State v. Wesley

                                        500

    Argued and submitted May 4, 2022; conviction on Count 2 reversed and
    remanded for entry of judgment of conviction for attempted delivery of
  methamphetamine, convictions on Counts 3 and 5 reversed and remanded,
  remanded for resentencing, otherwise affirmed June 22, petition for review
                   denied November 2, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 MICHAEL WAYNE WESLEY, JR.,
                      Defendant-Appellant.
                    Lane County Circuit Court
                      19CR58352; A173334
                                    

     Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 2), ORS 475.890; unlawful possession of heroin (Count 3),
ORS 475.854; felon in possession of a firearm (Count 5), ORS 166.270; attempt
to elude (Count 6), ORS 811.540; reckless driving (Count 8), ORS 811.140; and
recklessly endangering another person (Count 9), ORS 163.195. On appeal, defendant challenges the trial court’s nonunanimous jury instruction and acceptance
of nonunanimous verdicts and findings as well as its exclusion of two defense witnesses as a remedy for what the court concluded were discovery violations by the
defense in delaying the disclosure of those witnesses until after the state rested
its case. In supplemental briefing, defendant also challenges his conviction for
unlawful delivery of methamphetamine (Count 2) as plain error under our recent
decision in State v. Hubbell, 

, 

 (2021), rev allowed, 

 (2022). Held: Ramos v. Louisiana, 

, 

, 

 (2020), required reversal of Counts 3 and 5 because the jury’s verdicts on
those counts were not unanimous. Given Hubbell, the state’s evidence was insufficient to prove the transfer element of Count 2, the offense of delivery of methamphetamine. However, the Court of Appeals remanded with instructions to enter a
judgment of conviction for attempted delivery of methamphetamine, because the
evidence was legally sufficient to support the conclusion that defendant took a
substantial step toward the commission of the crime of delivery. As to the discovery violation issues, the trial court did not err or abuse its discretion in excluding
witness Martin’s testimony and, although the court did err in excluding witness
Dupree’s testimony, that error was harmless, given the evidence showing that
defendant was in either joint or individual possession of a substantial quantity of
methamphetamine when he attempted to elude police.
    Conviction on Count 2 reversed and remanded for entry of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and
5 reversed and remanded; remanded for resentencing; otherwise affirmed.



    R. Curtis Conover, Judge.
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   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, and Pagán, Judge, and
Armstrong, Senior Judge.
  SHORR, P. J.
   Conviction on Count 2 reversed and remanded for entry
of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.
  Pagán, J., concurring in part and dissenting in part.
502                                                         State v. Wesley

           SHORR, P. J.
          Defendant appeals from a judgment of conviction
for unlawful delivery of methamphetamine (Count 2), ORS
475.890; unlawful possession of heroin (Count 3), ORS
475.854; felon in possession of a firearm (Count 5), ORS
166.270; one count of attempt to elude (Count 6), ORS
811.540; reckless driving (Count 8), ORS 811.140; and recklessly endangering another person (Count 9), ORS 163.195.1
On appeal, defendant challenges the trial court’s nonunanimous jury instruction and acceptance of nonunanimous
verdicts and findings as well as its exclusion of two defense
witnesses as a remedy for what the court concluded were
discovery violations by the defense in delaying the disclosure of those witnesses until after the state rested its case.
In supplemental briefing, defendant also challenges his conviction for unlawful delivery of methamphetamine (Count 2)
as plain error under our recent decision in State v. Hubbell,

, 

 (2021), rev allowed, 

(2022). As explained below, we reverse and remand Counts
3 and 5 because the jury’s verdicts were not unanimous. We
also reverse and remand Count 2 for entry of a judgment of
conviction for attempted delivery of methamphetamine in
light of Hubbell.2 As to the discovery violation issues, we conclude that the trial court did not err or abuse its discretion
in excluding witness Martin’s testimony and, although the
court did err in excluding witness Dupree’s testimony, that
error was harmless.
                     I. BACKGROUND FACTS3
        In the early morning of September 1, 2019, defendant was driving a Chevrolet truck northbound on
Interstate 5 in Lane County. An Oregon State Police (OSP)

    1
      The jury found defendant guilty of unlawful possession of methamphetamine (Count 4), ORS 475.894, and a second count of attempt to elude (Count 7),
ORS 811.540. The trial court merged the verdict on Count 7 into the verdict on
Count 6 and merged the verdict on Count 4 into the verdict on Count 2. The jury
acquitted defendant of unlawful delivery of heroin (Count 1), ORS 475.850.
    2
      Our reversal of Count 2 does not disturb the guilty verdict on Count 4. See
also 326 Or App at 505 n 5 (discussing effect of nonunanimous verdict on subcategory factor alleged in Count 4).
    3
      We supplement the facts as necessary in our analysis of defendant’s specific
assignments of error.
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officer attempted to stop defendant for traffic violations
after seeing him swerve back and forth in the lanes and
fluctuate in speed, both below and above the posted speed
limit. Defendant, however, sped away, exiting the interstate
onto Beltline Road in Eugene. At several points during the
pursuit, the officer noted that the truck’s speed exceeded
100 miles per hour. The OSP officer stopped the pursuit, but
later rejoined it after a Lane County Sheriff’s Office deputy
spotted the truck.
         After the deputy pursued the truck through Eugene
at speeds up to 90 miles per hour, the truck slowed as if
it was “experiencing some sort of mechanical failure” and
eventually crashed into a tree. Both the driver’s door and
passenger door opened simultaneously “like they were both
getting ready to bail from the truck.” Both defendant, who
fell out of the driver’s side, and a female passenger, Klein,
were arrested.
          The OSP officer arrived less than 30 seconds after
the crash and saw, through the open driver’s door, a handgun secured to the top of the steering column. A small black
nylon bag with part of a black and white bandana sticking out from it was also attached to the steering column.
Inside the bandana was a methamphetamine rock “about
the size of [the officer’s] fist.” In the same area was another
black and white bandana, also containing a large quantity
of methamphetamine. A clear glass pipe containing white
residue was found between defendant and the car. On the
floorboard of the driver’s side of the truck, the officer found
a zippered pouch, which contained more methamphetamine;
another black zipper pouch similar in size to a compact disc
case that contained a “smaller amount of methamphetamine with several small plastic baggies, a small bindle of
a dark brown tar-like substance consistent with heroin,” a
digital scale, and rubber gloves; and three prescription bottles with the names ripped off of them. The baggies were
“very small, clear Ziploc bags”; the officer testified that “[a]
lot of times I’ve seen those in recent arrests where they are
used for package [or] sale to divvy up [drugs] into smaller
amounts.” In addition, the officer found $1,160 in cash in
defendant’s wallet, which was located in an open compartment on the driver’s side door. In total, police seized 380
504                                                         State v. Wesley

