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FILED: February 11, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ALFRED NIKO, III,

Defendant-Appellant.

Baker County Circuit Court
02750
A123250

On remand from the Oregon Supreme Court, State v. Niko, 345 Or 316, 195 P3d 63 (2008).

Gregory L. Baxter, Judge.

Submitted on remand October 28, 2008.

Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Appellate Division, Office of Public Defense Services, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, for respondent.

Before Landau, Presiding Judge, and Brewer, Chief Judge, and Haselton, Judge.

HASELTON, J.

Affirmed.

HASELTON, J.

This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Niko, 201 Or App 395, 118 P3d 851 (2005) (Niko I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons, 344 Or 195, 179 P3d 673 (2008).