State v. Hubbell

340                        October 5, 2023                       No. 23

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
                  BRIAN G. HUBBELL,
                  Respondent on Review.
         (CC 18CR43198) (CA A170143) (SC S069092)

   On review from the Court of Appeals.*
   Argued and submitted September 23, 2022.
   Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Anne Fujita Munsey, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for respondent on review. Also on the brief was
Ernest G. Lannet, Chief Defender.
   Zack Duffly, Duffly Law, LLC, Portland, filed the brief
for amicus curiae Drug Policy Alliance. Also on the brief
was Kellen Russoniello, Drug Policy Alliance, San Leandro,
California.
    Claire Powers, Oregon Justice Resource Center, Portland,
filed the brief for amici curiae Oregon Justice Resource Center
and Oregon Criminal Defense Lawyers Association. Also on
the brief were Brittney Plesser, Karen Newirth, and Malori
Maloney, Oregon Justice Resource Center, and Rosalind Lee,
Oregon Criminal Defense Lawyers Association, Eugene.




______________
    *Appeal from Washington County Circuit Court, Theodore E. Sims, Judge.

, 

 (2021).
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   Before Flynn, Chief Justice, Duncan, Garrett, and Masih,
Justices, and Landau and Walters, Senior Judges, Justices
pro tempore.…
    GARRETT, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.




______________
		        **Balmer, J., retired December 31, 2022, and did not participate in the
decision of this case. Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. DeHoog, Bushong, and James, JJ., did not
participate in the consideration or decision of this case.
342                                           State v. Hubbell

        GARRETT, J.
         In Oregon, it is generally unlawful “to manufacture
or deliver a controlled substance.” ORS 475.752(1). The legislature has defined “deliver” to mean “the actual, constructive or attempted transfer, other than by administering or
dispensing, from one person to another of a controlled substance.” ORS 475.005(8) (emphasis added). Thus, Oregon law
treats the “attempted transfer” of controlled substances as a
delivery just the same as if the transfer had been completed.
But the legislature did not define “attempted transfer.” In
this case, we consider whether that phrase applies to a person who possesses a large quantity of a controlled substance
and takes steps consistent with an intent to transfer it in
the future, but who has not yet made any effort to cause
the substance to change possession. We conclude that the
answer is no.
         The trial court convicted defendant of delivery
under ORS 475.752 based on evidence that defendant’s
extended-stay hotel room contained a large quantity of fentanyl, a portion of which was packaged in a manner consistent with an intent to sell it to individual users or dealers.
Over defendant’s objection, the trial court ruled that that
evidence was sufficient to convict him of delivery under
State v. Boyd, 

, 

, rev den, 

 (1988). In Boyd, the Court of Appeals construed the
phrase “attempted transfer” in ORS 475.005(8) by applying principles of liability for the inchoate crime of attempt,
ORS 161.405(1), whereby a person who intentionally takes
a “substantial step” toward committing a crime is liable for
attempting the crime. 

. Boyd held that
possessing a controlled substance in a quantity too large to
be consistent with personal use, combined with evidence of
an intent to transfer that substance, constitutes a substantial step toward transferring it and hence is sufficient to
show an “attempted transfer.” 

.
         On appeal in this case, defendant argued that the
evidence was insufficient to show delivery even under Boyd.
The Court of Appeals, on its own initiative, undertook a reexamination of Boyd, overruled that case, and held that possession plus an intent to deliver, without more, is insufficient
Cite as 

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to show an “attempted transfer” for purposes of the completed crime of delivery of controlled substances, although it
may establish a “substantial step” for purposes of the inchoate crime of attempt. State v. Hubbell, 

, 

 (2021). Defendant’s conviction was reversed.1 We
allowed the state’s petition for review, and now affirm the
Court of Appeals.
                           I. BACKGROUND
         The trial court found the state’s evidence sufficient to prove beyond a reasonable doubt that defendant
committed delivery under an “attempted transfer” theory.
Defendant did not formally move for a judgment of acquittal
(MJOA), but, as this was a bench trial, we treat his closing
argument challenging the sufficiency of the state’s evidence
as the equivalent of an MJOA. State v. Hedgpeth, 

, 730 n 4, 

 (2019) (explaining that, in closing
arguments in a bench trial, an argument that evidence was
insufficient was reviewed on appeal as if it were an express
motion challenging the sufficiency of the evidence).2 Thus,
we view the evidence in the light most favorable to the state
to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Andrews, 

, 

(2020) (citing State v. King, 

, 

(1989)).
A. Historical Facts
         Tigard police responded to a report that three individuals had overdosed at a hotel. Officers questioned one
of those individuals and determined that the cause of the
overdoses was a white powder that they had obtained from
a room in a different hotel. Upon further investigation, the
officers determined that the room was defendant’s.

