State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0535

State of Minnesota,
Respondent,

vs.

Justin Kainoa Kaneakua,
Appellant.

Filed May 8, 2023
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-20-10114

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Peter R. Marker, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Worke, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from judgments of conviction for felony interference with a
transit operator and gross-misdemeanor fourth-degree assault, appellant Justin Kainoa
Kaneakua challenges the admission of identification evidence at his trial. First, Kaneakua
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argues that the district court erred by admitting evidence that the victim identified him as
the assailant during a show-up identification procedure— which the district court later
found to be impermissibly suggestive—because the identification was unreliable. Second,
Kaneakua argues that the district court erred by permitting the victim to make an in-court
identification because the identification was tainted by the show-up identification. We
conclude that the show-up identification was independently reliable despite the
impermissibly suggestive procedure and that the district court therefore did not abuse its
discretion by admitting either the show-up identification or the in-court identification. We
affirm.
FACTS
Respondent State of Minnesota charged Kaneakua with one count of interference
with a transit operator by use of force or violence, in violation of Minnesota Statutes
section 609.855, subdivision 2(a) ( 2018), and one count of fourth-degree assault, in
violation of Minnesota Statutes section 609.2 231, subdivision 11(a) (2018), based on his
assault of a Metro Transit bus driver.
The Incident
On April 3, 2020, R.H. was driving a Metro Transit bus when a man boarded the
bus. The man approached the front of the bus several times, crossing under the “swing bar”
that separated the bus driver from the passengers. R.H. told the man to move back behind
the bar. Although the man moved back and sat down, R.H. kept watch on the man via the
rearview mirror. Around the time that the bus was making a scheduled several-minute
layover, the man again crossed under the swing bar and approached R.H. The man then
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punched R.H. in the face, got off the bus, and walked away. R.H. secured the bus and
reported the incident to his supervisors. Officers responded to the scene and interviewed
R.H. About 45 minutes later, they conducted a show-up with Kaneakua, during which R.H.
identified Kaneakua as his assailant.
Show-Up Identification
Kaneakua filed a motion to suppress R.H.’s show-up identification. Two responding
officers—Officers Randall and Tinucci —testified at the omnibus hearing. 1 Because neither
Kaneakua nor the state disputes the district court’s factual findings, we incorporate the
following facts from the district court’s order on the motion:
At approximately noon on April 3, 2020, a Metro
Transit bus driver called 911 to report that he had been
assaulted by a bus passenger. He described the attacker as a
while male, approximately 6 feet tall and 190 pounds, wearing
a grey jacket or hoodie with a brown hoodie underneath, blue
jeans, and grey winter hat with a green stripe. The assault
occurred in the area of 1st Avenue and Lake Street in
Minneapolis. The bus driver reported that the attacker fled
north on 1st Avenue after the assault.
Officer Randall, who was a few blocks away when the
call went over the dispatch, began looking for the suspect.
While doing so, he was flagged down by [Kaneakua] and his
sister near the 2700 block of 1st Avenue, a few blocks north of
where the assault occurred. [Kaneakua] was in some distress,
telling the officer that an intruder was inside his sister’s nearby
house and that he had sprayed mace all over the house.
[Kaneakua’s] sister told Officer Randall that there was no one
in her home and that [Kaneakua] was distressed from drug use
and mental health issues.
Officer Randall noted that [Kaneakua] appeared to be
Native and 6 feet to 6 feet two inches tall. At the time of this
interaction with Officer Randall, [Kaneakua] was wearing a

