by David M. Reutter

The Supreme Court of Oregon held that “attempted transfer” does not apply “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.” The Court vacated the conviction for attempted transfer, but it concluded sufficient evidence to support the conviction of defendant for the inchoate crime of attempted delivery.

Tigard police responded to a report that three individuals had overdosed at a hotel. The cause was a white powder that was obtained from a hotel room that was rented to Brian G. Hubbell. A search warrant was obtained, and officers found synthetic opioid fentanyl. Police uncovered one package of 23.78 grams, another with .23 grams, and several baggies that contained .04 grams of the drug.

At the time of the overdoses and search, Hubbell was in jail in Columbia County. He admitted to investigating officers that the fentanyl belonged to him. The evidence at trial showed the total amount of fentanyl was enough to make in excess of 300,000 individual doses of the drug. From that evidence, the State argued Hubbell intended to traffic in fentanyl. The trial court found the evidence supported an “attempted transfer” under State v. Boyd, 756 P.2d 1276 (Or. Ct. App. 1988) (holding that possessing a controlled substance in a quantity tool large for personal use, combined with evidence of an intent to transfer that substance, constitutes a substantial step toward transferring it and thus is sufficient to show an “attempted transfer”), occurred, and it convicted him after a bench trial of delivery.

On appeal, the Court of Appeals disavowed its holding in Boyd as “plainly wrong.” State v. Hubbell, 500 P.3d 728 (Or. Ct. App. 2021). It then found there was no evidence that Hubbell made an effort to pass the controlled substances from one person to another. Thus, it vacated the delivery conviction with instructions to enter judgement for attempted delivery. The State’s petition for review by the Oregon Supreme Court was granted.

The Court’s analysis began by defining the crime and statutory terms. “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). The terms “attempt” and “transfer” are not defined by Oregon law, so the Court relied upon the dictionary definition for them. The parties and the Court agreed the plain meaning of “attempted transfer” of a controlled substance is “an unsuccessful or incomplete effort to accomplish the passing of controlled substances from one person to another.” The dispute in Hubbell’s case was a dispute “about how broadly to understand the ‘effort’ involved in transferring substances.” Delivery of controlled substances involves steps, and the dispute centered on “which steps are relevant to determine if an ‘attempted transfer’ has occurred.”

The Court was presented with a “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 the act itself.” The Court concluded that “the full text of ORS 475.008(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, in ORS 161.405, the inchoate attempt statute,” the Court wrote. In rejecting that argument, the Court noted that Oregon’s Uniform Controlled Substances Act differs from the federal Uniform Controlled Substances Act. The federal act makes it “unlawful for any person to manufacture, deliver, possess with intent to manufacture or deliver, a controlled substance.” That language was replaced in the Oregon statue with the term “attempted transfer.”

The Court determined ORS 475.008(8) “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.”

The Court determined that the evidence presented at Hubbell’s trial was “legally insufficient to prove that defendant made an effort to transfer fentanyl.” While the drugs were packed in a manner consistent with an attempt to deliver it, the record lacked evidence that Hubbell had identified buyers or taken steps to identify or solicit buyers. The Court also noted that Hubbell was in jail at the relevant time. The evidence does show Hubbell possessed a quantity of controlled substances consistent with intent to trafficking and transfer in the future, but there was no proof of an attempt to transfer.

Accordingly, the Court affirmed the decision of the Court of Appeals and remanded the case to the trial court for further proceedings. See: State v. Hubbell, 537 P.3d 503 (Ore. 2023).  

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