statute? What’s more,
we surveyed various statutes and case law interpretations
of other jurisdictions and could find not a single example—
not one—where either a legislature or the courts interpreted the word “attempt” within a substantive statute to
mean the inchoate crime of attempt as contained in the relevant statutory code. Boyd is thus a complete aberration—
out of place within Oregon jurisprudence, and out of place
nationally.

         The real-world consequences of Boyd are especially
stark. Under Boyd, a first-time offender, one with no criminal record, convicted of the completed crimes of unlawful
delivery of a controlled substance within 1,000 feet of a
school, ORS 475.900(1)(c), or unlawful delivery of controlled
substance (substantial quantity), ORS 475.900(1)(a), would
866                                                        State v. Hubbell

be classified as an 8-I on the sentencing grid, which carries
a presumptive prison term of 16 to 18 months, unless certain findings can be made pursuant to OAR 213-005-0006.
However, by construing “attempted transfer” so as to give
effect to the legislative intent to create the inchoate crime
of attempt, both of those inchoate crimes would be a crime
seriousness of 6-I, reflecting the legislative intent of presumptive probation as opposed to incarceration.
          Boyd has also had immigration ramifications. Under

(a)(43)(B), an “aggravated felony” includes
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime
(as defined in section 924(c) of Title 18).” Whereas a conviction for any drug offense can make a person deportable, an
“aggravated felony” is an absolute bar to relief like asylum
and results in cancellation for lawful permanent residents.
Over the years, the United States government has contended at times that a conviction on a Boyd theory is an
aggravated felony. E.g., Sandoval v. Sessions, 

 (9th Cir 2017) (involving removal proceedings based on
a 1998 conviction for delivery of heroin that the government
contended was an aggravated felony).5
          Moreover, were we to retain Boyd’s erroneous reading of the statute, we ask ourselves whether we risk perpetuating a construction that would not only be wrong and
unjust, but one whose effects may be disproportionately borne
along racial and ethnic lines. Some communities have been
overrepresented in arrests and convictions for drug offenses
in Oregon. See Criminal Justice Commission, Update to
Possession of Controlled Substances Report, December 2019
(showing statistical trends for racial and ethnic disparities
in controlled substances arrests and convictions between
2013 and 2019); see also State v. Arreola-Botello, 

,
713 n 9, 

 (2019) (noting amicus materials in that
case presenting “significant statistical data to illustrate
the disparate treatment of black and Hispanic motorists
during the course of traffic stops, showing specifically that
    5
      We acknowledge that federal immigration consequences of state law convictions are questions of federal policy, and that nothing prohibits Congress from
attaching immigration consequences to any particular state law crime, including, should it desire, a conviction under a Boyd theory.
Cite as 

 (2021)                                                  867

nationwide, and in Oregon, people of color are statistically
more likely to be searched during traffic stops than their
white counterparts”). These disparities raise a serious question about the delivery of equal justice in Oregon. If those
disparities have permeated delivery cases prosecuted under
a Boyd theory, has the brunt of our mistake in elevating
attempted delivery to completed delivery been borne, disproportionately, by Oregonians of color?
          Given the dramatic effects that our incorrect interpretation of “attempted transfer” can have in the lives of
individuals and families, not to mention the additional
financial cost to Oregon from incarcerating people beyond
what was contemplated by the legislature, we see no prudential reason to adhere to our plainly wrong decision in
Boyd simply because it is settled law. Nor, in these circumstances, do we find subsequent inaction by the legislature
or our Supreme Court to be a particularly compelling justification to adhere to Boyd. There are many reasons our
legislature6 and Supreme Court7 might not take up particular issues or weigh in on the correctness of our decisions. Whatever the reason they have not disturbed it,
Boyd was our mistake, and it is one that we can and should
fix.
        For all of these reasons, we overrule Boyd and will
instead interpret “attempted” in accordance with our ordinary approach to statutory construction.8

