                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                        JORGE ESPINOZA, Appellant.

                             No. 1 CA-CR 15-0472
                               FILED 6-14-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300594
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant

Jorge Espinoza, San Luis
Appellant
                           STATE v. ESPINOZA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1             Jorge Espinoza appeals his convictions and sentences for one
count of negligent homicide, six counts of endangerment, and six counts of
criminal damage. After searching the entire record, Espinoza’s defense
counsel has identified no arguable question of law that is not frivolous.
Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this Court to search
the record for fundamental error. Espinoza thereafter filed a supplemental
brief in propria persona. After reviewing the record, we find no error.
Accordingly, Espinoza’s convictions and sentences are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Around 4:30 p.m. on May 6, 2013, Espinoza began his shift as
a commercial truck driver hauling petroleum products. After completing a
pre-trip inspection of the tanker truck, he began driving from Yuma to
Phoenix. At the same time, emergency personnel and various officers with
the Arizona Department of Public Safety (DPS) responded to an unrelated
single-vehicle rollover accident on eastbound Interstate 8 outside of Yuma.

¶3           At the accident scene, Officer Tim Huffman reported to
Captain Anderson that a teenage girl was texting on her cell phone when
she rear-ended another vehicle, causing her to lose control and roll over
onto the shoulder. The local fire department had arrived to provide
emergency assistance. The girl was airlifted to the hospital, and Huffman
asked Anderson to block the far right lane of travel so the occupants of the
other involved vehicle could be safely loaded into the waiting ambulance.



1      We view the facts in the light most favorable to sustaining the jury’s
verdicts, with all reasonable inferences resolved against the defendant.
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).



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                            STATE v. ESPINOZA
                            Decision of the Court

¶4            Captain Anderson backed up his patrol vehicle
approximately one hundred and fifty feet, parked diagonally across the
outside lane with his emergency lights activated, and, wearing his DPS-
issued reflective vest, manually directed drivers to merge left, away from
the accident scene. Officer Simpson stood in the outside lane farther down
the highway to prevent motorists from moving back into the right lane too
soon. By this time, several vehicles driven by individuals working at the
accident scene were lined up on the shoulder of the highway, including one
involved in the original accident, plus an ambulance, a fire truck, three DPS
patrol vehicles, and the ambulance company chief’s personal pick-up truck,
all of which were equipped with and operating their emergency lights.

¶5             It was a clear day, and traffic was complying with Captain
Anderson’s direction to merge left. After a few minutes, Anderson and
Officer Simpson observed a commercial tanker truck approaching the
accident scene in the outside lane. When the driver did not respond to
Anderson’s direction to merge left, Anderson became frantic, “jumping up
and down and waiving [his] arms trying to get [the driver’s] attention.” At
some point, Anderson realized the truck driver could not respond in time
to avoid a collision and ran off the road just in time to avoid being hit. Both
Anderson and Simpson testified the driver never looked up, never slowed
down, and never took any evasive action.

¶6                Immediately thereafter, there was a “tremendous explosion
. . . like a train, a freight train came through there” as the twelve-ton tanker
truck, still traveling sixty-five miles per hour, collided first with Captain
Anderson’s patrol vehicle and then with Officer Huffman’s patrol vehicle.
Officer Simpson, as well as emergency medical personnel on scene,
including Barry A., John N., Cody P., and Donald P., all testified they heard
the noise and watched as the truck skidded sideways toward them, jack-
knifed, and crushed the pick-up truck and Simpson’s patrol vehicle into the
fire truck, throwing up a cloud of dust and debris. Anderson quickly
discovered Huffman in his patrol vehicle — now an unrecognizable
“mangled ball of metal” — gasping for breath and crushed against the
dashboard. Huffman died from blunt force trauma and internal injuries
before he could be extricated from the vehicle. The tanker truck contained
volatile gasoline fumes, and the scene was closed for more than six hours
while the hazmat team worked to evaluate and eliminate the attendant
dangers before further investigation took place.

