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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.
JOSEPH JONATHAN DIAZ, Appellant.
No. 1 CA-CR 25-0393 FILED 09-18-2026
Appeal from the Superior Court in Coconino County No. S0300CR202400184
The Honorable Joshua Steinlage, Judge
AFFIRMED IN PART, VACATED IN PART AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix By Eliza C. Ybarra Counsel for Appellee
Feldman Royle Ahl, PLLC, Phoenix By David E. Ahl Counsel for Appellant
Decision of the Court
MEMORANDUM DECISION
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Judge Veronika Fabian joined.
K I L E Y, Judge:
¶1 Joseph Jonathan Diaz appeals his four convictions for child abuse. For the following reasons, we vacate three of his convictions, affirm the fourth, and remand to the superior court for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Viewed in the requisite light most favorable to affirming Diaz’s convictions, State v. Haywood, 257 Ariz. 472, 475, ¶ 2 (App. 2024) (citation omitted), the evidence in the record shows that Diaz began dating Rashea B. (“Mother”) in 2017. In mid-August 2017, Mother and her two children, 4-year-old Abby and 16-month-old Emma (both pseudonyms), moved into Diaz’s apartment in Flagstaff.
¶3 In early October 2017, Mother brought Emma to the emergency department at a local hospital. Medical staff observed several injuries, including bruises to her face and a bite mark on her cheek. Additionally, her hair appeared to have been pulled out by the roots on “multiple sections” of her “scalp.” X-rays revealed the presence of fractures of multiple bones, including her right humerus, left humerus, left tibia, and several forearm bones. Mother claimed that Emma had suffered the fractures after falling off of a recliner at home two days earlier. The doctors noted that Mother’s explanation did “not match the degree of injury nor the mechanism of injury,” and thus raised a “high concern for . . . abuse.”
¶4 Hospital officials contacted law enforcement. Police first interviewed Mother at the hospital, then went to Diaz’s apartment to speak with him. Diaz told a detective that Emma had injured her leg two days earlier when she fell while climbing on a recliner. He also stated that he may have inadvertently caused the bite mark on her cheek by kissing her too hard, and that Emma’s hair had been “cut off” in response to Emma pulling out her own hair.
¶5 Diaz was interviewed again at the police station in November 2017. Again, he claimed that Emma had injured her leg when she fell from
3
Decision of the Court
a recliner, and that he shaved Emma’s head, with Mother’s approval, because she had been pulling out her own hair. He also claimed, for the first time, that Abby caused some of Emma’s other injuries. According to Diaz, Abby bit Emma on the cheek, causing the bite mark, and had previously hurt Emma by hitting her roughly with a plastic toy. Diaz provided no explanation for Emma’s arm injuries.
¶6 Diaz told investigators that Emma was not in daycare, that no babysitters watched after her, and that the only adults with access to her in Diaz’s home were himself and Mother. He denied abusing Emma. He also denied that Mother had done so, insisting that she “would never do this.”
¶7 The State charged Diaz with five counts of child abuse in violation of A.R.S. § 13-3623(A), (B).1 Although the indictment did not identify the specific injuries on which each count was based, the State later clarified, in a pretrial filing, that the fractures to Emma’s right and left humerus bones were the bases for Counts 1 and 3, respectively; that the fracture to her left tibia was the basis for Count 2; that the forearm fractures were the bases for Count 4, and that the various head injuries were the bases for Count 5.
¶8 Diaz stood trial in April 2025. The State called several of the medical practitioners who treated Emma at the hospital. Dr. Timothy Bonatus, for example, testified that he treated Emma in the emergency room and recognized that “the tibia fracture was clearly fresh,” as indicated by the attendant “swelling” and “bruising.” Dr. Matthew Dunn, the attending physician, testified that he found no indication that Emma had any condition which made her particularly susceptible to bone injuries. Dr. Dunn further testified that the tibia fracture would have made “[a]ny attempt to move” her left leg “incredibly painful” for Emma.