1 The district court also reviewed videos from the two officers’ squad cars and Officer
Randall’s body-worn camera footage at the omnibus hearing.
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white t-shirt, blue jeans, and a beanie. [Kaneakua] also had a
tattoo under one of his eyes. Officer Randall spoke with both
[Kaneakua] and his sister for some time until he determined
that there was no need to continue this investigation. Officer
Randall then went to the scene of the assault on the bus.
While Officer Randall was speaking with [Kaneakua],
Officer Tinucci responded to the dispa tch as well and went to
the scene to speak with the bus driver. The bus driver told him
that the attacker boarded the bus and while on board,
approached the front of the bus a few times. The driver told
him to step back when he got too far to the front of the bus. At
some point, the attacker punched the driver in the face, got off
the bus, and then fled heading north on 1st Avenue. After
speaking with the bus driver, Officer Tinucci then went to look
for the suspect.
Officer Randall then arrived at the bus and spoke with
another Metro Transit Police Officer. While speaking with this
officer, Officer Randall asked the other officer to ask the bus
driver if the attacker had a tattoo on his face. The bus driver
said that he did. Officer Randall now believed that the person
he spoke with earlier —[Kaneakua]—was the person who
assaulted the bus driver.
Officer Randall then went looking for [Kaneakua] and
found him nearby, at the 2600 block of Nicollet Avenue,
wearing a short sleeved white t-shirt and jeans. The weather
was cold and snowflakes were falling. Officer Randall detained
[Kaneakua] in handcuffs and while putting them on he saw a
utility knife in [Kaneakua’s] pocket. At this point, Officer
Randall removed all items from [Kaneakua’s] pockets
including the utility knife, a can of mace, a wallet and wallet
chain, a flashlight, and a bandana. Officer Randall then placed
[Kaneakua] in his squad car and coordinated with Metro
Transit Police to bring the bus driver to his location to conduct
an identification. Officer Tinucci got to the scene before the
bus driver and spoke with Officer Randall while they both
waited. Officer Randall told Officer Tinucci that he felt
“stupid” for not realizing [Kaneakua] was potentially the
person who assaulted the bus driver. Officer Randall did not
think [Kaneakua] matched the description given by the bus
driver.
When the bus driver arrived at the scene, Officer
Tinucci spoke with him briefly before conducting the show up.
Officer Tinucci told the driver that they “ possibly have a
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suspect.” He also told the driver that they stopped this person
based on his description and that he wanted the driver to take a
look at him and determine whether it was the same person who
hit him on the bus. Officers Randall and Tinucci then took
[Kaneakua], who was still in handcuffs, out of the squad car.
Standing on each side of [Kaneakua], the officers held
[Kaneakua] by the elbow and presented him to the driver,
having [Kaneakua] first face the driver and then turn to the
side. The driver then positively identified [Kaneakua] as the
person who hit him on the bus. This show-up occurred about
45 minutes after the assault occurred.

The district court denied the motion to suppress. It found that the show-up procedure
was unnecessarily suggestive but determined that, under the totality of the circumstances,
the identification was independently reliable and thus admissible.
Trial
At the jury trial, R.H. testified about the incident on the bus as well as his
identification of Kaneakua. R.H. testified that his assailant was wearing a face covering
over the lower part of his face during the assault but that he “got a really good look at his
face.” R.H. acknowledged that his first description of his assailant to the police did not
mention any tattoo, but he testified that, after officers asked him whether there was
anything “distinctive” about his assailant, R.H. told officers that his assailant had a teardrop
tattoo under his eye. R.H. testified that he was “confident” about his identification of
Kaneakua at the show- up. When the prosecutor asked whether R.H. saw the person who
hit him in the courtroom, R.H. identified Kaneakua.
Officer Randall and Officer Tinucci also testified regarding the show-up
identification. Their trial testimony was substantially similar to their testimony at the
suppression hearing.
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The jury found Kaneakua guilty on both counts. The district court entered
convictions on both counts and sentenced Kaneakua to a 15-month stayed prison sentence
for the felony-interference-with-a-transit-operator offense.
This appeal follows.
DECISION
Kaneakua argues that the district court violated his right to due process by failing to
suppress (1) the out-of -court identification because the show-up procedure created a
substantial likelihood of irreparable misidentification and (2) the in-court identification
because it was tainted by the out-of-court identification.
I. The district court did not err by denying Kaneakua’s motion to suppress the
show-up identification.