grams of confirmed methamphetamine and 2.3 grams of
confirmed heroin.
         Based on those events, defendant was tried before a
jury and convicted of the offenses stated above. He appeals
from the judgment of conviction, raising eight assignments
of error and four supplemental assignments of error.
                             II. ANALYSIS
A. Jury Unanimity Issues
         In his fifth, sixth, and seventh assignments of error,
defendant contends that the trial court erred in instructing
the jury, over his objection, that “at least 10 jurors must agree
on your verdict,” and in accepting nonunanimous verdicts on
Counts 3 and 5. As the state concedes, and we agree, Ramos v.
Louisiana, 

, 

, 

 (2020)
(holding that the Sixth Amendment requires jury unanimity
to convict a criminal defendant of a serious offense), requires
reversal of those counts. Accordingly, we reverse and remand
Counts 3 and 5. As to the remaining counts, for which the
jury returned unanimous verdicts, the error is not reversible
because it does not constitute structural error, and it is harmless beyond a reasonable doubt. State v. Flores Ramos, 

, 

 (2020).
         In his eighth assignment of error, defendant contends that the trial court also erred under Ramos in accepting the jury’s nonunanimous findings on the subcategory
factors the state alleged with respect to Count 2 (unlawful
delivery of methamphetamine), specifically, whether the
offense involved “substantial quantities” of the drug, ORS
475.900(1)(a)(D), or constituted a “commercial drug offense,”
ORS 475.900(1)(b).4 We agree with defendant that the trial
court erred in that regard. See State v. Enloe, 

, 

 (2021) (concluding that nonunanimous verdict on subcategory allegation was invalid in light
of Ramos). We explain the consequence of that error in our
    4
      Those subcategory factors, if found by the jury, elevate the crime seriousness of the offense for purposes of the sentencing guidelines. ORS 475.900; see
State v. Unger, 

, 

 (2016) (so explaining). The legislature amended ORS 475.900 after the events giving rise to this case. See Or
Laws 2021, ch 591, § 40. Because those amendments do not affect our analysis,
we refer to the current version of the statute in this opinion.
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discussion and disposition of Count 2, addressed immediately below.5
B.    Unlawful Delivery of Methamphetamine
         At trial, the state relied on a “Boyd” theory of delivery to prove the crime of unlawful delivery of methamphetamine as alleged in Count 2, presenting evidence that
defendant was in a car with a large amount of methamphetamine, a firearm, $1,160 in cash, plastic gloves, baggies, and
a scale.6 See State v. Boyd, 

, 

,
rev den, 

 (1998), overruled by Hubbell, 

 (2021) (holding that possession of a large quantity
of drugs with the intent to deliver constitutes a substantial step toward delivery and thus is sufficient to constitute
the completed crime of delivery as an “attempted transfer” under the definition of “delivery” in ORS 475.005(8)).
Defendant did not object to the state’s theory or move for a
judgment of acquittal (MJOA) on the ground that the state’s
evidence was insufficient to establish the offense, and the
jury unanimously found him guilty of Count 2.
         In Hubbell, which was decided after defendant filed
his opening brief in this case, we overruled Boyd, concluding that merely taking a substantial step toward a transfer
of a controlled substance does not constitute the completed
crime of delivery, only the inchoate crime of attempted delivery. Hubbell, 

. We held that delivery by an “attempted transfer,” see ORS 475.005(8) (defining “delivery” for purposes of ORS 475.890 as “the actual,
constructive or attempted transfer … from one person to
another of a controlled substance”), requires an “incomplete
or unsuccessful transfer” of a controlled substance. 

. Consequently,
     “[i]f a defendant has tried to actually transfer a controlled
     substance to another person, that defendant will be guilty
    5
      We note that the jury also returned a nonunanimous verdict as to one of
the commercial drug offense subcategory factors alleged with respect to Count
4 (unlawful possession of methamphetamine). But the jury unanimously found
three other alleged factors, which is sufficient to establish that the offense constituted a commercial drug offense. ORS 475.900(1)(b). In any event, defendant
does not raise any issues with respect to Count 4.
    6
      The state argued the same with respect to Count 1 (delivery of heroin); as
noted, the jury acquitted defendant of that offense.
506                                                          State v. Wesley

    of the completed offense, regardless of whether the transfer
    itself was successful. But, where 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.”