¶9 The investigating detectives, too, testified about their interviews with Diaz in October and November 2017, and the recording of Diaz’s November 2017 interview at the police station was played for the jury.
¶10 The State also called Tara Salce, a nurse practitioner who specializes, among other things, in identifying and treating child abuse, as an expert witness to testify about her review of Emma’s treatment and diagnostic records. Salce’s testimony made clear that she did not review the records alone. Instead, she testified that she “consulted” with her husband,
1 The State also charged Mother in a separate case.
4
Decision of the Court
a radiologist with a “special interest” in what she called “child abuse radiology.” Salce explained that she consulted with her husband because she had no “specialized training,” and so “need[ed] to seek expert consultation” to form an opinion as to “the ages of fractures” and “the kinds of mechanisms that might cause these various injuries.”
¶11 Salce testified that the right humerus fracture occurred “less than one week” before the X-ray was taken and that it could have resulted from “a direct blow” or “a pretty significantly strong yank or shake.” She stated the left humerus fracture occurred between “one week to one month” earlier and resulted “either from a direct blow, a yanking, or twisting.” Salce further testified that the tibial fracture occurred “three to seven days” before the X-ray was taken and resulted from “a twisting or torsion mechanism.” She also acknowledged that her testimony on these matters relied on her husband’s opinions about how and when the injuries were sustained.
¶12 After the State rested, Diaz moved for a directed verdict of acquittal on all counts. The court denied the motion.
¶13 Over the State’s objection, the court allowed Diaz to call Mother as a witness. She asserted her constitutional right against selfincrimination in response to every question put to her. Diaz did not call any other witnesses and did not testify on his own behalf.
¶14 The jury convicted Diaz on Counts 1, 2, 3, and 5, but found him not guilty on Count 4. The court sentenced him to consecutive 10-year prison terms on Counts 1 and 3, followed by three-year probation terms on Counts 2 and 5. Diaz timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21, 13- 4031, and 13-4033(A).
DISCUSSION
¶15 Diaz challenges all his convictions. In considering his challenges, we view the evidence in the light most favorable to sustaining the jury’s verdicts, resolving all reasonable inferences against the defendant. State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).
I. Right to Confront Witnesses
¶16 Diaz argues that his convictions on Counts 1 and 3 must be vacated because Salce’s testimony, which relied on her husband’s opinions about the age of Emma’s humerus fractures and the mechanism of injury,
5
Decision of the Court
was admitted in violation of his right to confront witnesses against him. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”); Ariz. Const. art. II, § 24 (“In criminal prosecutions, the accused shall have the right to . . . to meet the witnesses against him face to face[.]”).
¶17 The State concedes that because Salce’s testimony incorporated her husband’s out-of-court statements about Emma’s humerus injuries, her testimony was admitted in violation of Diaz’s Confrontation Clause rights, that Diaz was prejudiced by its admission, and that his convictions on Counts 1 and 3 must be vacated. We accept the State’s concession and vacate Diaz’s convictions and sentences for Counts 1 and 3.
II. Duplicitous Charge
¶18 Diaz next argues that his conviction on Count 5 must be vacated because the charge was duplicitous. Because he did not raise this objection at trial, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); see also Ariz. R. Crim. P. 21.3(c) (party may not “assign as error on appeal the court's giving or failing to give any instruction or portion thereof” absent specific, timely objection).
¶19 An appellant claiming fundamental error bears the burden of demonstrating that error occurred, that it was fundamental, and that he suffered prejudice as a result. See State v. Riley, 248 Ariz. 154, 170, ¶ 24 (2020) (citation omitted). Error is fundamental if it “went to the foundation of the case,” “took from the defendant a right essential to his defense,” or “was so egregious that [the defendant] could not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Error is prejudicial if, “without the error, a reasonable jury could have plausibly and intelligently returned a different verdict.” Id. at 144, ¶ 31.
