Background
Joseph Jonathan Diaz was convicted of four counts of child abuse involving injuries sustained by his then-girlfriend’s 16-month-old daughter after the family moved into his Flagstaff apartment. Hospital staff found facial bruising, a cheek bite mark, traumatic hair loss, and fractures to both humeri, the left tibia, and forearm bones. Diaz gave investigators varying explanations, including a fall from a recliner, an accidental overly forceful kiss, the child’s own hair-pulling, and injuries caused by her four-year-old sister.
The State tied Counts 1 through 4 to particular fractures and Count 5 to multiple head injuries. At trial, a nurse practitioner testified about the timing and mechanisms of the humerus fractures after consulting her radiologist husband. The jury convicted Diaz on Counts 1, 2, 3, and 5, acquitting him on Count 4. The superior court imposed consecutive 10-year prison terms on Counts 1 and 3, followed by probation on Counts 2 and 5.
The Court’s Holding
The court vacated the convictions and sentences on Counts 1 and 3 because the State conceded that the nurse practitioner’s testimony incorporated her husband’s out-of-court opinions about the humerus injuries, violating Diaz’s Confrontation Clause rights. The State also conceded prejudice from that error.
The court reversed Count 5 because it was duplicitous. The State relied on separate head injuries—bruising, a bite mark, and traumatic alopecia—to prove one child-abuse count, without electing a particular act or obtaining a unanimity instruction. Those acts were distinguishable and Diaz offered different explanations for them, creating a real possibility of a nonunanimous verdict. The court nonetheless held the evidence sufficient on all counts, including Count 2, so double jeopardy does not bar further proceedings on the vacated counts. It affirmed Diaz’s Count 2 conviction and sentence and remanded.
Key Takeaways
- An expert may not relay a non-testifying consultant’s case-specific opinions in a manner that violates the defendant’s confrontation rights.
- An alternative-means child-abuse statute does not permit the State to combine distinct injurious acts into one count where jurors may disagree about which act the defendant committed.
- Although the evidence was not overwhelming, Diaz’s exclusive access to the child with Mother, delayed treatment, and inconsistent statements supported the surviving conviction.
Why It Matters
The decision underscores that prosecutors must distinguish between alternative legal means of committing child abuse and separate factual acts used to establish the offense. When several discrete injuries are used to prove one count, the State must either elect the act or the jury must be instructed to agree unanimously on it.
It also illustrates that a sufficiency finding can preserve the possibility of retrial after convictions are vacated for trial error, while a lack of sufficient evidence would bar a second prosecution.