State v. Serbin

                                       792

     Argued and submitted June 24, 2022; convictions on Counts 1, and 5
   reversed and remanded for entry of judgment of conviction for delivery of
   methamphetamine, convictions on Counts 2 and 6 reversed and remanded
    for entry of judgment of conviction for delivery of heroin, remanded for
               resentencing, otherwise affirmed March 22, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   LAWRENCE JAMES SERBIN,
                     aka Larry James Serbin,
                    aka Larry James Serbin, Jr.,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       19CR37201; A173650
                                   

     Defendant appeals from a judgment of conviction for, among other things,
two counts of delivery of controlled substances and two corresponding counts
of unlawful possession of controlled substances. He assigns error to the trial
court’s denial of his request to merge the verdicts on the two counts of possession
with the verdicts on the corresponding delivery counts. Held: In light of State v.
Hubbell, 

, 

 (2021), rev allowed, 

 (2022), the
Court of Appeals held that pursuant to ORS 161.067(1), possession, as defined by
ORS 161.015(9), is subsumed in delivery, as defined by ORS 475.005(8). In doing
so, the court overruled State v. Sargent, 

, 

 (1991),
which relied on its understanding of the elements of the crime of delivery of a
controlled substance as articulated in State v. Boyd, 

, 

,
rev den, 

 (1988)—an understanding that the court held was plainly
wrong in Hubbell. Because, post-Hubbell, the crime of delivery cannot be committed without also committing the crime of possession, the court concluded that the
trial court erred when it did not merge each delivery verdict with its corresponding possession verdict.
    Convictions on Counts 1 and 5 reversed and remanded for entry of judgment
of conviction for delivery of methamphetamine; convictions on Counts 2 and 6
reversed and remanded for entry of judgment of conviction for delivery of heroin;
remanded for resentencing; otherwise affirmed.




    Eric J. Bloch, 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.
Cite as 

 (2023)                           793

   Julia Glick, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.*
   JOYCE, J.
   Convictions on Counts 1, and 5 reversed and remanded
for entry of judgment of conviction for delivery of methamphetamine; convictions on Counts 2 and 6 reversed and
remanded for entry of judgment of conviction for delivery of
heroin; remanded for resentencing; otherwise affirmed.




______________
   * Jacquot, J., vice James, J. pro tempore.
794                                                            State v. Serbin

         JOYCE, J.
         Defendant appeals from a judgment of conviction for
delivery of methamphetamine (Count 1), delivery of heroin
(Count 2), felon in possession of a firearm (Count 3), unlawful possession of a firearm (Count 4), unlawful possession
of methamphetamine (Count 5), and unlawful possession of
heroin (Count 6). He assigns error to the trial court’s denial
of his request to merge the verdicts on the two counts of
possession with the verdicts on the corresponding delivery
counts. In State v. Sargent, 

, 

 (1991), we held that verdicts for the crimes of possession and delivery do not merge because it is possible to commit the crime of delivery of a controlled substance without
having a possessory interest in the controlled substance.
Our analysis in Sargent was based on our understanding
of the elements of the crime of delivery of a controlled substance as articulated in State v. Boyd, 

, 

, rev den, 

 (1988)—an understanding that we
recently held was plainly wrong in State v. Hubbell, 

, 

 (2021), rev allowed, 

 (2022).
Defendant argues that, in light of our current understanding of the elements of the crime of delivery, as construed in
Hubbell, the crime of delivery cannot be committed without
also committing the crime of possession, such that the trial
court was required to merge the verdicts. We agree with
defendant, overrule our decision in Sargent,1 and reverse
and remand for merger and resentencing.
         The issue before us is a purely legal question. We
review for legal error whether offenses merge. State v.
Jackson, 

, 

 (2021), rev den,

 (2021). Under ORS 161.067(1), “[w]hen the same
conduct or criminal episode violates two or more statutory
provisions and each provision requires proof of an element
that the others do not, there are as many separately punishable offenses as there are separate statutory violations.” Put
more simply, “merger is required when the elements of one
offense are subsumed in the elements of the other offense.”
    1
      Because this opinion overrules our existing precedents, the panel specifically advised all members of the court of the effect of its decision, but neither the
chief judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.
Cite as 

