State v. Christopher

                                  550

   Argued and submitted January 24; conviction on Count 1 reversed and
              remanded, otherwise affirmed March 23, 2022


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
            STEVE GARLAND CHRISTOPHER,
                   Defendant-Appellant.
               Jackson County Circuit Court
                   18CR30479; A170065
                              

  Lisa C. Greif, 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.
   E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
  PER CURIAM
   Conviction on Count 1 reversed and remanded; otherwise
affirmed.
Cite as 

 (2022)                                               551

           PER CURIAM
         Defendant was tried to a jury and was convicted
of unlawful delivery of methamphetamine, ORS 475.890
(Count 1).1 He raises four assignments of error that concern
jury polling, acceptance of the verdict, and jury instructions,
all of which relate to jury unanimity. In addition, defendant
raises in a supplemental brief four assignments of error
related to whether the trial court plainly erred in various
ways as to what constitutes “delivery” for purposes of ORS
475.890. We agree with defendant on his second supplemental assignment of error, which the state also concedes, and
we therefore reverse and remand for a new trial on Count 1.
We reject without discussion defendant’s first supplemental assignment of error, a plain-error challenge to the sufficiency of the evidence. And given our disposition on the
second supplemental assignment of error, we need not reach
defendant’s other assignments.
         At defendant’s trial, the prosecutor argued, and
the jury was instructed on, the “Boyd” theory of delivery,
by which an inchoate attempted delivery was sufficient to
constitute “delivery” under ORS 475.890. Defendant’s trial
occurred before we decided State v. Hubbell, 

, 

 (2021), which overruled State v. Boyd, 

, 

, rev den, 

 (1988), and
concluded that an attempted delivery under the controlled
substances statutes does not include an inchoate attempt;
rather, it means a delivery that was unsuccessful or incomplete. Hubbell, 

; see also State v. Fischer,

, 

 (2021) (“ ‘[A]n attempted
transfer’ is an incomplete or unsuccessful effort to cause the
controlled substances to pass from one person to another.”).
Because the jury could have relied on the Boyd theory, and,
because we apply the law that is in effect at the time of the
appeal, we agree that the error is plain. State v. Jury, 

, 

 (2002), rev den, 

 (2003)

    1
      Defendant was also charged in Count 2 with unlawful possession of methamphetamine, ORS 475.894(2)(b) (2018), amended by Or Laws 2021, ch 2, § 17
(Ballot Measure 110 (2020)), amended by Or Laws 2021, ch 591, § 39, and was
acquitted by the jury. In addition, Count 3, criminal forfeiture, ORS 131.582, was
tried to the court, which found that the state had proven that charge. Defendant
does not challenge the criminal forfeiture on appeal.
552                                      State v. Christopher

(whether error is apparent “must be determined by reference to the law as of the time the appeal is decided”). We
therefore accept the state’s concession and exercise our discretion to correct the error for the reasons expressed in Jury.
Id. at 139-40 (failure to raise the issue was justified because
existing authority was to the contrary, and raising it would
have been futile; correction serves the ends of justice; and
the error was not harmless). We reverse and remand for a
new trial on Count 1.
        Conviction on Count 1 reversed and remanded;
otherwise affirmed.