92 October 8, 2025 No. 874
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN CURTIS BEDFORD,
aka John Bedford, aka John C. Bedford,
John Curris Bedford, aka John Curtil Bedford,
aka Kirk Bedford,
Defendant-Appellant.
Douglas County Circuit Court
19CR10744; A183385
Ann Marie Simmons, Judge.
Argued and submitted August 20, 2025.
Andrew D. Robinson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Remanded for resentencing.
Cite as 344 Or App 92 (2025) 93
94 State v. Bedford
JOYCE, J.
This case is before us a second time. A jury convicted
defendant of two counts of delivery of a controlled substance
and found that the counts involved substantial quantities
of heroin (Count 1) and methamphetamine (Count 2). The
trial court ranked defendant at crime category 9 for his
conviction for delivery of heroin, because the crime involved
50 grams or more. ORS 475.925(2)(c); ORS 475.930(1)(a)(B).
On defendant’s conviction for delivery of methamphetamine, the court ranked defendant at crime category 8. ORS
475.900(1)(a). In his first appeal, we reversed defendant’s
convictions for delivery of heroin and delivery of methamphetamine because the evidence was insufficient to prove
that defendant completed delivery of the drugs under State
v. Hubbell, 314 Or App 844,
500 P3d 728 (2021), aff’d,
371
Or 340,
537 P3d 503 (2023). We remanded the case to the
trial court for entry of convictions for attempted delivery of
a controlled substance on each count and for resentencing.
State v. Bedford,
321 Or App 515, 517 (2022) (nonprecedential memorandum opinion), rev dismissed,
371 Or 535 (2023).
On resentencing for attempted delivery of controlled
substances, the trial court ranked Count 1 at crime category 7
and Count 2 at crime category 6. In this appeal, defendant
argues that the trial court erred in doing so, because, among
other reasons, the jury finding that each count involved substantial quantities does not equate to a jury finding that the
completed crime of delivery would have involved a substantial
quantity; thus, in defendant’s view, the trial court erred in
using the crime seriousness category for a completed delivery
of a controlled substance involving substantial quantities.
We conclude that although the jury found that defendant’s
conduct in committing attempted delivery of a controlled
substance involved substantial quantities, the same cannot be said of the completed crime of delivery of a controlled
substance because the jury was never presented with that
legal theory. Therefore, the trial court erred in using a crime
seriousness category for the completed crime of delivery of a
controlled substance, and we remand for resentencing.
To put the facts and legal issues in context, we
begin by describing the relevant interlocking framework
Cite as 344 Or App 92 (2025) 95
of statutes and administrative rules that address crime
seriousness categories, sentencing for completed crimes,
and sentencing for attempted crimes. ORS 475.900(1)(a)(A)
and (D) provide for a crime seriousness ranking of 8 where
“the violation constitutes delivery” of methamphetamine or
heroin and “involves substantial quantities[.]” Those provisions define “substantial quantities” of heroin as five or
more grams and “substantial quantities” of methamphetamine as 10 or more grams.
Id. Those sentencing provisions
are referred to as subcategory facts or subcategories. ORS
132.557(1). ORS 475.925(2)(c) then provides for a sentencing
range equivalent to crime seriousness category of 9 if a person is convicted of the unlawful delivery … of a controlled
substance involving, among other things, 50 grams or more
of heroin.
OAR 213-004-0005(1), in turn, provides how a court
should calculate the crime seriousness category for attempt
crimes: “A conviction for an attempted crime shall be ranked
on the Crime Seriousness Scale at two crime categories
below the appropriate category for the completed crime.”
With those provisions in mind, we turn to the facts
of this case. The state indicted defendant for a number of
crimes, including delivery of heroin and methamphetamine.
At trial, the state relied on a “Boyd” theory of delivery to
prove the crime of unlawful delivery of heroin and unlawful
delivery of methamphetamine. See State v. Boyd, 92 Or App
51, 55,
756 P2d 1276, rev den,
307 Or 77 (1988), overruled
by Hubbell,
314 Or App 844,
500 P3d 728 (2021) (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)). The state presented evidence that defendant possessed a large amount of both drugs, packaged into
smaller amounts, and had additional packaging materials.
The jury found defendant guilty of both crimes. The
jury further found that both crimes involved the subcategory fact of “substantial quantities” of both drugs. See ORS
475.900(1)(a)(A) and (D) (defining “substantial quantities” of
controlled substances); ORS 132.557(1) (subcategory facts).
96 State v. Bedford
The trial court sentenced defendant accordingly: Based on
the convictions and the subcategory fact of substantial quantities, for Count 1, delivery of heroin involving 50 grams or
more, the court sentenced defendant under crime category 9,
ORS 475.925(2)(c) and ORS 475.930(1)(a)(B), and for Count 2,
delivery of methamphetamine involving 10 grams or more,
the court sentenced defendant under crime category 8, ORS
475.900(1)(a)(D).