     1
       The Court of Appeals held that the evidence and the trial court’s findings
established that defendant had committed the inchoate crime of “attempted
delivery” and remanded to the trial court for entry of a conviction and sentencing
for that crime. Hubbell, 

. As explained later in this opinion, we
agree with that disposition.
     2
       The Court of Appeals’ opinion states that defendant made a motion for judgment of acquittal. Hubbell, 

. We understand that reference to
reflect the functional equivalence described above.
344                                                       State v. Hubbell

         Based on that information, officers obtained a warrant to search defendant’s hotel room. Inside a plastic tub,
they found a lockbox that, in turn, contained several packages of white powder in plastic baggies. One package contained 23.78 grams of the powder. Another baggie contained
.23 grams of the powder, and several other baggies contained
exactly .04 grams each. A few additional baggies were empty
but had white powder residue on them. Laboratory results
later identified the white powder as the synthetic opioid fentanyl, a Schedule II controlled substance.3
        At the time of the overdose incident and the warranted search, defendant was in jail in Columbia County.
When he was later questioned by officers, he admitted that
the fentanyl in the lockbox belonged to him.
        At trial, the state presented evidence that the total
quantity of fentanyl found in defendant’s room was sufficient
to supply in excess of 300,000 individual doses of the drug.
A detective also testified that the amount of fentanyl found
in some of the smaller packages found in the lockbox—.04
grams—is typical of what would be sold on the street either
to end users or to dealers who would mix it with other drugs.
From that evidence, the state argued that defendant had
intended to traffic in fentanyl.
B.    Legal Background
         The state charged defendant with unlawful delivery of controlled substances under ORS 475.752, the delivery
statute. We pause to make clear that the prosecution was
based on the quantity and packaging of the fentanyl found
in defendant’s hotel room, not on the evidence that the overdose victims had obtained drugs from that room. Thus, the
evidence that controlled substances came into the possession
of those victims is not material to the issues on review. The
issues we address solely concern whether the fentanyl in
defendant’s possession could support a conviction for delivery.
        In reliance on Boyd, the state argued at defendant’s
bench trial that the quantity of fentanyl found in defendant’s
possession and the evidence that the fentanyl had been
    3
      Fentanyl is a Schedule II controlled substance under both state and federal
law. OAR 855-080-0022; 

(c)(9).
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packaged in preparation for transfer to others were sufficient to show that defendant had made an “attempted transfer” for purposes of the delivery statute, ORS 475.752(1).4
Defendant argued that the requirements of Boyd had not
been met because, notwithstanding the quantity of fentanyl,
the evidence was insufficient to show an intent to transfer.
Defendant pointed out that there was no evidence of when,
or by whom, the fentanyl had been divided into smaller
packages, nor was there any other evidence of the type that
one would expect to find in proximity to drug distribution,
such as scales, transaction records, or related materials.
The trial court ruled that the evidence was sufficient for an
“attempted transfer” under Boyd and convicted defendant of
delivery.
          On appeal, the parties initially reprised their arguments about whether the evidence was sufficient under
Boyd to show that defendant had intended to transfer the
fentanyl. The Court of Appeals then requested supplemental
briefing on the validity of Boyd’s central holding, viz., that
possession with the intent to deliver is sufficient to establish an “attempted transfer.” Hubbell, 

.
Ultimately, that court undertook a reexamination of Boyd,
held that that case had been wrongly decided, and reversed
defendant’s conviction for delivery. 

. We thus
turn to Boyd, and the decision below overturning it, as context for the arguments that the parties present to this court
on review.
         In Boyd, the defendant had possessed a large quantity of heroin and had admitted that she intended to sell it.

. She challenged her conviction for delivery of
controlled substances on the ground that the record lacked
any evidence that she had sold or attempted to sell the heroin.
The Court of Appeals considered for the first time whether
    4
      The underlying events in this case occurred in 2018. The delivery statute
has been renumbered since Boyd. See former ORS 475.992(1) (1987) and former
ORS 475.840 (2009), renumbered as ORS 475.752(1) (2011). ORS 475.752 was
substantively amended in 2021 and 2023. The crime defined in ORS 475.752(1)
was not affected by those amendments, and they do not affect our analysis. Two
other statutes discussed in detail in this opinion, ORS 475.005 and ORS 161.405,
were also amended after 2018. Those amendments do not affect our analysis, and
therefore, all references in this opinion to ORS 475.752(1), ORS 475.005, and ORS
161.405 are to the current version of the statute unless stated otherwise.
346                                          State v. Hubbell

“possession of [a] large amount of [controlled substances], not
for personal use but for sale, constitutes attempted delivery
within the meaning of … [ORS 475.005(8)], which does not
define either attempted transfer or attempt.” 

 To resolve
that question, the court turned to a different statute, ORS
161.405(1), which defines the inchoate crime of “attempt”: “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.” 

. The Court of Appeals thus imported concepts from
the distinct statute criminalizing “attempt” crimes—specifically, the concept of a “substantial step”—to construe the
phrase “attempted transfer” in the delivery statute. Then,
relying on legislative history associated with the attempt
statute, the court observed that “ ‘possession of materials to
be employed in the commission of the crime,’ ” and which
could serve no lawful purpose of the actor, may constitute a
“substantial step” and be sufficient for attempt liability. 

at 54 (quoting the Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 54, 51 (July 1970)). Consequently, the court reasoned, “the fact that defendant possessed the large amount
of heroin together with her admission that she acquired it
in order to sell it amounts to evidence that she had taken
a substantial step toward the commission of the crime of
delivery of a controlled substance.” Id.
         After reaching that conclusion, the Boyd court
took note of the defendant’s argument that Oregon, when
otherwise adopting the Uniform Controlled Substances Act
(UCSA), had not enacted the prohibition on “possession with
intent to deliver,” which is a feature of the UCSA that has
been enacted in most other states and by the federal government. Id. That is, the UCSA separately criminalizes
possession, possession with intent to deliver, and delivery—
yet Oregon law penalizes only possession and delivery. The
defendant in Boyd argued that to allow a conviction for
delivery, based only on evidence that a person possessed
a controlled substance with the intent to deliver it, would
have the effect of creating the crime that the legislature had
declined to create. The Boyd court rejected that argument:
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   “There is no indication that the Oregon legislature
   intended to punish an attempt to transfer a controlled substance other than as the completed transfer. It did so without enacting the distinct crime of possession with intent
   to deliver, because that crime, considering the meaning of
   ‘attempt,’ is included in the definition of ‘delivery[.]’ ”
Id. at 55.
         In this case, the Court of Appeals disavowed its
earlier decision in Boyd as “plainly wrong,” Hubbell, 

