from the Superior Court in Cochise County, No. CR201600734,
The Honorable Wallace R. Hoggatt, Judge. AFFIRMED
M. McIntyre, Cochise County Attorney, By Michael A. Powell,
Deputy County Attorney, Bisbee, Counsel for Appellant
C. Bock, Tucson, and D. Jesse Smith, Tucson, Counsel for
Judge Eppich authored the opinion of the Court, in which
Judge Eckerstrom and Judge Espinosa concurred.
The State of Arizona appeals the trial courts grant of a new
trial to Nathan Rojas, contending the court abused its
discretion in making that decision. Because we conclude the
trial court acted within its discretion, we affirm.
Factual and Procedural Background
During Rojass trial for alleged sexual conduct with a
five-year-old girl, a courtroom observer, David Morgan,
requested permission to record video of the proceedings on
his tablet computer for posting on his social media page.
Over Rojass objection, the court granted the request,
admonishing Morgan that he could not publish images of the
jury in which jurors were identifiable.
Two days later, a juror received text messages from a friend,
asking if the juror was serving in a case involving "a
guy by the last name of Rojas and something about a daycare
and a five-year-old." After the juror confirmed she was
a juror in the case, the friend revealed she had seen video
posted on social media of Rojas testifying at the trial. The
friend said the video did not show the jurors faces but did
show the jury in the jury box. The friend claimed she had not
read the story about the case but said it was
"disgusting" and told the juror how to locate the
social media post.
The next day, the juror informed the trial court of the
friends texts. Upon questioning by the court, the juror
denied viewing the social media post, but admitted she had
told several jurors there was video on social media showing
the jury. She told the court she had shared the address of
the social media post, and a few jurors had written down the
address. Other jurors "werent happy about" the
videos existence and that their likenesses may have been
publicized, according to the juror, in part because they had
been assured by the court that the jury would not be shown.
The juror also attributed the negative reaction to concerns
about privacy: jurors did not want people to know they were
on Rojass jury.
The trial court viewed the video and determined that at least
three jurors were identifiable in it, including two whose
faces were shown. After Rojas moved for a mistrial, the court
decided to individually question
each of the other jurors regarding what they had heard about
the video. Only two jurors testified they had not heard about
it; the rest to varying degrees were aware of it. The report
of the video had "sparked a conversation,"
according to a juror, who reported jurors had asked questions