.
         Having so concluded, we agreed with the defendant
that the state’s evidence was not legally sufficient to establish the crime of delivery. 

. However, we concluded
that the evidence—namely, that the defendant possessed “an
exceptionally large amount of fentanyl,” which was enough
for “hundreds of thousands of individual doses,” as well as
“separate packaging for smaller doses”—was legally sufficient to support a finding of a substantial step toward the
completed crime of delivery. 

. That is, the evidence did “strongly corroborate a purpose of dealing drugs,
advance that purpose, and provide verification of the purpose.” 

. Accordingly, we reversed and remanded for
entry of a conviction for attempted delivery of a controlled
substance, the offense that the defendant “should have been
convicted of committing rather than the completed crime.”

.
        In light of that development in the law, defendant
filed supplemental briefing challenging his conviction on
Count 2. In his combined argument on four supplemental
assignments of error, defendant essentially contends that,
given Hubbell, the state’s evidence was insufficient to prove
the transfer element of the offense of delivery of methamphetamine, and we therefore must reverse his conviction
on Count 2 as plain error.7 The state concedes that the evidence was insufficient to show a transfer under Hubbell, and

    7
       In particular, he asserts that the trial court plainly erred by (1) allowing
Count 2 to be considered by the jury when the evidence was insufficient to convict; (2) allowing the prosecutor to misstate the law during closing arguments
as to the requirements for proving delivery; (3) failing to instruct the jury on
the lesser-included crime of attempted delivery; and (4) entering a conviction on
Count 2. To the extent that defendant’s third supplemental assignment of error
presents a separate issue, we do not address it because defendant did not preserve that claim of error, and it does not satisfy the requirements for plain-error
review.
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that it was therefore plain error for the trial court to enter
a conviction for the completed crime of delivery. However,
the state contends that, in correcting the error, we should
remand with instructions to enter a judgment of conviction
for attempted delivery of methamphetamine, as we did in
Hubbell. We agree with the state.

         As an initial matter, we readily accept the state’s
concession that the trial court’s entry of a conviction for
the completed crime of delivery of methamphetamine was
plain error under Hubbell and agree that it is appropriate
to exercise our discretion to correct the error. See, e.g., State
v. Dippre, 

, 

 (2022); State
v. Hernandez, 

, 

 (2022);
State v. Carr, 

, 

 (2022).

          The real dispute between the parties is over
the appropriate remedy for the error. Under Article VII
(Amended), section 3, of the Oregon Constitution, we may
remand for entry of a judgment of conviction for a lesser-included crime such as attempt when the jury necessarily
found all the elements of that offense. State v. Lopez, 

, 

 (1997), rev den, 

(1998). “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 161.405(1). As discussed above, after Hubbell, where
a person has taken a substantial step toward delivery of a
controlled substance, but has not yet attempted the transfer
itself, the person will have committed the inchoate crime of
attempted delivery of a controlled substance, rather than
delivery. 

.

         The state contends that—just as in Hubbell—the
record here supports a conviction for attempted delivery of
methamphetamine, pointing out that defendant was found
to be in possession of a large quantity of the drug, as well
as drug packaging materials, over $1,000 in cash, and a
firearm. In addition, defendant possessed those items while
driving around in a car, which, the state contends, “is a
common method of delivering drugs.” Thus, in the state’s
view, although the evidence did not establish a completed
508                                           State v. Wesley

transfer, it did establish that defendant had taken a “substantial step” toward commission of the crime, and the jury
found as much when it unanimously convicted defendant of
delivery under a Boyd theory.
         Defendant asserts that we cannot determine on this
record that the jury necessarily found that defendant took a
“substantial step” toward delivery of methamphetamine—
thus permitting the entry of a conviction for attempted
delivery—for two reasons. First, defendant contends that
the evidence is not sufficient to support such a finding and
that the case is therefore more like State v. Fischer, 

, 

 (2021), than Hubbell. Second,
he contends that, because the jury was not unanimous on
specific subcategory facts alleged with respect to Count 2,
we cannot conclude that the jury unanimously found the
facts necessary to establish attempted delivery. We consider,
and reject, each argument in turn.
         In Fischer, the trial court denied the defendant’s
MJOA on charges of delivery of heroin and methamphetamine within 1,000 feet of a school. 

. The
only relevant evidence was that the defendant possessed
large quantities of the drugs—specifically, she regurgitated
three bindles of heroin, which constituted 4.28 grams or 42
user amounts, and she also had 8.91 grams of methamphetamine, the equivalent of 89 user amounts, in her handbag.

. Noting that the drugs were not broken down into
separate user amounts, there was no evidence of distribution packaging materials or transaction records, and there
was no indication of a plan or impending transaction, we
concluded that the trial court had erred in failing to grant
the defendant’s MJOA because there was insufficient evidence of the transfer element of the offenses. 

 “Similarly,”
we held that the evidence was insufficient to show that the
defendant took a substantial step toward commission of the
crimes. 