, and faulted its analysis in several respects.
The fundamental flaw in Boyd, the court explained, was the
“unexamined assumption” that the meaning of “attempted
transfer” in the delivery statute is to be found by referring
to the entirely separate inchoate crime of “attempt” in ORS
161.405. 

. The Boyd court had proceeded straight
to that assumption without engaging in any textual or contextual analysis of the phrase “attempted transfer,” contrary to established principles of statutory interpretation.

 Moreover, the reason that Boyd gave for rejecting the
defendant’s legislative history argument—the fact that the
Oregon legislature had chosen not to adopt the UCSA provision criminalizing possession with intent to deliver—was
itself dependent on the court’s assumption that the attempt
statute, ORS 161.405, supplied the meaning of “attempted
transfer” for purposes of the delivery statute. 

.
         In explaining why Boyd’s assumption about the
meaning of “attempted transfer” was incorrect, the court
below noted that ORS 161.405 is not a definitional statute. 

. Rather, it sets out the substantive elements
for the particular, inchoate crime of “attempt”—it does
not define that word, much less purport to supply a definition that would apply to any other statute in the Criminal
Code. In addition, the court explained, the structure of the
Criminal Code consistently reflects the legislative choice to
distinguish inchoate crimes from completed crimes, and to
punish the former less severely. 

. It would frustrate that policy choice, the court noted, if ORS 161.405 were
understood to “provide a generic definition of attempt that
would create a ‘crime within a crime’ in other statutes that
use the word ‘attempt,’ thereby eviscerating the very distinction that the 1971 code intended to create.” 

348                                          State v. Hubbell

         Having concluded that Boyd should be overruled,
the Court of Appeals proceeded to construe the phrase
“attempted transfer.” 

. Consulting dictionary
definitions of both “attempted” and “transfer,” in the light of
other context and the statutory phrase “from one person to
another,” the court concluded that an “ ‘attempted transfer’
appear[s] to describe an unsuccessful effort to cause the controlled substances to pass from one person to another.” 

. The court further reasoned that the phrase contemplates “a particular act of transferring, not possession
with a more generalized intent to deal the drugs at some
undetermined point in the future.” 

. Thus, where a
person possesses a controlled substance with such an intent
but has not yet tried to effectuate a transfer, the person cannot be guilty of the completed offense of delivery, although
that same conduct may constitute a substantial step toward
delivery and thus support liability for the inchoate crime of
attempt. 

.
         Returning to the facts of this case, the Court of
Appeals concluded that the state’s evidence readily supported a finding that defendant had “possessed an exceptionally large amount of fentanyl for the purpose of dealing,”
and thus had taken a substantial step toward the crime of
delivery. 

. The evidence did not, however, support a finding that defendant had “made some effort to
cause the controlled substances to pass from one person
to another.” 

. Because no “actual, constructive or
attempted transfer” had occurred, the court reversed defendant’s conviction for delivery and remanded for entry of a
conviction for attempted delivery. 

.
        The state petitioned for review, which we allowed.
                       II. ANALYSIS
         The legal question on review is whether the evidence
is sufficient to permit defendant’s conviction for “delivery”
under ORS 475.752(1). As we will explain, that evidence,
viewed in the light most favorable to the state, permits findings that defendant possessed a very large quantity of a controlled substance, intended to transfer it in the future, and
had taken some steps consistent with that objective, such as
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keeping it packaged for sale. The question before this court is
whether those findings legally suffice to show an “attempted
transfer” for purposes of the delivery statute. That is a matter of statutory interpretation, which we resolve by considering the text, context, and any helpful legislative history.
State v. Gaines, 

, 

 (2009).
         We begin with the text, which is the best evidence
of the legislature’s intent. 

. The delivery statute
makes it unlawful for a person “to manufacture or deliver
a controlled substance.” ORS 475.752(1). “Deliver” is defined
to include “the actual, constructive or attempted transfer,
other than by administering or dispensing, from one person to another of a controlled substance.” ORS 475.005(8).
At issue is the meaning of the phrase “attempted transfer.”
Because the legislature did not define either “attempted”
or “transfer,” we presume that the legislature intended
those terms to be understood in their ordinary sense. SAIF
v. Ward, 

, 

 (2022) (“When
interpreting a term or phrase that the legislature has not
specifically defined, this court first considers the ‘plain, natural, and ordinary’ meaning of the term.” (Quoting DCBS v.
Muliro, 

, 

 (2016).)).
        The dictionary defines “attempt” as both a verb and
a noun. The verb “attempt” is defined as follows:
    “to make an effort to do, accomplish, solve, or effect <~ to
    swim> <~ a problem>—often used in venturous or experimental situations sometimes with implications of failure.”
Webster’s Third New Int’l Dictionary 140 (unabridged ed
2002).5 We are interpreting “attempted” as used in the
statute—an adjective modifying a noun. The adjective is
derived from the past participle of the verb “attempt.” See

 Thus, we find the definition of the verb most pertinent to
our analysis: “to make an effort to do, accomplish, solve, or
effect.” 

