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FILED: June 1, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

HAHRAHCIO ROY BRANCH,

Defendant-Appellant.

Multnomah County Circuit Court
080331307, 080331328
A140217 (Control)
A140218

Kenneth R. Walker, Judge.

Argued and submitted on April 29, 2010.

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Edmonds, Senior Judge.

ARMSTRONG, J.

Affirmed.

Haselton, P. J., concurring.

ARMSTRONG, J.

In this consolidated appeal, defendant appeals judgments of conviction for two counts of unlawful delivery of cocaine within 1,000 feet of a school, ORS 475.882; two counts of unlawful delivery of cocaine, ORS 475.880; and two counts of unlawful possession of cocaine, ORS 475.884, raising three assignments of error. He contends in his first and second assignments that the trial court violated his state and federal constitutional rights to confrontation by admitting lab reports that identified the substance that police had obtained from him to be cocaine without requiring the criminalists who had prepared the reports to appear to testify at trial. We reject those assignments without discussion. He contends in his third assignment that the court erred in admitting scientific evidence, viz., evidence of distance derived from measurements made with a light detection and ranging (lidar)(1) device, because the state had failed to establish an adequate foundation for admission of the evidence. We reject that assignment and, accordingly, affirm.

Because defendant was convicted, we state the facts in the light most favorable to the state. State v. Lyons, 324 Or 256, 258, 924 P2d 802 (1996). On two occasions roughly a month apart, defendant sold cocaine to police informants during controlled buys in northeast Portland. The first sale occurred near the intersection of NE Failing Street and NE Sixth Avenue, the second near the intersection of NE Failing Street and NE Garfield Avenue. Oregon Outreach's McCoy Academy, a private alternative school for at-risk students, is located on NE Martin Luther King, Jr. Boulevard (MLK Boulevard), a short distance from the sites of the two sales.

To determine the distance from McCoy Academy to the locations of defendant's two drug sales, Portland Police Officer Balzer used a lidar device. He first measured the distance from the approximate locations of the sales to a fire hydrant on the corner of NE Failing Street and MLK Boulevard. He then measured the distance from the fire hydrant to McCoy Academy. With those measurements, he triangulated the distance from McCoy Academy to the sites of the sales. The first and second sales occurred about 321 feet and 411 feet, respectively, from the school.

Based on the locations of the sales, defendant was charged with, among other things, two counts of unlawful delivery of cocaine within 1,000 feet of a school. In order to prove the 1,000-foot element of that crime at trial, the state called Balzer to testify about his use of the lidar device and the distances that he had derived from the measurements generated by the device. Balzer, a certified operator of the lidar device, explained how the device is used. According to Balzer, law enforcement departments nationwide use lidar devices, and the Portland Police Department has used them for the past 13 years. He also testified that the lidar device he used automatically checks itself for errors in its use, but he did not know the device's potential rate of error when measuring distance. Importantly, according to defendant, Balzer was unable to testify about the scientific principles underlying the design and function of the device because he did not know them.

Defendant objected to the admission of the distance evidence generated from Balzer's use of the lidar device, arguing that the state had not laid a sufficient foundation for its admission. The primary thrust of his objection was that the measurement readings from the device on which Balzer had relied to determine the distances was scientific evidence, and, therefore, defendant was "challenging the scientific principles [underlying] a complicated mechanism to determine a measurement." Defendant argued to the court that the state had failed to satisfy the factors delineated in State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P2d 663 (1995), for the admission of scientific evidence:

"I am saying [that the state] did not lay [foundation evidence for] any of [the Brown/O'Key factors]. [The state] put on a witness who said, 'I don't know how the machine works,' [the state] put on a foundational witness who said, 'I don't know what the tolerances of this machine are.'"

In response, the state argued:

"[Some of] the seven factors that are cited in Brown [are]: The technique's general acceptance in the field, [as to which] the officer explained that [lidar devices have] been used by the Portland Police for at least 13 years and also by other police departments to his personal knowledge; * * * the use [that] has been made of the technique, again, [Balzer] has used it consistently * * * to measure speed and distance for at least the last nine years, and [lidar devices] ha[ve] been used by the Portland Police for 13 years; potential rate of error, it is true as to distance [Balzer] could not testify as to potential rate of error * * * ; the novelty of the invention, [Balzer] was able to give personal knowledge about * * * how long [lidar devices] ha[ve] been in use; and the * * * extent to which the technique relies on the subjective interpretation of the expert, and * * * you, yourself saw there is no subjective interpretation[:] it is simply a number that pops up on a screen[.]"

The trial court determined that the state had laid a sufficient foundation under the Brown/O'Key framework to admit the challenged evidence, reasoning that "there is nothing novel about this, the extent to which [the device] relies on subjective interpretation is zero, it is generally accepted in the field, it is * * * in use throughout the country, so * * * the foundation * * * is sufficient." The court further explained that, "if the instrument itself has been found to be reliable and to pass all of the tests [for] scientific foundation, then the person who is [testifying to] using it does not have to understand it[.]" The court overruled defendant's objection, and defendant was convicted of the offenses.

On appeal, defendant renews his argument that the measurements derived from the use of the lidar device should not have been admitted at trial because the state had failed to satisfy its burden of establishing the scientific validity of the principles underlying lidar devices and their use to measure the distance between objects. Defendant further asserts that, although some state courts have accepted the scientific validity of lidar devices when those devices are used to measure speed, courts in other states have excluded lidar-device evidence in the absence of a foundation being laid under those courts' gatekeeping standards for the admission of scientific evidence. In response, the state argues that distance measurements derived from the use of a lidar device are not scientific evidence and, alternatively, that the trial court could have taken judicial notice of the scientific validity of lidar-based evidence of distance. For the reasons that follow, we conclude that the court properly admitted the evidence.