The United States Constitution guarantees criminal defendants the right to due
process of law. U.S. Const. amend. XIV. “The admission of pretrial identification evidence
violates due process if the procedure ‘was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’” State v. Hooks, 752 N.W.2d
79, 83-84 (Minn. App. 2008) (quoting Simmons v. United States , 390 U.S. 377, 384
(1968)). Although evidentiary decisions generally rest within the discretion of the district
court, appellate courts review de novo whether a defendant has been denied due process.
Spann v. State, 704 N.W.2d 486, 489 (Minn. 2005).
To determine whether an identification procedure violates due process and whether
the identification evidence therefore must be suppressed, Minnesota courts use a two-prong
test. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). First, the court must determine
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whether the identification procedure was “unnecessarily suggestive.” Id. The court
evaluates whether “the defendant was unfairly singled out for identification” to determine
if “the procedure used by the police influenced the witness identification of the defendant.”
State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).
Second, if the court determines that the identification procedure was unnecessarily
suggestive, the court considers whether the procedure created a “very substantial likelihood
of irreparable misidentification.” Id. To do so, the court determines whether, under the
totality of the circumstances, the identification was otherwise reliable because it had an
“adequate i ndependent origin.” Id. The court considers five factors: (1) the witness’s
opportunity to view the suspect at the time of the crime, (2) the witness’s degree of
attention, (3) the accuracy of the witness’s prior description of the suspect, (4) the level of
certainty that the witness demonstrated at the time of the identification procedure, and
(5) the time between the crime and the identification procedure. Ostrem, 535 N.W.2d
at 921.
Here, the district cou rt determined, and the state concedes, that the show-up
procedure was unnecessarily suggestive. We therefore need not analyze that question. See
State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996) (stating that conducting the first part of
the Ostrem analysis was unnecessary because “the state admits that [the identification] was
suggestive”). Instead, we turn to the second prong, addressing each of the five reliability
factors in turn.
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1. R.H. had an opportunity to observe his assailant at the time of the
crime.