         Of the several definitions of “transfer” found in
the dictionary, the one relevant for these purposes is “the

    5
      The dictionary defines the noun “attempt” as “the act of attempting : ESSAY,
TRIAL , ENDEAVOR , UNDERTAKING; esp : an unsuccessful effort 2 : an effort to achieve
something by force.” Webster’s at 140.
350                                           State v. Hubbell

conveyance of right, title, or interest in either real or personal property from one person to another by sale, gift, or
other process.” Webster’s at 2427. It also means “the act of
transferring,” and transferring is defined as “to carry or
take from one person or place to another,” or “to cause to
pass from one person or thing to another.” Id. at 2426-27.
         The parties agree, as do we, that the two definitions
together indicate that the plain meaning of an “attempted
transfer” of controlled substances is an unsuccessful or
incomplete effort to accomplish the passing of controlled
substances from one person to another. That does little to
resolve the dispute, however, because the parties disagree
about how broadly to understand the “effort” involved in
transferring controlled substances. If one understands the
delivery of controlled substances to involve a series of steps,
the parties disagree about which steps are relevant to determining whether an “attempted transfer” has occurred.
         The state argues that the evidence shows an effort to
effectuate a transfer here because defendant took meaningful steps “toward” that end, such as acquiring an extremely
large quantity of fentanyl and holding it in divisible quantities suitable for sale. The state reasons that defendant’s failure to initiate the “final step” in the transfer process—the
change of physical possession from one person to another—
does not negate the significance of those earlier steps.
          Defendant responds that the focus of the word “transfer” is on the act or acts that cause a thing to be passed from
one person to another. And, because “attempted” modifies the
word “transfer,” defendant argues, an “attempted transfer”
connotes that some effort has been made to complete the act
or acts that causes possession to change. Viewed that way,
defendant argues, an actor has not “attempted” a “transfer”
merely by engaging in conduct that is logically connected
to, or in furtherance of, the ultimate goal of transferring
controlled substances, such as acquiring the controlled substance and even prepackaging it for sale. Rather, a person
“must have made an effort to actually relinquish control of
the drugs—he must be in the act of doing so.”
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         As a textual matter, both parties’ arguments are
plausible. The dictionary definitions tell us that an attempted
transfer is an effort to bring about a change in possession.
But those definitions seem to permit both the state’s view—
that a person can attempt the transfer by initiating a series
of steps that culminate in the physical act of transferring—
and defendant’s narrower view—that attempting a transfer
means making an effort to engage in the act itself. As we
next explain, however, context and legislative history suggest that defendant’s view is more consistent with legislative intent.
         We consider the term “attempted transfer” in light
of the provision as a whole. First, that term appears in the
phrase “the actual, constructive or attempted transfer …
from one person to another.” ORS 475.005(8). “Actual” means
“existing in fact or reality.” Webster’s at 22. “Constructive,”
as relevant here, 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.” Webster’s at 489.6 Although this
case does not call upon us to resolve the meanings of an
actual or a constructive transfer of controlled substances,
it is evident that both terms contemplate a transfer that
happened (directly or inferentially), rather than a transfer
that is hypothetical or planned. That has some bearing on
how expansively we should understand the concept of an
“attempted transfer.”
         An oft-invoked principle of statutory construction is
that, when a word appearing in a list or grouping is capable
of more than one meaning, the meaning that is more consistent with the other words in the group may better reflect
legislative intent. See, e.g., State v. McCullough, 

,
361 & n 8, 

 (2009) (so describing noscitur a

     6
       The phrase “constructive transfer” also has a legal meaning: “A delivery of
an item—esp. a controlled substance—by someone other than the owner but at
the owner’s direction.” Black’s Law Dictionary 1803 (11th ed 2019). We express no
view as to whether a delivery “by someone other than the owner but at the owner’s direction” is a necessary component of a constructive transfer for purposes of
ORS 475.005(8).
352                                           State v. Hubbell

sociis). Given the choice between an expansive understanding of “attempted transfer” that includes steps preliminary
to engaging in the act of transferring, versus a more limited
understanding that focuses on that act itself, the statute’s
references to other transfers that were completed tends to
suggest that the narrower focus is appropriate. That reading is further reinforced by the statutory phrase “from one
person to another,” as well as by the use of the definite article “the” before the phrase “actual, constructive or attempted
transfer.” ORS 475.005(8). Those features of the text seem to
contemplate a transfer of a controlled substance that is specific and identifiable, as opposed to a course of envisioned or
planned activity more generally. See, e.g., State v. Lykins, 

, 

 (2015) (explaining that the definite
article “the” “indicates something specific, either known to
the reader or listener or uniquely specified”); accord Wyers
v. American Medical Response Northwest, Inc., 

