Submitted on remand August 30, 2017.
Josephine County Circuit Court 10CR0637; On remand from the
Oregon Supreme Court, State v. Rives, 361 Or. 800, 400 P.3d
921 (2017). Pat Wolke, Judge.
Johnson IV fled the brief for appellant.
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and James Aaron, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and DeVore, Judge, and Garrett,
light of State v. Haugen, 361 Or. 284, 392 P.3d 306
(2017), the Supreme Court vacated and remanded the Court of
Appeals' decision affirming defendant's third-degree
assault conviction to reconsider the trial court's denial
of defendant's motion to suppress eyewitness
identification evidence. Defendant sought to suppress
evidence that the victim of an assault had identified him as
one of two assailants. The trial court, applying State v.
Lawson / James, 352 Or. 724, 291 P.3d 673 (2012),
concluded that the state had shown that the evidence met the
"minimum baseline of reliability" under the
applicable provisions of the Oregon Evidence Code: OEC 401,
OEC 602, and OEC 701. The trial court also concluded that
defendant had failed to demonstrate that, under OEC 403, the
danger of unfair prejudice substantially outweighed the
identification's probative value. The Court of Appeals
affirmed the trial court. State v. Rives, 283
Or.App. 431, 388 P.3d 1110 (2017) (Rives I).
Subsequently, the Supreme Court issued an opinion involving
the second alleged assailant-Haugen-and, in that case,
addressed the same eyewitness identification evidence that
was at [292 Or.App. 9] issue in defendant's case. In
Haugen, the Supreme Court remanded for the trial
court to evaluate the evidence in light of Lawson
/James because, at the time that the trial court
initially admitted the evidence, Lawson / James had
not yet been decided. The Supreme Court also vacated and
remanded Rives I for reconsideration in light of
Haugen. Held: Nothing in Haugen
calls into question the Court of Appeals' conclusion in
Rives I that the state satisfied its burden to show
a "minimum baseline of reliability." Moreover, the
trial court did not abuse its discretion by determining that
defendant had failed to demonstrate that the eyewitness
identification should have been excluded under OEC 403.
Or.App. 10] ORTEGA, P. J.
appeals his judgment of conviction for third-degree assault,
challenging the trial court's denial of his motion to
suppress the victim's out-of-court eyewitness
identification of him. In State v. Rives, 283
Or.App. 431, 388 P.3d 1100, vac'd and rem'd,
361 Or. 800, 400 P.3d 921 (2017) (Rives I), we
affirmed the trial court's ruling. The Supreme Court
allowed review and vacated and remanded for reconsideration
in light of State v. Haugen, 361 Or. 284, 392 P.3d
306 (2017) (Haugen II). State v. Rives, 361 Or. 800,
400 P.3d 921 (2017) (Rives II). On remand, we again
provide a limited description of the relevant procedural and
background facts for purposes of our decision on remand, but
a more detailed recitation of the facts can be found in our
original opinion. Rives I, 283 Or.App. at 432-35. In
September 2010, two men assaulted the victim late one night
in the parking lot of a bar in Grants Pass. The victim had
had a negative interaction with defendant in the bar, and
when he left the bar shortly after midnight, defendant and
another man had made comments to the victim at the door.
After the victim stepped out of the bar, one assailant
"blindsided" him and another hit him with a hammer.
Although the victim contacted police on the night of his
assault, he was unable to provide any identifying information
that night other than informing the original investigating
officer that his assailants were members of the Vagos
Motorcycle Club. Five days later, Detective Brown interviewed
the victim, and during a sequential photo lineup of known
Vagos members, the victim identified defendant and Haugen as
and defendant were charged in the assault. Defendant went to
trial in 2011, which ended in a mistrial. Meanwhile, in
Haugen's case, he sought to suppress the victim's
eyewitness identification. At the time of that suppression
hearing, State v. Classen, 285 Or. 221, 590 P.2d
1198 (1979), controlled the test for admissibility of
eyewitness identifications. Applying Classen, the
trial court ruled in Haugen's case that the victim's
identification of Haugen during the photo lineup was
admissible. Haugen II, 361 Or at 286. Haugen went to
trial in April 2012, and a jury found [292 Or.App. 11] him
guilty of third-degree assault. He appealed his conviction.
During the pendency of that appeal, the Supreme Court decided
State v. Lawson / James, 352 Or. 724, 291 P.3d 673
(2012), "in which the court substantially revised the
Classen test." Haugen II, 361 Or at
286. On appeal in this court, Haugen argued that the
identification procedures used in his case raised serious
questions about the reliability of the identification under
Lawson / James and that we should remand the case to
the trial court for a new hearing and trial, so that the
trial court could apply the Lawson / James test. We
disagreed, concluding that, even under Lawson /
James, the trial court correctly denied Haugen's
motion to suppress the identification. State v.
Haugen, 274 Or.App. 127, 150, 360 P.3d 560 (2015),
rev'd, 361 Or. 284, 392 P.3d 306 (2017)
(Haugen I). Accordingly, we determined that there
was no reason to remand the case to the trial court, and we
the grand jury returned a superseding indictment against
defendant and the state decided to retry him. After the
Supreme Court's decision in Lawson / James,
defendant moved to suppress the victim's out-of-court
eyewitness identification under the new framework. The trial
court ultimately denied that motion, and the case proceeded
to a jury trial, which resulted in defendant's conviction
for third-degree assault. He appealed, challenging the
admission of the identification, and we affirmed. Rives
I, 283 Or.App. at 443. At the time of our decision
affirming the trial court, the Supreme Court had accepted
review in Haugen I, but had not yet decided the
case. As explained below, ultimately the Supreme Court
remanded Haugen's case to the trial court so that the
court could consider the admissibility of the eyewitness
identification under the Lawson / James framework.
Haugen II, 361 Or at 309.
pause here to provide a quick refresher of Lawson
/James because it provides important context for the
discussion that ...