500 June 22, 2023 No. 311

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL WAYNE WESLEY, JR.,

Defendant-Appellant.

Lane County Circuit Court

19CR58352; A173334

R. Curtis Conover, Judge.

Argued and submitted May 4, 2022.

Rond Chananudech, Deputy Public Defender, argued the 

cause for appellant. Also on the brief was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Joanna Hershey, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, and Pagán, Judge, and 

Armstrong, Senior Judge.

SHORR, P. J.

Conviction on Count 2 reversed and remanded for entry 

of judgment of conviction for attempted delivery of methamphetamine; convictions on Counts 3 and 5 reversed and 

remanded; remanded for resentencing; otherwise affirmed.

Pagán, J., concurring in part and dissenting in part.
Cite as 326 Or App 500 (2023) 501
502 State v. Wesley

SHORR, P. J.

Defendant appeals from a judgment of conviction for unlawful delivery of methamphetamine (Count 

2), ORS 475.890; unlawful possession of heroin (Count 3), 

ORS 475.854; felon in possession of a firearm (Count 5), 

ORS 166.270; one count of attempt to elude (Count 6), ORS 

811.540; reckless driving (Count 8), ORS 811.140; and recklessly endangering another person (Count 9), ORS 163.195.1

On appeal, defendant challenges the trial court’s nonunanimous jury instruction and acceptance of nonunanimous 

verdicts and findings as well as its exclusion of two defense 

witnesses as a remedy for what the court concluded were 

discovery violations by the defense in delaying the disclosure of those witnesses until after the state rested its case. 

In supplemental briefing, defendant also challenges his conviction for unlawful delivery of methamphetamine (Count 2) 

as plain error under our recent decision in State v. Hubbell, 

314 Or App 844, 500 P3d 728 (2021), rev allowed, 369 Or 504 

(2022). As explained below, we reverse and remand Counts 

3 and 5 because the jury’s verdicts were not unanimous. We 

also reverse and remand Count 2 for entry of a judgment of 

conviction for attempted delivery of methamphetamine in 

light of Hubbell.

2

 As to the discovery violation issues, we conclude that the trial court did not err or abuse its discretion 

in excluding witness Martin’s testimony and, although the 

court did err in excluding witness Dupree’s testimony, that 

error was harmless.

I. BACKGROUND FACTS3

In the early morning of September 1, 2019, 

defendant was driving a Chevrolet truck northbound on 

Interstate 5 in Lane County. An Oregon State Police (OSP) 

1 The jury found defendant guilty of unlawful possession of methamphetamine (Count 4), ORS 475.894, and a second count of attempt to elude (Count 7), 

ORS 811.540. The trial court merged the verdict on Count 7 into the verdict on 

Count 6 and merged the verdict on Count 4 into the verdict on Count 2. The jury 

acquitted defendant of unlawful delivery of heroin (Count 1), ORS 475.850.

2 Our reversal of Count 2 does not disturb the guilty verdict on Count 4. See 

also 326 Or App at 505 n 5 (discussing effect of nonunanimous verdict on subcategory factor alleged in Count 4).

3 We supplement the facts as necessary in our analysis of defendant’s specific 

assignments of error.
Cite as 326 Or App 500 (2023) 503

officer attempted to stop defendant for traffic violations 

after seeing him swerve back and forth in the lanes and 

fluctuate in speed, both below and above the posted speed 

limit. Defendant, however, sped away, exiting the interstate 

onto Beltline Road in Eugene. At several points during the 

pursuit, the officer noted that the truck’s speed exceeded 

100 miles per hour. The OSP officer stopped the pursuit, but 

later rejoined it after a Lane County Sheriff’s Office deputy 

spotted the truck.

After the deputy pursued the truck through Eugene 

at speeds up to 90 miles per hour, the truck slowed as if 

it was “experiencing some sort of mechanical failure” and 

eventually crashed into a tree. Both the driver’s door and 

passenger door opened simultaneously “like they were both 

getting ready to bail from the truck.” Both defendant, who 

fell out of the driver’s side, and a female passenger, Klein, 

were arrested.

The OSP officer arrived less than 30 seconds after 

the crash and saw, through the open driver’s door, a handgun secured to the top of the steering column. A small black 

nylon bag with part of a black and white bandana sticking out from it was also attached to the steering column. 

Inside the bandana was a methamphetamine rock “about 

the size of [the officer’s] fist.” In the same area was another 

black and white bandana, also containing a large quantity 

of methamphetamine. A clear glass pipe containing white 

residue was found between defendant and the car. On the 

floorboard of the driver’s side of the truck, the officer found 

a zippered pouch, which contained more methamphetamine; 

another black zipper pouch similar in size to a compact disc 

case that contained a “smaller amount of methamphetamine with several small plastic baggies, a small bindle of 

a dark brown tar-like substance consistent with heroin,” a 

digital scale, and rubber gloves; and three prescription bottles with the names ripped off of them. The baggies were 

“very small, clear Ziploc bags”; the officer testified that “[a] 

lot of times I’ve seen those in recent arrests where they are 

used for package [or] sale to divvy up [drugs] into smaller 

amounts.” In addition, the officer found $1,160 in cash in 

defendant’s wallet, which was located in an open compartment on the driver’s side door. In total, police seized 380 
504 State v. Wesley

grams of confirmed methamphetamine and 2.3 grams of 

confirmed heroin.

Based on those events, defendant was tried before a 

jury and convicted of the offenses stated above. He appeals 

from the judgment of conviction, raising eight assignments 

of error and four supplemental assignments of error.

II. ANALYSIS

A. Jury Unanimity Issues

In his fifth, sixth, and seventh assignments of error, 

defendant contends that the trial court erred in instructing 

the jury, over his objection, that “at least 10 jurors must agree 

on your verdict,” and in accepting nonunanimous verdicts on 

Counts 3 and 5. As the state concedes, and we agree, Ramos v. 

Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) 

(holding that the Sixth Amendment requires jury unanimity 

to convict a criminal defendant of a serious offense), requires 

reversal of those counts. Accordingly, we reverse and remand 

Counts 3 and 5. As to the remaining counts, for which the 

jury returned unanimous verdicts, the error is not reversible 

because it does not constitute structural error, and it is harmless beyond a reasonable doubt. State v. Flores Ramos, 367 Or 

292, 305, 334, 478 P3d 515 (2020).

In his eighth assignment of error, defendant contends that the trial court also erred under Ramos in accepting the jury’s nonunanimous findings on the subcategory 

factors the state alleged with respect to Count 2 (unlawful 

delivery of methamphetamine), specifically, whether the 

offense involved “substantial quantities” of the drug, ORS 

475.900(1)(a)(D), or constituted a “commercial drug offense,” 

ORS 475.900(1)(b).4

 We agree with defendant that the trial 

court erred in that regard. See State v. Enloe, 316 Or App 

680, 681, 502 P3d 1213 (2021) (concluding that nonunanimous verdict on subcategory allegation was invalid in light 

of Ramos). We explain the consequence of that error in our 

4 Those subcategory factors, if found by the jury, elevate the crime seriousness of the offense for purposes of the sentencing guidelines. ORS 475.900; see 

State v. Unger, 276 Or App 445, 448, 368 P3d 37 (2016) (so explaining). The legislature amended ORS 475.900 after the events giving rise to this case. See Or 

Laws 2021, ch 591, § 40. Because those amendments do not affect our analysis, 

we refer to the current version of the statute in this opinion.
Cite as 326 Or App 500 (2023) 505

discussion and disposition of Count 2, addressed immediately below.5

B. Unlawful Delivery of Methamphetamine

At trial, the state relied on a “Boyd” theory of delivery to prove the crime of unlawful delivery of methamphetamine as alleged in Count 2, presenting evidence that 

defendant was in a car with a large amount of methamphetamine, a firearm, $1,160 in cash, plastic gloves, baggies, and 

a scale.6 See State v. Boyd, 92 Or App 51, 55, 756 P2d 1276, 

rev den, 307 Or 77 (1998), overruled by Hubbell, 314 Or App 

at 848 (holding that possession of a large quantity of drugs 

with the intent to deliver constitutes a substantial step 

toward delivery and thus is sufficient to constitute the completed crime of delivery as an “attempted transfer” under 

the definition of “delivery” in ORS 475.005(8)). Defendant 

did not object to the state’s theory or move for a judgment 

of acquittal (MJOA) on the ground that the state’s evidence 

was insufficient to establish the offense, and the jury unanimously found him guilty of Count 2.

In Hubbell, which was decided after defendant filed 

his opening brief in this case, we overruled Boyd, concluding that merely taking a substantial step toward a transfer 

of a controlled substance does not constitute the completed 

crime of delivery, only the inchoate crime of attempted delivery. Hubbell, 314 Or App at 867, 870-71. We held that delivery by an “attempted transfer,” see ORS 475.005(8) (defining “delivery” for purposes of ORS 475.890 as “the actual, 

constructive or attempted transfer * ** from one person to 

another of a controlled substance”), requires an “incomplete 

or unsuccessful transfer” of a controlled substance. Id. at 

870. Consequently,

“[i]f a defendant has tried to actually transfer a controlled 

substance to another person, that defendant will be guilty 

5 We note that the jury also returned a nonunanimous verdict as to one of 

the commercial drug offense subcategory factors alleged with respect to Count 

4 (unlawful possession of methamphetamine). But the jury unanimously found 

three other alleged factors, which is sufficient to establish that the offense constituted a commercial drug offense. ORS 475.900(1)(b). In any event, defendant 

does not raise any issues with respect to Count 4.

6 The state argued the same with respect to Count 1 (delivery of heroin); as 

noted, the jury acquitted defendant of that offense.
506 State v. Wesley

of the completed offense, regardless of whether the transfer 

itself was successful. But, where a person has merely taken 

a substantial step toward the crime of delivery but has not 

yet attempted the transfer itself, the defendant will have 

committed the inchoate crime of attempted delivery of a 

controlled substance.”

Id. at 870-71.

Having so concluded, we agreed with the defendant 

that the state’s evidence was not legally sufficient to establish the crime of delivery. Id. at 872. However, we concluded 

that the evidence—namely, that the defendant possessed “an 

exceptionally large amount of fentanyl,” which was enough 

for “hundreds of thousands of individual doses,” as well as 

“separate packaging for smaller doses”—was legally sufficient to support a finding of a substantial step toward the 

completed crime of delivery. Id. at 871-72. That is, the evidence did “strongly corroborate a purpose of dealing drugs, 

advance that purpose, and provide verification of the purpose.” Id. at 872. Accordingly, we reversed and remanded for 

entry of a conviction for attempted delivery of a controlled 

substance, the offense that the defendant “should have been 

convicted of committing rather than the completed crime.” 

Id. at 873.