¶7            The State’s accident reconstructionist later testified there was
no indication Espinoza attempted to brake prior to the collision, although
the post-collision inspection revealed his brakes were in good working


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                            STATE v. ESPINOZA
                            Decision of the Court

order. Espinoza did not exhibit any signs of impairment from drugs or
alcohol and did not report any mechanical issues with the tanker truck.
When questioned, Espinoza explained he had been distracted by another
commercial truck moving in front of him when the collision occurred. He
stated he had a cell phone, but his employer did not allow cell phone use
while driving and it was in his pants pocket at the time. Espinoza’s
employer confirmed cell phone use while operating a commercial vehicle
on a highway is prohibited both by federal regulation and company policy
and that Espinoza received training on this restriction, defensive driving
techniques, and how to avoid distractions, as well as the general dangers of
hauling, loading, and unloading petroleum products.

¶8            The tanker truck was equipped with a video camera mounted
to the windshield that captured video of both inside and outside the cab for
the eight seconds immediately preceding and four seconds immediately
following the collision. The inside view was partially blocked by a wallet
and cardholder wedged into a recess in the dashboard so that only
Espinoza’s right cheek and right arm from shoulder to wrist were visible.
Therefore, it was impossible to determine where Espinoza was looking or
whether his hands were on the steering wheel prior to the collision.
However, the position of his head did not change during the eight seconds
prior to the collision despite testimony that, under the conditions, the
accident scene was visible at least thirty seconds away.

¶9             Espinoza did not react until he collided with Captain
Anderson’s patrol vehicle. Upon impact, the wallet was dislodged, and an
object consistent with the size, shape, and color of Espinoza’s cell phone
flew across the screen. The accident reconstructionist testified the direction
of travel of the object indicated it had been in “the general torso area of the
driver” upon impact. Nothing of similar size or shape as that object was
later found within the cab, which was generally well-kept and free of
debris. And, neither the inside or outside views depicted another
commercial vehicle traveling near Espinoza at impact.

¶10           Upon cursory examination, the cell phone did not reflect any
phone calls or text messages around the time of the collision: 5:10 p.m.
Further investigation by a computer forensics agent with the Office of
Homeland Security revealed three text messages sent and other user-
initiated activity through the Facebook application and Facebook
messenger between 4:53 and 5:05 p.m. on the day of the incident. The
phone was not connected to any Bluetooth devices and the misspellings and
slang indicated it had not been operated via voice command. Based upon



                                      4
                           STATE v. ESPINOZA
                           Decision of the Court

this information, the agent testified Espinoza’s cell phone was not in his
pocket while he was driving.

¶11           Espinoza’s cell phone also contained evidence of twenty-six
cached files created by the Facebook application between 5:08:32 and
5:09:16 p.m. on May 6, 2013. The computer forensics agent was unable to
determine whether those files were indicative of user-initiated activity
because the files themselves were deleted automatically when the
application was closed later that evening. However, no additional cache
files were created after the approximate time of the collision.

¶12         The vehicles involved in the collision were severely damaged.
The damage to the rear of the firetruck totaled more than $19,000. All three
DPS patrol vehicles were damaged, with losses estimated between $5,000
and $20,000. The pick-up truck was a total loss, exceeding $20,000.
Espinoza’s employer received more than $140,000 from its insurance
company for the damage to the tanker truck.

¶13           Espinoza was charged with one count of second degree
murder, thirteen counts of endangerment, and six counts of criminal
damage. A sixteen-day jury trial began in January 2015. At the conclusion
of the State’s case-in-chief, Espinoza’s counsel moved unsuccessfully for
judgment of acquittal pursuant to Arizona Rule of Criminal Procedure
20(a).

¶14           The jury found Espinoza guilty of the lesser-included offense
of negligent homicide, six counts of endangerment,2 and six counts of
criminal damage to the three DPS patrol vehicles, firetruck, pick-up truck,
and tanker truck. Espinoza filed a motion for new trial, arguing he was, at
most, civilly responsible, the evidence was insufficient to establish
recklessness, and the jury’s verdicts were inconsistent because its acquittal
of Espinoza for second-degree murder and manslaughter precluded a
finding that he acted recklessly for purposes of endangerment. The motion
was denied.