 (2023)                                             795

Jackson, 

 (citing State v. Merrill, 

, 

 (2020), adh’d to as modified on
recons, 

, 

 (2021)); see also State v.
Blake, 

, 

 (2010) (“[I]f one offense
contains X elements, and another offense contains X + 1
elements, the former offense does not contain an element
that is not also found in the latter offense. In that situation,
under ORS 161.067(1), there is only one separately punishable offense.”).
         When analyzing ORS 161.067(1), we consider three
questions: “ ‘(1) Did defendant engage in acts that are “the
same conduct or criminal episode,” (2) did defendant’s acts
violate two or more “statutory provisions,” and (3) does each
statutory “provision” require “proof of an element that the
others do not.” ’ ” State v. Haddon, 

, 

 (2017) (quoting State v. Crotsley, 

,

 (1989)); see also Jackson, 

(explaining that the controlling question “is whether each
of the statutes that define the relevant criminal offenses
requires proof of an element that the other does not”). If,
focusing on “the elements of the crimes alleged, not the particular facts that the state alleged to establish those elements[,]” we find that the answer to the first two factors is
“yes” and the answer to the third factor is “no”, then merger
is required. State v. Marks, 

, 

 (2022) (citing Haddon, 

).
         As noted at the outset, earlier cases concerning
delivery of controlled substances were based on an interpretation the statutory definition of “delivery,” ORS 475.005(8),
that we have since disavowed. In Boyd, we relied on the elements of the inchoate crime of attempt, ORS 161.405(1),2 to
determine that a person commits the crime of delivery via
attempted transfer when that person “intentionally engages
in conduct which constitutes a substantial step toward commission of the crime.” 

. In Sargent, we concluded that, “if a person solicits another to engage in conduct
constituting an element of the crime of delivery,” they have
committed delivery by taking a substantial step toward
    2
      ORS 161.405(1) states, “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.”
796                                                           State v. Serbin

commission of the crime.3 

. Consequently,
we concluded that “possession and delivery do not merge as
a matter of law, because it is possible to commit the crime
of delivery without having a possessory interest in the controlled substance.” 4 

          In Hubbell, we overruled Boyd and disavowed the
underlying rationale of Sargent. In Hubbell, we interpreted
the delivery statute and held that the phrase “attempted
transfer” in that statute requires more than the inchoate
crime of “attempted delivery.” 

 (explaining
that “Boyd’s leap—defining the word ‘attempt’ within a substantive statute to be the inchoate crime of attempt—was
not just wrong but plainly wrong”). We went on to hold that
proof that the defendant engaged in a “substantial step”
toward the crime of delivery is not sufficient to prove the
completed crime of delivery by means of an actual, constructive, or attempted transfer. 

. Because Sargent’s
rationale was based on Boyd, and because we engaged in
the “substantial step” analysis to reach our ultimate conclusion in Sargent, we must now consider whether, in light
of Hubbell, possession is subsumed in delivery. Sargent, 

. For the reasons that follow, we conclude that
possession does not require proof of an element that delivery
does not, and overrule Sargent’s conclusion that possession
is not subsumed in delivery under ORS 161.067(1).
        The first two considerations under ORS 161.067(1)
are met: The parties do not contest that defendant engaged
in acts that constituted the same conduct or criminal

    3
      While Sargent does not explicitly cite Boyd, the court’s reliance on the Boyd
delivery is evident: “Under [the definition of ‘attempt’ in ORS 161.405], we have
consistently held that an attempt to transfer a controlled substance is treated the
same as a completed transfer.” Sargent, 

. Sargent cites three
cases in support of this assertion, all of which cite Boyd: State v. Fulmer, 

, 

 (1991); State v. Stalbert, 

, 

 (1989); and State v. Aguilar, 

, 

, rev den,

, 

 (1989).
    4
      We have consistently cited Sargent in maintaining that possession is not
subsumed in delivery. See, e.g., State v. Scott, 

, 

(2017); Haddon, 

-99 (citing State v. Shupe, 

,

 (2016), rev den, 

 (2016)); State v. Guzman, 

, 

 (1996) overruled on other grounds by State v. Daniel, 

, 

 (2008); State v. Lynch, 

, 

(1993).
Cite as 

 (2023)                                             797

episode, nor that defendant’s acts violated two or more statutory provisions. Blake, 

 (“Where the legislature
defines each crime in a separately numbered and labeled
statutory section, as it does in this instance, it is difficult
to see how those sections can be anything other than separate statutory provisions for purposes of ORS 161.067(1).”).
Defendant’s delivery and possession convictions for heroin
and methamphetamine arise out of an arrest for a single
hand-to-hand drug deal, and defendant was convicted under
four separate statutory provisions.
         The dispute therefore centers on the third question:
whether each of the statutes that defines delivery and possession requires proof of an element that the other does not.
Jackson, 

