Argued and Submitted: June 24, 2014.
Multnomah County Circuit Court. 110532061. Kelly Skye, Judge.
Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Erin K. Galli, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Tookey, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.[*]
[265 Or.App. 731] TOOKEY, P. J.
Defendant, who sold batteries labeled and packaged as batteries made by the Sony Corporation, appeals a judgment of conviction for one count of trademark counterfeiting in the second degree, Count 2, ORS 647.145, and three counts of trademark counterfeiting in the third degree, Counts 6, 7, and 8, ORS 647.140, and raises six assignments of error. We write to address defendant's first five assignments of error, in which he argues that the trial court improperly admitted testimonial, documentary, and physical evidence regarding Trustgram technology, a technology used by Sony to conduct authentication tests on batteries sold by defendant. He argues that that evidence is scientific evidence that should not have been admitted without the foundational showing of scientific validity required by State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995). The state responds that Trustgram technology is
not scientific evidence and that any error was harmless. We review for legal error. State v. Whitmore, 257 Or.App. 664, 665, [265 Or.App. 732] 307 P.3d 552 (2013). We conclude that evidence regarding Trustgram technology is scientific evidence that should not have been admitted without the required foundational showing of scientific validity. We further conclude that the error was not harmless. Accordingly, we reverse and remand on Counts 2, 3, 6, 7, and 8, remand for resentencing, and otherwise affirm.
Defendant sold various items on eBay, including batteries bearing the name " Sony" --a registered trademark of Sony. To protect against trademark infringement of certain products, Sony places on its packaging a proprietary holographic sticker called a Trustgram, which, when viewed through a device called a Handy Viewer, indicates whether a product is authentic. Bitter, an investigator for Sony Corporate Security, received a tip that defendant might be selling counterfeit Sony batteries. Bitter purchased batteries packaged as Sony batteries from defendant, and she used Trustgram technology to determine that they were counterfeit. Based on information that Bitter provided to the police, the police later seized numerous batteries from defendant's home, and the state charged defendant with trademark counterfeiting.
Before trial, defendant moved to exclude all testimony " that the batteries at issue are counterfeit[.]" He contended that any such testimony was based on the results of a product authentication test using Trustgram technology, that Bitter lacked the training and experience to testify as an expert about Trustgram technology, and that the state was required to show that Bitter's conclusion met the standards of scientific validity set forth in Brown and O'Key. In his motion, defendant argued:
" The state must prove beyond a reasonable doubt that the items at issue are indeed counterfeit. This conclusion necessitates expert opinion because the differences between a genuine and counterfeit battery would not be apparent to a lay person and an average juror could not be expected to understand the issues involved. According [to] [265 Or.App. 733] the state's own witnesses, it would be impossible for [someone] to tell these batteries are counterfeit without the use [of] a hand held device and the 'Trustgram system' to conduct a product authentication test. To conduct the test and be confident in its reliability, one would need specialized training and experience. In addition, for the results of the test to be admitted, it ...