State v. Brannan, 549 P.3d 19

Defendant Kevin Gregory Brannan was convicted in Beaverton Municipal Court for driving under the influence of intoxicants (DUII) after police found him intoxicated in the driver’s seat of a BMW parked in the middle of a Beaverton street with the engine running and open beer cans present.
Defendant’s blood alcohol content was measured at 0.27, over two hours after being discovered by police. No witnesses directly observed Brannan driving.
Brannan appealed his conviction, raising four assignments of error: sufficiency of the evidence for conviction, admissibility of officers’ lay opinions, and alleged prosecutorial misconduct during closing arguments.
The officers testified—over objection—about their opinions that Brannan had driven to the location, based on their experience and observations.
In closing, the prosecutor argued that there was no evidence to support the defense’s alternative explanation that someone else had driven the car, allegedly shifting the burden of proof.

Issue	State’s Argument	Brannan’s Argument	Held
Sufficiency of Evidence (MJOA denial)	Circumstantial evidence sufficiently proved Brannan drove while intoxicated	No direct evidence he drove; state failed to prove all elements	Evidence was sufficient to support conviction
Admissibility of Officers’ Lay Opinion (OEC 701)	Opinions were rationally based on factual observations and helpful to the jury	Opinions were speculative and unhelpful, not based on direct observation	No abuse of discretion; admission affirmed
Prosecutor’s Closing Arguments—Burden Shifting	Prosecutor properly argued the state’s case and explained lack of contrary evidence	Comments improperly implied Brannan had to offer evidence, confusing burden of proof	No plain error; jury not misled, argument contextual
Plain Error Review	Comments did not plainly shift the burden or mislead the jury	Prosecutor’s comments constituted obvious error under precedent	No obvious or undisputed error; no basis for relief

State v. Davis, 261 Or App 38 (Or. Ct. App. 2014) (standard for reviewing denial of motion for judgment of acquittal)
State v. Hedgpeth, 365 Or 724 (Or. 2019) (factfinder may draw reasonable inferences from circumstantial evidence)
State v. Lerch, 296 Or 377 (Or. 1984) (standard for abuse of discretion in admissibility of evidence)
State v. Wright, 323 Or 8 (Or. 1996) (relevancy and helpfulness of lay opinion under OEC 701)
State v. Chitwood, 370 Or 305 (Or. 2022) (standards for reviewing prosecutorial misconduct and plain error)