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State v. Rojas

Court of Appeals of Arizona, Second Division

August 28, 2019

The State of Arizona, Appellant,
v.
Nathan D. Rojas, Appellee.

          Appeal from the Superior Court in Cochise County No. CR201600734 The Honorable Wallace R. Hoggatt, Judge.

          Brian M. McIntyre, Cochise County Attorney By Michael A. Powell, Deputy County Attorney, Bisbee Counsel for Appellant

          Richard C. Bock, Tucson and D. Jesse Smith, Tucson Counsel for Appellee

          Presiding Judge Eppich authored the opinion of the Court, in which Judge Eckerstrom and Judge Espinosa concurred.

          OPINION

          EPPICH, PRESIDING JUDGE.

         ¶1 The State of Arizona appeals the trial court's 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

         ¶2 During Rojas's 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 Rojas's objection, the court granted the request, admonishing Morgan that he could not publish images of the jury in which jurors were identifiable.

         ¶3 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.

         ¶4 The next day, the juror informed the trial court of the friend's 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 "weren't happy about" the video's 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 Rojas's jury.

         ¶5 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 about the video and some had written down its internet address.

         ¶6 All jurors told the trial court that what they had heard would not affect how they decided the case. Several jurors confirmed that the information had raised privacy concerns, however. One stated, "[W]e don't want to be recognized of course in this case . . . because of the day and age of craziness of people." Another reported there had been a conversation expressing concern that despite the court's assurances otherwise, their likenesses had been captured. A third juror, when asked whether the information had caused her any concern, said, "Slightly, yes." A fourth juror responded more forcefully when asked if the information had concerned him:

It did, sir. I was concerned that . . . that reporter . . . included an image of the jury, whether they were facing toward the camera or not. . . . [W]e all have friends and associates locally. And . . . if that were to hit the news, . . . it's not long before I would think every juror . . . would be known.

         While that juror did not know of anyone who might retaliate against him if they did not agree with the verdict, he stated that such a thing was possible. When ...


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