In light of that development in the law, defendant 

filed supplemental briefing challenging his conviction on 

Count 2. In his combined argument on four supplemental 

assignments of error, defendant essentially contends that, 

given Hubbell, the state’s evidence was insufficient to prove 

the transfer element of the offense of delivery of methamphetamine, and we therefore must reverse his conviction 

on Count 2 as plain error.7

 The state concedes that the evidence was insufficient to show a transfer under Hubbell, and 

7 In particular, he asserts that the trial court plainly erred by (1) allowing 

Count 2 to be considered by the jury when the evidence was insufficient to convict; (2) allowing the prosecutor to misstate the law during closing arguments 

as to the requirements for proving delivery; (3) failing to instruct the jury on 

the lesser-included crime of attempted delivery; and (4) entering a conviction on 

Count 2. To the extent that defendant’s third supplemental assignment of error 

presents a separate issue, we do not address it because defendant did not preserve that claim of error, and it does not satisfy the requirements for plain-error 

review.
Cite as 326 Or App 500 (2023) 507

that it was therefore plain error for the trial court to enter 

a conviction for the completed crime of delivery. However, 

the state contends that, in correcting the error, we should 

remand with instructions to enter a judgment of conviction 

for attempted delivery of methamphetamine, as we did in 

Hubbell. We agree with the state.

As an initial matter, we readily accept the state’s 

concession that the trial court’s entry of a conviction for 

the completed crime of delivery of methamphetamine was 

plain error under Hubbell and agree that it is appropriate 

to exercise our discretion to correct the error. See, e.g., State 

v. Dippre, 320 Or App 317, 321, 512 P3d 835 (2022); State 

v. Hernandez, 320 Or App 270, 271-72, 512 P3d 475 (2022); 

State v. Carr, 319 Or App 684, 690, 511 P3d 432 (2022).

The real dispute between the parties is over 

the appropriate remedy for the error. Under Article VII 

(Amended), section 3, of the Oregon Constitution, we may 

remand for entry of a judgment of conviction for a lesserincluded crime such as attempt when the jury necessarily 

found all the elements of that offense. State v. Lopez, 151 

Or App 138, 142, 949 P2d 1237 (1997), rev den, 326 Or 465 

(1998). “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 161.405(1). As discussed above, after Hubbell, where 

a person has taken a substantial step toward delivery of a 

controlled substance, but has not yet attempted the transfer 

itself, the person will have committed the inchoate crime of 

attempted delivery of a controlled substance, rather than 

delivery. 314 Or App at 870-71.

The state contends that—just as in Hubbell—the 

record here supports a conviction for attempted delivery of 

methamphetamine, pointing out that defendant was found 

to be in possession of a large quantity of the drug, as well 

as drug packaging materials, over $1,000 in cash, and a 

firearm. In addition, defendant possessed those items while 

driving around in a car, which, the state contends, “is a 

common method of delivering drugs.” Thus, in the state’s 

view, although the evidence did not establish a completed 
508 State v. Wesley

transfer, it did establish that defendant had taken a “substantial step” toward commission of the crime, and the jury 

found as much when it unanimously convicted defendant of 

delivery under a Boyd theory.

Defendant asserts that we cannot determine on this 

record that the jury necessarily found that defendant took a 

“substantial step” toward delivery of methamphetamine—

thus permitting the entry of a conviction for attempted 

delivery—for two reasons. First, defendant contends that 

the evidence is not sufficient to support such a finding and 

that the case is therefore more like State v. Fischer, 315 

Or App 267, 269, 500 P3d 29 (2021), than Hubbell. Second, 

he contends that, because the jury was not unanimous on 

specific subcategory facts alleged with respect to Count 2, 

we cannot conclude that the jury unanimously found the 

facts necessary to establish attempted delivery. We consider, 

and reject, each argument in turn.

In Fischer, the trial court denied the defendant’s 

MJOA on charges of delivery of heroin and methamphetamine within 1,000 feet of a school. 315 Or App at 268. The 

only relevant evidence was that the defendant possessed 

large quantities of the drugs—specifically, she regurgitated 

three bindles of heroin, which constituted 4.28 grams or 42 

user amounts, and she also had 8.91 grams of methamphetamine, the equivalent of 89 user amounts, in her handbag. 

Id. at 269. Noting that the drugs were not broken down into 

separate user amounts, there was no evidence of distribution packaging materials or transaction records, and there 

was no indication of a plan or impending transaction, we 

concluded that the trial court had erred in failing to grant 

the defendant’s MJOA because there was insufficient evidence of the transfer element of the offenses. Id. “Similarly,” 

we held that the evidence was insufficient to show that the 

defendant took a substantial step toward commission of the 

crimes. Id. In other words, because the evidence was insufficient to support even a Boyd theory of delivery, the jury 

could not have lawfully found the elements of attempted 

delivery. Therefore, there was no basis for us to remand 

for conviction on the inchoate crime as we had done in 

Hubbell.
Cite as 326 Or App 500 (2023) 509

We disagree with defendant that this case is similar to Fischer. Although defendant is correct that the methamphetamine in his possession was not broken down into 

user amounts, he also had small plastic baggies, which are 

commonly used to package drugs,8

 a digital scale, plastic 

gloves, and over $1,000 in cash. Those facts distinguish this 

case from Fischer and, together with the large quantity of 

methamphetamine—380 grams—“strongly corroborate a 

purpose of dealing drugs, advance that purpose, and provide verification of the purpose.” Hubbell, 314 Or App at 

872. Moreover, the items were found in defendant’s truck. 

Thus, as was the case in Hubbell and many of our cases 

following it, a factfinder could reasonably infer from the 

evidence presented that defendant possessed the methamphetamine for future transfer. See Hubbell, 314 Or App at 

871-72 (large amount of fentanyl and separate packaging 

for smaller doses sufficient for jury to determine substantial 

step toward delivery); Dippre, 320 Or App at 323 (evidence 

of 12.77 grams of methamphetamine, a scale, unused plastic 

baggies, and tin foil legally sufficient to establish substantial step toward delivery, resulting in remand for entry of 

attempted delivery conviction); State v. Buell, 317 Or App 

667, 671, 506 P3d 505 (2022) (evidence of large quantity 

of methamphetamine, enough for 17,000 individual doses, 

scale, open box of sandwich bags, and text messages asking 

about acquiring drugs supported conviction for attempted 

delivery). As in those cases, the record in this case is legally 

sufficient to establish that defendant took a substantial step 

toward the crime of delivery, which the jury necessarily 

found in convicting defendant of the completed crime under 

a Boyd theory.

