State v. Carr

                                      684

   Submitted December 2, 2021; convictions on Counts 1, 2, 3, 4, 6, and 13 and
  verdict on firearm-enhancement element of Count 5 reversed and remanded;
 convictions on Counts 19 and 21 reversed and remanded for entry of judgment
of conviction for attempted delivery on each count, without the commercial drug
      offense enhancement; remanded for resentencing; otherwise affirmed
                                  May 18, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    ELLIOT SATORU CARR,
                     aka Elliot Satour Carr,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR61080; A173744
                                   

     Defendant appeals a judgment of conviction for various criminal offenses,
challenging, in his opening brief, the trial court’s nonunanimous verdict instructions and its acceptance of nonunanimous verdicts on some counts. In supplemental briefing, defendant also asserts that the trial court plainly erred in entering
convictions for unlawful delivery of methamphetamine and unlawful delivery
of heroin and in classifying those offenses as commercial drug offenses for sentencing enhancement purposes. Held: The trial court erred in giving a nonunanimous jury instruction and in receiving nonunanimous verdicts on Counts 1 to 4,
the firearm-enhancement element alleged in Count 5, and the guilty verdicts on
Counts 6 and 13, where the jury did not unanimously agree on whether defendant
personally committed those offenses or aided and abetted in their commission.
In light of State v. Hubbell, 

, 

 (2021), rev allowed, 

 (2022), decided after trial in this case, the trial court plainly erred in
entering convictions for the completed delivery crimes alleged in Counts 19 and
21, requiring, on this record, entry of judgment for attempted delivery on those
counts. Finally, the state’s evidence was insufficient to prove the “for consideration” factor necessary to classify Counts 19 and 21 as commercial drug offenses
and the trial court plainly erred in concluding otherwise.
    Convictions on Counts 1, 2, 3, 4, 6, and 13 and verdict on firearm-enhancement
element of Count 5 reversed and remanded; convictions on Counts 19 and 21
reversed and remanded for entry of judgment of conviction for attempted delivery
on each count, without the commercial drug offense enhancement; remanded for
resentencing; otherwise affirmed.



    Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Cite as 

 (2022)                         685

   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Mooney, Presiding Judge, and Lagesen, Chief
Judge, and DeVore, Senior Judge.
  DeVORE, S. J.
   Convictions on Counts 1, 2, 3, 4, 6, and 13 and verdict on firearm-enhancement element of Count 5 reversed
and remanded; convictions on Counts 19 and 21 reversed
and remanded for entry of judgment of conviction for
attempted delivery on each count, without the commercial
drug offense enhancement; remanded for resentencing;
otherwise affirmed.
686                                                             State v. Carr

           DeVORE, S. J.
         Defendant was found guilty by a jury of 22 criminal
offenses.1 He appeals the resulting judgment of conviction. In
his opening brief, defendant raises four assignments of error
challenging the trial court’s nonunanimous verdict instructions and the court’s acceptance of nonunanimous verdicts
on some counts. In supplemental briefing, he asserts four
additional assignments alleging plain error with respect to
his convictions for unlawful delivery of methamphetamine
and heroin (both alleged as commercial drug offenses). As
explained below, with respect to the nonunanimous jury
issues, we reverse and remand defendant’s convictions on
Counts 1, 2, 3, 4, 6, and 13, as well as the jury’s verdict on
the firearm-enhancement element of Count 5. As to defendant’s challenge to the delivery convictions, Counts 19 and
21, we reverse and remand for entry of convictions on those
charges for attempted delivery, without the commercial
drug offense enhancement. We also remand for resentencing. Otherwise, we affirm.
         A detailed recitation of the facts would not benefit
the bench, bar, or public; we set out the facts that are necessary to our analysis of each of the issues in the discussion
that follows.
         Nonunanimous Jury Issues. At trial, defendant
requested an instruction to the jury that a guilty verdict
must be reached by unanimous vote. The trial court instead
instructed the jury that “ten or more jurors must agree on
each of your verdicts.” The court also instructed the jury
that, “[i]n order to find defendant guilty of any charges
alleged … in Count 6, 7, 8, 9, 10, 11, 13, 15, 16, 19 and
21, then at least ten or more jurors must agree on whether
the defendant personally committed the crime or whether