We review the facts underlying the admissibility of scientific evidence de novo. State v. Sampson, 167 Or App 489, 495, 6 P3d 543, rev den, 331 Or 361 (2000). In doing so, we may review the record and may also consider the legal and scientific literature relating to the evidence that the parties have provided or that we have found through our own research. See O'Key, 321 Or at 316 (using information from those sources to determine the admissibility of Horizontal Gaze Nystagmus (HGN) evidence and, in making that determination, concluding, based on the court's own research, that various propositions underlying the scientific validity of the HGN test are generally accepted in the relevant scientific community). Further, because the validity of scientific evidence presents a legal question, we review the court's ruling on the admissibility of such evidence for legal error. Jennings v. Baxter Healthcare Corp., 331 Or 285, 299, 14 P3d 596 (2000).

Because the issue is determinative in this case, we must first decide whether evidence of lidar measurements of distance is scientific evidence. Although there is no exact rationale in Oregon case law for characterizing evidence as scientific evidence, the Oregon Supreme Court has explained that evidence is scientific if it "draws its convincing force from some principle of science, mathematics and the like." Brown, 297 Or at 407.

To determine whether the challenged evidence in this case is scientific evidence, a brief description of lidar devices, focusing on the scientific principles underlying the results that they generate, is necessary. Lidar devices "shoot" a series of laser pulses at a target, generally one every five milliseconds. When a pulse hits the target, a portion of the light from the laser beam is reflected back to the device. Lidar devices calculate the distance between the target and the device by analyzing the average time that it takes the reflected light to return to the device from the target through an algorithm based on the speed of light, which is a known constant; that process of measurement is similar to the process by which radar devices measure distance and speed. Vladimir A. Kovalev & William E. Eichinger, Elastic Lidar: Theory, Practice, and Analysis Methods 53 (2004); Mark Fischetti, Working Knowledge: Radar Guns, Sci Am, Mar 2001, at 76, 77.

Lidar devices consist of three basic components: (1) a laser diode, which serves as the source of the laser pulses; (2) a photoreceiver, which receives the reflected light and converts it into an electrical signal; and (3) a computer system, which tracks the time that elapses between the laser pulses leaving the device and the generation of the electrical signal and calculates the distance to the target. Kovalev & Eichinger, Elastic Lidar at 53. The devices have numerous applications, ranging from the everyday, e.g., measuring distances and angles on construction sites and in surveying projects, Jeff Hecht & Dick Teresi, Laser: Light of a Million Uses 154-56 (1988), to the more far reaching, e.g., measuring the distance to and orbit of the moon, J. O. Dickey et al., Lunar Laser Ranging: A Continuing Legacy of the Apollo Program, Sci, July 22, 1994, at 482, 482.

Here, as noted, the distance evidence proffered by the state is based on the premise that measurements of distance can be derived through the lidar device's use of a certain scientific principle, viz., the speed of light. Data generated by the computer in the device are then analyzed through the use of a mathematical algorithm based on that principle. As such, that distance evidence draws its convincing force from a scientific principle and would be more persuasive to the trier of fact due to its scientific nature. Accordingly, we conclude that it is scientific evidence.(2)

We turn to whether the scientific evidence is admissible. Scientific evidence is admissible if it is relevant under OEC 401,(3) satisfies OEC 702,(4) and is not subject to exclusion under OEC 403.(5) Brown, 297 Or at 409. Because defendant challenges the admission of the evidence generated from the use of the lidar device on the ground that the state failed to establish the scientific validity of the process responsible for the measurements and the scientific principles underlying that process, the critical inquiry in this case is whether the evidence is relevant and satisfies OEC 702.

Trial courts function as gatekeepers for the admissibility of scientific evidence, ensuring that the elevated persuasive power of the evidence on the trier of fact is legitimate. Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 438, 193 P3d 1030 (2008); see also O'Key, 321 Or at 306 ("[A] trial court should exclude 'bad science' in order to control the flow of confusing, misleading, erroneous, prejudicial, or useless information to the trier of fact."). To assist courts in that role, the Oregon Supreme Court has established a multifactor test for trial courts to consider in determining whether "scientific evidence is probative under OEC 401 and [in applying] the relevancy and prejudice analysis implicated in OEC 702's helpfulness standard." Brown, 297 Or at 417.(6) However, as the court later explained in O'Key, the multifactor test is not applicable in every case involving the admissibility of scientific evidence:

"[I]n the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as 'scientific' assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding. Once a trial court has decided that proffered expert scientific testimony is scientifically valid and has admitted such evidence for the particular purpose to which it is directed, and that decision is affirmed by this court in a published opinion, it will become precedent controlling subsequent trials."

321 Or at 293 (footnote omitted; emphasis added). Therefore, before applying the multifactor test to the evidence in question, a court must decide whether the scientific evidence is of a type for which the test outlined in Brown and O'Key does not apply: viz., evidence whose admissibility an Oregon appellate court has approved; evidence whose scientific validity is clear; evidence whose scientific validity may properly be established through judicial notice; or evidence whose prima facie scientific validity has been established legislatively. See Laird C. Kirkpatrick, Oregon Evidence