NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

NERY EFRAIN BLAS ORTIZ, Appellant.

No. 1 CA-CR 13-0762

Appeal from the Superior Court in Maricopa County

No. CR2008-009274-001

The Honorable William L. Brotherton Jr., Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Maricopa County Public Advocate’s Office, Phoenix

By Stephen Whelihan

Counsel for Appellant
STATE v. ORTIZ

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2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.1

K E S S L E R, Judge:

¶1 Nery Efrain Blas Ortiz (“Appellant”) appeals his conviction 

for three counts of first degree murder. He argues the evidence was 

insufficient to conclude that he committed premeditated murder. For the 

reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY2

¶2 Appellant was a coyote, or a human smuggler, engaged in the 

business of transporting undocumented immigrants from Mexico to the 

United States for profit. He, along with Luis Gonzalez (aka “Sergio”) and 

Claudio Lopez (“Claudio”), worked for Miguel Lozano Franco (“Miguel”). 

Appellant’s primary job in the smuggling operation was to pick up trash 

left behind by the undocumented immigrants. 

¶3 In or around December 2005, Sergio received a phone call 

from Julian Godinez Reyes (aka “Flaco”), Miguel’s former employee. Flaco

told Sergio he was planning to “take people from [Miguel],” meaning that 

Flaco wanted to undercut Miguel’s business in transporting smuggled 

immigrants. Flaco attempted to solicit Sergio’s help. When Miguel learned 

of Flaco’s plan, he began to monitor Sergio’s conversations with Flaco. 

Eventually, Miguel told Sergio to offer to help Flaco with his plan to “steal 

the people.” Over the next few weeks, Sergio and Flaco finalized the details 

of the plan over the phone, and Sergio reported the conversations to Miguel. 

Miguel made it known to Sergio that he wanted to meet with Flaco 

personally to “take care of his stuff.” 

 

1 The Honorable John C. Gemmill, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.

2 We review the evidence in the record in the light most favorably to 

affirming the judgment. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 

(App. 2005).
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¶4 In February 2006, Miguel and his employees, including 

Appellant, were preparing to pick up a group of people coming into 

Arizona from Mexico when Sergio learned that Flaco was planning to steal 

the people from Miguel. The group traveled to a staging location in the 

desert west of Phoenix, where Miguel told the group that he was going to 

“give [Flaco] what he deserved.” Miguel then told Appellant and Claudio 

to accompany him, and the three men left the staging area in a white SUV. 

When they left, all three men were armed with 9 millimeter pistols; Miguel 

also carried an assault rifle. 

¶5 At Miguel’s request, Sergio informed Flaco of the location 

and color of the SUV and led Flaco to believe that it contained immigrants 

for him to steal.3 Flaco and his men, who were driving a black SUV, 

eventually spotted the white SUV and began to follow it. The two vehicles 

stopped, and Miguel stepped out and opened fire on the black SUV,

shouting that “no one was going to take his people from him.” Appellant 

climbed out of the white SUV after someone opened the back door, and 

Miguel ordered Appellant to fire his weapon. Appellant complied with 

Miguel’s order.

¶6 Flaco was shot while still in the driver’s seat of the black SUV

and fell out of the opened door onto the ground. Miguel then approached 

Flaco and fired the AK-47 into the back of his head. Flaco’s two men fled 

into the desert. One was killed forty yards from the black SUV. Miguel and 

Appellant chased and eventually overtook the third man, who pled for his 

life before Miguel shot him three times at close range with a pistol. 

¶7 The State indicted Appellant on one count of assisting a 

criminal syndicate, three counts of conspiracy to commit first-degree 

murder, three counts of first-degree murder, and one count of conspiracy 

to commit human smuggling. A jury convicted Appellant of assisting a 

criminal syndicate, conspiracy to commit smuggling, and all three murder

counts, but acquitted Appellant of conspiracy to commit murder. The trial 

court sentenced Appellant to concurrent terms of life with the possibility of 

release after twenty-five years on all three murder counts. Concurrent with 

the murder sentences, the court also imposed two presumptive 2.5 year 

terms for assisting a criminal syndicate and conspiracy to commit 

smuggling offenses. Appellant filed a timely notice of appeal from his 

 

3 Miguel had Appellant sit in the back of the SUV to lead Flaco into 

believing it was full of people. 
STATE v. ORTIZ

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convictions and sentences, and we have jurisdiction pursuant to Arizona 

Revised Statutes (“A.R.S.”) section 13-4033(A) (2010).