, 

 (2016) (similar).
         In short, the full text of ORS 475.005(8) lends some
support to the view that an “attempted transfer” of controlled substances refers to an effort to engage in the conduct
by which the transfer occurs; it does not consist of activity
preliminary to that conduct, even if intended to eventually
make such a transfer possible.
         The state’s contextual argument to the contrary
relies, as did Boyd, on ORS 161.405, the inchoate attempt
statute. The state reasons that, in enacting the delivery
statute, the 1977 legislature would have been aware of the
attempt statute enacted in 1971, which describes the crime
of attempt as intentional conduct that “constitutes a substantial step toward commission of the crime.” See ORS
161.405(1). The state further argues that, “[w]ith respect
to the meaning of ‘attempt,’ as used in the Oregon statutes
that define crimes, the only clue that the legislature has provided is ORS 161.405(1)’s definition of ‘attempt.’ That definition equates ‘attempt’ with a ‘substantial step’ toward a
particular goal. Nothing in the rest of the Criminal Code, or
in [ORS] chapter 475, identifies an alternative definition.”
       We agree with the state’s observation that the
meaning of “attempt” is not addressed anywhere in Oregon’s
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criminal law, other than in the statute defining the inchoate crime of attempt. But we draw a different conclusion
from that observation. If the legislature had intended that
the word “attempt” (or “attempted”) would have a particular meaning across the Criminal Code when used to modify conduct, the natural location for the legislature to have
provided such a definition would have been one or more of
the several places in the Criminal Code that supply general definitions. E.g., ORS 161.015 (“General Definitions”);
ORS 161.085 (“Definitions with respect to culpability”);
ORS 164.005 (“Definitions” for property offenses). The legislature’s failure to do that suggests that it did not intend
to define the term; it does not suggest that the legislature
meant for ORS 161.405 to perform a function that its text
does not support.
          ORS 161.405 does not define the word “attempt.”
Rather, it sets out the circumstances in which “[a] person
is guilty of an attempt to commit a crime.” ORS 161.405.
Under the statute, liability for the inchoate crime of attempt
is determined, first, by reference to a substantive crime
set out elsewhere, and then by whether a person has (1)
“intentionally” (2) “engage[d] in conduct which constitutes
a substantial step toward commission of the crime.” ORS
161.405(1). The phrase “commission of the crime” is necessarily directed at all the elements of the offense. Attempt
liability thus requires a substantial step toward committing
“the crime,” which is not the same thing as a substantial
step toward completing a single element of a crime. We are
skeptical, therefore, of the state’s argument that the attempt
statute provides a way of understanding what the legislature meant by using “attempt” or “attempted” in a different
criminal statute to modify a single element, such as a physical act.
         A further reason to doubt that the legislature
intended for “attempted transfer” to derive its meaning
from ORS 161.405 is that doing so would treat the inchoate crime of attempt as equivalent to the completed crime
of delivery of a controlled substance. That is contrary to the
principle set out in ORS 161.405 itself, which states that
an attempted crime is one class lower in severity than the
354                                          State v. Hubbell

corresponding completed crime. See ORS 161.405(2) (stating
that an attempt is a Class B felony if the offense attempted
is a Class A felony, a Class C felony if the offense attempted
is a Class B felony, and so on). The crime of manufacture
or delivery of a Schedule II substance, such as fentanyl, is
a Class B felony. ORS 475.752(1)(b). The inchoate crimes of
attempted manufacture or attempted delivery of the same
substance, therefore, are Class C felonies. See ORS 161.405(2)
(c). Under the state’s view, however, conduct that constitutes
a “substantial step” toward delivery of a Schedule II substance is punishable not only as a Class C attempt crime
under ORS 161.405, but as the Class B completed crime of
delivery under ORS 475.752. If the legislature had intended
such equivalence, which is contrary to the rule otherwise
set out in ORS 161.405(2), one would expect to see stronger
evidence of that intent.
         Important context for our construction of the delivery statute also includes the fact that the statute is situated within a comprehensive scheme regulating controlled
substances. The crime of delivery is part of chapter 475 of
the Oregon Revised Statutes, and that chapter is entitled
“Uniform Controlled Substances Act” (“Oregon’s Controlled
Substances Act”). See ORS 475.285 (designating the short
title as the Uniform Controlled Substances Act). Oregon
adopted that chapter in 1977 based on a model act, the
UCSA, which has been enacted in whole or in part by many
states and the federal government. Or Laws 1977, ch 745;
Exhibit 3, Senate Committee on the Judiciary, SB 904,
Apr 7, 1977 (fact sheet accompanying statement of Senator
Stephen Kafoury).
         When the legislature adopts a uniform act, the context of the statute includes the uniform act, its official commentary, and interpretations from other jurisdictions that
existed at the time of enactment of the Oregon law. See Dept.
of Human Services v. J. S., 

, 

(2021) (“The context of a uniform act includes its official
commentary.”); OR-OSHA v. CBI Services, Inc., 

, 

 (2014) (explaining that case law existing
at the time of enactment interpreting the text of a statute
borrowed from another jurisdiction “may be consulted” as
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context). However, when the Oregon version of a statute contains different wording from the uniform act, we presume
that the difference is significant. State ex rel Juv. Dept. v.
Ashley, 