     1
       Those offenses were as follows: unlawful use of a weapon, with a firearm
(Counts 1 and 3); menacing (Counts 2 and 4); felon in possession of a firearm, with
a firearm (Count 5); aggravated first-degree theft (Count 6); aggravated identity
theft (Counts 7 to 11); identity theft (Counts 12 to 14); unauthorized use of a
vehicle (Counts 15 and 17); possession of a stolen motor vehicle (Counts 16 and
18); unlawful delivery of methamphetamine, commercial drug offense (Count 19);
unlawful possession of methamphetamine (Count 20); unlawful delivery of
heroin, commercial drug offense (Count 21); and unlawful possession of heroin
(Count 22).
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 (2022)                                              687

he was acting as an aider and abettor to another.” The jury
returned nonunanimous verdicts on Counts 1, 2, 3, and 4, and
with respect to the firearm-enhancement element alleged
on Count 5. See ORS 161.610(2) (use or threatened use of a
firearm by a defendant during the commission of a felony
may be pleaded and proved “as an element in aggravation of
the crime”; “[t]he unaggravated crime shall be considered a
lesser included offense”).2 Moreover, although the jury voted
unanimously to convict defendant on Count 6 (aggravated
first-degree theft) and Count 13 (identity theft), the jurors
were not unanimous as to the theory of liability on those
counts—that is, whether defendant personally committed
the offenses or aided and abetted the commission of the
offenses. Otherwise, the jury’s verdicts were unanimous.3
         In his opening brief on appeal, defendant argues
that the trial court erred in giving a nonunanimous jury
instruction and in receiving nonunanimous guilty verdicts on Counts 1 to 4, the firearm-enhancement element
alleged in Count 5, and the guilty verdicts on Counts 6 and
13, where the jury did not unanimously agree on the theory of liability. The state properly concedes that, in light of
Ramos v. Louisiana, 

, 

, 

 (2020) (holding that the Sixth Amendment requires
unanimous jury verdicts to convict for a serious offense), the
trial court erred in instructing the jury that it could return
nonunanimous verdicts and in accepting the nonunanimous
jury verdicts. We agree and accept the concession.
         That conclusion requires reversal of defendant’s
convictions on Counts 1 to 4, for which, as noted, the jury’s
verdicts were not unanimous. It also requires reversal of the
jury’s nonunanimous verdict on the firearm-enhancement
element of Count 5.4 See State v. Flores, 

,

    2
      Although ORS 161.610 has since been amended, see Or Laws 2019, ch 634, § 7,
because that amendment does not affect our analysis, we reference the current
version here.
    3
      The court merged the guilty verdicts for Counts 16 and 18 (possession of
a stolen motor vehicle) into, respectively, the convictions on Counts 15 and 17
(unauthorized use of a vehicle).
    4
      Although the judgment with respect to Count 5 does not reflect the firearm
enhancement, we nonetheless address the jury’s nonunanimous verdict on that
element to make clear that it may not be imposed on remand.
688                                                              State v. Carr

 (2013), rev den, 

 (2014) (adding the
use or threatened use of a firearm during the commission of
a felony to an offense, which ORS 161.610(2) expressly designates as an element, “creates a new crime, the aggravated
crime, which is separate from the ‘unaggravated crime’ ”).
         That brings us to defendant’s argument that his
convictions on Counts 6 and 13 must also be reversed and
remanded, because the jurors did not unanimously agree
on whether defendant personally committed the offenses
or aided and abetted in their commission. The state is in
accord. We agree with the parties.
         In State v. Pipkin, 

, 

(2013), the Supreme Court explained that
    “the requirement in Article I, section 11, of the Oregon
    Constitution that at least 10 jurors must concur ‘in a verdict of guilty or not guilty’ does not mean that those jurors
    have to agree only on an outcome. Rather it reflects the
    proposition that this court posited in [State v. Boots, 

, 

 (1989), cert den, 

 (1993),]
    and reiterated in [State v. King, 

, 

    (1993)]—to return a verdict of guilty, the jurors have to agree
    that the state has proved each legislatively defined element
    of a crime.”
(Emphasis added.) As relevant here, where ORS 161.155
(2)(b)5 is in play, that requirement means that the jurors
“ordinarily must agree whether a defendant committed a
crime him or herself or, alternatively, whether the defendant aided and abetted another person’s commission of that
crime.” State v. Phillips, 

, 

 (2013).
The court explained that
    “the elements necessary to prove liability as an aider and
    abettor ordinarily will not be coextensive with the elements
    necessary to prove liability as a principal. It follows that 10
    jurors usually will have to agree on the elements necessary
    to prove that a defendant is liable for aiding and abetting
    another person’s commission of a crime. Put differently, if