     6
       See Mowry, 

 (explaining that the theory of “legislative acquiescence” is a “legal fiction that assumes, usually without foundation in any particular case, that legislative silence is meant to carry a particular meaning—as
relevant here, affirmation of the judicial decision at issue”; whereas, “[i]n reality, the legislature may decline to address a judicial decision for any number of
reasons, none of which necessarily constitutes an endorsement of the decision’s
reasoning or result”).
     7
       See State v. Villagomez, 

, 

 (2018) (“In this case,
the parties do not dispute the definition of ‘delivery’ or that Boyd permits conviction for unlawful delivery on proof of possession of a large amount of drugs
with the intent to sell them.”); 

 at 392 n 1 (“In this case, defendant does not
challenge the sufficiency of the evidence that the state adduced to support his
conviction for delivery under ORS 475.890.”).
     8
       Because this opinion overrules our existing precedent, the panel specifically advised all members of the court of the effect of its decision, but neither the
chief judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.
868                                            State v. Hubbell

      4. The meaning of “attempted transfer”
         To this point, we have discussed what “attempted
transfer” is not; it is not an embedded inchoate crime of
delivery, as Boyd reasoned. But that leaves the question of
what an “attempted transfer” is. To answer that question,
we apply our usual methodology for statutory construction,
looking to the text and context of ORS 475.005(8), and to any
pertinent legislative history. State v. Gaines, 

, 

 (2009).
          We start with the text. ORS 475.005(8) provides
that “ ‘[d]eliver’ 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.” (Emphasis
added.) In the absence of a statutory definition, we ordinarily
look to the plain meaning of the statute’s text to determine
what particular terms mean. Zweizig v. Rote, 

,

 (2021). To determine a term’s plain meaning,
“we typically consult dictionaries to determine what the legislature would have understood a term to mean.” 

 And,
“[w]hen a term is a legal one, we look to its established legal
meaning as revealed by, for starters at least, legal dictionaries.” 

          Contextually, the adjective “attempted” modifies a
specific act that is part of the crime, as opposed to the crime
itself: The word “attempted” modifies “transfer,” which is not
synonymous with the crime of delivery of a controlled substance (despite what Boyd may have said). The noun “transfer,” in the context of property, means “the conveyance of
right, title, or interest in either real or personal property
from one person to another by sale, gift, or other process,”
or the “the removal or acquisition of property by mere delivery with intent of the parties involved to transfer the title.”
Webster’s at 2427. More generally, it can refer to an act of
“transferring,” that is, “caus[ing] to pass from one person or
thing to another,” or “carry[ing] or tak[ing] from one person
or place to another : transport[ing].” Webster’s at 2427 (defining the verb “transfer”); see also Black’s Law Dictionary
1497 (6th ed 1990) (defining “transfer” to include “[t]he sale
and every other method, direct or indirect, of disposing of or
Cite as 

 (2021)                                                 869

parting with property or with an interest therein”); accord
State v. Frederickson, 

, 

(1988) (“The legislature has defined ‘delivery’ the way it is
commonly understood: as a ‘transfer … from one person
to another.’ ‘Transfer’ is not defined by statute. It means,
among other things, ‘give,’ ‘yield possession or control of,’ or
‘send.’ Webster’s Third New Int’l Dictionary 597.” (Quoting
the definition of “deliver” rather than “transfer”)).
         Read in the context of modifying the word “transfer,”
the apt meaning of “attempted” is an unsuccessful effort to
accomplish the particular act of transferring, not a “substantial step” toward the crime of delivery more broadly. Webster’s
captures that ordinary meaning of an “attempt.” It defines
the transitive verb as “1 : to make an effort to do, accomplish,
solve, or effect <~ to swim> <~ a problem>—often used in
venturous or experimental situations sometimes with implications of failure.” Webster’s at 140. The noun “attempt” is
similarly defined as “1 : the act of attempting : essay, trial,
endeavor, undertaking; esp : an unsuccessful effort.” Id.9