Kaneakua argues that R.H. had minimal opportunity to observe his assailant at the
time of the crime because his assailant was only on the bus for a few stops and he wore a
hat and a mask that obscured his face, head, and hair.
Other facts, though, demonstrate R.H.’s opportunity to observe his assailant. The
assault took place in the afternoon during daylight hours. See Ostrem, 535 N.W.2d at 922
(finding that witness had a sufficient opportunity to view defendant when the encounter
occurred during daylight hours from a “relatively close range”). Though he was on the bus
for only a few stops, the assailant approached R.H. a couple of times, standing so close to
R.H. that R.H. told him to move back. See State v. Lushenko, 714 N.W.2d 729, 732 (Minn.
App. 2006), rev. denied (Minn. Dec. 12, 2006) (finding adequate opportunity when
defendant briefly conversed with the witness in person). R.H. also continued to observe his
assailant via the rearview mirror even when he was not directly in this line of sight. R.H.
also observed his assailant as he ran away after the assault. Because R.H. interacted with
his assailant several times in close proximity during daylight, R.H. had sufficient
opportunity to observe him. Thus, the first factor weighs in favor of reliability.
2. R.H. was paying attention to his assailant.
Kaneakua argues that R.H. was not paying sufficient attention to his assailant to
make a reliable identification because he was driving a bus and he was surprised by the
punch.
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This factor may be met when the witness is “coherent, aware, and attentive” while
observing the defendant. State v. Adkins, 706 N.W.2d 59, 63 (Minn. App. 2005). R.H. was
acutely aware of his assailant’s presence, telling his assailant to move back because he
inappropriately approached R.H. multiple times. R.H. continued to observe his assailant as
he fled after punching R.H. in the face. See Lushenko, 714 N.W.2d at 733 (noting that a
witness’s degree of attention can be heightened by strange or suspicious circumstances).
This factor weighs in favor of reliability.
3. R.H.’s descriptions were generally accurate.
Kaneakua contends that “R.H. provided inconsistent descriptions of his assailant
and, to the extent his descriptions were consistent, they did not match Kaneakua.”
R.H.’s statements show some inconsistency or uncertainty about his assailant’s race
and some differences between R.H.’s description of his assailant’s clothing and the
clothing that Kaneakua was wearing when confronted by the police. But R.H. provided a
generally accurate description of Kaneakua’s build and his tattoo, and his statement
regarding his assailant’s direction of travel matched Kaneakua’s later location. The fact
that Kaneakua was not wearing outer clothing when confronted by the police could simply
have been the result of his having removed it—at the suppression hearing, Officer Randall
testified that it is common for suspects to shed clothing. As for Kaneakua’s race, R.H.
initially described his assailant as either a black, Hispanic, or Indian male but, after
identifying Kaneakua at the show- up, stated, “I couldn’t tell he was Native.” Officer
Randall testified that it can be challenging for witnesses to accurately identify a suspect’s
race.
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Kaneakua also argues that, because R.H. did not mention his assailant’s face tattoo
until prompted by officers before the show-up, his description was inaccurate. We disagree.
It is unclear from the district court order and the testimony at the omnibus hearing what
exactly the officers asked R.H. about any facial markings, but even if R.H. was asked about
a face tattoo, he correctly said that Kaneakua had a small tattoo under his eye.
Accuracy does not demand perfection. See Seelye v. State, 429 N.W.2d 669, 673
(Minn. 1988) (finding that the witness’s description was “on the whole, accurate” when
the height was wrong and the defendant did not have a mustache, but the witness
“accurately described the clothes worn, facial features, complexion, hair and weight”).
Overall, R.H.’s descriptions of his assailant were accurate, and this factor weighs in favor
of reliability.
4. R.H. was confident about his identification.
Kaneakua argues this factor does not support reliability because R.H. did not
describe his level of certainty about the identification at the time of the show-up. Kaneakua
also argues that R.H.’s statement at the show -up that he “couldn’t tell [Kaneakua] was
Native” undermines R.H.’s level of confidence in the identification.
When confronted with Kaneakua during the show-up procedure, R.H. gave the
officers a thumbs up and stated, “ Yeah, that’s him. I couldn’t tell he was Native. That’s
him.” At the suppression hearing, Officer Tinucci testified that R.H. seemed “certain” of
his identification. R.H.’s comment about Kaneakua’s race, when read in context, does not
undermine his certainty. This factor weighs in favor of reliability.
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5. The time between the assault and R.H.’s identification was short.

Kaneakua concedes that, because the show-up took place only 45 minutes or so after
the incident, this factor weighs in favor of reliability. And we agree. See Lushenko, 741
N.W.2d at 733 (finding the temporal factor favored admissibility when three hours had
passed between the incident and the identification).
In sum, all five factors support the reliability of the show-up identification. Because,
under the totality of the circumstances, R.H.’s identification was independently reliable,
the district court did not err by denying Kaneakua’s motion to suppress identification
evidence despite the impermissibly suggestive show-up procedure.
II. The trial court did not err by admitting R.H.’s in-court identification evidence.

Kaneakua argues that R.H.’s in-court identification of him should have been
excluded because it was tainted by the unnecessarily suggestive out-of-court identification
of Kaneakua and lacked an adequate independent origin.2
The admissibility of an in-court identification made in the wake of a suggestive
pretrial identification procedure is assessed using the same totality- of-the-circumstances
analysis for an out-of-court identification. Seelye, 429 N.W.2d at 672-73. For the reasons
detailed above, under the totality of the circumstances, R.H.’s in-court identification of

2 The state argues that we must address the admission of the in-court identification under
the plain-error standard of review because Kaneakua failed to object to the in-court
identification at trial. Kaneakua counters that he did not need to object to the in -court
identification at trial because he objected to all identification evidence in his motion to
suppress. We agree with Kaneakua. See Minn. R. Evid. 103(a) cmt. (stating that a motion
to “prohibit the introduction of evidence operates as a timely objection and obviates the
requirement of any further objection with respect to such evidence”). Kaneakua’s objection
was preserved, and the plain-error standard does not apply.
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Kaneakua is independently reliable. The district court therefore did not err by admitting
R.H.’s in-court identification of Kaneakua.
Affirmed.