DISCUSSION

I. Sufficiency of the Evidence

¶8 Appellant argues the evidence presented at trial was 

insufficient to support the three first degree murder convictions. We 

review the sufficiency of the evidence de novo, State v. West, 226 Ariz. 559, 

562, ¶ 15 (2011) (citation omitted), and we will not “reweigh” the evidence 

to decide whether we would reach the same conclusion as the trier of fact,

State v. Guerra, 161 Ariz. 289, 293 (1989) (citations omitted). Rather, when 

there is a claim of insufficient evidence, “we view the evidence in the light 

most favorable to sustaining the verdict and reverse only if no substantial 

evidence supports the conviction.” State v. Pena, 209 Ariz. 503, 505, ¶ 7

(App. 2005) (citation omitted). Substantial evidence is evidence that

reasonable persons could accept as adequate to find a defendant guilty 

beyond a reasonable doubt. State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005)

(citations omitted). 

¶9 A person commits first degree murder if “[i]ntending or 

knowing that the person’s conduct will cause death, the person causes the 

death of another person . . . with premeditation.” A.R.S. § 13-1105(A)(1)

(2006). At the time of the offenses here, a person could be liable as an 

accomplice under A.R.S. § 13-303(A)(3) (2006)4 “only for those offenses the 

defendant intended to aid or aided another in planning or committing.” 

State v. Phillips, 202 Ariz. 427, 436, ¶ 37 (2002), supplemented on other grounds, 

205 Ariz. 145 (2003). An accomplice is:

[A] person . . . who with the intent to promote or facilitate the 

commission of an offense: 

 

4 In 2006, A.R.S. § 13-303(A)(3) provided that “[a] person is criminally 

accountable for the conduct of another if . . . [t]he person is an accomplice 

of such other person in the commission of an offense.” A.R.S. § 13-303(A)(3) 

(2006). The Arizona Legislature amended A.R.S. § 13-303(A)(3) in 2008 to 

read “[t]he person is an accomplice of such other person in the commission 

of an offense including any offense that is a natural and probable or 

reasonably foreseeable consequence of the offence for which the person was 

an accomplice.” A.R.S. § 13-303(A)(3) (2008).
STATE v. ORTIZ

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1. Solicits or commands another person to commit the offense; 

or 

2. Aids, counsels, agrees to aid or attempts to aid another 

person in planning or committing an offense. 

3. Provides means or opportunity to another person to 

commit the offense.

A.R.S. § 13-301 (2006). 

¶10 In light of the evidence presented at trial, a reasonable jury 

could have found Appellant guilty of first degree murder as an accomplice

because he either aided or intended to aid in killing Flaco and his men.

5

First, the jury could have concluded Appellant knew Miguel intended to 

cause the death of another, but still agreed to accompany Miguel and 

Claudio in the white SUV. Miguel made statements to the group, including 

Appellant, at the staging area, that he was going to give Flaco what he 

deserved. Before they left, Appellant argued with Miguel, saying that “he 

didn't want to go,” but Appellant nevertheless left with Miguel and Claudio 

in the white SUV. At that point, all the men, including Appellant were 

armed. While brandishing a deadly weapon and when leaving the desert, 

Miguel made statements to Appellant declaring that “no one robs me, my 

people.” Appellant told police that while he was in the SUV he knew 

Miguel’s plan was to find a deserted street, and assumed that was so Miguel

could shoot the victims. Furthermore, when they left, Appellant was armed 

with a loaded 9 millimeter pistol. See State v. Nelson, 229 Ariz. 180, 185, ¶

16 (2012) (finding that bringing the murder weapon to the scene is strong 

evidence of premeditation). 

¶11 Second, evidence presented at trial shows that after they left 

the staging area in the white SUV, Appellant aided or attempted to aid 

Miguel and Claudio in the shootings. Appellant first stated to police that 

he shot only at the ground, and only because Miguel forced him to shoot. 

