- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 09-29-2021
- Case #: A170143
- Judge(s)/Court Below: James, J. for the Court; Lagesen, P.J.; & Kamins, J.
- Full Text Opinion
Police searched a hotel room in Defendant's name after investigating the drug overdose of three individuals. Police discovered large quantities of fentanyl in Defendant's hotel room. Defendant was subsequently charged with unlawful possession and unlawful delivery of a controlled substance. The trial court merged these two charges and Defendant was convicted of controlled delivery. On appeal, Defendant argued that the trial court erred in finding proof of a Boyd delivery pursuant to State v. Boyd. Defendant argued that Boyd delivery required more than a large quantity of prepackaged drugs and that the State needed to prove that Defendant took a substantial step toward delivery. The State argued that the courts had previously upheld Boyd convictions under substantially similar circumstances. An “attempt” under ORS 161.405(1) requires an act that is “strongly corroborative of the actor’s criminal purpose” such that it “(1) advance[s] the criminal purpose charged and (2) provide[s] some verification of the existence of that purpose.” State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209 (1991). The Court held that the State presented insufficient evidence to establish that Defendant had taken a substantial step toward completed delivery, but sufficient to establish attempted delivery. Conviction for delivery of a controlled substance reversed and remanded for entry of a conviction for attempted delivery of a controlled substance; remanded for resentencing; otherwise affirmed.