State v. Dippre

• Decision Date: 15 June 2022
• Docket Number: A172987
• Citation: 320 Or.App. 317,512 P.3d 835
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jared Charles DIPPRE, Defendant-Appellant.
• Court: Oregon Court of Appeals

320 Or.App. 317

512 P.3d 835

STATE of Oregon, Plaintiff-Respondent,

v.Jared Charles DIPPRE, Defendant-Appellant.

A172987

Court of Appeals of Oregon.

Submitted December 22, 2021.

June 15, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 1), ORS 475.890(2), and unlawful possession of methamphetamine (Count 2), ORS 475.894(2)(b) (2019).¹ Defendant first contends on appeal that the trial court plainly erred when it instructed the jury that it needed to be unanimous in reaching a not-guilty as well as a guilty verdict when, in fact, defendant could be acquitted by a 10-2 or 11-1 jury vote. Because the jury unanimously voted to convict defendant, we conclude that any error under those circumstances was harmless. State v. Martineau , 317 Or. App. 590, 594-95, 505 P.3d 1094 (2022). In supplemental briefing, defendant raises two additional assignments of error, together contending that the trial court plainly erred by entering a conviction for unlawful delivery of methamphetamine on Count 1 and in allowing the state to argue that defendant was guilty of that crime based on his possession of methamphetamine and instruments that could be used to deliver drugs. As we explain below, we need not address defendant's second supplemental assignment of error because we agree with his first, that the trial court erred in entering a conviction for unlawful delivery of methamphetamine on Count 1. However, for the reasons explained below, the appropriate disposition is to reverse and remand for entry of a conviction for the lesser-included, inchoate crime of attempted unlawful delivery of methamphetamine.

We begin by addressing defendant's first assignment of error and his argument that the trial court plainly erred in instructing the jury that a unanimous verdict was required for not-guilty as well as guilty verdicts. This case was tried before the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires unanimous guilty verdicts in criminal prosecutions for serious offenses in state courts. Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). However, before trial, the prosecutor indicated that he would not object to a unanimous jury instruction if defendant requested one. Defendant indicated that he was requesting one. During trial, the court instructed the jury that "[t]his being a criminal case, all twelve jurors must agree on the verdict." Defendant did not object to that instruction.

As noted, Ramos held that the United States Constitution requires a unanimous verdict to convict an accused defendant in state court. State v. Ross , 367 Or. 560, 567, 481 P.3d 1286 (2021) (explaining Ramos ). However, Ramos did not prohibit Oregon laws from allowing a nonunanimous vote to acquit. Ross , 367 Or. at 573, 481 P.3d 1286. Article I, section 11, of the Oregon Constitution and ORS 136.450 continue to provide that a jury may acquit a defendant by a concurrence of at least 10 jurors. Ross , 367 Or. at 565, 481 P.3d 1286.

On appeal, defendant argues that the trial court plainly erred in instructing the jury that it had to be unanimous and, relatedly, in failing to instruct the jury that it could reach a nonunanimous 10-2 or 11-1 verdict to acquit. The state agrees that the instruction was incorrect. However, the state responds that we should not reach defendant's plain-error argument because defendant invited any error by requesting the unanimous-jury instruction. In the alternative, the state argues that any error was harmless because the jury convicted defendant by unanimous votes. We conclude that, even assuming the error was not invited, any error in instructing the jury that it could only acquit defendant by a unanimous vote was harmless when the jury instead convicted defendant by a unanimous vote. Martineau , 317 Or. App. at 594-95, 505 P.3d 1094. Defendant contends that a harmless-error analysis should not apply in these circumstances. The defendant in Martineau raised that identical argument, and we reject it here for the reasons expressed in our opinion in that case. Id. at 592-93, 505 P.3d 1094.

We turn to defendant's supplemental assignments of error. As noted, defendant raises two supplemental assignments of error that together contend that, pursuant to State v. Hubbell , 314 Or. App. 844, 500 P.3d 728 (2021), rev. allowed , 369 Or. 504, 506 P.3d 411 (2022), the trial court plainly erred in entering a conviction for delivery of methamphetamine, and in permitting the state to argue that defendant was guilty of delivery of methamphetamine based on evidence that he had possessed methamphetamine and certain instruments that could be used to deliver drugs.

The state first concedes that the trial court plainly erred in entering the delivery conviction, and we accept that concession. At the time of defendant's trial, Oregon law had, for over 30 years, treated evidence of possession of a large amount of drugs and the intent to sell them as sufficient to prove the completed crime of delivery of a controlled substance. See State v. Boyd , 92 Or. App. 51, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988), overruled by Hubbell , 314 Or. App. at 848, 500 P.3d 728. The Boyd delivery doctrine was overruled by Hubbell , which determined that "attempted transfer" within the definition of "delivery" in ORS 475.005(8) did not mean that the defendant had intentionally engaged in conduct that constituted a substantial step towards commission of the crime, but instead described "an unsuccessful effort to cause the controlled substances to pass from one person to another." Hubbell , 314 Or. App. at 869, 500 P.3d 728.

Here, defendant was found in possession of 12.77 grams of methamphetamine, a scale in a bag with the drugs, packaging materials such as baggies and tin foil, and implements of use such as syringes, pipes, and other paraphernalia. However, there was no evidence that defendant or his codefendant, Beck, made an unsuccessful effort to pass those drugs to another person. Under the more recent law announced in Hubbell , the trial court plainly erred in entering defendant's conviction for unlawful delivery of methamphetamine for Count 1. Because we exercise our discretion and reverse defendant's conviction for delivery as plainly wrong, we need not consider defendant's second supplemental assignment of error that contends that the trial court plainly erred in permitting the state to argue a Boyd theory of liability.

Finally, we have authority, pursuant to the Oregon Constitution, to direct entry of a conviction for a lesser-included offense if we determine that that conviction should have been entered by the trial court. Hubbell , 314 Or. App. at 873, 500 P.3d 728. The state contends that, rather than simply reversing defendant's conviction for delivery of methamphetamine, we should remand for entry of a conviction for the inchoate, lesser-included crime of attempted delivery. We agree.

A defendant commits the inchoate crime of attempted delivery of a controlled substance when that person takes a substantial step towards transferring a controlled substance. See ORS 161.405(1) ("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."); ORS 475.005(8) (" ‘delivery’ means the actual, constructive or attempted transfer * * * from one person to another of a controlled substance"). "Possessing a controlled substance with the intent to transfer it may constitute a substantial step toward actually transferring it." State v. Newsted , 297 Or. App. 848, 852, 444 P.3d 527, rev. den. , 365 Or. 557, 451 P.3d 1008 (2019) (internal quotation marks omitted). Possession of materials commonly associated with the delivery of controlled substances, such as scales and packaging...