    5
       That statute provides that a person may be criminally liable for the criminal conduct of another person if the person, “[w]ith the intent to promote or facilitate the commission of the crime” “[a]ids or abets or agrees or attempts to aid or
abet such other person in planning or committing the crime[.]”
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 (2022)                                  689

   the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests
   an appropriate instruction, the trial court should instruct
   the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.”
Id. at 606 (citation and footnote omitted).
         Although Ramos has since established that the
Sixth Amendment requires jury unanimity to find a defendant guilty of a serious offense—thus displacing Article I,
section 11’s provision that only 10 jurors need concur in
the verdict—Pipkin and Phillips remain good law as to the
issues for which jury concurrence is required. See State v.
Rolfe, 

, 465 n 1, 

 (2020) (so noting in dictum); State v. Stowell, 

, 5 n 1, 

 (2020) (same).
        As a result, under Pipkin and Phillips, the jury was
required to agree whether defendant committed the crimes
himself or as an aider and abettor; under Ramos, that
agreement was required to be unanimous. The court erred
in instructing the jury to the contrary, and, because the
jury returned nonunanimous verdicts on that question on
Counts 6 and 13, the court also erred in accepting those verdicts. Accordingly, defendant’s convictions on those counts
must also be reversed and remanded.
         However, we reject defendant’s contention that all of
his convictions—including those counts on which the jury’s
verdict was unanimous—must be reversed because the
court’s instruction permitting a nonunanimous jury verdict
constitutes structural error and was not harmless; those
arguments are foreclosed by State v. Flores Ramos, 

, 

 (2020).
         Delivery Convictions. In supplemental briefing,
defendant first contends that, in light of our decision in State
v. Hubbell, 

, 

 (2021), rev allowed,

 (2022), which was decided after trial and initial
briefing in this case, the court plainly erred in entering convictions for unlawful delivery of methamphetamine, ORS
475.890 (Count 19), and unlawful delivery of heroin, ORS
690                                                              State v. 

.850 (Count 21).6 The state concedes the error and also
that it is appropriate for us to exercise our discretion to correct it. We agree with the parties.
         At trial, the state proceeded under an attemptedtransfer theory of delivery with respect to Counts 19 and 21.
See ORS 475.005(8) (defining, for purposes of ORS 475.890
and ORS 475.850, “[d]eliver” or “delivery” to mean “the
actual, constructive or attempted transfer … from one person to another of a controlled substance” (emphasis added)).7
In Hubbell, we held that an “attempted transfer” means
an “incomplete or unsuccessful transfer” of controlled substances, 

, that is, “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,” 

. In doing so, we overruled State v.
Boyd, 

, 

, rev den, 

 (1988)
(evidence of a “substantial step” toward a completed transfer sufficed to prove an “attempted transfer” under ORS
475.005(8)). Hubbell, 

.
         In this case, as the state concedes, “there was no
evidence that defendant tried to actually transfer drugs to
another person but was unsuccessful in doing so.” Thus,
under Hubbell, the state’s evidence is insufficient to prove
the completed delivery crimes in Counts 19 and 21, and the
trial court plainly erred in entering those convictions. See
State v. Jury, 

, 

 (2002) (we
determine plain error “by reference to the law existing as
of the time of the appellate decision”). And, we exercise our
discretion to correct the error, for the reasons expressed
in State v. Christopher, 

, 

(2022) (raising issue would have been futile because existing
law was to the contrary, correction serves the ends of justice,
and the error was not harmless).
    6
      Alternatively, defendant argues that the trial court’s instruction to the jury
on the definition of delivery, which included the statement, “[p]ossession with
intent to deliver constitutes delivery even when there’s no actual transfer shown,”
was plainly erroneous. Because, as explained below, we agree with the parties
that the evidence is insufficient to support convictions for completed delivery in
Counts 19 and 21, we need not reach that argument.
    7
      ORS 475.005 has been amended since the events giving rise to this case;
however, the meaning of “deliver” or “delivery” remains the same, so we refer to
the current version of the statute in this opinion.
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 (2022)                                             691

        The parties dispute, however, whether we may
remand for entry of convictions for the lesser-included inchoate crime of attempted delivery on those two counts, as we
did in Hubbell. See ORS 161.405(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.”); Hubbell, 

 (“[W]here a person has merely 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.”).
        The jury convicted defendant of Counts 19 and 21
based on the following evidence. On September 14, 2019,
police arrested defendant and his girlfriend, Kostov, and
searched their hotel room. In addition to methamphetamine
and heroin,8 the police discovered multiple scales, plastic
baggies used for (according to the detective who executed the
search warrant) “distributing different quantities of drugs,”
a box cutter, and other miscellaneous items associated with
drugs, such as pipes, needles, and a butane torch.
          Further, Kostov testified at trial that defendant
was engaged in selling heroin and methamphetamine “from
time to time.” She relayed that, in addition to their other
criminal activities (identity theft, other fraud crimes, and
car theft), she and defendant also sold drugs to their friends.
She testified that people knew that they kept a large quantity for themselves and “so if they needed some … we would
sell to them.” And, she stated, they had the materials for
doing that—scales and baggies for repackaging the drugs to
resell.
          Kostov testified that she kept regular journals,
which included detailed information about criminal activity
that she and defendant carried out together, for example,
lists of cars they had stolen, and things they wanted to do
in the future. She testified that the drugs found in the hotel