, 

 (1991) (“We generally
give meaning to the difference between an Oregon statute
and the statute or model code from which it was borrowed.”).
          ORS 475.752(1), which makes it unlawful “to manufacture or deliver a controlled substance,” is derived from
section 401 of the UCSA. Section 401(a) of the UCSA states
that it is unlawful “to manufacture, deliver, or possess with
intent to manufacture or deliver, a controlled substance.”
Uniform Controlled Substances Act (1970) (UCSA) § 401(a),
9 ULA 860, 886 (2007). The commentary to the UCSA
explains that that section “designates the prohibited acts
relating to unlawful manufacture and delivering of controlled substances, or possession with intent to manufacture
or deliver such substances.” Id. § 401 comment, 9 ULA at
887. The crimes described in Section 401(a) are differentiated according to what schedule applies, but all are punishable with imprisonment.
         Section 401(c) of the UCSA separately addresses
the offense of simple possession, making it unlawful “knowingly or intentionally to possess a controlled substance.” Id.
§ 401(c), 9 ULA at 887. Simple possession is classified as a
misdemeanor.
          The commentary explains that difference in penalty
structure: “The penalty structure is broken down according
to the schedule of the substance involved and the particular
unlawful act, since it is felt that trafficking offenses involving certain types of drugs constitute a greater danger to
the public and are deserving of stiffer penalties.” Id. § 401
comment, 9 ULA at 887. The commentary further explains
that the simple possession subsection “has been drafted specifically to provide for a lesser penalty for simple possession
than is provided for the trafficking and illicit manufacturing type offenses under subsections (a) and (b).” Id.
        Oregon adopted the UCSA’s prohibition on simple possession and, like the UCSA, treated that offense as
a lesser crime than delivery and manufacture. Or Laws
356                                                       State v. 

, ch 745, § 15; ORS 475.752(3).7 With regard to the more
severe offenses, Oregon also generally adopted the UCSA’s
prohibition on manufacture and delivery by enacting ORS
475.752(1)—with a notable difference. The UCSA provides
that “it is unlawful for any person to manufacture, deliver,
or possess with intent to manufacture or deliver, a controlled
substance.” UCSA § 401(a), 9 ULA at 886 (emphasis added).
ORS 475.752 provides only that “it is unlawful for any person to manufacture or deliver a controlled substance.” Thus,
unlike other UCSA jurisdictions, Oregon has not made “possess with intent” (to either deliver or manufacture) an enumerated crime. The parties draw different conclusions from
that omission.
          Defendant argues that the legislature’s failure to
enact the crime of possession with intent to deliver, when
it otherwise adopted the UCSA’s prohibition on delivery or
manufacture of a controlled substance, is powerful contextual evidence that “attempted transfer” in ORS 475.005(8)
requires something more than evidence that a person possessed a controlled substance and had the intent to transfer
it. If the legislature had intended that the crime of delivery
of a controlled substance could be established by such evidence alone, the legislature could have simply adopted UCSA
§ 401(a) in its entirety. Instead, the legislature omitted the
phrase “possess with intent to manufacture or deliver,”
which, defendant argues, suggests the opposite intent.
         The state resists that inference, arguing that there
is no indication that the 1977 legislature was aware that the
UCSA contained the “possess with intent” wording, so the
legislature’s failure to include that wording does not reflect
a conscious choice to reject it. The state also points out
that the bill’s sponsors declared that the intent in adopting
Oregon’s Controlled Substances Act was to create “uniformity” with the UCSA, which treats “possession with intent”
as a trafficking-level crime that is different and more serious

    7
      The current version of ORS 475.752(3) was amended by Ballot Measure
110 (2020). Those amendments changed the penalty for “knowingly or intentionally” possessing a controlled substance from a misdemeanor to a violation. That
change preserved the penalty structure that treats simple possession as a lesser
crime than delivery or manufacture, and thus does not affect our analysis on that
point.
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than simple possession. That, the state argues, lends support to the view adopted in Boyd, namely, that the legislature intended for Oregon to criminalize possession with
intent, but envisioned that it would be accomplished by having possession with intent treated as an “attempted transfer.” See Boyd, 

 (applying the principle of
a “substantial step” drawn from the attempt statute, ORS
161.405). On that view, the “possess with intent” phrasing
would have been superfluous.
         We are not persuaded by the state’s arguments, for
several reasons. The parties have identified no legislative
history, and we are aware of none, explaining why the 1977
legislation, Senate Bill (SB) 904, omitted the “possess with
intent to manufacture or deliver” wording that appears in
the UCSA. The state has cited legislative history reflecting
that the legislature generally intended to adopt the uniform
act. See, e.g., Exhibit 3, Senate Committee on the Judiciary,
SB 904, Apr 7, 1977 (fact sheet accompanying statement of
Senator Stephen Kafoury) (explaining that SB 904 “proposes
enactment of the UCSA” and is intended to create “uniformity” with federal law). But, as the state acknowledges, the
same legislator also explained that SB 904 “incorporates
many of the unique features of existing Oregon law and further modifies the UCSA based upon the collective judgment
of the subcommittee and the bill’s sponsors.” 

          It is also significant that, although SB 904 omitted
the phrase “possess with intent,” that phrase was included
in the version of the bill that the legislature first considered
four years earlier, in the 1973 session. House Bill (HB) 2003
(1973) (like the UCSA, making it unlawful “to manufacture,
deliver, or possess with intent to manufacture or deliver, a
controlled substance”). The 1973 session adjourned without
the bill becoming law, and the proposed bill in 1977 did not
contain the “possess with intent” phrase. SB 904, Feb 24,
1977 (original bill). No legislative history from either the
1973 session or the 1977 session explains the removal of
that phrase.
         Ultimately, the lack of an affirmative explanation
for why the legislature omitted a key phrase from the UCSA
does not allow this court to infer that there is no significance
358                                                       State v. Hubbell

