State v. Rojas

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

          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

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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 ...