No. 89 February 14, 2024 665

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MISTY BLU POSTLETHWAIT,

Defendant-Appellant.

Klamath County Circuit Court

20CR66025; A176416

Marci Warner Adkisson, Judge.

Submitted April 26, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Rond Chananudech, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Rolf C. Moan, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Conviction on Count 1 reversed and remanded for entry 

of a judgment of conviction for one count of attempted delivery of methamphetamine and for resentencing; conviction 

on Count 3 reversed.

Pagán, J., concurring in part, dissenting in part.
666 State v. Postlethwait
Cite as 330 Or App 665 (2024) 667

MOONEY, J.

Defendant appeals a judgment of conviction, 

entered after a jury trial, for delivery of methamphetamine 

(Count 1), ORS 475.890, and possession of a weapon in a 

public building (Count 3), ORS 166.370. Relying on our decision in State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021), 

aff’d, 371 Or 340, 537 P3d 503 (2023) (Hubbell I), defendant 

assigns error to the trial court’s denial of her motion for judgment of acquittal on the delivery charge, arguing that the 

state presented insufficient evidence that she attempted to 

transfer methamphetamine from one person to another. The 

parties briefed and argued this matter before the Supreme 

Court issued its decision in State v. Hubbell, 371 Or 340, 537 

P3d 503 (2023) (Hubbell II), in which it affirmed Hubbell I. 

Hubbell II requires us to reverse the delivery conviction.

Defendant specifically requests that we not remand 

for entry of a judgment convicting her of the inchoate crime 

of attempt because, according to defendant, the state presented insufficient evidence of intent and insufficient evidence that she took a substantial step toward committing 

the crime of delivery. We do not agree. There was evidence 

that defendant possessed 157 grams of methamphetamine 

divided into seven bags, a scale, and a handgun. That is 

enough. See State v. Tacia, 330 Or App 425, ___ P3d ___ 

(2024) (remanding for entry of a judgment convicting the 

defendant of the lesser included crime of attempt where he 

possessed a dealer quantity of methamphetamine along 

with evidence that he had participated in packaging the 

methamphetamine into smaller baggies for sale).

Defendant also assigns error to the trial court’s evidentiary ruling that admitted into evidence a report indicating that the revolver was test-fired and found to be an 

operable firearm. We accept the state’s concession on that 

assignment because the state did not make the declarants whose statements appear in the report available as 

witnesses, and it did not show that they were unavailable. 

Admitting the report into evidence despite the state’s failure to either produce the declarants for cross-examination 

or to establish their unavailability violated defendant’s confrontation rights under Article I, section 11, of the Oregon 
668 State v. Postlethwait

Constitution. See State v. Birchfield, 342 Or 624, 157 P3d 

216 (2007) (holding that admitting a report under ORS 

475.235 (2003) 1, a similarly worded statute, when the state 

neither produced the declarant as a witness nor established 

his unavailability violated the defendant’s confrontation 

rights). The rule in this case, OEC 803(25), like the version 

of the statute at issue in Birchfield, authorizes the admission 

of certain documents containing out-of-court statements, 

while providing that “the defendant may subpoena” the 

declarant at no cost. That language impermissibly shifted 

the responsibility to secure the declarant’s attendance at 

trial to defendant, which is directly at odds with defendant’s 

right to confront her accusers and to “meet the witnesses 

face to face.” Or Const, Art I, § 11. The trial court erred in 

admitting the report. Because the state presented no other 

evidence that the revolver was an operable “firearm” under 

ORS 166.210, the error was not harmless.

Conviction on Count 1 reversed and remanded for 

entry of a judgment of conviction for one count of attempted 

delivery of methamphetamine and for resentencing; conviction on Count 3 reversed.

PAGÁN, J., concurring in part, dissenting in part.

I concur in the reasoning and the disposition of 

Count 3 but write separately to dissent from the disposition 

of Count 1 for the reasons I have previously stated in State v. 

Tacia, 330 Or App 425, 440-42, ___ P3d ___ (2024) (Pagán, J., 

concurring in part and dissenting in part), and State v. 

Wesley, 326 Or App 500, 519-24, 533 P3d 786 (2023), rev den, 

371 Or 511 (2023) (Pagán, J., concurring in part and dissenting in part).

1 Following our decision in Birchfield, ORS 475.235 was amended. See ORS 

475.235 (2003), amended by Or Laws 2007, ch 636, §§ 1 - 2; Or Laws 2009, ch 610, 

§ 8; Or Laws 2021, ch 591, § 42.