¶20 A charge is duplicitous if “the text of [the] indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge.” State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App. 2008). “Charging more than one act in a single count” is impermissible because it “does not provide adequate notice of the charge to be defended, presents a hazard of a non-unanimous jury verdict, and makes a precise pleading of prior jeopardy impossible in the event of a later prosecution.” State v. Davis, 206 Ariz. 377, 389, ¶ 54 (2003) (citation modified). And “[b]ecause a defendant has the right to a unanimous verdict in a criminal case,” a
6
Decision of the Court
defendant who establishes that he was convicted of a duplicitous charge has met his burden of establishing fundamental, prejudicial error. State v. Delgado, 232 Ariz. 182, 188, ¶ 19 (App. 2013).
¶21 Here, Count 5 alleged that,
on or between August 20, 2017 and October 3, 2017, at a time and/or date separate from the offenses in Counts 1, 2, 3, and 4, under circumstances not likely to produce death or serious physical injury, [Defendant] intentionally or knowingly did cause physical injury to [Emma], a child under 15 years of age, or,
having care and custody of [Emma], a child under 15 years of age, intentionally or knowingly caused or permitted the person or health of [Emma] to be injured, or[,]
having care and custody of [Emma], a child under 15 years of age, intentionally or knowingly permitted [Emma] to be placed in a situation where the person or health of the child was endangered[.]
¶22 The indictment itself thus identified no specific acts or injuries on which the charge was based. In a pretrial filing, the State explained that Count 5 was based on “8 or more incidents/mechanisms” causing “injuries to [Emma’s] head,” including “impact” “[b]ruises” to her “chin,” “left cheek” and “eyelids”; a mark from a “human bite” on her “right cheek”; and “[t]raumatic [a]lopecia” caused by her “hair [being] pulled out[.]” In its opening statement to the jury, the State told the jurors that Count 5 was based on “[a]ll those injuries . . . to [Emma’s] head,” including the “bruising,” the “bite mark on her cheek,” and her “[h]air” being “pulled out[.]” And in its closing argument, the State identified the “bruising” and the “human bite mark” as evidence that proved Diaz’s guilt on Count 5.
¶23 The bruising, the bite mark, and the traumatic alopecia are distinct injuries, each of which could support a charge of child abuse. See A.R.S. § 13-3623(B) (a person who “causes a child . . . to suffer physical injury” commits child abuse); see also State v. Benavidez, No. 2 CA-CR 2016- 0404, 2018 WL 3773635 at *5, ¶¶ 25-27 (Ariz. App. Aug. 8, 2018) (mem. decision) (affirming several separate convictions for child abuse based on bite mark, bruises, and abrasions). We therefore agree with Diaz that because the State relied on distinct injuries caused by different mechanisms to support a single charge of child abuse, Count 5 was duplicitous. Klokic, 219 Ariz. at 244, ¶ 12; see also State v. Waller, 235 Ariz. 479, 489, ¶ 33 (App.
7
Decision of the Court
2014) (“A duplicitous charge exists when the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge.” (citation modified)).
¶24 The State argues that Count 5 is not duplicitous because (1) child abuse is an alternative-means crime and (2) Emma’s injuries were inflicted as part of a single ongoing criminal transaction. Neither argument is availing.
¶25 An alternative-means statute establishes a single crime that can be committed by “more than one means.” State v. West, 238 Ariz. 482, 489, ¶ 19 (App. 2015) (citation omitted). A defendant charged with an alternative-means crime is not entitled to a unanimous jury verdict “on the precise manner” in which the crime was committed. Id. at 492, ¶ 30 (citation modified). Because first-degree murder is an alternative-means crime, for example, “jury unanimity is not required about the precise mechanism of death.” State v. Millis, 242 Ariz. 33, 40, ¶ 22 (App. 2017).