 In other words, because the evidence was insufficient to support even a Boyd theory of delivery, the jury
could not have lawfully found the elements of attempted
delivery. Therefore, there was no basis for us to remand
for conviction on the inchoate crime as we had done in
Hubbell.
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         We disagree with defendant that this case is similar to Fischer. Although defendant is correct that the methamphetamine in his possession was not broken down into
user amounts, he also had small plastic baggies, which are
commonly used to package drugs,8 a digital scale, plastic
gloves, and over $1,000 in cash. Those facts distinguish this
case from Fischer and, together with the large quantity of
methamphetamine—380 grams—“strongly corroborate a
purpose of dealing drugs, advance that purpose, and provide verification of the purpose.” Hubbell, 

. Moreover, the items were found in defendant’s truck.
Thus, as was the case in Hubbell and many of our cases
following it, a factfinder could reasonably infer from the
evidence presented that defendant possessed the methamphetamine for future transfer. See Hubbell, 

 (large amount of fentanyl and separate packaging
for smaller doses sufficient for jury to determine substantial
step toward delivery); Dippre, 

 (evidence
of 12.77 grams of methamphetamine, a scale, unused plastic
baggies, and tin foil legally sufficient to establish substantial step toward delivery, resulting in remand for entry of
attempted delivery conviction); State v. Buell, 

, 

 (2022) (evidence of large quantity
of methamphetamine, enough for 17,000 individual doses,
scale, open box of sandwich bags, and text messages asking
about acquiring drugs supported conviction for attempted
delivery). As in those cases, the record in this case 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 under
a Boyd theory.
         We are also not persuaded by defendant’s second
argument. As noted above, the state alleged several subcategory facts in connection with Count 2, facts that, if found by
the jury, would enhance defendant’s sentence on that charge.
     8
       Defendant argues that the smaller Ziploc bags “were not tied to the methamphetamine,” noting that only the heroin, and not the methamphetamine, had
been individually packaged. The jury could nonetheless infer from that evidence,
together with the large quantities of methamphetamine, and the presence of digital scales, plastic gloves, and cash, that defendant possessed the methamphetamine, not for his individual use, but for future transfer. See Hubbell, 

-72, 873.
510                                                          State v. Wesley

The jury returned nonunanimous verdicts with respect to
some of those subcategory facts, specifically, whether defendant possessed “substantial quantities” of methamphetamine, as well as some of the “commercial drug offense”
allegations, namely, whether defendant was in possession
of a firearm, packaging materials, and eight grams or more
of methamphetamine. As discussed, those nonunanimous
findings are invalid under Ramos, and therefore cannot be
used to enhance defendant’s sentence. Enloe, 

 (jury unanimity requirement applies to jury findings
on subcategory facts). However, they have no bearing on the
jury’s unanimous decision to convict defendant of delivery
of methamphetamine under a Boyd theory of delivery. In
doing so, the jury necessarily found that defendant took
a substantial step toward the commission of the crime of
delivery, and, as noted, it did so unanimously. Further, as
we have just concluded, the evidence in the record is legally
sufficient to support that finding. Thus, contrary to defendant’s assertion, the jury findings on the enhancement facts
do not affect our determination that, as in Hubbell, Count 2
must be reversed and remanded for entry of a conviction for
attempted delivery of methamphetamine.9
          Lastly, we briefly address the dissent’s contention
that, because the jury in this case was not instructed on the
definitions of either “attempt” or “intent,” it is “a bridge too
far” to conclude on this record that defendant intentionally
engaged in conduct constituting a substantial step toward
the commission of the crime of delivery of methamphetamine. 326 Or App at 521 (Pagán, J., dissenting). We agree
with the dissent that we must limit our exercise of our power
under Article VII (Amended), section 3, to instances where
the factfinder necessarily found the elements of the lesser-included offense at issue. See State v. Madison, 

, 

 (2020) (“A crime is a lesser-included
offense of another crime if either of two circumstances
exist: (1) the elements of the lesser offense necessarily are
    9
      Unless the state elects to retry the subcategory allegations, the court shall
enter a conviction for attempted delivery on Count 2 without those enhancements. See Enloe, 

 (where jury verdict was unanimous as to
conviction, but not unanimous as to subcategory allegation, state may elect to
retry the subcategory allegation on remand; “otherwise, the record will reflect
that defendant was found guilty on [that count] without that allegation”).
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included in the greater offense because the elements of the
former are subsumed in the latter; or (2) all of the elements
of the lesser offense are expressly set forth in the accusatory
instrument.” (Internal quotation marks omitted.)). And, we
agree that the jury’s instructions are one source of information that we should consider in answering that question. See
State v. Modrzejewski, 

, 

(2021) (concluding that we could not remand for entry of a
conviction for attempted third-degree assault where the jury
only considered third-degree assault requiring a “knowing”
mental state and was not instructed on a lesser-included
or inchoate version of that crime). We acknowledge that, in
the instant case, the jury was not instructed on either the
meaning of “attempt” or “intent.”
         However, it is indisputable that Hubbell and its progeny concluded that, where a factfinder convicted a defendant
of the crime of delivery based on a Boyd “attempted transfer” theory, a conclusion that was supported by the factual
findings but invalid only due to the change in the law outlined in Hubbell, the factfinder also implicitly found that the
defendant committed the inchoate crime of attempted delivery. See Hubbell, 

 (“This case is unique in
that, because of Boyd, defendant was essentially tried and
found guilty of an attempt crime that had been erroneously
elevated to a completed offense.”); see also Hernandez, 

 (concluding that “the jury necessarily found
that defendant took a ‘substantial step’ toward the commission of the crimes of delivery of heroin and methamphetamine”); Carr, 

 (same); Buell, 

 (remanding for entry of judgment for lesser-included
offense of attempted delivery of methamphetamine where
evidence sufficient to support that conviction but did not
support conviction for delivery). We acknowledge that there
is some room for differing opinions as to whether a jury can
necessarily find the facts relevant to convict a defendant of
the inchoate crime of attempted delivery when they were not
instructed on the definitions of “attempt” or “intent,” and
the Supreme Court may address or resolve that issue in its
review of Hubbell. However, our existing case law requires
remanding the instant case for entry of a conviction for
attempted delivery. Defendant makes no argument that
512                                              State v. Wesley

