State v. Dippre

                                       317

   Submitted December 22, 2021; conviction for delivery of methamphetamine
    reversed and remanded for entry of a conviction for attempted delivery of
       methamphetamine, remanded for resentencing, otherwise affirmed
                                June 15, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    JARED CHARLES DIPPRE,
                        Defendant-Appellant.
                    Lincoln County Circuit Court
                        19CR65879; A172987
                                   

     Defendant appeals from a judgment of conviction for unlawful delivery of
methamphetamine, ORS 475.890(2), and unlawful possession of methamphetamine, ORS 475.894(2)(b) (2019). Defendant first contends that the trial court
plainly erred when it instructed the jury that it needed to be unanimous when,
in fact, defendant could be acquitted by a 10-2 or 11-1 jury vote. In supplemental
briefing, defendant raises two additional assignments of error, together contending that the trial court plainly erred by entering a conviction for unlawful delivery of methamphetamine and in allowing the state to argue that defendant was
guilty of that crime based on his possession of methamphetamine and instruments that could be used to deliver drugs. Held: Because the jury unanimously
voted to convict defendant, any error in instructing the jury regarding unanimity was harmless. State v. Martineau, 

, 

(2022). Next, the trial court erred in entering a conviction for unlawful delivery
of methamphetamine. However, the evidence was legally sufficient to establish
that defendant took a substantial step toward that crime.
    Conviction for delivery of methamphetamine reversed and remanded for
entry of a conviction for attempted delivery of methamphetamine; remanded for
resentencing; otherwise affirmed.



    Amanda R. Benjamin, Judge pro tempore.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
318                                         State v. Dippre

  SHORR, J.
   Conviction for delivery of methamphetamine reversed and
remanded for entry of a conviction for attempted delivery of
methamphetamine; remanded for resentencing; otherwise
affirmed.
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 (2022)                                            319

           SHORR, J.
          Defendant appeals from a judgment of conviction
for unlawful delivery of methamphetamine (Count 1), ORS
475.890(2), and unlawful possession of methamphetamine
(Count 2), ORS 475.894(2)(b) (2019).1 Defendant first contends on appeal that the trial court plainly erred when it
instructed the jury that it needed to be unanimous in reaching a not-guilty as well as a guilty verdict when, in fact,
defendant could be acquitted by a 10-2 or 11-1 jury vote.
Because the jury unanimously voted to convict defendant,
we conclude that any error under those circumstances was
harmless. State v. Martineau, 

, 

 (2022). In supplemental briefing, defendant raises
two additional assignments of error, together contending
that the trial court plainly erred by entering a conviction
for unlawful delivery of methamphetamine on Count 1 and
in allowing the state to argue that defendant was guilty of
that crime based on his possession of methamphetamine
and instruments that could be used to deliver drugs. As
we explain below, we need not address defendant’s second
supplemental assignment of error because we agree with
his first, that the trial court erred in entering a conviction
for unlawful delivery of methamphetamine on Count 1.
However, for the reasons explained below, the appropriate
disposition is to reverse and remand for entry of a conviction
for the lesser-included, inchoate crime of attempted unlawful delivery of methamphetamine.
         We begin by addressing defendant’s first assignment of error and his argument that the trial court plainly
erred in instructing the jury that a unanimous verdict was
required for not-guilty as well as guilty verdicts. This case
was tried before the United States Supreme Court held that
the Sixth Amendment to the United States Constitution
requires unanimous guilty verdicts in criminal prosecutions
for serious offenses in state courts. Ramos v. Louisiana, 

, 

, 

 (2020). However,
before trial, the prosecutor indicated that he would not object
    1
      The court granted a motion for judgment of acquittal on Count 3, unlawful
possession of heroin, ORS 475.854 (2019). Both ORS 475.894 and ORS 475.854
were significantly amended after the relevant events in this case, but those
amendments are not relevant to our consideration on appeal.
320                                          State v. Dippre

to a unanimous jury instruction if defendant requested one.
Defendant indicated that he was requesting one. During
trial, the court instructed the jury that “[t]his being a
criminal case, all twelve jurors must agree on the verdict.”
Defendant did not object to that instruction.
         As noted, Ramos held that the United States
Constitution requires a unanimous verdict to convict an
accused defendant in state court. State v. Ross, 

, 

 (2021) (explaining Ramos). However,
Ramos did not prohibit Oregon laws from allowing a
nonunanimous vote to acquit. Ross, 

. Article I,
section 11, of the Oregon Constitution and ORS 136.450 continue to provide that a jury may acquit a defendant by a
concurrence of at least 10 jurors. Ross, 

.
         On appeal, defendant argues that the trial court
plainly erred in instructing the jury that it had to be
unanimous and, relatedly, in failing to instruct the jury
that it could reach a nonunanimous 10-2 or 11-1 verdict
to acquit. The state agrees that the instruction was incorrect. However, the state responds that we should not reach
defendant’s plain-error argument because defendant invited
any error by requesting the unanimous-jury instruction. In
the alternative, the state argues that any error was harmless because the jury convicted defendant by unanimous
votes. We conclude that, even assuming the error was not
invited, any error in instructing the jury that it could only
acquit defendant by a unanimous vote was harmless when
the jury instead convicted defendant by a unanimous vote.
Martineau, 

. Defendant contends that
a harmless-error analysis should not apply in these circumstances. The defendant in Martineau raised that identical
argument, and we reject it here for the reasons expressed in
our opinion in that case. 