After defendant’s conviction and while his appeal
was pending, we decided Hubbell. And in Hubbell, we overruled Boyd. Hubbell, 314 Or App at 848. We concluded that
delivery by an “attempted transfer” requires an “incomplete or unsuccessful transfer” of a controlled substance,
not merely possessing a substantial quantity with intent to
transfer it.
Id. at 870; see ORS 475.005(8) (defining “delivery”
for purposes of ORS 475.890 as “the actual, constructive or
attempted transfer of … from one person to another, a controlled substance”). Thus, “[i]f a defendant has tried to actually transfer a controlled substance to another person, that
defendant will be guilty of the completed offense, regardless
of whether the transfer itself was successful.” Hubbell,
314
Or App at 870. But if a person has “merely taken a substantial step toward the crime of delivery but has not yet
attempted the transfer itself”—such as merely possessing a
substantial quantity—“the defendant will have committed
the inchoate crime of attempted delivery of a controlled substance.”
Id. at 870-71.
In light of Hubbell, in defendant’s first appeal, we
reversed defendant’s convictions that were based on a Boyd
theory of delivery because the evidence was insufficient to
prove that defendant completed delivery of the drugs, and we
remanded for entry of judgments of conviction for attempted
delivery and for resentencing on both counts. Bedford, 321
Or App at 516-17.
On remand, the parties agreed that the court should
use OAR 213-004-0005(1) to determine the appropriate
crime seriousness category, which provides that a conviction
for an attempt crime should be ranked at two categories
below the appropriate category for the completed crime. The
trial court concluded that the “completed crime” was delivery
Cite as 344 Or App 92 (2025) 97
of a controlled substance involving a substantial quantity
and, as a result, the completed crime category remained the
same as during the original sentencing, 9 and 8. The court
then ranked the attempted deliveries two crime categories
below that, 7 and 6. The court did so despite defendant arguing, among other things, that although the jury found that
defendant’s conduct in committing attempted delivery of a
controlled substance involved substantial quantities, the
jury did not find that the completed crime of delivery also
entailed substantial quantities.
Defendant renews that argument on appeal. He contends that although the jury found that his crimes involved
substantial quantities for attempted delivery1 of controlled
substances, the jury did not find that he committed the completed crime of delivery of a controlled substance, let alone
that he committed a completed delivery involving substantial quantities.
We agree.2 Both crime seriousness categories at
issue here provide for a higher category where “the unlawful
delivery” of a controlled substance, ORS 475.925, and “[t]he
violation constitutes delivery” of a controlled substance, ORS
475.900, and involves substantial quantities of a drug. Both
categories are specific to “the” completed crime of delivery.
“The article ‘the’ is used as a function word before a noun
to limit its application to that specified by a succeeding element in the sentence[.]” State v. Rowland, 245 Or App 240,
245,
262 P3d 1158 (2011), rev den,
351 Or 675 (2012) (citing
Webster’s Third New Int’l Dictionary 2369 (unabridged ed
1
When we use the term attempted delivery in this context, we mean the
inchoate crime of attempted delivery, i.e., possessing a controlled substance in
an amount that reflected his intent to deliver and his taking a substantial step
towards doing so, and not the “actual, constructive, or attempted transfer” of a
controlled substance.
2
Defendant raises two alternative arguments. The first is that the “completed crime” does not include subcategory facts that would have applied if the
crime had been completed and, thus, the trial court erred in setting the crime
seriousness categories at 8 and 9. At oral argument, defendant acknowledged
that if we agreed with his argument that the jury did not find that the completed
crime would have involved substantial quantities, we would not have to address
the propriety of setting the categories at 8 and 9. We therefore do not address that
argument. His second alternative argument is that delivery of heroin involving
50 grams is not a subcategory fact at all. Again, given our disposition here, we do
not need to reach that argument.
98 State v. Bedford
2002)). Thus, “the,” as used in both ORS 475.925 and ORS
475.900, serves to limit the higher crime seriousness categories to completed (actual, constructive, or attempted transfer) deliveries of controlled substances and does not include
the inchoate crime of attempted delivery.
Yet here, the jury’s factual findings necessarily amounted to legal liability for the inchoate crime of
attempted delivery, not the completed crime of delivery.
Because the state tried defendant under a Boyd theory of
delivery, the jury found that defendant had substantial
quantities of controlled substances when he committed
attempted delivery; it made no findings with respect to a
completed delivery. The trial court thus erred in sentencing
defendant on remand using the increased crime seriousness
categories for completed deliveries that involve substantial
quantities of drugs.
Remanded for resentencing.