Hubbell and its progeny were plainly wrong in that regard.
Under those circumstances, the evidence here is legally sufficient to support the conclusion that defendant took a substantial step toward the commission of the crime of delivery.
C. Discovery Violations
         In his first four assignments of error, defendant
challenges the trial court’s exclusion of two of his witnesses,
denial of his request for a continuance, and failure to declare
a mistrial. The trial court concluded, after hearing an offer
of proof for each witness, that defendant had committed a
discovery violation by failing to disclose the witnesses and
that exclusion of those witnesses, rather than a continuance
or mistrial, was the appropriate remedy for the discovery
violation.
         On appeal, we review the trial court’s conclusion
that there was a discovery violation for legal error. State v.
Moss, 

, 

, rev den, 

(1997). We are bound by the trial court’s factual findings, if
supported by evidence in the record; in the event no findings
were made and the evidence allows facts to be decided in
more than one way, we presume the facts were decided in
a manner consistent with the trial court’s ultimate conclusion. State v. Lindquist, 

, 

(1996). Finally, we review the trial court’s choice of sanction
for abuse of discretion. 

.
        The obligation on the defense to disclose most
evidence in a criminal trial arises as a matter of statute.
Subject to exceptions not relevant here,
   “the defense shall disclose to the district attorney the following material and information within the possession or
   control of the defense:
      “(1) The names and addresses of persons, including the
   defendant, whom the defense intends to call as witnesses at
   the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than the defendant.
      “(2) Any reports or statements of experts, made in
   connection with the particular case, including results of
   physical or mental examinations and of scientific tests,
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   experiments or comparisons, that the defense intends to
   offer in evidence at the trial.
      “(3) Any books, papers, documents, photographs or
   tangible objects that the defense intends to offer in evidence at the trial.”
ORS 135.835. The statutory duty to disclose witnesses
applies to both a defendant and their attorney. State v. Ben,

, 

 (1990). That obligation must
be performed “as soon as practicable” after the filing of the
indictment. ORS 135.845(1).
         Upon finding a violation, “the court may order the
violating party to permit inspection of the material, or grant
a continuance, or refuse to permit the witness to testify, or
refuse to receive in evidence the material not disclosed, or
enter such other order as it considers appropriate.” ORS
135.865. As a sanction for a discovery violation, a court may
order exclusion of a witness only when exclusion “achieves
the purpose of the discovery statutes and the other party
has been prejudiced.” Ben, 

. A trial court does
not abuse its discretion in excluding a witness or evidence
when it considers sanctions short of exclusion and determines that no sanction short of exclusion would remedy the
prejudice to the other party. Lindquist, 

.
With those principles in mind, we analyze each proposed
witness separately.
     1. Witness Martin
         After the state concluded its case-in-chief and
rested, defense counsel notified the court that “I was recently
or today informed of a potential witness that would be able
to talk about Miss Klein’s10 previous involvement in drug
trafficking activity and weapons possessions.” The next
day, the state provided the court with an email stamped at
6:41 p.m. on the previous evening that provided a summary
of the information a defense investigator had learned from
witness Martin. The prosecutor represented that “that was
the first and extent of discovery that the state has received
in this case.” The state argued that Martin should not be

     10
        As noted above, Klein was the passenger in defendant’s truck at the time
of the incident that led to defendant’s arrest.
514                                          State v. Wesley

allowed to testify. After some colloquy between the court
and the state, Martin testified in an offer of proof.
        During direct examination in the offer, Martin
explained that he had “known [defendant] since we were
kids. In fact, I got him on [sic] first haircut.” Martin said
that he had known Klein for a little more than a year and
one-half and had seen her “[p]robably 13 or 14” times.
         Martin testified that two days before the police
pursuit and crash, he had met with defendant and Klein
in defendant’s truck, where they spent around an hour and
one-half. As Martin was sitting in the backseat of the truck,
Klein asked him to pass forward her handbag. In the process
of handing the bag to Klein, Martin testified that he saw in
the handbag a “large-framed handgun, dark in color,” a “CD
case,” a “digital scale of some sort,” and some “bandanas
that were tied together.” Finally, Martin explained that
defendant did not have the use of his legs and had customized hand controls for the throttle and brake in his truck. In
his opinion, because those hand controls were attached to
the steering column, “[he did not] see how there could be a
bag strapped to the steering column.”
        During cross-examination, Martin stated that he
had been friends with defendant for decades and had always
been in touch with defendant’s family. During the year
before the incident of the pursuit and crash, Martin stated
that he and defendant would often “hang out” and “go have
breakfast,” and that at least a couple of times, defendant
came to help Martin when Martin had vehicle problems.
         With respect to Klein, Martin testified that he had
previously purchased methamphetamine from her, that “she
had … a controlling-type relationship” with defendant,
and that it was Martin’s belief that defendant “was acting
basically at the direction of Miss Klein.”
        The court determined, based on Martin’s testimony,
that defendant “certainly knew of Mr. Martin’s existence
and whereabouts and what he may or may not have seen,
certainly after September 1st, given the conversation that
Mr. Martin indicated occurred in the truck on August 30th.”
The court added that, “to the extent that it’s suggested
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 (2023)                                             515

that this is just newly acquired evidence, I do not find that.
[Defendant] certainly knew about this, the existence of
Mr. Martin and what Mr. Martin may have seen.” The court
concluded that
   “[defendant] did commit a discovery violation by not stating or announcing the possibility that Mr. Martin would
   become a witness—would be a witness prior to the state’s
   resting its case in the middle of trial.
      “I find that the only appropriate remedy here is to
   exclude Mr. Martin’s testimony. That’s even after having
   considered the alternative grounds of allowing a postponement for the state to investigate not only Mr. Martin’s
   claims of what may have occurred on August 30th, the
   nature of Mr. Martin’s other testimony concerning parties
   with Ms. Klein, how he knows her, the existence of any
   prior convictions.”
         The factual findings made by the court regarding
defendant’s knowledge of Martin’s whereabouts and likely
evidence are supported by evidence in the record, and we are
bound by them. See Lindquist, 