We are also not persuaded by defendant’s second 

argument. As noted above, the state alleged several subcategory facts in connection with Count 2, facts that, if found by 

the jury, would enhance defendant’s sentence on that charge. 

8 Defendant argues that the smaller Ziploc bags “were not tied to the methamphetamine,” noting that only the heroin, and not the methamphetamine, had 

been individually packaged. The jury could nonetheless infer from that evidence, 

together with the large quantities of methamphetamine, and the presence of digital scales, plastic gloves, and cash, that defendant possessed the methamphetamine, not for his individual use, but for future transfer. See Hubbell, 314 Or App 

871-72, 873.
510 State v. Wesley

The jury returned nonunanimous verdicts with respect to 

some of those subcategory facts, specifically, whether defendant possessed “substantial quantities” of methamphetamine, as well as some of the “commercial drug offense” 

allegations, namely, whether defendant was in possession 

of a firearm, packaging materials, and eight grams or more 

of methamphetamine. As discussed, those nonunanimous 

findings are invalid under Ramos, and therefore cannot be 

used to enhance defendant’s sentence. Enloe, 316 Or App at 

681 (jury unanimity requirement applies to jury findings 

on subcategory facts). However, they have no bearing on the 

jury’s unanimous decision to convict defendant of delivery 

of methamphetamine under a Boyd theory of delivery. In 

doing so, the jury necessarily found that defendant took 

a substantial step toward the commission of the crime of 

delivery, and, as noted, it did so unanimously. Further, as 

we have just concluded, the evidence in the record is legally 

sufficient to support that finding. Thus, contrary to defendant’s assertion, the jury findings on the enhancement facts 

do not affect our determination that, as in Hubbell, Count 2 

must be reversed and remanded for entry of a conviction for 

attempted delivery of methamphetamine.9

Lastly, we briefly address the dissent’s contention 

that, because the jury in this case was not instructed on the 

definitions of either “attempt” or “intent,” it is “a bridge too 

far” to conclude on this record that defendant intentionally 

engaged in conduct constituting a substantial step toward 

the commission of the crime of delivery of methamphetamine. 326 Or App at 521 (Pagán, J., dissenting). We agree 

with the dissent that we must limit our exercise of our power 

under Article VII (Amended), section 3, to instances where 

the factfinder necessarily found the elements of the lesserincluded offense at issue. See State v. Madison, 303 Or App 

737, 743, 466 P3d 92 (2020) (“A crime is a lesser-included 

offense of another crime if either of two circumstances 

exist: (1) the elements of the lesser offense necessarily are 

9 Unless the state elects to retry the subcategory allegations, the court shall 

enter a conviction for attempted delivery on Count 2 without those enhancements. See Enloe, 316 Or App at 682 (where jury verdict was unanimous as to 

conviction, but not unanimous as to subcategory allegation, state may elect to 

retry the subcategory allegation on remand; “otherwise, the record will reflect 

that defendant was found guilty on [that count] without that allegation”).
Cite as 326 Or App 500 (2023) 511

included in the greater offense because the elements of the 

former are subsumed in the latter; or (2) all of the elements 

of the lesser offense are expressly set forth in the accusatory 

instrument.” (Internal quotation marks omitted.)). And, we 

agree that the jury’s instructions are one source of information that we should consider in answering that question. See 

State v. Modrzejewski, 311 Or App 739, 743-44, 490 P3d 172 

(2021) (concluding that we could not remand for entry of a 

conviction for attempted third-degree assault where the jury 

only considered third-degree assault requiring a “knowing” 

mental state and was not instructed on a lesser-included 

or inchoate version of that crime). We acknowledge that, in 

the instant case, the jury was not instructed on either the 

meaning of “attempt” or “intent.”

However, it is indisputable that Hubbell and its progeny concluded that, where a factfinder convicted a defendant 

of the crime of delivery based on a Boyd “attempted transfer” theory, a conclusion that was supported by the factual 

findings but invalid only due to the change in the law outlined in Hubbell, the factfinder also implicitly found that the 

defendant committed the inchoate crime of attempted delivery. See Hubbell, 314 Or App at 873 (“This case is unique in 

that, because of Boyd, defendant was essentially tried and 

found guilty of an attempt crime that had been erroneously 

elevated to a completed offense.”); see also Hernandez, 320 

Or App at 272 (concluding that “the jury necessarily found 

that defendant took a ‘substantial step’ toward the commission of the crimes of delivery of heroin and methamphetamine”); Carr, 319 Or App at 693 (same); Buell, 317 Or App 

at 671 (remanding for entry of judgment for lesser-included 

offense of attempted delivery of methamphetamine where 

evidence sufficient to support that conviction but did not 

support conviction for delivery). We acknowledge that there 

is some room for differing opinions as to whether a jury can 

necessarily find the facts relevant to convict a defendant of 

the inchoate crime of attempted delivery when they were not 

instructed on the definitions of “attempt” or “intent,” and 

the Supreme Court may address or resolve that issue in its 

review of Hubbell. However, our existing case law requires 

remanding the instant case for entry of a conviction for 

attempted delivery. Defendant makes no argument that 
512 State v. Wesley

Hubbell and its progeny were plainly wrong in that regard. 

Under those circumstances, the evidence here is legally sufficient to support the conclusion that defendant took a substantial step toward the commission of the crime of delivery.