But Appellant later stated that he shot at victims inside the black vehicle; 

even later, he stated he could not remember whether the victims were still 

inside the vehicle when he fired. Sergio also testified that Appellant 

admitted to shooting at the victims in the black vehicle. Although the 

evidence regarding where Appellant aimed his pistol as he shot is 

conflicting, it is sufficient to support the jury’s ultimate determination. See 

State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 39 (App. 2013) (explaining that 

 

5 The jury was properly instructed on accomplice liability. 
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inconsistencies in evidence are “matters for the jury’s consideration in 

making its credibility determinations and weighing the evidence”). Based 

on Appellant’s statements to the police and Sergio’s testimony, the jury 

could reasonably have found that Appellant intended to and did aid the 

others in killing two of the three victims by firing at the black vehicle.

¶12 Finally, Appellant told police that he followed Miguel with 

his pistol as Miguel chased the third victim. Appellant stated that “Miguel 

was running in front of me and told me that if—that if I didn’t go after him, 

he was going to kill me.” The evidence allowed the jury to conclude that 

Appellant followed Miguel and was present either just before or during 

Miguel’s murder of the third victim. The jury could have reasonably found

Appellant’s pursuit of the victim increased the odds of Miguel finding the 

victim in the desert, and that Appellant’s presence provided Miguel with 

backup in case the victim offered resistance. Thus, the jury could 

reasonably believe that Appellant aided Miguel in killing the third victim.

¶13 We will not we set aside a jury verdict for insufficient 

evidence unless the record clearly demonstrates that under no hypothesis 

whatsoever “is there sufficient evidence to support the conclusion reached 

by the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987). Here, a reasonable 

person could, beyond a reasonable doubt, find Appellant guilty as an 

accomplice because the record contains sufficient evidence to support a 

finding that he aided or intended to aid in the murders. See Phillips, 202 

Ariz. at 436, ¶ 37. 

II. Duress as a Defense 

¶14 Relying on Phillips, Appellant argues that he may only be 

liable as an accomplice for those offenses he intended to aid or aided 

another in planning or committing, 202 Ariz. at 436, ¶ 37, and because he 

acted under duress, he could not have formed the requisite intent to aid the 

others in the killings. The Arizona Supreme Court rejected that argument 

in State v. Ellison, 213 Ariz. 116, 134, ¶ 69 (2006), holding that “we now 

decline to recognize duress as a defense to accomplice liability for murder . 

. . If a defendant has the specific intent to assist in murder, even though his 

sole motivation is duress, Phillips is satisfied.” An accomplice’s 
STATE v. ORTIZ

Decision of the Court

7

premeditative intent can by proved by circumstantial evidence. See State v.

Hernandez, 232 Ariz. 313, 324, ¶ 53 (2013) (citations omitted).

6 

¶15 As outlined above, see supra ¶¶ 10-12, a reasonable fact-finder 

could have inferred that Appellant intentionally aided or assisted in killing 

Flaco and his men, even if his sole motivation for doing so was duress. 

Viewing the evidence in the light most favorable to affirming the 

convictions, a reasonable jury could have concluded that Appellant knew 

Miguel planned to kill Flaco and his men and intentionally assisted Miguel

in doing so. Because we find substantial evidence to support the trial 

verdicts, we will not reverse. 

CONCLUSION

¶16 For the foregoing reasons, we affirm.

 

6 In a supplemental citation of authority, Appellant cites to State ex rel. 

Thomas v. Duncan, 216 Ariz. 260 (App. 2007), to support his argument that 

a justification for conduct can be used to show the lack of the necessary mens 

rea. In Duncan, we held that the superior court did not err in denying the 

State’s motion to preclude evidence that the defendant was trying to escape 

a chasing vehicle when he struck and killed the victim. We reasoned that 

the evidence was relevant to whether the defendant was guilty of 

manslaughter, requiring that he recklessly caused the death of another 

because he was aware of and consciously disregarded a risk. Id. at 264-65, 

¶¶ 12-17. We disagree with Appellant. While trying to escape from a 

purported attack might be relevant to whether a defendant was aware of 

and consciously disregarded a risk of injuring another, our supreme court 

in Ellison expressly held that acting under duress does not preclude forming 

a specific intent to kill another.