319 Or. App. 417 - State v. Gonzalez

                                   417

  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.
                    JULIO GONZALEZ,
                    Defendant-Appellant.
               Washington County Circuit Court
                    20CR32663; A174555

509 P3d 190



  Oscar Garcia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, 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.
418                                          State v. Gonzalez

        PER CURIAM
         Defendant was convicted in a bench trial of delivery of heroin, ORS 475.850 (Count 1); possession of heroin,
ORS 475.854 (Count 2); delivery of methamphetamine, ORS
475.890(2) (Count 3); and possession of methamphetamine,
ORS 475.894 (Count 4). The state’s theory of delivery at trial
was based on State v. Boyd,

92 Or App 51

756 P2d 1276

,
rev den,

307 Or 77

 (1988)—possession with intent to deliver.
         In his single assignment of error, defendant contends
that the trial court erred in denying his motion for judgment
of acquittal on the delivery charges. After the filing of defendant’s brief, we decided State v. Hubbell,

314 Or App 844

500 P3d 728

 (2021), rev allowed,

369 Or 504

 (2022), 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. We agree and accept the
state’s concession. As in Hubbell, we conclude that the evidence here was legally sufficient to support a finding of a
substantial step toward the completed crimes of delivery
of heroin and methamphetamine. 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.