C. Discovery Violations

In his first four assignments of error, defendant 

challenges the trial court’s exclusion of two of his witnesses, 

denial of his request for a continuance, and failure to declare 

a mistrial. The trial court concluded, after hearing an offer 

of proof for each witness, that defendant had committed a 

discovery violation by failing to disclose the witnesses and 

that exclusion of those witnesses, rather than a continuance 

or mistrial, was the appropriate remedy for the discovery 

violation.

On appeal, we review the trial court’s conclusion 

that there was a discovery violation for legal error. State v. 

Moss, 147 Or App 658, 663, 938 P2d 215, rev den, 325 Or 491 

(1997). We are bound by the trial court’s factual findings, if 

supported by evidence in the record; in the event no findings 

were made and the evidence allows facts to be decided in 

more than one way, we presume the facts were decided in 

a manner consistent with the trial court’s ultimate conclusion. State v. Lindquist, 141 Or App 84, 87-88, 917 P2d 510 

(1996). Finally, we review the trial court’s choice of sanction 

for abuse of discretion. Id. at 89.

The obligation on the defense to disclose most 

evidence in a criminal trial arises as a matter of statute. 

Subject to exceptions not relevant here,

“the defense shall disclose to the district attorney the following material and information within the possession or 

control of the defense:

“(1) The names and addresses of persons, including the 

defendant, whom the defense intends to call as witnesses at 

the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than the defendant.

“(2) Any reports or statements of experts, made in 

connection with the particular case, including results of 

physical or mental examinations and of scientific tests, 
Cite as 326 Or App 500 (2023) 513

experiments or comparisons, that the defense intends to 

offer in evidence at the trial.

“(3) Any books, papers, documents, photographs or 

tangible objects that the defense intends to offer in evidence at the trial.”

ORS 135.835. The statutory duty to disclose witnesses 

applies to both a defendant and their attorney. State v. Ben, 

310 Or 309, 315, 798 P2d 650 (1990). That obligation must 

be performed “as soon as practicable” after the filing of the 

indictment. ORS 135.845(1).

Upon finding a violation, “the court may order the 

violating party to permit inspection of the material, or grant 

a continuance, or refuse to permit the witness to testify, or 

refuse to receive in evidence the material not disclosed, or 

enter such other order as it considers appropriate.” ORS 

135.865. As a sanction for a discovery violation, a court may 

order exclusion of a witness only when exclusion “achieves 

the purpose of the discovery statutes and the other party 

has been prejudiced.” Ben, 310 Or at 317. A trial court does 

not abuse its discretion in excluding a witness or evidence 

when it considers sanctions short of exclusion and determines that no sanction short of exclusion would remedy the 

prejudice to the other party. Lindquist, 141 Or App at 89. 

With those principles in mind, we analyze each proposed 

witness separately.

1. Witness Martin

After the state concluded its case-in-chief and 

rested, defense counsel notified the court that “I was recently 

or today informed of a potential witness that would be able 

to talk about Miss Klein’s10 previous involvement in drug 

trafficking activity and weapons possessions.” The next 

day, the state provided the court with an email stamped at 

6:41 p.m. on the previous evening that provided a summary 

of the information a defense investigator had learned from 

witness Martin. The prosecutor represented that “that was 

the first and extent of discovery that the state has received 

in this case.” The state argued that Martin should not be 

10 As noted above, Klein was the passenger in defendant’s truck at the time 

of the incident that led to defendant’s arrest.
514 State v. Wesley

allowed to testify. After some colloquy between the court 

and the state, Martin testified in an offer of proof.

During direct examination in the offer, Martin 

explained that he had “known [defendant] since we were 

kids. In fact, I got him on [sic] first haircut.” Martin said 

that he had known Klein for a little more than a year and 

one-half and had seen her “[p]robably 13 or 14” times.

Martin testified that two days before the police 

pursuit and crash, he had met with defendant and Klein 

in defendant’s truck, where they spent around an hour and 

one-half. As Martin was sitting in the backseat of the truck, 

Klein asked him to pass forward her handbag. In the process 

of handing the bag to Klein, Martin testified that he saw in 

the handbag a “large-framed handgun, dark in color,” a “CD 

case,” a “digital scale of some sort,” and some “ bandanas 

that were tied together.” Finally, Martin explained that 

defendant did not have the use of his legs and had customized hand controls for the throttle and brake in his truck. In 

his opinion, because those hand controls were attached to 

the steering column, “[he did not] see how there could be a 

bag strapped to the steering column.”

During cross-examination, Martin stated that he 

had been friends with defendant for decades and had always 

been in touch with defendant’s family. During the year 

before the incident of the pursuit and crash, Martin stated 

that he and defendant would often “hang out” and “go have 

breakfast,” and that at least a couple of times, defendant 

came to help Martin when Martin had vehicle problems.

With respect to Klein, Martin testified that he had 

previously purchased methamphetamine from her, that “she 

had * ** a controlling-type relationship” with defendant, 

and that it was Martin’s belief that defendant “was acting 

basically at the direction of Miss Klein.”

The court determined, based on Martin’s testimony, 

that defendant “certainly knew of Mr. Martin’s existence 

and whereabouts and what he may or may not have seen, 

certainly after September 1st, given the conversation that 

Mr. Martin indicated occurred in the truck on August 30th.” 

The court added that, “to the extent that it’s suggested 
Cite as 326 Or App 500 (2023) 515

that this is just newly acquired evidence, I do not find that. 

[Defendant] certainly knew about this, the existence of 

Mr. Martin and what Mr. Martin may have seen.” The court 

concluded that

“[defendant] did commit a discovery violation by not stating or announcing the possibility that Mr. Martin would 

become a witness—would be a witness prior to the state’s 

resting its case in the middle of trial.

“I find that the only appropriate remedy here is to 

exclude Mr. Martin’s testimony. That’s even after having 

considered the alternative grounds of allowing a postponement for the state to investigate not only Mr. Martin’s 

claims of what may have occurred on August 30th, the 

nature of Mr. Martin’s other testimony concerning parties 

with Ms. Klein, how he knows her, the existence of any 

prior convictions.”