    8
      The detective executing the search warrant did not testify to the amount
of drugs recovered, nor does the state rely on the quantity of drugs found in
defendant’s possession to support its argument that entry of convictions for the
lesser-included attempt crimes is warranted on this record.
692                                              State v. Carr

room on September 14 were for her and defendant’s personal
use. But her journals included an entry dated September 14,
2019, in which she wrote, “[Defendant] to car to sell drill &
sell dope.” When asked what she meant by that, she testified, “I’m guessing that I meant that we had probably purchased a drill with a credit card and that he probably had
found someone online to sell it to and that he was probably
going to sell a bag of dope to someone.” As to how defendant would have accomplished the drug sale, Kostov stated,
“I don’t remember that particular instance, but I’m guessing he would have just taken some of our personal supply,
weighed it out and then taken it to him.”
          That evidence—that defendant possessed methamphetamine and heroin, that he would sometimes sell those
drugs out of the large quantities that he and Kostov kept
for their personal use, that he possessed scales and packaging materials to accomplish that resale, and that there was
an impending transaction—that is, on the date the drugs
were discovered, defendant was intending to sell drugs to
someone—gave rise to the inference that defendant had
“intentionally engage[d] in conduct which constitutes a substantial step toward commission of the crime” of delivery.
ORS 161.405(1) (defining attempt offense). In other words,
the evidence “strongly corroborate[s defendant’s] purpose of
dealing drugs, advance[s] that purpose, and provide[s] verification of the purpose.” Hubbell, 

. See State
v. Buell, 

, 

 (2022) (concluding likewise where defendant possessed an “extremely large
quantity” of methamphetamine, a scale, and an open box
of sandwich bags, and his cell phone reflected that, within
a month and a day respectively from when the drugs were
discovered in his possession, he had received two text messages asking about acquiring drugs); Hubbell, 

 (same where defendant possessed an “exceptionally large” quantity of fentanyl, along with separate packaging for smaller doses). Cf. State v. Fischer, 

, 

 (2021) (no substantial step where defendant
possessed the equivalent of 42 user amounts of heroin and
89 user amounts of methamphetamine, but the drugs were
not broken down into separate user amounts, there were
“no scales, cutting agents, unused packaging materials, or
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 (2022)                            693

transaction records,” nor was there an “identifiable recipient” or “indication of a plan or an impending transaction”).
         Here, there was evidence that defendant sold methamphetamine and heroin from time to time, that he had
scales, cutting agents, and packaging materials for reselling
the drugs in his possession, and that, on the date the drugs
were discovered, he was planning to sell drugs to someone.
Thus, in finding defendant guilty of the completed crimes
based on that evidence, the jury necessarily found that
defendant took a “substantial step” toward the commission
of the crime of delivery. As we explained in Hubbell, “ ‘[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.’ ” 

 at 873 (quoting
State v. Madison, 

, 

 (2020)
(brackets in Hubbell)). Accordingly, as in Hubbell and Buell,
we reverse defendant’s convictions for delivery on Counts 19
and 21, but remand for entry of convictions for attempted
delivery on those counts.
         In his final supplemental assignment of error, defendant raises a plain error challenge to the sufficiency of the
evidence that Counts 19 and 21 constituted commercial
drug offenses under ORS 475.900(1)(b) (2017), amended by
Or Laws 2021, ch 591, § 40, for purposes of enhanced sentencing. The state concedes the error, and we agree. The
allegations hinged, in this case, on the jury finding that
the deliveries were “for consideration” under ORS 475.900
(1)(b)(A) (2017), which, under State v. Villagomez, 

, 

 (2018), requires the state to prove a completed sale or an existing agreement to sell drugs. That evidence is absent here.
         Convictions on Counts 1, 2, 3, 4, 6, and 13 and verdict on firearm-enhancement element of Count 5 reversed
and remanded; convictions on Counts 19 and 21 reversed
and remanded for entry of judgment of conviction for
attempted delivery on each count, without the commercial
drug offense enhancement; remanded for resentencing;
otherwise affirmed.