to the omission. See Ashley, 

 (“We generally
give meaning to the difference between an Oregon statute
and the statute or model code from which it was borrowed.”).
That would be true even without the evidence that the “possess with intent” wording was initially part of the 1973 bill.
But the evolution of the legislation over multiple sessions in
the 1970s8 at least raises the possibility that the elimination
of the “possess with intent” wording was one of the ways in
which SB 904 “modifie[d] the UCSA based upon the collective judgment of the subcommittee and the bill’s sponsors,”
as Senator Kafoury explained. Exhibit 3, Senate Committee
on the Judiciary, SB 904, Apr 7, 1977. He was on the relevant committee in both the 1973 and the 1977 sessions. See
Minutes, Special Joint Committee on Alcohol and Drugs,
HB 2003, May 24, 1973 (listing members present); Minutes,
Senate Committee on the Judiciary, SB 904, May 11, 1977,
6 (listing members in roll call vote). Thus, the evidence is at
least as consistent, if not more, with the inference that the
omission of the “possess with intent” phrase in the 1977 bill
reflected a conscious policy decision not to treat that conduct
on a par with delivery and manufacture.
         The state’s contrary interpretation of the text and
legislative history requires us to conclude that the 1977 legislature intended to criminalize possession with intent to
deliver just like the UCSA did, but that, instead of taking
the straightforward path of copying the UCSA wording—as
it did in other respects9 —the legislature instead chose an
unusual and indirect route: It made a material change to
the operative UCSA provision and then assumed that the
change would have no effect because subsequent readers
would know to draw on the concept of an inchoate attempt
crime from an entirely different part of the Oregon Criminal
Code. All without explanation. We decline to draw that

    8
      Senator Kafoury’s testimony to the Senate Committee on the Judiciary
in 1977 indicates that there was a continuity of effort across multiple sessions.
Minutes, Senate Committee on the Judiciary, SB 904, Apr 7, 1977, 5 (statement
of Senator Stephen Kafoury) (“The Uniform Controlled Substances Act was the
product of the 1973 Session. The bill has been a long time coming and it still
hasn’t arrived. Much work has been done, it is still in need of work.”).
    9
      E.g., Or Laws 1977, ch 745, § 1 (defining “agent,” “dispense,” and “production” as the UCSA did); id. § 8 (requiring registration using same terms as
UCSA).
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counter-intuitive inference in the absence of stronger evidence than the expressed intent to create “uniformity” with
the UCSA. Such generalized expressions cannot control over
the differences in the text that the legislature chose to enact.
         The state’s view of the context and history also does
not fully account for the difference between the UCSA and
the wording that the legislature enacted. As noted, the UCSA
provides that “it is unlawful for any person to manufacture,
deliver, or possess with intent to manufacture or deliver, a
controlled substance.” UCSA § 401, 9 ULA at 886 (emphasis
added). The entire italicized phrase was omitted from ORS
475.752. On the state’s account, the choice to omit possession
with intent to deliver can be explained by the legislature’s
expectation that that conduct would be covered by the term
“attempted transfer.” But that does not explain why the legislature would also have omitted possession with intent to
manufacture. The state does not suggest that “attempted
transfer” could cover that conduct. If we were to accept the
state’s view, it would mean that the legislature had retained
from the UCSA the policy of treating possession with intent
to deliver as a completed crime equal in severity to delivery
and manufacture, yet made the policy choice not to similarly
treat possession with intent to manufacture—again, without explanation.
         For the reasons we have explained, we reject the
state’s contention that conduct which would make a person
liable for attempting the crime of delivering a controlled
substance necessarily rises to the level of an “attempted
transfer” for purposes of the completed crime of delivering
a controlled substance. The text of ORS 475.005(8) suggests
that an “attempted transfer” refers to conduct more directly
connected to the act or acts by which a controlled substance
changes possession. We understand the statute to mean
that a person has engaged in an “attempted transfer” if the
person has made some effort to undertake the act or acts
of causing controlled substances to pass from one person
to another. Steps preceding such an effort are insufficient
to show an attempted transfer, even if they are consistent
with a generalized intent to distribute the controlled substance in the future. That view of the text also best aligns
360                                           State v. Hubbell