The factual findings made by the court regarding 

defendant’s knowledge of Martin’s whereabouts and likely 

evidence are supported by evidence in the record, and we are 

bound by them. See Lindquist, 141 Or App at 87 (“Defendant’s 

knowledge and intent are questions of fact[;] we are bound 

by the trial court’s factual findings, if supported by evidence 

in the record.”). Moreover, defendant’s opening statement in 

trial suggested that the defense strategy was to blame Klein 

for the drugs in the truck, which supports an inference that 

the defense had some notion that it would present evidence 

of Klein’s culpability—and therefore some idea about who 

could present that evidence.11 The trial court did not err by 

concluding that defendant committed a discovery violation 

when he failed to disclose the identity of Martin, who was 

known to him as a longtime friend and was present with 

defendant and Klein in defendant’s truck within two days of 

the pursuit and crash.

In light of the timing of the revelation of Martin, 

plus the unavailability of a juror for an extension of the 

trial, the trial court did not abuse its discretion by excluding Martin from testifying at trial. The court considered 

11 During opening argument, defense counsel stated, “Keep in mind, please, 

there are two people in this vehicle during this chase, and that there will be a 

treasure trove of information that was not looked for and not—and is not brought 

to you about those elements, the delivery and the possession.”
516 State v. Wesley

whether “exclusion of the witness was too extreme of a 

remedy” and considered whether postponement would be 

sufficient. The court expressed concern that a delay in the 

proceedings for the state to investigate Martin’s evidence 

would “[e]ssentially * * * be a mistrial.” On this record, the 

trial court did not abuse its discretion by excluding Martin 

rather than granting defendant’s request for a continuance 

or declaring a mistrial.

2. Witness Dupree

Immediately following the court’s ruling on Martin, 

there was a brief recess. After returning, defense counsel 

stated,

“Your Honor, I hate to—I hate to do this. I also just got 

information about a gentleman named James Dupree. My 

investigator talked to him this morning. We had his name 

two days ago. * **

“It’s Miss Klein’s former landlord [who] has told [the 

investigator] that he evicted Miss Klein for dealing controlled substances out of her residence.”

Defense counsel admitted that they had “some vague information about someone [who] might be able to say something” 

before trial started, but that it had taken several days to 

finally connect with Dupree. That moment was the first that 

the defense had informed the state of Dupree. Defense counsel explained that he had only learned of the substance of 

what Dupree could testify to that morning.

The court considered an offer of proof consisting of 

the investigator’s testimony regarding what Dupree would 

say if allowed to testify.

The investigator testified that she had been 

assigned to find Dupree in the past few days. In addition to 

searching for Dupree, the investigator was also searching 

for Klein to serve a subpoena for her to appear at the trial. 

Once the investigator had connected with Dupree, Dupree 

explained that he had rented a room to Klein, likely around 

the end of September, and that she had lived there for about 

a month. She was evicted after Dupree discovered that she 

was selling drugs, specifically “white and brown,” through 
Cite as 326 Or App 500 (2023) 517

a Facebook messenger thread she had left open on Dupree’s 

computer.

The trial court ruled that Dupree’s testimony would 

also be excluded. The court noted that Klein had allegedly 

been evicted in October, “about the time *** when [defendant’s] indictment was filed,” and that defendant “had some 

sort of relationship” with Klein. The court stated that it was 

making similar findings as it had made with regard to witness Martin, which we understand to mean that defendant 

must have been aware of Dupree and the testimony Dupree 

might be able to offer at a time well before trial. However, as 

explained below, that factual finding with regard to Dupree 

is not supported by the evidence, and therefore, we are not 

bound by it.

First, there is nothing in the record to suggest that 

defendant and Klein were in communication after the pursuit and crash, which is a logical prerequisite to finding that 

defendant was aware of Dupree or what Dupree could say 

about Klein’s own drug dealing. The investigator relayed 

information indicating that Klein had not lived in Dupree’s 

property until about a month after the incident and there 

was no suggestion that the circumstances surrounding her 

eviction were communicated to defendant. Indeed, at the 

time of trial, defendant’s investigator was trying to find 

Klein to subpoena her to the trial, which supports an inference that defendant was not then in communication with 

Klein.

Moreover, the tenuous connection between defendant and Dupree, unlike the longtime friendship between 

defendant and Martin, does not allow for the same inference as existed with respect to defendant’s knowledge of 

witness Martin. The record does not support a finding that 

defendant had sufficient information about either Dupree’s 

identity or what Dupree could say vis-à-vis Klein to conclude 

that defendant (or counsel) could have “reasonably predict[ed]” that Dupree would be called as a witness. See State 

v. Young, 94 Or App 683, 689, 767 P2d 90 (1989) (explaining that disclosure obligation is triggered when defense can 

reasonably predict witness or evidence will be introduced at 

trial).
518 State v. Wesley

The state argues that the “only logical inference 

that can be drawn from the fact that the defense wanted to 

locate and interview Dupree is that the defense knew that 

Klein had been evicted for selling drugs and Dupree could 

attest to that fact,” because “if there was no awareness of 

the relevance of his testimony, there would be no reason for 

the defense to try to locate and interview him in the first 

place.” That argument proves too much. Defense counsel 

stated that they had “some vague information about someone [who] might be able to say something” the day before 

trial and were not able to talk to Dupree until after the 

trial had commenced. The investigator testified that she 

had Dupree’s name before trial but did not confirm Dupree 

as the witness until that morning. It does not follow that 

possession of some knowledge that might lead to admissible 

evidence is sufficient to trigger the obligation to disclose an 

unknown witness to the other side.