¶15         After a mitigation hearing, Espinoza was sentenced as a non-
dangerous, non-repetitive offender to a slightly mitigated term of
imprisonment on each count. The sentences for the six counts of criminal
damage were ordered to be served concurrently, and the sentences for the


2      The jury found Espinoza guilty of endangering Captain Anderson,
Officer Simpson, and four emergency medical personnel: Barry A., John
N., Cody P., and Donald P.


                                     5
                             STATE v. ESPINOZA
                             Decision of the Court

remaining counts to be served consecutive to the criminal damage counts
and each other. In total, Espinoza was sentenced to six years’ imprisonment
and given credit for 153 days of presentence incarceration. Espinoza timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1),3 13-4031 and -4033(A)(1).

                                 DISCUSSION

I.     Jury Bias

¶16          Espinoza argues the trial court erred and caused him
prejudice by failing to strike ten jurors for cause. Espinoza did not use
peremptory strikes against any of these jurors, and they were all ultimately
empaneled.

¶17            Generally, we review the denial of a motion to strike a juror
for cause for an abuse of discretion. State v. Cruz, 218 Ariz. 149, 158, ¶ 28
(2008) (citing State v. Glassel, 211 Ariz. 33, 47, ¶ 46 (2005), and State v. Medina,
193 Ariz. 504, 511, ¶ 18 (1999)). Where the defendant does not move to
strike the juror for cause, we review only for fundamental error. Id. at 159,
¶ 31 (citing State v. Garza, 216 Ariz. 56, 64, ¶ 28 (2007)). It is the burden of
the defendant to prove both that error exists and that such error was
prejudicial. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005). “Reversal
is not required if a fair and impartial jury was ultimately empaneled.”
Garza, 216 Ariz. at 63, 65, ¶¶ 20, 32 (citing State v. Hickman, 205 Ariz. 192,
197, ¶ 22 (2003)).

       A.      Prior News Reports

¶18            Espinoza argues Jurors 1, 2, 3, 10, 14, 16, and 18 should have
been excused because they were exposed to media coverage of the case
prior to jury selection. Espinoza’s counsel only moved to strike Jurors 1, 10,
and 14 on this basis; he did not object to the inclusion of the others on the
jury panel.4

¶19         Although Jurors 1, 2, 3, 10, 16, and 18 reported seeing news
reports and/or video clips of the collision on the television, in the
newspaper, or on Facebook, none recalled the story with any particular

3     Absent material changes from the relevant date, we cite a statute’s
current version.

4      Juror 16 was ultimately chosen as an alternate and did not participate
in deliberations.


                                         6
                             STATE v. ESPINOZA
                             Decision of the Court

detail. Additionally, none of these jurors discussed or heard any editorial
comments regarding the case or the cause of the collision or formed any
opinions about what had happened. Juror 14 testified that, when the
collision first occurred, he had discussed the case at some length with his
friends “trying to hash out how it could happen.” Despite these
discussions, Juror 14 assured the trial court he did not form any definite
opinions about what had happened, and he would be able to make a
decision based only upon the evidence presented during trial. The other
jurors likewise agreed they had “no reservations” regarding their ability to
serve as fair and impartial jurors.

