State v. Postlethwait

No. 89                February 14, 2024                     665

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              MISTY BLU POSTLETHWAIT,
                  Defendant-Appellant.
              Klamath County Circuit Court
                  20CR66025; A176416

   Marci Warner Adkisson, Judge.
   Submitted April 26, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
   MOONEY, J.
   Conviction on Count 1 reversed and remanded for entry
of a judgment of conviction for one count of attempted delivery of methamphetamine and for resentencing; conviction
on Count 3 reversed.
   Pagán, J., concurring in part, dissenting in part.
666   State v. Postlethwait
Cite as 

 (2024)                               667

         MOONEY, J.
         Defendant appeals a judgment of conviction,
entered after a jury trial, for delivery of methamphetamine
(Count 1), ORS 475.890, and possession of a weapon in a
public building (Count 3), ORS 166.370. Relying on our decision in State v. Hubbell, 

, 

 (2021),
aff’d, 

, 

 (2023) (Hubbell I), defendant
assigns error to the trial court’s denial of her motion for judgment of acquittal on the delivery charge, arguing that the
state presented insufficient evidence that she attempted to
transfer methamphetamine from one person to another. The
parties briefed and argued this matter before the Supreme
Court issued its decision in State v. Hubbell, 

, 

 (2023) (Hubbell II), in which it affirmed Hubbell I.
Hubbell II requires us to reverse the delivery conviction.
         Defendant specifically requests that we not remand
for entry of a judgment convicting her of the inchoate crime
of attempt because, according to defendant, the state presented insufficient evidence of intent and insufficient evidence that she took a substantial step toward committing
the crime of delivery. We do not agree. There was evidence
that defendant possessed 157 grams of methamphetamine
divided into seven bags, a scale, and a handgun. That is
enough. See State v. Tacia, 

, ___ P3d ___
(2024) (remanding for entry of a judgment convicting the
defendant of the lesser included crime of attempt where he
possessed a dealer quantity of methamphetamine along
with evidence that he had participated in packaging the
methamphetamine into smaller baggies for sale).
         Defendant also assigns error to the trial court’s evidentiary ruling that admitted into evidence a report indicating that the revolver was test-fired and found to be an
operable firearm. We accept the state’s concession on that
assignment because the state did not make the declarants whose statements appear in the report available as
witnesses, and it did not show that they were unavailable.
Admitting the report into evidence despite the state’s failure to either produce the declarants for cross-examination
or to establish their unavailability violated defendant’s confrontation rights under Article I, section 11, of the Oregon
668                                                State v. Postlethwait

Constitution. See State v. Birchfield, 

, 

 (2007) (holding that admitting a report under ORS
475.235 (2003) 1, a similarly worded statute, when the state
neither produced the declarant as a witness nor established
his unavailability violated the defendant’s confrontation
rights). The rule in this case, OEC 803(25), like the version
of the statute at issue in Birchfield, authorizes the admission
of certain documents containing out-of-court statements,
while providing that “the defendant may subpoena” the
declarant at no cost. That language impermissibly shifted
the responsibility to secure the declarant’s attendance at
trial to defendant, which is directly at odds with defendant’s
right to confront her accusers and to “meet the witnesses
face to face.” Or Const, Art I, § 11. The trial court erred in
admitting the report. Because the state presented no other
evidence that the revolver was an operable “firearm” under
ORS 166.210, the error was not harmless.
         Conviction on Count 1 reversed and remanded for
entry of a judgment of conviction for one count of attempted
delivery of methamphetamine and for resentencing; conviction on Count 3 reversed.
           PAGÁN, J., concurring in part, dissenting in part.
         I concur in the reasoning and the disposition of
Count 3 but write separately to dissent from the disposition
of Count 1 for the reasons I have previously stated in State v.
Tacia, 

, ___ P3d ___ (2024) (Pagán, J.,
concurring in part and dissenting in part), and State v.
Wesley, 

, 

 (2023), rev den,

 (2023) (Pagán, J., concurring in part and dissenting in part).




     1
       Following our decision in Birchfield, ORS 475.235 was amended. See ORS
475.235 (2003), amended by Or Laws 2007, ch 636, §§ 1 - 2; Or Laws 2009, ch 610,
§ 8; Or Laws 2021, ch 591, § 42.