BISBEE — A Sierra Vista man found guilty in the sexual abuse of a five–year–old girl last year will get a new trial as the Arizona Court of Appeals upheld the decision of Superior Court Judge Wallace Hoggatt.
Appeals Court Judges Phillip Espinosa, Ruth Kea Eckerstrom and Karl Eppich unanimously affirmed Hoggatt’s decision and granted a new trial to suspect Nathan Rojas due to possible jury interference which arose from a video made by David Morgan, a local news blogger.
Last summer, Morgan was given permission to video the court proceeding against the wishes of the defense, but was cautioned about capturing any views of the jury. According to the court documents, the images of a few of the jurors were on the video recording and were seen by people when he posted them online.
A friend of one of the jurors called to ask if she was on the jury of the molestation case because she had seen a video online and thought she saw the juror. The juror then told other jurors about the post and provided them with a link to the website.
When Hoggatt was made aware of the actions of the juror, Rojas’s defense attorneys asked the judge to call a mistrial.
Hoggatt watched the video and agreed three jurors were identifiable. He questioned each of the jurors and determined through their answers the trial could proceed without affecting their decision to Rojas’s verdict even though the information had been passed around.
The juror who shared the online link was excused.
Some of the jurors were unhappy with the video showing their likenesses even though they were side views.
“They had been assured by the court that the jury would not be shown and they did not want people to know they were on Rojas’ jury,” Eppich wrote in the decision.
According to the court transcript, one juror stated, “I was concerned that the reporter included an image of the jury, whether they were facing the camera or not. We all have friends and associates locally. If that were to hit the news, it’s not long before every juror would be known.”
Eppich also stated that Morgan’s video recording violated a rule that cameras in a courtroom “must be placed to avoid showing jurors in any manner.” The rule protects not just the jurors’ identities, but also the integrity of the jury system. Those serving on a jury “must be protected from possible intimidation or reprisals for any verdict they may reach.”
On reflection, Hoggatt decided Rojas needed a new trial and apologized to the jurors for failing to keep their identities private. He also said he could not determine “beyond a reasonable doubt, the extraneous information the jury heard did not taint the verdict.”
The County Attorney’s Office disagreed and filed the appeal based on the premise the information the jurors saw, or could have seen, “was not evidence, and therefore, cannot be grounds for a new trial.”
Eppich noted the Supreme Court ruled “evidence means any information likely to be considered by the jury in determining the guilt or innocence of the defendant.”
Since the state did not prove beyond a reasonable doubt the video was not taken into consideration when the jury reached their guilty verdict, Eppich affirmed the right for Rojas to have a new trial.
Though the prosecutor stood by the belief the jury’s conclusion of guilt was “not tainted” as a result of Morgan’s video, and speculated the new trial order was a “misdirected attempt to address Morgan’s misconduct,” the appeals judges did not agree it “was an unfair penalty to the state, particularly given the absence of misconduct by the state.”
Rojas was arrested by the Sierra Vista Police Department on Aug. 26, 2016, and faced three felonies of sexual misconduct with a minor involving a child who attended a daycare operated by the his mother. Authorities said he took the girl to his house down the street from the daycare and sexually abused her.
Two of the charges were dropped at the request of prosecutor Michael Powell at the start of the trial last year, but Rajos still could face 35 years for the one remaining count of sexual abuse of the child.