¶20            Although we acknowledge the possibility that prejudice
could result from a venireperson’s prior exposure to information in a highly
publicized case, “mere knowledge of or opinions about the case do not
disqualify a juror who can set them aside and decide based on the evidence
presented at trial.” State v. Payne, 233 Ariz. 484, 500, ¶ 31 (2013) (citing Cruz,
218 Ariz. at 156-57, ¶ 14). Our review of the record reveals the trial court
acted within its discretion in concluding each of the challenged jurors
would be able to lay aside prior impressions or opinions, if indeed he
actually had any, render a verdict based solely upon the evidence presented
in court, and act fairly and impartially. See State v. Reasoner, 154 Ariz. 377,
384 (App. 1987) (holding the trial court does not err in refusing to strike a
juror for cause “when he ultimately assures the court that he can be
objective”) (citing State v. Davis, 137 Ariz. 551, 558 (App. 1983)). Moreover,
the jurors were instructed to consider only the evidence presented and to
use their common sense in determining Espinoza’s guilt or innocence, and
we presume they did as instructed. State v. Peraza, 239 Ariz. 140, 146, ¶ 23
(App. 2016) (citing State v. Newell, 212 Ariz. 389, 404, ¶ 68 (2006)). We
therefore find no error, fundamental or otherwise. See State v. Atwood, 171
Ariz. 576, 632 (1992) (finding no prejudice where half of the jurors had
“minimal” media exposure, but indicated it would not interfere with their
ability to serve as fair and impartial jurors); cf. Payne, 233 Ariz. at 500, ¶ 32
(finding no prejudice to defendant in the denial of a request to change
venue where seven of twelve jurors who deliberated were exposed to media
reports, five of the seven reported “very little” exposure, and all seven
assured the court they could disregard the information they had seen)
(citation omitted).

       B.     Acquaintance with Judge, Prosecutor, and Witnesses

¶21         Espinoza argues Jurors 5, 6, and 14 should have been excused
because they personally knew the prosecutor, judge, and/or law



                                        7
                             STATE v. ESPINOZA
                             Decision of the Court

enforcement witnesses.5 Espinoza’s counsel’s motion to strike Juror 14 was
denied; he did not object to the inclusion of Jurors 5 and 6 on the jury panel.

¶22            During jury selection, Juror 5 stated she used to babysit one
of the investigating officers when he was young because their mothers were
good friends, but now “rarely ha[s] contact with him.” She added that she
last saw the officer two years ago at her mother’s funeral and would not
give greater weight to his testimony simply because she knew him. To the
contrary, Juror 5 stated she “would be very objective.” She also stated she
“believe[d a defendant is] innocent until found guilty.”

¶23           Juror 6 stated she knew the prosecutor and Officer Simmons
because their children had played on sports teams together in the past.
Juror 6 also knew the prosecutor’s son when he was in fifth grade twelve or
thirteen years prior to the trial and was currently a member of a weight loss
club with Simmons. When questioned, Juror 6 expressed her belief she
could be a fair and impartial juror.

¶24           The trial court judge acknowledged he knew Juror 14 “quite
well” because the two refereed basketball games together — games which
the prosecutor had “probably” attended. Neither the judge nor the
prosecutor indicated this prior contact created a conflict. And, Juror 14
testified he would be able to make a decision based only upon the evidence
presented during trial as an impartial juror.

¶25             Knowledge of or acquaintance with a trial participant may
call a juror’s objectivity into question, but it does not automatically warrant
disqualification. See State v. Hill, 174 Ariz. 313, 319-20 (1993) (citing State v.
Pawley, 123 Ariz. 387, 389 (App. 1979), and State v. Brosie, 24 Ariz. App. 517,
520-21 (1975)). In assessing whether cause exists to strike a juror based
upon his relationship with a participant in the trial, the court must consider
the nature of the relationship and its effect upon the juror’s ability to
properly assess the testimony. See State v. Bible, 175 Ariz. 549, 574 (1993)
(citing State v. MacDonald, 110 Ariz. 152, 153-54 (1973), State v. Garcia, 102
Ariz. 468, 469-71 (1967), and State v. Ortiz, 117 Ariz. 264, 267 (App. 1977)).
Given the attenuated connections between the jurors and the trial
participants and the jurors’ assurances they would be fair and impartial, the



5      Espinoza also argues Juror 11 should have been excused on this
basis. However, there is no evidence in the record that Juror 11 had any
prior knowledge of the trial participants, and the defense motion to strike,
which was denied, was based solely upon his health issues.


                                        8
                           STATE v. ESPINOZA
                           Decision of the Court

trial court did not abuse its discretion in determining the circumstances did
not warrant dismissal from jury service.

