State v. Downs

No. 109            February 12, 2025                 849

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
               ROBERT LEROY DOWNS,
                 Defendant-Appellant.
              Benton County Circuit Court
                  23VI50811; A182015

  Joan E. Demarest, Judge.
  Submitted January 14, 2025.
   Kevin T. Lafky argued the cause for appellant. Also on
the brief was James P. Francis and Lafky & Lafky.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Affirmed.
850                                           State v. Downs

        JACQUOT, J.
         Defendant appeals from a judgment of conviction
for speeding in a school zone, in violation of ORS 811.111.
In two assignments of error, defendant contends that there
was insufficient evidence to support a determination that he
was driving 50 miles per hour within the school zone and
that the court plainly erred in admitting radar evidence
without requiring the state to lay a sufficient foundation for
scientific evidence. Deferring to the trial court’s credibility
findings, State v. Hall, 

, 

(2000), reviewing “the evidence in the light most favorable
to the state [and] determin[ing] whether any rational trier
of fact could have found that the essential elements of the
violation have been proved by a preponderance of the evidence,” State v. Bainbridge, 

, 

 (2009) (internal quotation marks omitted), we affirm.
         After receiving a citation for violating ORS 811.111,
defendant proceeded pro se at trial. He testified and presented evidence that he drove approximately 25 miles per
hour in the school zone and only accelerated to 50 after the
school zone ended. The law enforcement officer who cited
defendant also testified and provided radar evidence. The
officer stated that his radar determined defendant was
traveling 50 and 51 miles per hour within the school zone,
and that the radar evidence was consistent with his own
observations. Noting that “credibility” and “the details”
were important, the trial court determined the state met
its burden of proof and found defendant guilty of the traffic
violation.
          We address defendant’s second assignment of
error—concerning admissibility of radar evidence—before
addressing his first assignment of error about whether there
was sufficient evidence to support a conviction. Defendant’s
argument about the inadmissibility of the radar evidence
was not raised at trial and is unpreserved. He contends that
the trial court plainly erred in admitting the radar evidence
without an adequate foundation for scientific evidence. There
was no plain error. We have previously held that the scientific validity of lidar evidence, which uses “nearly identical”
“scientific principals and methodologies” as radar evidence,
Nonprecedential Memo Op: 

 (2025)            851

is “clear[ ]” and “indisputably valid,” State v. Branch, 

, 320 n 11, 

, rev den, 

(2011), and, therefore, admission of such evidence does not
require foundational evidence to satisfy the O’Key multifactor test. State v. Jaffe, 

, 

(2011). To the extent that defendant argues that the officer
did not lay a sufficient foundation to authenticate the radar
evidence under OEC 901, that argument also fails. “OEC
901(1) only requires the proponent of evidence to make a
‘prima facie showing’ of authenticity before the question
whether the evidence is what it purports to be can go to
the ultimate finder of fact,” State v. H. D. E., 

, 

, rev den, 

 (2020), as was
accomplished by the officer’s testimony, including that he
had tested his radar about an hour before using it to measure the speed of defendant’s vehicle within the school zone.
Thus, the trial court did not err, plainly or otherwise, in
admitting evidence related to the officer’s radar readings.
         Turning to defendant’s first assignment of error
and assuming without deciding whether it is preserved, we
conclude there is sufficient evidence in the record to support
defendant’s conviction. The trial court credited the officer’s
testimony that defendant was within the school zone when
he was observed visually and by radar to be traveling 50
and 51 miles per hour. We conclude that that evidence is sufficient and that we are bound by the trial court’s credibility
findings. Therefore, the trial court did not err.
        Affirmed.