State v. Najar

No. 439              June 26, 2024                 487

  This is a nonprecedential memorandum opinion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.
              JESUS GERARDO NAJAR,
                 Defendant-Appellant.
               Polk County Circuit Court
                 20CR46465; A176485

  Monte S. Campbell, Judge.
  On appellant’s petition for reconsideration      filed
December 19, 2023. Nonprecedential opinion         filed
November 15, 2023. 

.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, for petition.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Reconsideration allowed; former opinion modified and
adhered to as modified.
488                                                 State v. Najar

        ORTEGA, P. J.
         Defendant has petitioned for reconsideration of our
opinion in this case, 

 (2023) (nonprecedential
memorandum opinion), asserting that the opinion contains
a factual error. For clarification, we revise the opinion as
follows.
        The original opinion, on page 185, contains this
sentence:
  “The capture date of the photographs indicated that they
  were taken about 10 days after the incident at issue.”
        That sentence is revised to read as follows:
  “H took the photos on May 25, 2020, about eleven days
  after the date on which the state alleged that the incident
  occurred.”
        The original opinion, on page 185, contains this
sentence:
  “Moreover, witnesses testified that they saw bruises on H
  ‘from th[at] incident,’ and H testified that she did not get
  all bruises at the same time and that defendant ‘gave [her]
  the bruises’ in the photographs, which H took only 10 days
  after that incident.”
        That sentence is revised to read as follows:
  “Moreover, witnesses testified that they saw bruises on H
  ‘from th[at] incident,’ and H testified that she did not get all
  bruises at the same time and that defendant ‘gave [her] the
  bruises’ in the photographs, which H took 11 days after the
  date the state alleges the incident occurred.”
        The original opinion, on page 186, contains this
sentence:
  “H’s testimony that ‘it hurt’ after defendant strangled and
  ‘threw’ her on the ‘concrete ground,’ along with witnesses’
  testimony that H was bruised ‘from th[at] incident,’ the pictures of the bruises, and the fact that the bruises lasted
  at least 10 days, was sufficient for a jury to make the reasonable inference that H’s pain was ample rather than
  fleeting.”
        That sentence is revised to read as follows:
Nonprecedential Memo Op: 

 (2024)                489

  “H’s testimony that ‘it hurt’ after defendant strangled and
  ‘threw’ her on the ‘concrete ground,’ along with witnesses’
  testimony that H was bruised ‘from th[at] incident,’ the
  pictures of the bruises, and the permissible inference that
  the bruises lasted at least 11 days, was sufficient for a jury
  to make the reasonable inference that H’s pain was ample
  rather than fleeting.”
       Reconsideration allowed; former opinion modified
and adhered to as modified.