         Read together, the words “attempted transfer” appear
to describe an unsuccessful effort to cause the controlled
substances to pass from one person to another. The surrounding context bolsters that reading. Delivery also
includes an “actual” and “constructive” transfer. The relevant meaning of “actual” is “existing in fact or reality : really
acted or acting or carried out—contrasted with ideal and
hypothetical,” or “in existence or taking place at the time
: present, current <caught in the ~ commission of the crime>.”
Webster’s at 22. The adjective “constructive” means “derived
from or depending on construction or interpretation : not
directly expressed : inferred —often used in law of an act or
condition assumed from other acts or conditions which are
considered by inference or by public policy as amounting to
or involving the act or condition assumed.” Webster’s at 489.
We presume that each of those types of transfers refers to
something different: an actual, i.e., successful or completed
transfer; a constructive, i.e., inferred or presumed transfer
     9
       Accord Black’s Law Dictionary at 127 (“In statutes and in cases other than
criminal prosecutions, an ‘attempt’ ordinarily means an intent combined with an
act falling short of the thing intended. It may be described as an endeavor to do an
act, carried beyond mere preparation, but short of execution.” (Emphases added.)).
870                                                         State v. Hubbell

based on the circumstances;10 and an attempted, i.e., unsuccessful or incomplete transfer. See Dept. of Transportation
v. Stallcup, 

, 

 (2006) (when the legislature uses different terms in a statute, it likely intended
them to have different meanings).

         As additional context, “attempted transfer” is
preceded by the definite article “the.” As we explained in
O’Hare, “[t]he use of the singular determinative ‘the’ indicates that the legislature intended to criminalize particular singular acts of actually, constructively, or attempting
to transfer controlled substances and, more to the point,
intended to require the state to prove the existence of a
particular actual, constructive, or attempted transfer.” 

. The statute further requires the transfer
to be “from one person to another.” ORS 475.005(8). Both
of those textual features—the definite article and specifically identifying the nature of the transfer from one person
to another—indicate that an “attempted transfer” refers
to a particular act of transferring, not possession with a
more generalized intent to deal the drugs at some undetermined point in the future. Accord O’Hare, 

 (“The legislature has not enacted a statute criminalizing the status of being or having been a drug dealer;
it has enacted statutes criminalizing the particular conduct that might be said to make a person a drug dealer.”
(Emphasis added.)).

         And, as much of the preceding discussion suggests, reading “attempted” to refer to an incomplete or
unsuccessful transfer is more consonant with the broader
structure of Oregon’s criminal code, in that it preserves the
inchoate offense for delivery of a controlled substance. 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 has merely taken

    10
       Accord Black’s Law Dictionary at 314 (defining a “constructive transfer”
as “[a] transfer of an item (e.g., a controlled substance), either belonging to an
individual or under the individual’s control, by some other person or agency at
the insistence or direction of the individual accused of such constructive transfer.
Henderson v. State, Tex App 14 Dist., 