 (“Defendant’s
knowledge and intent are questions of fact[;] we are bound
by the trial court’s factual findings, if supported by evidence
in the record.”). Moreover, defendant’s opening statement in
trial suggested that the defense strategy was to blame Klein
for the drugs in the truck, which supports an inference that
the defense had some notion that it would present evidence
of Klein’s culpability—and therefore some idea about who
could present that evidence.11 The trial court did not err by
concluding that defendant committed a discovery violation
when he failed to disclose the identity of Martin, who was
known to him as a longtime friend and was present with
defendant and Klein in defendant’s truck within two days of
the pursuit and crash.
         In light of the timing of the revelation of Martin,
plus the unavailability of a juror for an extension of the
trial, the trial court did not abuse its discretion by excluding Martin from testifying at trial. The court considered
    11
       During opening argument, defense counsel stated, “Keep in mind, please,
there are two people in this vehicle during this chase, and that there will be a
treasure trove of information that was not looked for and not—and is not brought
to you about those elements, the delivery and the possession.”
516                                            State v. Wesley

whether “exclusion of the witness was too extreme of a
remedy” and considered whether postponement would be
sufficient. The court expressed concern that a delay in the
proceedings for the state to investigate Martin’s evidence
would “[e]ssentially … be a mistrial.” On this record, the
trial court did not abuse its discretion by excluding Martin
rather than granting defendant’s request for a continuance
or declaring a mistrial.
      2. Witness Dupree
        Immediately following the court’s ruling on Martin,
there was a brief recess. After returning, defense counsel
stated,
   “Your Honor, I hate to—I hate to do this. I also just got
   information about a gentleman named James Dupree. My
   investigator talked to him this morning. We had his name
   two days ago. …
       “It’s Miss Klein’s former landlord [who] has told [the
   investigator] that he evicted Miss Klein for dealing controlled substances out of her residence.”
Defense counsel admitted that they had “some vague information about someone [who] might be able to say something”
before trial started, but that it had taken several days to
finally connect with Dupree. That moment was the first that
the defense had informed the state of Dupree. Defense counsel explained that he had only learned of the substance of
what Dupree could testify to that morning.
          The court considered an offer of proof consisting of
the investigator’s testimony regarding what Dupree would
say if allowed to testify.
         The investigator testified that she had been
assigned to find Dupree in the past few days. In addition to
searching for Dupree, the investigator was also searching
for Klein to serve a subpoena for her to appear at the trial.
Once the investigator had connected with Dupree, Dupree
explained that he had rented a room to Klein, likely around
the end of September, and that she had lived there for about
a month. She was evicted after Dupree discovered that she
was selling drugs, specifically “white and brown,” through
Cite as 

 (2023)                              517

a Facebook messenger thread she had left open on Dupree’s
computer.
          The trial court ruled that Dupree’s testimony would
also be excluded. The court noted that Klein had allegedly
been evicted in October, “about the time … when [defendant’s] indictment was filed,” and that defendant “had some
sort of relationship” with Klein. The court stated that it was
making similar findings as it had made with regard to witness Martin, which we understand to mean that defendant
must have been aware of Dupree and the testimony Dupree
might be able to offer at a time well before trial. However, as
explained below, that factual finding with regard to Dupree
is not supported by the evidence, and therefore, we are not
bound by it.
        First, there is nothing in the record to suggest that
defendant and Klein were in communication after the pursuit and crash, which is a logical prerequisite to finding that
defendant was aware of Dupree or what Dupree could say
about Klein’s own drug dealing. The investigator relayed
information indicating that Klein had not lived in Dupree’s
property until about a month after the incident and there
was no suggestion that the circumstances surrounding her
eviction were communicated to defendant. Indeed, at the
time of trial, defendant’s investigator was trying to find
Klein to subpoena her to the trial, which supports an inference that defendant was not then in communication with
Klein.
         Moreover, the tenuous connection between defendant and Dupree, unlike the longtime friendship between
defendant and Martin, does not allow for the same inference as existed with respect to defendant’s knowledge of
witness Martin. The record does not support a finding that
defendant had sufficient information about either Dupree’s
identity or what Dupree could say vis-à-vis Klein to conclude
that defendant (or counsel) could have “reasonably predict[ed]” that Dupree would be called as a witness. See State
v. Young, 

, 

 (1989) (explaining that disclosure obligation is triggered when defense can
reasonably predict witness or evidence will be introduced at
trial).
518                                              State v. Wesley

         The state argues that the “only logical inference
that can be drawn from the fact that the defense wanted to
locate and interview Dupree is that the defense knew that
Klein had been evicted for selling drugs and Dupree could
attest to that fact,” because “if there was no awareness of
the relevance of his testimony, there would be no reason for
the defense to try to locate and interview him in the first
place.” That argument proves too much. Defense counsel
stated that they had “some vague information about someone [who] might be able to say something” the day before
trial and were not able to talk to Dupree until after the
trial had commenced. The investigator testified that she
had Dupree’s name before trial but did not confirm Dupree
as the witness until that morning. It does not follow that
possession of some knowledge that might lead to admissible
evidence is sufficient to trigger the obligation to disclose an
unknown witness to the other side.
         Because there is no support in the record for the
court’s factual findings as to defendant’s knowledge and
intent, we conclude that the court legally erred in determining that there was a discovery violation with respect to witness Dupree.
         However, we will affirm a judgment, notwithstanding an error, if there is little likelihood that the error affected
the verdict—in other words, if the error was harmless. State
v. Davis, 