. Our analysis starts with examining, and understanding, the elements of delivery and possession. ORS 475.890(1)5 and ORS 475.850(1)6 state in relevant part that “it is unlawful for any person to deliver,”
respectively, methamphetamine and heroin. “Delivery,” for
purposes of both statutes, is defined as
   “the actual, constructive or attempted transfer, other than
   by administering or dispensing, from one person to another
   of a controlled substance, whether or not there is an agency
   relationship.”
ORS 475.005(8). “We presume that each of those types of
transfers refers to something different: an actual, i.e., successful or completed transfer; a constructive, i.e., inferred
or presumed transfer based on the circumstances; and
an attempted, i.e., unsuccessful or incomplete transfer.”
Hubbell, 

-70 (citing Dept. of Transportation
v. Stallcup, 

, 

 (2006) (explaining that
when the legislature uses different terms in a statute, it
likely intended them to have different meanings)).
         We examine each method of transfer in turn.
“Actual,” for purposes of “actual transfer,” means “ ‘existing
in fact or reality : really acted or acting or carried out—
contrasted with ideal and hypothetical,’ or ‘in existence or

    5
      ORS 475.890(1) states, “Except as authorized by ORS 475.005 to 475.285 and
475.752 to 475.980, it is unlawful for any person to deliver methamphetamine.”
    6
      ORS 475.850(1) states, “It is unlawful for any person to deliver heroin.”
798                                                State v. Serbin

taking place at the time : present, current <caught in the ~
commission of the crime>.’ ” Hubbell, 

 (quoting Webster’s Third New Int’l Dictionary at 22 (unabridged
ed 2002) (emphasis in original)).
          In defining “constructive transfer” as “inferred
or presumed transfer based on the circumstances,” we
explained in Hubbell that “ ‘constructive’ means ‘derived
from or depending on construction or interpretation : not
directly expressed : inferred —often used in law of an act
or condition assumed from other acts or conditions which
are considered by inference or by public policy as amounting
to or involving the act or condition assumed.’ ” 

 (quoting Webster’s at 489); see also Hubbell, 

 n 10 (quoting Black’s Law Dictionary 314 (6th ed
1990)) (explaining that “constructive transfer” is defined as
“ ‘[a] transfer of an item (e.g., a controlled substance), either
belonging to an individual or under the individual’s control,
by some other person or agency at the insistence or direction of the individual accused of such constructive transfer’ ”
(emphasis added)).
         Post-Hubbell, “attempted” in this context is interpreted “in accordance with our ordinary approach to statutory construction.” Hubbell, 

. “The word
‘attempted’ modifies ‘transfer,’ which is not synonymous
with the crime of delivery of a controlled substance (despite
what Boyd may have said).” 

. Thus, “attempted
transfer” is defined based on its ordinary meaning—as an
unsuccessful or incomplete actual or constructive transfer.

. As we explained in Hubbell:
   “To prove an ‘attempted’ transfer, 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. It is not sufficient for the state to show the
   defendant’s purpose in acquiring drugs; it must also prove
   the element of a transfer, either actual, constructive, or
   attempted.”

.
         Turning to the concept of “transfer,” the verb
‘transfer’ generally means, “an act of ‘transferring,’ that is,
‘caus[ing] to pass from one person or thing to another,’ or
Cite as 

 (2023)                                           799

‘carry[ing] or tak[ing] from one person or place to another
: transport[ing].’ ” 

 at 868 (quoting Webster’s at 2427). The
noun “transfer” refers to “ ‘the conveyance of right, title, or
interest in either real or personal property from one person
to another by sale, gift, or other process,’ or … ‘the removal
or acquisition of property by mere delivery with intent of the
parties involved to transfer the title.’ ” Hubbell, 

 (quoting Webster’s at 2427; see also Black’s at 1497
(defining “transfer” to include “[t]he sale and every other
method, direct or indirect, of disposing of or parting with
property or with an interest therein”).
         At the core of actual, constructive, and attempted
transfer, a person must have enough control over property,
whether it be a right, title, or other interest, to convey that
specific piece of property to another person. See State v.
O’Hare, 

, 

 (2021) (explaining
that ORS 475.890(1) criminalizes “ ‘the [singular] transfer’
of methamphetamine” and that “use of the singular determinative ‘the’ indicates that the legislature … intended
to require the state to prove the existence of a particular
actual, constructive, or attempted transfer”). Restated, to
transfer or attempt to transfer controlled substances for
purposes of the delivery statute, a person must have actual
physical control or otherwise exercise control over the controlled substances.
         The next question is whether that level of control
also constitutes the crime of possession—that is, whether
a defendant can transfer or attempt to transfer without
also possessing the drugs.7 We agree with defendant that
none of those forms of delivery can be accomplished without
possession. Possession requires a person “to have physical
possession or otherwise to exercise dominion or control over
property.” ORS 161.015(9). A person can possess something
by (1) actual possession or (2) constructive possession. State
v. Daline, 

, 

 (2001). Actual
possession occurs when a person has actual physical control
of the property. 