.
        We turn to defendant’s supplemental assignments of
error. As noted, defendant raises two supplemental assignments of error that together contend that, pursuant to State
v. Hubbell, 

, 

 (2021), rev allowed,

 (2022), the trial court plainly erred in entering a conviction for delivery of methamphetamine, and in
permitting the state to argue that defendant was guilty of
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 (2022)                             321

delivery of methamphetamine based on evidence that he
had possessed methamphetamine and certain instruments
that could be used to deliver drugs.
         The state first concedes that the trial court plainly
erred in entering the delivery conviction, and we accept
that concession. At the time of defendant’s trial, Oregon
law had, for over 30 years, treated evidence of possession
of a large amount of drugs and the intent to sell them as
sufficient to prove the completed crime of delivery of a controlled substance. See State v. Boyd, 

, 

, rev den, 

 (1988), overruled by Hubbell, 

. The Boyd delivery doctrine was overruled by
Hubbell, which determined that “attempted transfer” within
the definition of “delivery” in ORS 475.005(8) did not mean
that the defendant had intentionally engaged in conduct
that constituted a substantial step towards commission of
the crime, but instead described “an unsuccessful effort to
cause the controlled substances to pass from one person to
another.” Hubbell, 

.
          Here, defendant was found in possession of 12.77
grams of methamphetamine, a scale in a bag with the drugs,
packaging materials such as baggies and tin foil, and implements of use such as syringes, pipes, and other paraphernalia. However, there was no evidence that defendant or
his codefendant, Beck, made an unsuccessful effort to pass
those drugs to another person. Under the more recent law
announced in Hubbell, the trial court plainly erred in entering defendant’s conviction for unlawful delivery of methamphetamine for Count 1. Because we exercise our discretion
and reverse defendant’s conviction for delivery as plainly
wrong, we need not consider defendant’s second supplemental assignment of error that contends that the trial court
plainly erred in permitting the state to argue a Boyd theory
of liability.
        Finally, we have authority, pursuant to the Oregon
Constitution, to direct entry of a conviction for a lesser-included offense if we determine that that conviction should
have been entered by the trial court. Hubbell, 

. The state contends that, rather than simply reversing
defendant’s conviction for delivery of methamphetamine,
322                                          State v. Dippre

we should remand for entry of a conviction for the inchoate,
lesser-included crime of attempted delivery. We agree.
         A defendant commits the inchoate crime of attempted
delivery of a controlled substance when that person takes
a substantial step towards transferring a controlled substance. 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.”); ORS 475.005(8) (“ ‘delivery’ means
the actual, constructive or attempted transfer … from one
person to another of a controlled substance”). “Possessing a
controlled substance with the intent to transfer it may constitute a substantial step toward actually transferring it.”
State v. Newsted, 

, 

, rev den,

 (2019) (internal quotation marks omitted).
Possession of materials commonly associated with the delivery of controlled substances, such as scales and packaging
materials, may also support an inference that the person
intends to commit delivery. 

.
         In Hubbell, after overruling Boyd and reversing the
defendant’s delivery conviction, we remanded the case for
entry of a conviction for attempted delivery, which the jury
necessarily found as a lesser-included offense when convicting defendant of delivery. 

. We concluded
that the evidence was sufficient to support the conviction
for attempted delivery. 

 We did the same in a subsequent
case applying Hubbell called State v. Buell, 

, 

 (2022), which we also remanded for entry
of an attempted delivery conviction. In both, the defendants
possessed extremely large quantities of drugs (375,000
doses in Hubbell and 17,000 doses in Buell) along with other
materials associated with controlled substances delivery
(individual baggies in Hubbell and a scale, baggies, and text
messages asking about acquiring drugs in Buell). Buell, 317
Or App at 670-71; Hubbell, 

.
         We reached the opposite conclusion in State v.
Fischer, a post-Hubbell case where we reversed the defendant’s Boyd-based delivery conviction and determined that
the evidence was insufficient to direct entry of an attempted
delivery conviction. 

, 

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(2021). In Fischer, the defendant possessed 42 doses of heroin
and 89 doses of methamphetamine. Id. at 269. “The drugs
were not broken down into separate user amounts, and she
lacked distribution packaging. Defendant had no scales,
cutting agents, unused packaging materials, or transaction
records. There was no identifiable recipient of the drugs,
and there was no indication of a plan or an impending transaction.” Id. That evidence, we concluded, was insufficient to
establish that the defendant had taken a “substantial step”
towards the crime of delivery. Id.
         This case is more like Hubbell and Buell than
Fischer. Defendant and Beck possessed 12.77 grams of methamphetamine, which was all in one bag and not individually packaged. Officers testified that a typical dose of the
drug was “less than a gram,” that users commonly possess
“1/16 of an ounce,” which is approximately 1.75 grams, and
that the quantity discovered here and the scale found with
the drugs was more consistent with dealing than personal
use. A scale was discovered in a bag with the methamphetamine, and unused plastic baggies and tin foil were found
elsewhere in the vehicle. That evidence is legally sufficient
to establish that defendant took a substantial step toward
the crime of delivery, which the jury necessarily found in
convicting defendant of the completed crime based on that
evidence.
         Conviction for delivery of methamphetamine reversed
and remanded for entry of a conviction for attempted delivery of methamphetamine; remanded for resentencing; otherwise affirmed.