¶26 Under A.R.S. § 13–3623, the offense of child abuse can be committed by one of three means: causing a child to suffer physical injury, permitting a child in one’s care to be injured, or permitting a child in one’s care to be placed in danger. See West, 238 Ariz. at 489-90, ¶¶ 19, 21. As the State correctly argues, therefore, child abuse under A.R.S. § 13–3623 is an alternative-means crime.
¶27 But contrary to the State’s assertion, a defendant has the right to a unanimous jury finding of the conduct in which he engaged that constitutes the offense. See West, 238 Ariz. at 489-90, ¶¶ 19, 21. A defendant cannot properly be convicted of an offense, in other words, unless the jurors “unanimously agree[] as to which of the alleged criminal acts the defendant committed to complete the offense.” Klokic, 219 Ariz. at 248, ¶ 32. Here, the jurors may have convicted Diaz of child abuse even though they disagreed among themselves about whether Diaz caused Emma’s bruising, bit her cheek, or pulled out her hair. Some jurors may have believed, for example, that Diaz pulled out Emma’s hair, but that Emma’s sister Abby was the cause of her other injuries. Other jurors, by contrast, may have believed that Emma pulled out her own hair, but that Diaz inflicted the other injuries. The fact that child abuse is an alternative-means crime does not cure the constitutional infirmity caused by the possibility of juror non-unanimity about Diaz’s responsibility for each of Emma’s distinct injuries. Id. at 248,
¶ 32 (“[W]hen the State introduces evidence of more than one criminal act to prove a single count, it raises the possibility that the defendant’s right to a unanimous jury verdict . . . may be violated.”); cf. State v. Allen, 253 Ariz.
8
Decision of the Court
306, 337, ¶ 85 (2022) (finding no duplicity “because each act had its own corresponding charge”).
¶28 The State next argues that it could properly support Count 5 with evidence of multiple injurious acts because those acts constituted a “single criminal transaction.”
¶29 If several acts constitute one criminal transaction, the State may charge them all “in a single count encompassing the entire scheme[.]” State v. Sanders, 245 Ariz. 113, 130, ¶ 71 (2018) (citation omitted). “[M]ultiple acts may be considered part of the same criminal transaction when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them.” Klokic, 219 Ariz. at 245, ¶ 18. By contrast, “acts may not be considered part of the same criminal transaction if the defendant offers different defenses to each act or there is otherwise a reasonable basis for distinguishing between them.” Id. at 248, ¶ 32.
¶30 In Sanders, for example, the Supreme Court found that a child abuse count based on multiple beatings with a belt was not duplicitous because the beatings were part of the same criminal transaction. 245 Ariz. at 130, ¶¶ 70-72. In so holding, the Sanders court noted “there was no reasonable basis for the jury to distinguish between [the] beatings,” and that the defendant’s explanation for the injuries—that he “was just spanking” the victim—“was the same as to all the beatings.” Id. at ¶ 72.
¶31 Here, the biting, bruising, and hair-pulling injuries inflicted on Emma were distinct, and so there was a reasonable basis for the jury to distinguish between them. Moreover, Diaz offered different explanations for each. He initially claimed he had accidentally caused the bite mark by kissing Emma too hard, then later claimed that Abby had bitten Emma. He blamed Abby for causing the bruises by hitting Emma with a toy and claimed that Emma had pulled out her own hair. Although the State characterizes these explanations as all part of a “general denial,” they are specific exculpatory explanations for each of the injuries. Compare Sanders, 245 Ariz. at 130, ¶ 72 (holding that a single count for child abuse containing multiple incidents of spankings was not duplicitous because “[the defendant had] not articulated how his defense would have changed had the State focused on one incident [of spanking]”) with Davis, 206 Ariz. at 389-90, ¶¶ 54-59, 65 (holding that a single count for sexual misconduct with a minor containing two incidents was duplicitous because the defendant offered different defenses for each incident and the incidents “were not part of a single transaction”). Because the jurors may have agreed on a guilty
9
Decision of the Court
verdict even though they reached divergent conclusions about whether Diaz inflicted Emma’s bruises, bit her cheek, and/or pulled out her hair, we reject the State’s argument that Count 5 was not duplicitous.