, 

 (2003). Due to our disposition of other counts above, the only remaining counts
to which Dupree’s testimony would have been relevant are
Counts 2 and 4 (unlawful delivery of methamphetamine and
unlawful possession of methamphetamine).
         We are not convinced that Dupree’s testimony had
any likelihood to affect the jury’s verdicts on those counts.
Whether or not Klein was evicted for dealing drugs from
Dupree’s apartment, more than a month after the pursuit
and crash, has little bearing on whether defendant possessed methamphetamine or took a substantial step toward
the delivery of methamphetamine at the time of the pursuit
and crash. Moreover, the jury was specifically instructed
that “[p]ossession may be individual or joint. Therefore, two
Cite as 

 (2023)                              519

or more persons may be in possession of the same thing
when they each have the power and the intent to control
it jointly.” Thus, even if the jury were presented with and
credited information about Klein’s subsequent drug dealing
activities, it does not follow that that evidence was likely to
affect their verdict, given the evidence showing that defendant was in either joint or individual possession of a substantial quantity of methamphetamine when he attempted
to elude police.
         Dupree’s testimony would have suggested that Klein
was a drug dealer. However, that evidence does not negate
the substantial evidence in the record that defendant was
also dealing drugs. In other words, even if the jury believed
from Dupree’s testimony that Klein was a drug dealer, the
jury would at most have found that defendant and Klein
were engaged in possession and attempted delivery of methamphetamine together, given the evidence of large amounts
of methamphetamine, packaging materials, and a digital
scale found in defendant’s truck as well as $1,160 found in
defendant’s wallet. We note again that, significantly, a bandana containing a very large quantity of methamphetamine
was attached to the steering column of defendant’s truck. A
second bandana with another large piece of methamphetamine wrapped inside of it was found in the driver’s area
near the steering column. And, defendant was the driver
of the truck in control of the steering wheel. The error in
excluding Dupree’s testimony was harmless.
        Conviction on Count 2 reversed and remanded for
entry of judgment of conviction for attempted delivery of
methamphetamine; convictions on Counts 3 and 5 reversed
and remanded; remanded for resentencing; otherwise
affirmed.
        PAGÁN, J, concurring in part, dissenting in part.
         Although I agree with the majority opinion regarding the errors that were committed below, I disagree regarding the disposition of Count 2. Instead of remanding for
entry of a judgment of conviction for attempted delivery
of methamphetamine, I believe we are required to simply
reverse and remand that count.
520                                                          State v. Wesley

         Under Article VII (Amended), section 3, of the
Oregon Constitution, if we can determine what judgment
should have been entered, we may remand with instructions
to enter a judgment for a different conviction. In determining “what judgment should have been entered in the court
below,” we are required to consider all of the matters submitted, which include “the instructions of the court to the
jury.” Or Const, Art VII (Amended), § 3. Indeed, the jury
instructions play a vital role in that determination. See, e.g.,
State v. Modrzejewski, 

, 

(2021) (when jury was not instructed on a lesser-included or
inchoate version of the charged crime, we could not make
the determination required to enter a conviction for the
attempted crime).
         Here, with respect to the delivery of methamphetamine count, the jury was provided two relevant instructions. First, the jury was instructed that in order to find
defendant guilty, they must conclude beyond a reasonable
doubt that defendant “knowingly delivered methamphetamine.” Second, as a definition, the jury was instructed that
“deliver or delivery” means “[t]he actual, constructive, or
attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance.”
During closing arguments, the state acknowledged that it
had not shown “a transaction,” but the state explained that
“possession with the intent to deliver constitutes delivery
even when no actual transfer is shown.”
        But the jury was not provided with an instruction
on the meaning of “attempt” under ORS 161.405(1), which
requires intentionally engaging in conduct that constitutes
a substantial step toward the commission of the crime.1

     1
       The uniform jury instruction for attempt provides that “[a] person attempts
[to commit a crime] when [he / she / they] intentionally [engage / engages] in conduct that constitutes a substantial step toward the commission of a crime in
which the defendant intends to take part personally.” UCrJI 1040. It further
explains that “[a] substantial step is more than mere preparation. A substantial
step means that the defendant’s conduct (1) would or does advance the criminal
purpose of the crime charged and (2) provides some verification of the existence
of the criminal purpose.” 

 The jury was also not instructed with the definition
of “intentionally.” The uniform jury instruction states that a person acts intentionally “when that person acts with a conscious objective” to cause a particular
result or engage in particular conduct. UCrJI 1035.
Cite as 

 (2023)                               521

A substantial step is more than mere preparation. State
v. Hubbell, 

, 

 (2021),
rev allowed, 

 (2022). “An ‘attempt’ under ORS
161.405(1) requires an act that is ‘strongly corroborative of
the actor’s criminal purpose’ such that it ‘(1) advance[s] the
criminal purpose charged and (2) provide[s] some verification of the existence of that purpose.’ ” Id at 872 (quoting
State v. Walters, 