, 174”).
Cite as 

 (2021)                             871

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.
B.   Sufficiency of the Evidence
         With that revised understanding of what constitutes
an “attempted” transfer of drugs under ORS 475.005(8), we
turn to whether the state produced sufficient evidence in
this case to support a conviction for the completed crime of
delivery of a controlled substance. In their supplemental
briefing, both parties advanced arguments as to how they
should prevail in this case under the ordinary meaning of
the words “attempted transfer,” in the event that we were to
overrule Boyd. According to defendant, the state’s evidence
falls far short of showing an “attempted transfer” because,
among other things, there was no identifiable recipient of
the drugs; defendant was in jail, “making it almost impossible for him to orchestrate a transfer”; and there was no
“impending transaction, or even the means or a plan for
that to occur.” The state, on the other hand, argues that “the
facts of this case would satisfy that [plain-meaning] standard even if not all so-called Boyd deliveries would,” because
the evidence showed that “defendant possessed an exceedingly large amount of fentanyl, separately packaged, constituting hundreds of thousands of individual doses of the
drug. The act of amassing that much fentanyl and putting
the drug in separate packaging constitutes making some
effort to accomplish a transfer.”
         The facts of this case highlight the difference
between Boyd’s focus on a substantial step toward the crime
of delivery and the ordinary meaning of “attempted,” which
modifies the act of transfer rather than the crime of delivery.
The state’s evidence gave rise to an inference that defendant acquired and possessed an exceptionally large amount
of fentanyl for the purpose of dealing. As the state points
out, it was not an amount consistent with personal use;
rather, a jury could reasonably infer on this record that it
was enough for hundreds of thousands of individual doses of
the drug. That amount, along with separate packaging for
smaller doses, gives rise to an inference that the drugs were
872                                            State v. Hubbell

acquired and possessed for future transfer, notwithstanding
defendant’s statements to the contrary.
         And, if the question before us were whether a trier of
fact could find that defendant had taken a “substantial step”
toward the crime of delivery, we would agree with the state
that it had presented sufficient evidence to prove its case.
An “attempt” under ORS 161.405(1) requires an act that is
“strongly corroborative of the actor’s criminal purpose” such
that it “(1) advance[s] the criminal purpose charged and
(2) provide[s] some verification of the existence of that purpose.” State v. Walters, 

, 

, cert
den, 

 (1991). The state’s evidence of the amount
and circumstances in which the fentanyl was found would
support a finding that they strongly corroborate a purpose
of dealing drugs, advance that purpose, and provide verification of the purpose.
         But, as explained above, an “attempted” transfer
requires more than evidence of a substantial step toward
the crime of delivery as a whole. To prove an “attempted”
transfer, the state’s evidence must give rise to an inference
that defendant made some effort to cause the controlled
substances to pass from one person to another. It is not
sufficient for the state to show the defendant’s purpose in
acquiring drugs; it must also prove the element of a transfer,
either actual, constructive, or attempted. A defendant’s possession, even in anticipation of transfer or with the intent
to later transfer them, is not the same as the transfer itself.
We therefore agree with defendant that, under a correct
interpretation of ORS 475.005(8), the state’s evidence was
not legally sufficient to support a conviction for the crime of
delivery of a controlled substance, because the state failed to
show an actual, constructive, or attempted transfer.
C. Disposition
          The remaining question is the appropriate disposition in light of our conclusion that the state’s evidence was
legally insufficient to support a conviction for a completed
delivery offense. Generally, the attempt to commit a crime
is a lesser-included offense of the crime itself, see, e.g., State
v. Odnorozhenko, 

, 

 (2008),
and “ ‘[i]n all cases, the defendant may be found guilty of
Cite as 

 (2021)                                             873

any crime the commission of which is necessarily included
in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime.’ ”
State v. Cruz-Gonzelez, 

, 

,
rev den, 

 (2013) (quoting ORS 136.465). And, as
we explained in State v. Madison, 

,

 (2020), “[w]e have authority under the Oregon
Constitution to direct entry of a lesser-included offense that
we determine should have been entered by the trial court.”
         This case is unique in that, because of Boyd, defendant was essentially tried and found guilty of an attempt
crime that had been erroneously elevated to a completed
offense. As discussed above, we agree with the state that
its evidence was legally sufficient to support a finding of a
substantial step toward the completed crime of delivery of
a controlled substance. We therefore reverse and remand
for entry of a conviction for the lesser-included crime of
attempted delivery of a controlled substance, which is the
offense that defendant should have been convicted of committing rather than the completed crime.11
        Conviction for delivery of a controlled substance
reversed and remanded for entry of a conviction for
attempted delivery of a controlled substance; remanded for
resentencing; otherwise affirmed.




    11
       Our disposition is not intended to foreclose any merger issues that might
arise on remand.