Opinion
A176558
04-19-2023
STATE OF OREGON, Plaintiff-Respondent, v. THOMAS ALLEN CALDWELL, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted March 17, 2023
Clackamas County Circuit Court 19CR39275; Ulanda L. Watkins, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.
AOYAGI, P. J.
Defendant was convicted of possession of heroin and delivery of heroin. On appeal, he challenges the denial of his motion for judgment of acquittal on the delivery count. The state concedes, and we agree, that defendant is entitled to reversal of his delivery conviction because it was based on State v. Boyd, 92 Or.App. 51, 756 P.2d 1276, rev den, 307 Or. 77 (1988), which we recently overruled in State v. Hubbell, 314 Or.App. 844, 847-48, 500 P.3d 728 (2021), rev allowed, 369 Or. 504 (2022).
As for the disposition, we agree with the state that the evidence was sufficient to establish the lesser included offense of attempted delivery and that the proper disposition therefore is to remand for entry of a judgment of conviction for attempted delivery of heroin. See State v. Dippre, 320 Or.App. 317, 323, 512 P.3d 835 (2022) (same disposition); Hubbell, 314 Or.App. at 872-73 (same disposition). There was evidence that defendant possessed 5.5 grams of heroin, a scale with heroin residue on it, and over a dozen small, unused clear plastic baggies. Defendant admitted to police that he intended to sell at least some of the heroin to friends and that he was selling it to support his family after losing his job. The evidence was sufficient to establish a "substantial step" toward delivery. See ORS 161.405(1) (a person who intentionally takes "a substantial step toward commission of [a] crime" is guilty of attempt to commit such crime); Hubbell, 314 Or.App. at 872-73.
Conviction for delivery of heroin reversed and remanded for entry of judgment of conviction for attempted delivery of heroin; remanded for resentencing; otherwise affirmed.