, 

, cert den, 

 (1991)); see State v. Kyger, 

, 

, adh’d to as modified on recons, 

, 

 (2022) (“to be a substantial step, the defendant’s
conduct must (1) advance the criminal purpose charged and
(2) provide some verification of the existence of that purpose”).
         The majority remands with instructions to enter a
judgment of conviction for attempted delivery of methamphetamine, but that disposition requires us to conclude from
the record that the jury necessarily found that defendant
intentionally engaged in conduct constituting a substantial step toward the commission of the crime of delivery of
methamphetamine. For me, that is a bridge too far, especially given the jury’s nonunanimous answer to the sentence enhancement question of whether the offense involved
“substantial quantities of a controlled substance.” Based
on the record, I believe that we can only speculate as to
whether the jury would have found that defendant intentionally engaged in a substantial step towards the delivery
of methamphetamine. From the amount of methamphetamine found, which was much less than the “exceptionally
large amount of fentanyl” at issue in Hubbell, 

, as well as the amount of cash found, and the other circumstances of the case, the jury could have concluded that
defendant was preparing to deliver methamphetamine but
had not attempted to do so. More importantly, the parties
below never had an opportunity to develop the relevant facts
or make arguments pertinent to that distinction, because
the jury was never instructed regarding all of the elements
of the crime of attempted delivery of methamphetamine.
         Article VII (Amended), section 3, provides us with
the extraordinary power to direct the entry of a judgment of
conviction when we “can determine what judgment should
have been entered in the court below,” but it is a power that
522                                                             State v. Wesley

we should employ sparingly, especially in criminal cases.
Early jurists interpreting that constitutional provision
understood the need for caution. See Hall S. Lusk, FortyFive Years of Article VII, Section 3, Constitution of Oregon,
35 Or L Rev 1, 22 (1955) (describing early cases and finding only one case “in which the court re-examined the facts
and entered a judgment of conviction of a lesser crime”).2 In
that one case identified, State v. Ragan, 

, 531-
33, 

 (1928), the defendant had been convicted of
assault and robbery while armed with a dangerous weapon,
but an erroneous jury instruction regarding the weapon did
not undermine the jury’s findings that the defendant committed an act of assault and an act of robbery. As a result,
the court remanded with instructions to enter a judgment
convicting the defendant of assault with intent to rob. 

. In my view, we should limit our exercise of the power
to modify judgments to those kinds of cases; namely, cases
in which the jury was properly instructed as to the law of
the proposed modified judgment, and where the direct and
implied findings from the jury’s original verdict support
such a modification.
         Underlying my concern about the majority’s disposition of Count 2 is the notion that the litigants, not the court,
are in control of what is being litigated. The state, through
its district attorneys, alleges the crimes for which a defendant is being prosecuted. Armed with such knowledge, a
defendant is empowered to enter a plea of guilty or not guilty,
negotiate for a plea bargain, raise defenses, and prepare a
defense for trial. Each side may propose jury instructions.
UTCR 6.060. Those instructions, particularly the instructions addressing the elements of the charged crimes, define
the playing field for the state and defendant alike. That is,
the instructions explain exactly which elements the state
proposes to prove beyond a reasonable doubt, and therefore,
which elements the defendant must be prepared to defend
     2
       See, e.g., State v. Rader, 

, 

 (1912) (“If the evidence were
clear and without contradiction, we would ourselves try out the case here, as we
have a right to do under our amended Constitution, but it is wholly circumstantial, and the facts can be much better determined by a jury … than by us.”);
State v. Davis, 

, 

 (1914) (“[W]e are not permitted to theorize
as to what the verdict of the jury should have been if the issues had been properly
presented.”).
Cite as 

 (2023)                                              523

against. But here, defendant had no opportunity to develop
facts or prepare a defense regarding whether he engaged in
conduct that amounted to a substantial step and that qualified as more than mere preparation.
         If we tacked true to the logic of Hubbell, we would be
unable to say what the correct judgment in this case should
have been. The factual findings that the jury must have
reached in determining that defendant was guilty under the
erroneous Boyd theory of delivery do not also mean that it
found facts that constituted a substantial step. Possession
of methamphetamine without evidence that proves beyond a
reasonable doubt that the defendant engaged in intentional
conduct that constituted a substantial step toward delivery
is simply possession of methamphetamine—the crime of
conviction in Count 4.
         The majority’s decision to remand for entry of a
judgment of conviction of attempted delivery of methamphetamine, even though the jury was not instructed on all
the elements of that crime, also implicates defendant’s federal constitutional rights. “[T]he failure to submit a required
element of an offense to the jury is a federal constitutional
error.” State v. Perkins, 

, 

(2023) (citing Neder v. United States, 

, 

, 

 (1999)). “[T]he omission of an element
from the court’s instructions deprived defendant of his right
under the Sixth and Fourteenth Amendments to a jury
determination on an element essential to guilt.” Perkins,

. In such cases, to affirm, we must be able
to conclude that the error was harmless beyond a reasonable doubt. 

. Here, the error is related, but even
more serious, because the jury was not instructed on all the
elements of the crime and the jury did not convict defendant
of attempted delivery of methamphetamine. Any discussion
about what a jury would have found, based on the evidence
that was presented, but with a theoretical, imagined jury
deliberation, is, at best, a re-trying of the case with a new
set of instructions for which only three judges are making a
determination.3 Thus, the appropriate disposition of Count
2 is to reverse and remand for a new trial, to allow both
   3
       Notably, the three judges trying the case anew are not unanimous.
524                                          State v. Wesley

parties to prepare for a trial on the appropriate instructions, and for a jury to make findings consistent with those
instructions in the first instance.
         Respectfully, I concur in the majority opinion as to
the errors below, but I dissent from the majority’s disposition of Count 2.