with the larger context and history of Oregon’s Controlled
Substances Act, which shows that the Oregon legislature
declined to include the phrase from the UCSA that would
have treated “possession with intent to deliver” as tantamount to delivery.
         What the foregoing discussion should also make
clear is that today’s holding is limited. In light of the parties’ arguments and the facts of this case, it is sufficient for
us to say what an “attempted transfer” is not: It is not established by evidence that a person possessed a large quantity of a controlled substance and had a general intent to
transfer it at an undetermined future time. Some additional
evidence that the person made an effort to engage in the
act of transferring is required. The question of what sort
of additional evidence might be sufficient is one that we
decline to address in the abstract, as we expect that courts
will face it in a great variety of fact patterns. Transfers of
controlled substances take varying forms, from hand-tohand transactions on the street to large-scale distribution
across significant distances, and what is necessary for an
“attempted transfer” will depend on the circumstances. The
parties debated at oral argument, for example, whether a
person who carries a controlled substance into the streets
and solicits buyers has engaged in an “attempted transfer.”
Defendant takes the position that even that activity is not
sufficient, in the absence of evidence that a specific buyer
was identified and that a physical transfer was attempted
but interrupted. Because that set of facts is not before us,
we express no view on it, other than to emphasize that our
holding today does not go that far.
         In this case, the record is legally insufficient to
prove that defendant made an effort to transfer fentanyl.
The record shows that defendant possessed a nonuser
amount of fentanyl and that some of the fentanyl was packaged in a manner consistent with an intent to deliver it.
What the record lacks is evidence that defendant had taken
additional steps to engage in conduct that would cause the
fentanyl to change hands. There is no evidence that potential buyers had been identified, specifically or generically, or
that defendant had taken steps to identify or solicit buyers
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or to otherwise engage in transferring conduct (such as
transporting the fentanyl or communicating with others
about a transfer).10 Defendant was in jail in another county
at the time, which also tends to cut against an inference
that defendant was making an effort to transfer the fentanyl. (The state could have countered that fact with evidence that, before or during his incarceration, defendant
had engaged in such an effort, but no such evidence was
presented.) In short, the evidence, even viewed in the light
most favorable to the state, permits no inference greater
than that defendant possessed a quantity of fentanyl consistent with trafficking and had the intent to transfer it in the
future. That is insufficient to show an “attempted transfer”
for purposes of the completed crime of delivery. Accordingly,
defendant’s conviction for delivery must be reversed.
           Having reversed the conviction for delivery, the
Court of Appeals remanded the case for entry of a conviction for the lesser-included offense of attempted delivery of
a controlled substance. That disposition raises two distinct
questions: (1) whether the evidence is sufficient to support a
conviction for the inchoate crime of attempted delivery, and
(2) if so, whether this court should direct that the conviction
be entered, as opposed to remanding for the trial court to
consider in the first instance whether to convict defendant
of that crime.11
         As to the first question, we conclude that the evidence is sufficient to convict defendant of the inchoate crime
of attempted delivery.
         The crime of attempt has two elements: (1) intentional conduct that (2) constitutes a substantial step toward
the commission of the crime. See State v. Walters, 

, 

, cert den, 

 (1991). Conduct is
intentional when a person “acts with a conscious objective to
    10
       We reiterate here that the state’s theory was based on defendant having
the fentanyl and having some of it packaged into smaller amounts. The state’s
theory was not based on the fact that the overdose victims accessed the fentanyl,
and it did not rely on that fact at trial.
    11
       Article VII (Amended), section 3, of the Oregon Constitution grants this
court the authority to direct a different conviction to be entered if this court is “of
[the] opinion that it can determine what judgment should have been entered in
the court below.”
362                                          State v. Hubbell

cause the result or to engage in the conduct so described.”
ORS 161.085(7). A substantial step occurs when a person’s
conduct (1) advances the criminal purpose charged and
(2) provides verification of the existence of that purpose.
State v. Kyger, 

, 

, adh’d to as
modified on recons, 

, 

 (2022). We
have distinguished a substantial step, which is a predicate
for attempt liability, from “mere preparation,” which is not
sufficient. Id. at 370 (“[The substantial step test] draws a
line between conduct that is ‘mere preparation’ for criminal
activity (and is insufficient to create liability), and conduct
that goes further.”).
         The legislative history surrounding the enactment
of the inchoate attempt statute indicates that the legislature
anticipated that, at least in some circumstances, possession
of an item might, by itself, constitute a substantial step.
The Commentary to the Criminal Code specifically provides
examples of “acts which should not be held insufficient as a
matter of law to constitute a substantial step,” which include
“possession of materials to be employed in the commission
of the crime, [and possession of which could] serve no lawful
purpose of the actor.” Commentary § 54 at 51.
         Defendant argues that the evidence shows nothing
more than “mere preparation” for the crime of delivery, and
that attempt liability requires the existence of an identified “transferee.” We disagree. Defendant took perhaps the
most consequential step necessary to traffic in illegal drugs,
which is to acquire them. Defendant held enough fentanyl
to supply in excess of 300,000 doses. We need not resolve
whether possession of that quantity constitutes a substantial step by itself, because the state presented additional
evidence of defendant’s conduct that advanced and verified
the existence of a criminal purpose—the fentanyl had been
prepackaged for sale. Such conduct rises beyond the level
of “mere preparation” and constitutes a substantial step
toward committing the crime of delivery. Accordingly, the
evidence is sufficient to convict defendant of the inchoate
crime of attempt.
        Moreover, we conclude that, under these circumstances, the trial court in effect did convict defendant of
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attempted delivery, so it is unnecessary to remand for the
trial court to consider in the first instance whether to convict defendant of that crime. The parties and the trial court
proceeded from the understanding that Boyd controlled,
and that liability for the crime of delivery could be established by a “substantial step” toward delivery. The trial
court explained that “the issue is whether or not there’s
any under the Boyd … case[ ], whether there’s any sort of
substantial step towards the … attempt to delivery.” The
court then proceeded to explain that “possession of materials which can serve no lawful purpose of the actor under
the circumstances is sufficient … to constitute a substantial step.” Finally, the court found that defendant’s possession of multiple prepackaged bags of fentanyl constituted a
substantial step. With that understanding of the record, we
conclude that the trial court made all the requisite findings
for defendant’s conviction for inchoate attempt and that that
is the conviction that the trial court would have entered but
for Boyd, which allowed the conviction to be entered for the
completed crime instead.12
        The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.




    12
       Defendant challenges the sufficiency of the evidence for attempt, but he
does not argue that, if the evidence was sufficient, it is nevertheless necessary to
allow the trial court to determine whether to enter that conviction.