State v. Forest

524                  January 31, 2024                 No. 66

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                STEPHEN MARK FOREST,
                    aka Stephen Forest,
                 aka David Ronald Forrest,
                     aka Steve Forrest,
                   Defendant-Appellant.
               Umatilla County Circuit Court
                   19CR59044; A177280

   Daniel J. Hill, Judge.
   Argued and submitted August 10, 2023.
   Matthew Blythe, 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.
   Rolf C. Moan, 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 Mooney, Judge, and
Pagán, Judge.
   PAGÁN, J.
   Reversed.
Nonprecedential Memo Op: 

 (2024)                            525

           PAGÁN, J.
         Defendant challenges his conviction for attempted
delivery of methamphetamine. On appeal, defendant assigns
error to the trial court’s denial of his motion for a judgment
of acquittal. Specifically, defendant argues that evidence of
him possessing 5.78 grams of methamphetamine and about
$1,500 in cash that was separated into purchase amounts was
insufficient for a rational factfinder to infer that defendant
took a substantial step toward the delivery of a controlled
substance. For the following reasons, we agree that the trial
court erred in denying defendant’s motion for a judgment of
acquittal. Accordingly, we reverse defendant’s conviction.
         A person commits the inchoate crime of attempted
delivery of a controlled substance when the person possesses
a controlled substance with the intent to deliver it and takes
a substantial step toward the commission of that crime. State
v. Hubbell, 

, 

 (2023). Intentional
conduct occurs when a person “acts with a conscious objective
to cause the result or to engage in the conduct so described.”
ORS 161.085(7). A substantial step, which is a predicate for
attempt liability and distinguishable from mere preparation,
“occurs when a person’s conduct (1) advances the criminal
purpose charged and (2) provides verification of the existence
of that purpose.” Hubbell, 

.
         In the present case, defendant possessed 5.78 grams
of methamphetamine, was driving in his car, and was carrying about $1,500 in cash that was organized in a particular way. The state argues that this evidence was sufficient
to show that defendant had taken a substantial step toward
effecting a delivery of methamphetamine. In support of that
argument, the state contends that this case is factually similar to Hubbell and State v. Buell, 

, 

 (2022), where we found there was sufficient evidence
to convict the defendants of the inchoate crime of attempt.1
    1
      Hubbell and our cases following it have largely focused on the completed
crime of delivery and whether the evidence was sufficient to remand the case
for entry of a conviction for the lesser-included offense of attempted delivery.
Although not in the same procedural posture, we cite to these cases because they
provide a framework for the question before us in this appeal: whether there
was sufficient evidence to deny a motion of acquittal for the inchoate crime of
attempted delivery.
526                                           State v. Forest

However, we disagree that this case is similar to Hubbell
and Buell because more evidence was presented in those
cases to support a reasonable inference of future transfer.
See Hubbell, 

 (evidence that the defendant possessed an exceedingly large amount of fentanyl that was
prepackaged for sale); Buell, 

 (evidence
that the defendant possessed a large quantity of methamphetamine, a scale, an open box of sandwich bags, and text
messages asking about acquiring drugs).
         Instead, we find the facts of this case to be similar
to State v. Fischer, 

, 

 (2021),
where we reversed the defendant’s conviction for delivery
of a controlled substance. 

 Although decided in a procedurally different context, Fischer is relevant because it discussed what evidence would be sufficient to support a conviction for attempted delivery. 

 In Fischer, the defendant
possessed 4.28 grams of heroin in three bindles that “she
[had] recovered by regurgitating them.” 

. She also
possessed 8.91 grams of methamphetamine in her handbag. 

 The state did not identify a potential recipient of
the drugs or present evidence of a plan or an impending
transaction. 

 Focusing on how the drugs were stored,
we noted that they were not separated into user amounts,
and that the defendant had no items that would indicate
the drugs were intended for future transfer, such as scales,
cutting agents, unused packaging materials, or transaction
records. 

 We found that there was insufficient evidence
that the defendant took a substantial step toward the crime
of delivery, and thus declined to enter a conviction for the
lesser-included crime of attempt. 

        Here, defendant was arrested in the course of a
routine traffic stop. He possessed 5.78 grams of methamphetamine—an amount less than the quantities that were
inadequate to prove intent to deliver in Fischer. Defendant’s
methamphetamine was undivided and there were no packaging or distribution materials. The state did not identify a
recipient for the drugs or present evidence of a plan indicating that defendant intended to sell the methamphetamine
rather than use it himself. For those reasons, this case is
too similar to Fischer to permit an inference that defendant
Nonprecedential Memo Op: 

 (2024)       527

took a substantial step toward delivery. The trial court
erred when it denied defendant’s motion for a judgment of
acquittal.
       Reversed.