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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

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2

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)).
STATE v. ESPINOZA

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¶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 DPSissued 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, jackknifed, 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 
STATE v. ESPINOZA

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4

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 userinitiated 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 
STATE v. ESPINOZA

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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 nondangerous, 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. 
STATE v. ESPINOZA

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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. 
STATE v. ESPINOZA

Decision of the Court

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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 
STATE v. ESPINOZA

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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. 
STATE v. ESPINOZA

Decision of the Court

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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. SotoFong, 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). 
STATE v. ESPINOZA

Decision of the Court

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¶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).
STATE v. ESPINOZA

Decision of the Court

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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.