Because there is no support in the record for the 

court’s factual findings as to defendant’s knowledge and 

intent, we conclude that the court legally erred in determining that there was a discovery violation with respect to witness Dupree.

However, we will affirm a judgment, notwithstanding an error, if there is little likelihood that the error affected 

the verdict—in other words, if the error was harmless. State 

v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Due to our disposition of other counts above, the only remaining counts 

to which Dupree’s testimony would have been relevant are 

Counts 2 and 4 (unlawful delivery of methamphetamine and 

unlawful possession of methamphetamine).

We are not convinced that Dupree’s testimony had 

any likelihood to affect the jury’s verdicts on those counts. 

Whether or not Klein was evicted for dealing drugs from 

Dupree’s apartment, more than a month after the pursuit 

and crash, has little bearing on whether defendant possessed methamphetamine or took a substantial step toward 

the delivery of methamphetamine at the time of the pursuit 

and crash. Moreover, the jury was specifically instructed 

that “[p]ossession may be individual or joint. Therefore, two 
Cite as 326 Or App 500 (2023) 519

or more persons may be in possession of the same thing 

when they each have the power and the intent to control 

it jointly.” Thus, even if the jury were presented with and 

credited information about Klein’s subsequent drug dealing 

activities, it does not follow that that evidence was likely to 

affect their verdict, given the evidence showing that defendant was in either joint or individual possession of a substantial quantity of methamphetamine when he attempted 

to elude police.

Dupree’s testimony would have suggested that Klein 

was a drug dealer. However, that evidence does not negate 

the substantial evidence in the record that defendant was 

also dealing drugs. In other words, even if the jury believed 

from Dupree’s testimony that Klein was a drug dealer, the 

jury would at most have found that defendant and Klein 

were engaged in possession and attempted delivery of methamphetamine together, given the evidence of large amounts 

of methamphetamine, packaging materials, and a digital 

scale found in defendant’s truck as well as $1,160 found in 

defendant’s wallet. We note again that, significantly, a bandana containing a very large quantity of methamphetamine 

was attached to the steering column of defendant’s truck. A 

second bandana with another large piece of methamphetamine wrapped inside of it was found in the driver’s area 

near the steering column. And, defendant was the driver 

of the truck in control of the steering wheel. The error in 

excluding Dupree’s testimony was harmless.

Conviction on Count 2 reversed and remanded for 

entry of judgment of conviction for attempted delivery of 

methamphetamine; convictions on Counts 3 and 5 reversed 

and remanded; remanded for resentencing; otherwise 

affirmed.

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

Although I agree with the majority opinion regarding the errors that were committed below, I disagree regarding the disposition of Count 2. Instead of remanding for 

entry of a judgment of conviction for attempted delivery 

of methamphetamine, I believe we are required to simply 

reverse and remand that count.
520 State v. Wesley

Under Article VII (Amended), section 3, of the 

Oregon Constitution, if we can determine what judgment 

should have been entered, we may remand with instructions 

to enter a judgment for a different conviction. In determining “what judgment should have been entered in the court 

below,” we are required to consider all of the matters submitted, which include “the instructions of the court to the 

jury.” Or Const, Art VII (Amended), § 3. Indeed, the jury 

instructions play a vital role in that determination. See, e.g., 

State v. Modrzejewski, 311 Or App 739, 744, 490 P3d 172 

(2021) (when jury was not instructed on a lesser-included or 

inchoate version of the charged crime, we could not make 

the determination required to enter a conviction for the 

attempted crime).

Here, with respect to the delivery of methamphetamine count, the jury was provided two relevant instructions. First, the jury was instructed that in order to find 

defendant guilty, they must conclude beyond a reasonable 

doubt that defendant “knowingly delivered methamphetamine.” Second, as a definition, the jury was instructed that 

“deliver or delivery” means “[t]he actual, constructive, or 

attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance.” 

During closing arguments, the state acknowledged that it 

had not shown “a transaction,” but the state explained that 

“possession with the intent to deliver constitutes delivery 

even when no actual transfer is shown.”

But the jury was not provided with an instruction 

on the meaning of “attempt” under ORS 161.405(1), which 

requires intentionally engaging in conduct that constitutes 

a substantial step toward the commission of the crime.1

1 The uniform jury instruction for attempt provides that “[a] person attempts 

[to commit a crime] when [he/ she/they] intentionally [engage/engages] in conduct that constitutes a substantial step toward the commission of a crime in 

which the defendant intends to take part personally.” UCrJI 1040. It further 

explains that “[a] substantial step is more than mere preparation. A substantial 

step means that the defendant’s conduct (1) would or does advance the criminal 

purpose of the crime charged and (2) provides some verification of the existence 

of the criminal purpose.” Id. The jury was also not instructed with the definition 

of “intentionally.” The uniform jury instruction states that a person acts intentionally “when that person acts with a conscious objective” to cause a particular 

result or engage in particular conduct. UCrJI 1035.
Cite as 326 Or App 500 (2023) 521

A substantial step is more than mere preparation. State 

v. Hubbell, 314 Or App 844, 861-62, 500 P3d 728 (2021), 

rev allowed, 369 Or 504 (2022). “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.’” Id at 872 (quoting 

State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 

US 1209 (1991)); see State v. Kyger, 369 Or 363, 371, 506 

P3d 376, adh’d to as modified on recons, 369 Or 604, 509 

P3d 112 (2022) (“to be a substantial step, the defendant’s 

conduct must (1) advance the criminal purpose charged and 

(2) provide some verification of the existence of that purpose”).