. Constructive possession occurs

    7
      ORS 475.894(1) and ORS 475.854(1) provide that “[i]t is unlawful for any
person knowingly or intentionally to possess[,]” respectively, methamphetamine
and heroin.
800                                                        State v. Serbin

when a defendant “ ‘knowingly exercise[s] control over, or
ha[s] the right to control’ ” the controlled substances. State
v. Kulick, 

, 

 (2021) (quoting
State v. Evans, 

, 

 (1999)). Yet
until a person possesses the property, by actual physically
controlling, knowingly exercising control over, or having the
right to control the property, they cannot make an effort to
deliver it to a person via actual, constructive, or attempted
transfer—a person can only relinquish that which belongs
to them or is under their control. Possession under ORS
475.894(1) and ORS 475.854(1) thus does not require proof
of an element that is not also required to prove the crime
of delivery under ORS 475.890(1) and ORS 475.850(1).
Sargent’s conclusion to the contrary must thus be overruled.
         In arguing for a contrary result, the state acknowledges that, post-Hubbell, “attempted transfer” requires
“some specific more overt act” that causes controlled substances to pass from one person to another but argues that
the “more overt act” still need not include possession. For
instance, the state hypothesizes that a person delivers without possession where the person offers to sell cocaine to an
undercover informant at an arranged time and place, and
when police arrest the person at the arranged time and
place, they do not find the cocaine in his possession, because
the person was planning to take the informant to meet a supplier who would then sell the cocaine to the informant. But a
person in a hypothetical situation like that does not deliver
the substance without possession; in fact, they do not deliver
the substance at all. They do not actually or constructively
deliver the substance, as it does not pass from one person to
another. Further, they do not engage in “attempted transfer,” because they have not unsuccessfully or incompletely
made an effort to cause the controlled substances to pass
from one person to another via actual or constructive transfer.8 Hubbell, 

.


    8
      That is not to say that the person in this scenario might not have committed an attempted delivery. See Hubbell, 

 (recognizing that
someone who has taken a substantial step towards the crime of delivery but has
not yet attempted the transfer itself will have committed the inchoate crime of
attempted delivery of a controlled substance).
Cite as 

 (2023)                                                  801

         The state further surmises that in joint enterprise
cases, people can be active participants in delivery of controlled substances even if they do not possess said controlled
substances. We agree that in joint enterprise cases, people
can be active participants in delivery of controlled substances
even if they do not possess them—potentially through committing other crimes, such as attempted delivery and solicitation. The question here, however, is whether people can
deliver controlled substances, via actual, constructive, or
attempted transfer, without at least constructive possession
of controlled substances. As we have explained, they cannot.
Delivery, as defined by ORS 475.005(8), requires possession,
as defined by ORS 161.015(9).9
         In sum, we conclude that the trial court erred when
it did not merge Count 5 with Count 1 for a single conviction
for delivery of methamphetamine and when it did not merge
Count 6 with Count 2 for a single conviction for delivery of
heroin. The judgment of the circuit court is reversed and the
case is remanded for merger and resentencing.
         Convictions on Counts 1 and 5 reversed and
remanded for entry of judgment of conviction for delivery of
methamphetamine; convictions on Counts 2 and 6 reversed
and remanded for entry of judgment of conviction for delivery
of heroin; remanded for resentencing; otherwise affirmed.




     9
       We also understand the state to be asserting that possession is not subsumed in delivery because a person can be guilty of delivering controlled substances via aiding and abetting, which does not require possessing those controlled substances. Accomplice liability makes a person statutorily liable for all of
the principal’s acts, including possession, even though that person may not have
committed any of the acts that the crime entails. ORS 161.155. See Blake, 

 (“Because the principal who utters a forged instrument also necessarily
possesses it, a person who aids and abets the principal in the crime of forgery by
definition also aids and abets the principal in the crime of criminal possession
of a forged instrument.”); State v. Kimbrough, 

, 

 (2018)
(“Under Oregon law, liability under ORS 161.155 is a form of liability for ‘conduct
of another person constituting a crime,’ not a separate way of committing the
crime.”). That example therefore is inapt.