319 ORAPP 415 - State v. Lisle

                                   415

  Submitted March 28; convictions on Counts 1 and 3 for delivery of heroin
   and methamphetamine reversed and remanded for entry of convictions
   for attempted delivery of heroin and methamphetamine, remanded for
              resentencing, otherwise affirmed April 27, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 JEREMY EDWARD LISLE,
                    Defendant-Appellant.
               Washington County Circuit Court
                    20CR45294; A174530

509 P3d 191

Ricardo J. Menchaca, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Convictions on Counts 1 and 3 for delivery of heroin and
methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.
416 State v. Lisle

PER CURIAM
Defendant appeals his convictions after a bench
trial of unlawful delivery of heroin, ORS 475.850 (Count 1);
unlawful possession of heroin, ORS 475.854 (Count 2); unlawful delivery of methamphetamine, ORS 475.870 (Count 3);
unlawful possession of methamphetamine, ORS 475.874
(Count 4); and felon in possession of a firearm, ORS 166.270
(Count 5). The court merged the verdicts on Counts 1 and 2
and Counts 3 and 4.
We reject without discussion defendant’s first assignment of error, in which he contends that a warrant for a
police search of his hotel room was not supported by probable cause.
In his second assignment, defendant contends that
the trial court erred in denying his motion for a judgment of
acquittal on the delivery counts, because they were based on
a theory of delivery under State v. Boyd,

92 Or App 51

756 P2d 1276

, rev den,

307 Or 77

 (1988)—that defendant took a
substantial step toward a completed delivery—that we have
recently rejected in State v. Hubbell,

314 Or App 844

500 P3d 728

 (2021) , rev allowed,

369 Or 504

 (2022). Defendant’s
trial occurred before we decided Hubbell, in which we overruled Boyd and held that an “attempted transfer” as used
in the definition of “delivery,” ORS 475.005(8), 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. Hubbell,

314 Or App at 870

.
         The state concedes error under Hubbell. We agree
and accept the state’s concession. As in Hubbell, the evidence here was legally sufficient to support a finding of a
substantial step toward the completed crime of delivery of a
controlled substance. We therefore reverse the delivery convictions on Counts 1 and 3 and remand for entry of convictions for the lesser-included crimes of attempted delivery of
heroin and methamphetamine.
         Convictions on Counts 1 and 3 for delivery of heroin
and methamphetamine reversed and remanded for entry of
convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.