The majority remands with instructions to enter a 

judgment of conviction for attempted delivery of methamphetamine, but that disposition requires us to conclude from 

the record that the jury necessarily found that defendant 

intentionally engaged in conduct constituting a substantial step toward the commission of the crime of delivery of 

methamphetamine. For me, that is a bridge too far, especially given the jury’s nonunanimous answer to the sentence enhancement question of whether the offense involved 

“substantial quantities of a controlled substance.” Based 

on the record, I believe that we can only speculate as to 

whether the jury would have found that defendant intentionally engaged in a substantial step towards the delivery 

of methamphetamine. From the amount of methamphetamine found, which was much less than the “exceptionally 

large amount of fentanyl” at issue in Hubbell, 314 Or App at 

871, as well as the amount of cash found, and the other circumstances of the case, the jury could have concluded that 

defendant was preparing to deliver methamphetamine but 

had not attempted to do so. More importantly, the parties 

below never had an opportunity to develop the relevant facts 

or make arguments pertinent to that distinction, because 

the jury was never instructed regarding all of the elements 

of the crime of attempted delivery of methamphetamine.

Article VII (Amended), section 3, provides us with 

the extraordinary power to direct the entry of a judgment of 

conviction when we “can determine what judgment should 

have been entered in the court below,” but it is a power that 
522 State v. Wesley

we should employ sparingly, especially in criminal cases. 

Early jurists interpreting that constitutional provision 

understood the need for caution. See Hall S. Lusk, FortyFive Years of Article VII, Section 3, Constitution of Oregon, 

35 Or L Rev 1, 22 (1955) (describing early cases and finding only one case “in which the court re-examined the facts 

and entered a judgment of conviction of a lesser crime”).2

 In 

that one case identified, State v. Ragan, 123 Or 521, 531-

33, 262 P 954 (1928), the defendant had been convicted of 

assault and robbery while armed with a dangerous weapon, 

but an erroneous jury instruction regarding the weapon did 

not undermine the jury’s findings that the defendant committed an act of assault and an act of robbery. As a result, 

the court remanded with instructions to enter a judgment 

convicting the defendant of assault with intent to rob. Id. at 

534. In my view, we should limit our exercise of the power 

to modify judgments to those kinds of cases; namely, cases 

in which the jury was properly instructed as to the law of 

the proposed modified judgment, and where the direct and 

implied findings from the jury’s original verdict support 

such a modification.

Underlying my concern about the majority’s disposition of Count 2 is the notion that the litigants, not the court, 

are in control of what is being litigated. The state, through 

its district attorneys, alleges the crimes for which a defendant is being prosecuted. Armed with such knowledge, a 

defendant is empowered to enter a plea of guilty or not guilty, 

negotiate for a plea bargain, raise defenses, and prepare a 

defense for trial. Each side may propose jury instructions. 

UTCR 6.060. Those instructions, particularly the instructions addressing the elements of the charged crimes, define 

the playing field for the state and defendant alike. That is, 

the instructions explain exactly which elements the state 

proposes to prove beyond a reasonable doubt, and therefore, 

which elements the defendant must be prepared to defend 

2 See, e.g., State v. Rader, 62 Or 37, 41, 124 P 195 (1912) (“If the evidence were 

clear and without contradiction, we would ourselves try out the case here, as we 

have a right to do under our amended Constitution, but it is wholly circumstantial, and the facts can be much better determined by a jury * ** than by us.”); 

State v. Davis, 70 Or 93, 101, 140 P 448 (1914) (“[W]e are not permitted to theorize 

as to what the verdict of the jury should have been if the issues had been properly 

presented.”).
Cite as 326 Or App 500 (2023) 523

against. But here, defendant had no opportunity to develop 

facts or prepare a defense regarding whether he engaged in 

conduct that amounted to a substantial step and that qualified as more than mere preparation.

If we tacked true to the logic of Hubbell, we would be 

unable to say what the correct judgment in this case should 

have been. The factual findings that the jury must have 

reached in determining that defendant was guilty under the 

erroneous Boyd theory of delivery do not also mean that it 

found facts that constituted a substantial step. Possession 

of methamphetamine without evidence that proves beyond a 

reasonable doubt that the defendant engaged in intentional 

conduct that constituted a substantial step toward delivery 

is simply possession of methamphetamine—the crime of 

conviction in Count 4.

The majority’s decision to remand for entry of a 

judgment of conviction of attempted delivery of methamphetamine, even though the jury was not instructed on all 

the elements of that crime, also implicates defendant’s federal constitutional rights. “[T]he failure to submit a required 

element of an offense to the jury is a federal constitutional 

error.” State v. Perkins, 325 Or App 624, 630, ___ P3d ___ 

(2023) (citing Neder v. United States, 527 US 1, 8, 119 S Ct 

1827, 144 L Ed 2d 35 (1999)). “[T]he omission of an element 

from the court’s instructions deprived defendant of his right 

under the Sixth and Fourteenth Amendments to a jury 

determination on an element essential to guilt.” Perkins, 

325 Or App at 630. In such cases, to affirm, we must be able 

to conclude that the error was harmless beyond a reasonable doubt. Id. at 630-31. Here, the error is related, but even 

more serious, because the jury was not instructed on all the 

elements of the crime and the jury did not convict defendant 

of attempted delivery of methamphetamine. Any discussion 

about what a jury would have found, based on the evidence 

that was presented, but with a theoretical, imagined jury 

deliberation, is, at best, a re-trying of the case with a new 

set of instructions for which only three judges are making a 

determination.3

 Thus, the appropriate disposition of Count 

2 is to reverse and remand for a new trial, to allow both 

3 Notably, the three judges trying the case anew are not unanimous.
524 State v. Wesley

parties to prepare for a trial on the appropriate instructions, and for a jury to make findings consistent with those 

instructions in the first instance.

Respectfully, I concur in the majority opinion as to 

the errors below, but I dissent from the majority’s disposition of Count 2.