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 ...