¶32 If the evidence at trial renders the charge duplicitous, “the appropriate remedy is to require the state to elect that act which it alleges constitutes the crime, or instruct the [jurors] that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty.” Waller, 235 Ariz. at 489, ¶ 33 (citation omitted). Here, the court neither required the State to elect whether the bruising, the bite mark, or the traumatic alopecia constituted the basis for Count 5, nor instructed the jurors that they must unanimously agree on the specific act that Diaz committed. “Because we cannot be certain which offense served as the predicate for the conviction,” we must “conclude that the real possibility of a non-unanimous jury verdict exists.” Davis, 206 Ariz. at 390, ¶ 59. Diaz has, therefore, established fundamental, prejudicial error, and his conviction on Count 5 must be reversed.
III. Sufficiency of the Evidence
¶33 Finally, Diaz claims there is insufficient evidence to support any of his convictions. Even though, for the reasons noted above, his convictions on Counts 1, 3, and 5 must be vacated anyway, see supra ¶¶ 16- 32, we address his insufficient-evidence argument as to all counts because the State may not try Diaz again on any count for which it failed to present sufficient evidence the first time. See State v. Ortiz, 120 Ariz. 384, 386 (1978) (“[T]he Double Jeopardy Clause prohibits a second trial to afford the prosecution another chance to provide evidence which it failed to muster at the first trial.”).
¶34 We review sufficiency of the evidence claims de novo. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014) (citation omitted). When reviewing such a claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Watson, 248 Ariz. 208, 212, ¶ 11 (App. 2020) (citation omitted). “[E]ach element” of the crime must be supported by “[s]ubstantial evidence,” State v. McCurdy, 216 Ariz. 567, 573, ¶ 14 (App. 2007), i.e., “evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.” Pena, 235 Ariz. at 279, ¶ 5 (citation omitted). In determining the sufficiency of the evidence, we consider both direct and circumstantial evidence, see State v. Spears, 184 Ariz. 277, 289 (1996), and will
10
Decision of the Court
reverse only if “there is a complete absence of probative facts to support the conviction.” Allen, 253 Ariz. at 341, ¶ 109 (citation omitted).
¶35 In Count 1, the State alleged that Diaz “intentionally,” “knowingly,” “recklessly,” or “with criminal negligence,” ”[u]nder circumstances likely to produce death or serious physical injury,” “caused” Emma “to suffer physical injury” to her right humerus; or, “having . . . care or custody” of Emma, “caused or permitted her person or health . . . to be injured”; or, “having . . . care or custody” of Emma, “caused or permitted [her] to be placed in a situation where [her] person or health” was endangered. A.R.S. § 13-3623(A). Counts 2 and 3 make like allegations based on the injury to Emma’s left tibia and left humerus, respectively. And Count 5 makes the same allegations with respect to Emma’s head injuries, except those injuries were alleged to have been sustained “[u]nder circumstances other than those likely to produce death or serious physical injury.” A.R.S. § 13-3623(B).
¶36 Diaz argues that the State failed to present sufficient evidence that he “intentionally or knowingly caused any injuries to the victim,” that he “intentionally or knowingly permitted [her] to be injured,” or that he “intentionally or knowingly permitted [her] to be placed in a situation where she was endangered.”2 Because each count charged Diaz with child abuse under three alternative theories, the State must only present substantial evidence supporting any one of the three alternate theories. See West, 238 Ariz. at 487,
¶ 9.
