Boyd Deliveries and 1000 Feet
by: Rjohnson • February 17, 2011 • no comments
Carrying drugs past a school is not the same crime as selling drugs near a school.
I had already started writing this article when Jess Barton produced his fine piece last week on DCS within 1000 feet of a school. The next time I have a DCS case, I'll make his argument. But, I'll also make my argument which is almost as good and only has a few recent Court of Appeals cases on point against it. (They're wrong. Whom are you going to believe, me or them?) I've made this argument on the Pond, and so this will look familiar to regular readers.
Consider these two defendants. John has a big bag o' crack to sell. He plans to sell it at a bar far from any school. He gets in his car and drives straight to the bar, passing within 1000 feet of the school. He gets stopped by the police next to the school, and he tells them about his plans. Mike plans to sell his big bag o' crack at a grade school. He gets stopped by the police before he gets near the school, and he, likewise, tells them his plans.
Both attempted to deliver a controlled substance, and both were within 1000 feet of a school. Is either one of them guilty of the crime of delivering a controlled substance within 1000 feet of a school?
In the case of an attempt to deliver, which is still a completed delivery, State v. Boyd, 92 Or App 51, 756 P2d 1276 (1988), the question is whether the aggravating fact (being within 1000 feet of a school) applies to the actus reus of the attempt, or to the hypothetical intended future delivery. In other words, an attempt to deliver within 1000 feet of a school could mean an attempt within 1000 feet of a school to deliver drugs somewhere, like John did. Or, it could mean an attempt somewhere to deliver drugs within 1000 feet of a school, like Mike did.
I don't know of any reported cases with facts analogous to Mike's. The Court of Appeals has held that John committed delivery of a controlled substance within 1000 feet of a school. State v. Rodriguez-Barrera, 213 Or App 56, 159 P3d 1201 (2007). The defendant in Rodriguez-Barrera had argued that he could only be convicted if his hypothetical future delivery would be within 1000 feet of a school. The court rejected that argument with the curt explanation that "the statute requires no such proof."
Rodriguez-Barrera is wrong. The court didn't look at the applicable statutory language, particularly the definition of an attempt. ORS 475.005(8) defines delivery as "actual, constructive or attempted transfer." That definition incorporates the definition of 'attempt' from ORS 161.405:
"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."
Using that definition, Mike was guilty and John was not. The completed crime is actually delivering within 1000 feet of a school. Carrying drugs past a school is not a substantial step toward the crime of delivering drugs within 1000 feet of a school; it's a substantial step toward an ordinary DCS. The court's explanation also reveals their error; the answer is not in ORS 475.905, the DCS within a thousand feet of a school statute, but rather in ORS 161.405 on attempts. See, e.g., State v. Leyva, 229 Or App 479, 211 P3d 968 (2009) (using ORS 161.405 to interpret the term delivery under ORS 475.005.)
The same problem comes up with other aggravated versions of DCS. I had a case recently where my client was convicted of DCS as a commercial drug offense. He had possessed cash, records, and packaging materials (and lots of drugs) when he was arrested, but there was no reason to think that he intended to have the cash on his person when he delivered the drugs in the future. The error in my case was unpreserved, so it didn't get anywhere, but the Court of Appeals implicitly rejected it in Leyva, which involved a Boyd commercial drug offense.
Defining a delivery as including an attempted delivery seems like a goofy legislative choice, but the legislature was not trying to change the well-developed definition of an attempt as it exists in the criminal code. And, using that definition, carrying drugs past a school is not delivery within 1000 feet of a school. I'll look for the right case to take the issue to the Court of Appeals, and you should too.