II.    Right to Counsel

¶26           Within his supplemental brief, Espinoza argues his
constitutional right to counsel was violated when he was arrested
immediately after refusing to speak with law enforcement without his
attorney present. But, Espinoza does not allege the arresting officer elicited
any incriminating statements from him following invocation of his right to
counsel. Nor does he argue the officer otherwise lacked probable cause to
effectuate the arrest. We find no error.

III.   Sufficiency of the Evidence

¶27           Espinoza also argues he lacked criminal intent to commit the
offenses, alleges the collision occurred because law enforcement and
emergency medical personnel did not take appropriate steps to control
traffic around the original accident scene, and asserts there were
inconsistencies in the evidence regarding other traffic on the highway at the
time of the collision. We construe these arguments as a challenge to the
sufficiency of the evidence to support the convictions. We review the
sufficiency of the evidence de novo and will reverse “only where there is a
complete absence of probative facts to support the conviction.” State v. Soto-
Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25
(1976)). We do not reweigh the evidence, and we defer to the jury’s
resolution of any inconsistencies in the evidence. See State v. Parker, 113
Ariz. 560, 561 (1976) (“[I]t is the jury’s function to weigh the evidence as a
whole, to resolve any inconsistencies therein and then to determine
whether or not a reasonable doubt exists.”).

¶28           As relevant here, “[a] person commits negligent homicide if
with criminal negligence the person causes the death of another person.”
A.R.S. § 13-1102(A). Criminal negligence occurs in this context when “a
person fails to perceive a substantial and unjustifiable risk” of death. See
A.R.S. § 13-105(10)(d). “A person commits endangerment by recklessly
endangering another person with a substantial risk of imminent death or
physical injury.” A.R.S. § 13-1201(A). And, criminal damage occurs when
a person “[r]ecklessly defac[es] or damag[es] property of another person.”
A.R.S. § 13-1602(A)(1). “Recklessly” means “a person is aware of and
consciously disregards a substantial and unjustifiable risk that the result
will occur.” A.R.S. § 13-105(10)(c).




                                      9
                            STATE v. ESPINOZA
                            Decision of the Court

¶29            Here, evidence was presented upon which the jury could
determine beyond a reasonable doubt that Espinoza was an experienced,
commercial truck driver who received extensive safety training regarding
the general dangers of driving, as well as the specific dangers of hauling
petroleum products, and that he disregarded the risk of catastrophic injury
to persons or property when he used his cell phone while driving a tanker
truck sixty-five miles per hour on the highway. As a result of this conduct,
he caused the death of Officer Huffman, caused almost two hundred
thousand dollars of property damage, and put everyone at the accident
scene at risk of injury or death. Although Espinoza presented evidence to
support his defenses, the resolution of conflicts is solely within the province
of the jury. Sufficient evidence supports Espinoza’s convictions, and we
find no error.

IV.    Unanimous Verdict

¶30           Espinoza also argues his convictions should be vacated
because the jury failed to return a unanimous verdict. However, although
the jury was unable to agree that the State proved any aggravating factors,
the record reflects the verdicts themselves were unanimous. We find no
error.

V.     Fundamental Error Review

¶31            Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
Espinoza was represented by counsel at all stages of the proceedings and
was present at all critical stages including the entire trial and the verdict.
Ariz. R. Crim. P. 26.9.

¶32           The jury was properly comprised of twelve jurors, and the
record shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23;
A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). At sentencing, Espinoza was
given an opportunity to speak, and the trial court stated on the record the
evidence and materials it considered and the factors it found in imposing
sentence. Ariz. R. Crim. P. 26.10. Additionally, the sentence imposed was
within the statutory limits. See A.R.S. §§ 13-702(D), -711(A).




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                            STATE v. ESPINOZA
                            Decision of the Court

                               CONCLUSION

¶33           Espinoza’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Espinoza’s representation in this appeal
have ended. Defense counsel need do no more than inform Espinoza of the
outcome of this appeal and his future options, unless, upon review, counsel
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).

¶34            Espinoza has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we grant Espinoza
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.




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