Oregon v. Hubbell
Annotate this CaseA trial court convicted defendant Brian Hubbell 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 Oregon v. Boyd, 756 P2d 1276 (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 the evidence was insufficient to show delivery even under Boyd. The Court of Appeal, on its own initiative, re-examined Boyd, overruled it, and held that possession plus an intent to deliver, without more, was insufficient to show an “attempted transfer” for purposes of the completed crime of delivery of controlled substances, though it could establish a “substantial step” for purposes of the inchoate crime of attempt. To this, the Oregon Supreme Court concurred and affirmed the appellant court.
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