¶37 The State presented evidence from which a jury could find that Emma sustained all her injuries after she began living in Diaz’s home. Indeed, Diaz himself admitted that Emma sustained the injuries to her head and leg while she was living in his home. Dr. Bonatus similarly testified that the tibia fracture was “fresh” and that children tend to recover from similar injuries “within six weeks.” The uncontroverted evidence showed
2 Although Diaz challenges the sufficiency of the evidence on the “intent”
element of the charged offenses, he does not challenge the sufficiency of the evidence on the “circumstances” element. See A.R.S. § 13-3623(A). He does not assert, in other words, that the evidence offered in support of Counts 1, 2, and 3 was insufficient to support a finding that Diaz caused or permitted Emma to sustain fractures to her arms and left leg “[u]nder circumstances likely to produce death or serious physical injury.” See id. Because he does not challenge the evidence in support to the “circumstances” element of the charged offenses, we need not consider that issue.
11
Decision of the Court
that Emma moved with her mother and sister into Diaz’s home six to eight weeks before she was seen at the hospital. Because the fractures had not healed when Emma was admitted to the hospital in October 2017, the jurors could reasonably infer that the arm fractures occurred after Emma moved into Diaz’s home in mid-August. And the jurors also heard testimony that Emma did not have any health conditions that made her particularly susceptible to bone fractures, thus eliminating a possible medical explanation for the numerous fractures she had recently sustained.
¶38 The jury also heard evidence that Diaz told investigators Emma was not in daycare, no babysitters watched after her, and the only adults with access to her in Diaz’s home were himself and Mother. Because the only other occupant of the home was Emma’s four-year-old sister, a reasonable jury could conclude that either Diaz or Mother were responsible for Emma’s injuries. And if the jurors credited Diaz’s statement to the investigating detective in November 2017 that “[Mother] would never [hurt Emma],” the jurors could have concluded that Diaz himself must have caused the injuries.
¶39 Diaz’s own statements established that Emma sustained the injury to her leg two days before she was taken to the hospital. Diaz made inconsistent and incredible statements to the police, offering shifting explanations for the bite injury to Emma’s cheek and claiming that Emma had been walking after her leg injury when a doctor testified that the fracture would have made it “incredibly painful” for Emma to even move her leg, much less walk on it. A reasonable jury could conclude that Diaz delayed seeking treatment and then made false statements to the police about Emma’s various injuries, which, in turn, suggests his consciousness of guilt. State v. Fulminante, 193 Ariz. 485, 494, ¶ 27 (1999) (noting that defendant’s “false, misleading, and inconsistent statements . . . show[ed] consciousness of guilt”); see also State v. Kountz, 108 Ariz. 459, 463 (1972) (rejecting challenge to jury instruction that “false or contradictory statements” by a defendant “concerning the charge against him” may be considered as evidence “tending to prove a consciousness of guilt”).
¶40 While far from overwhelming, the evidence the State presented was sufficient to permit a reasonable jury to find beyond a reasonable doubt that Diaz knowingly caused Emma’s injuries. See State v. Payne, 233 Ariz. 484, 507, ¶ 77 (2013) (finding sufficient evidence of child abuse in part because children were healthy before being in defendant’s care but sustained broken bones after being in his care, and defendant did not seek help although he knew they needed medical attention); West, 238 Ariz. at 487, ¶ 9 (finding sufficient evidence of child abuse in part because
12
Decision of the Court
defendant was “the only adult in the house” when the injury occurred, defendant did not seek help immediately although need for medical treatment would have been apparent, and defendant made inconsistent statements about how injury occurred); State v. Mott, 187 Ariz. 536, 543 (1997) (affirming defendant’s conviction for knowing or intentional child abuse and holding that defendant’s knowing failure to seek medical help for injured child showed “purposeful” action that “satisf[ied] the mens rea requirement”). And because we find the evidence sufficient to support a finding that Diaz intentionally or knowingly caused Emma’s injuries, we need not address the other means of committing child abuse identified in Section 13-3623. See West, 238 Ariz. at 487, ¶ 9.
CONCLUSION
¶41 We vacate Diaz’s convictions and sentences for Counts 1, 3, and 5, affirm his conviction and sentence for Count 2, and remand to the superior court for further proceedings.
MATTHEW J. MARTIN • Clerk of the Court FILED: JT