State v. Branch
243 Or. App. 309
Or. Ct. App.2011Background
- Branch was convicted on two counts of unlawful delivery of cocaine within 1,000 feet of a school, two counts of unlawful delivery of cocaine, and two counts of unlawful possession of cocaine.
- Controlled buys occurred in northeast Portland near two intersections: NE Failing Street with NE Sixth Avenue and NE Garfield Avenue.
- Oregon Outreach's McCoy Academy, a private school, is located nearby on MLK Boulevard, within 1,000 feet of the sale sites.
- Officer Balzer used a lidar device to measure distances from the sale sites to a fire hydrant and then to the school, triangulating distances to the school: about 321 feet and 411 feet for the two sales.
- Defendant objected to admitting lidar-distance measurements, arguing lack of foundational foundation under Brown v. Brown and O'Key v. State; trial court admitted the evidence and convicted Branch.
- On appeal, the court held lidar-distance measurements are scientific evidence and may be admissible, potentially via judicial notice, without applying the Brown/O'Key factors in a “clear case” or legislative-recognition framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are lidar distance measurements scientific evidence. | Branch claims no valid Brown/O'Key foundation. | State argues lidar distance is scientific and admissible. | Yes; lidar distance evidence is scientific and admissible. |
| May lidar-distance evidence be admitted via judicial notice instead of Brown/O'Key analysis. | Branch challenges reliance on judicial notice or Brown/O'Key. | State contends it can be admitted by judicial notice as a clear case or via appellate judicial notice. | Court may admit via judicial notice; lidar distance can be treated as a clear case or notice on appeal. |
| Is lidar-distance evidence relevant and not unduly prejudicial under OEC 401/702/403. | Not explicitly stated in detail; challenge to admissibility of new scientific method. | Evidence is probative and probative value outweighs any prejudice. | Evidence is relevant and admissible, with probative value not substantially outweighed by prejudice. |
Key Cases Cited
- State v. Brown, 297 Or. 404 (1984) (Brown/O'Key foundational framework for scientific evidence)
- State v. O'Key, 321 Or. 285 (1995) (multifactor test for admissibility of scientific evidence; judicial notice framework)
- State v. Helgeson, 220 Or. App. 285 (2008) (statutory recognition or judicial notice in admission of forensics evidence)
- State v. Sampson, 167 Or. App. 489 (2000) (review of scientific evidence admissibility; consideration of literature)
- Lyons, 324 Or. 256 (1996) (DNA/PCR evidence; universality of scientific principles)