STATE v. GONZALEZ (2022)

Defendant was convicted in a bench trial of delivery of heroin, ORS 475.850 (Count 1); possession of heroin, ORS 475.854 (Count 2); delivery of methamphetamine, ORS 475.890(2) (Count 3); and possession of methamphetamine, ORS 475.894 (Count 4). The state's theory of delivery at trial was based on State v. Boyd, 92 Or. App. 51, 756 P.2d 1276, rev. den., 307 Or. 77, 763 P.2d 731 (1988)—possession with intent to deliver.

In his single assignment of error, defendant contends that the trial court erred in denying his motion for judgment of acquittal on the delivery charges. After the filing of defendant's brief, we decided State v. Hubbell, 314 Or. App. 844, 500 P.3d 728 (2021), rev. allowed, 369 Or. 504, 506 P.3d 411 (2022), in which we overruled Boyd and held that an “attempted transfer” as used in the definition of “delivery,” ORS 475.005(8), refers to a particular act of transferring, not possession with a more generalized intent to deal the drugs at some undetermined point in the future. Hubbell, 314 Or. App. at 870, 500 P.3d 728.

The state concedes error. We agree and accept the state's concession. As in Hubbell, we conclude that the evidence here was legally sufficient to support a finding of a substantial step toward the completed crimes of delivery of heroin and methamphetamine. We therefore reverse the delivery convictions on Counts 1 and 3 and remand for entry of convictions for the lesser-included crimes of attempted delivery of heroin and methamphetamine.

Convictions on Counts 1 and 3 for delivery of heroin and methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.

PER CURIAM