State v. Diaz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOEL JONATHAN DIAZ, Appellant.

No. 1 CA-CR 23-0497
FILED 01-07-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-001398-001
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Michael P. Denea, PLC, Phoenix
By Michael P. Denea, Kevin Myer
Counsel for Appellant
 STATE v. DIAZ
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Joel Diaz appeals his conviction and sentence for one count of
sexual assault, arguing the superior court erred by (1) restricting his expert
witness's testimony and (2) denying his request for an instruction pursuant
to State v. Willits, 96 Ariz. 184 (1964). For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In July 2020, Diaz traveled from California to Arizona for his
cousin's birthday party. After the party, Diaz entered his cousin's room and
sexually assaulted his cousin's girlfriend ("S.M.").1 After the assault, a
sexual-assault nurse examiner ("SANE") examined S.M. and collected blood
and urine samples from her.

¶3 When the police interviewed him at the home, Diaz said he
did not remember assaulting S.M. Diaz said he only had "a couple beers
and liquor," stayed up with his family, and only remembered waking up
on the couch. The police then arrested Diaz.

¶4 Police interviewed Diaz again at the station. Diaz told the
officer he had no memory of the reported assault. Another SANE took
swabs from Diaz's hands and mouth to match the DNA with S.M., but did
not collect blood and urine samples. The State charged Diaz with two
counts of sexual assault.

¶5 Before trial, Diaz disclosed his defense, "lack of voluntary
action," contending he was sleepwalking and did not voluntarily assault
S.M. Diaz did not disclose an involuntary-intoxication defense. The State
moved to preclude Diaz's expert's testimony, arguing Diaz did not
sufficiently disclose the basis for the expert's opinions and Diaz repeatedly
failed to comply with court-imposed-disclosure deadlines.

1 We use victim identifiers in place of the victims' names to protect
their identities. Ariz. R. Sup. Ct. 111(i).

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¶6 The reviewing judge restricted Diaz's expert's testimony,
preventing him from opining that Diaz experienced sleepwalking or
sexsomnia. After Diaz moved for reconsideration, the judge permitted his
expert to testify about Diaz's potential sleepwalking condition. But because
Diaz had failed to disclose all evidence related to his expert's opinion, the
judge precluded his expert from testifying that he had "eliminat[ed] other
mental conditions."

¶7 At trial, a juror asked whether Diaz was under the effects of
"GHB," commonly referred to as the "date-rape drug." The lead detective
testified that Diaz never suggested he had been involuntarily drugged. The
same juror asked Diaz's expert similar questions about involuntary
intoxication, and the State objected. The State argued the juror's question
was irrelevant because Diaz never disclosed involuntary intoxication as a
defense. The court heard argument and declined to allow the juror's
question.

¶8 Later, Diaz attempted to raise an involuntary-intoxication
defense mid-trial. The State filed a motion in limine, arguing that Diaz did
not properly disclose involuntary intoxication as a defense under Arizona
Rule of Criminal Procedure ("Rule") 15.2, and that Diaz's expert had not
disclosed the basis of his tests and conclusions. Diaz's counsel
acknowledged that involuntary intoxication had not been noticed as a
defense. The superior court reaffirmed the order and precluded the
defense.

¶9 Before the court finalized jury instructions, Diaz requested a
Willits instruction whereby the jury could draw an adverse inference from
the State's failure to take and preserve his blood sample. Diaz argued that
because he told police that he did not remember the assault, officers should
have known that he would present an involuntary-intoxication defense at
trial and taken a blood sample from him after his arrest. The State opposed
the Willits instruction, arguing the police had no reason to anticipate the
defense and preserve Diaz's blood. The court denied Diaz's request, finding
it was not "appropriate or reasonable" to believe the police should have
anticipated Diaz would argue such a defense.

¶10 The jury found Diaz guilty of one count of sexual assault and
the court sentenced him to six years in prison. Diaz timely appealed, and
we have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).

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DISCUSSION

¶11 On appeal, Diaz argues: (1) disclosure of a "lack of a voluntary
act" defense was enough to place the State on notice that he would argue
involuntary intoxication at trial; (2) the superior court erred in limiting his
expert witness's testimony; and (3) the superior court erred in denying his
request for a Willits instruction. We address each issue in turn.

I. Disclosure Statement.

¶12 Diaz argues his Rule 15.2 disclosure—that he acted
involuntarily—was sufficient to notify the State that he would present an
involuntary-intoxication defense. He contends the superior court erred by
sanctioning him for the non-disclosure. We disagree.

A. Sufficient Notice.

¶13 We interpret the Arizona Rules of Criminal Procedure de
novo. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 7 (App. 2009). We
look first to the plain language of the rule because that is "the best and most
reliable index of [the rule's] meaning." State v. Hansen, 215 Ariz. 287, 289, ¶
7 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293,
296, ¶ 8 (2007)).

¶14 Rule 15.2(b)(1) requires broad disclosure of "all defenses the
defendant intends to assert at trial." (Emphasis added.) The notice includes
disclosure of defenses for both "his rebuttal of the state's case as well as his
own 'case-in-chief,'" and "goes considerably beyond notification[s] of
'affirmative defenses.'" State v. Gonzales, 123 Ariz. 11, 12 (App. 1979).

¶15 Diaz's disclosure did not notify the State that he intended to
present an involuntary-intoxication defense. Diaz contends his disclosed
defense, lack of a voluntary act, is synonymous with involuntary
intoxication and was sufficient to notice both defenses. We disagree. We
have previously held that the disclosed defenses of "lack of intent and
failure to prove the elements" did not raise "intoxication" as a defense. Id.
In this context, and as Diaz asserted at trial, his defense was based on
involuntary acts, which are "'knee-jerk reflex[es] driven by the autonomic
nervous system'" like "'bodily movement[s] while unconscious, asleep,
under hypnosis, or during an epileptic fit.'" State v. Moody, 208 Ariz. 424,
468, ¶ 199 (2004) (quoting State v. Lara, 183 Ariz. 233, 234 (1995)).
Involuntary intoxication occurs when one unknowingly ingests an
intoxicating substance. See State v. Edmisten, 220 Ariz. 517, 520, ¶ 5 (App.
2009) (discussing involuntary intoxication when the defendant had

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involuntarily ingested "two Ecstasy pills"). These are two different defenses
and, until the juror asked the question, Diaz had not suggested, in any
manner, that involuntary intoxication was at issue.

¶16 Diaz also argues that, because involuntary intoxication is not
an affirmative defense, Rule 15.2 did not require him to disclose it. But Rule
15.2(b)(1) mandated that Diaz disclose "all defenses" he intended to use at
trial, and we have previously held that Rule 15.2 is not limited to affirmative
defenses. See Gonzales, 123 Ariz. at 12 (noting Rule 15.2 is broad, not limited
to affirmative defenses, and requires disclosure of "all defenses" the
defendant will use at trial).

¶17 Because Diaz did not disclose an involuntary-intoxication
defense, as his counsel acknowledged during trial, the State was not on
notice. See id.; cf. State v. Williams, 121 Ariz. 218, 220 (App. 1978) (finding
defendant's disclosure that he "did not commit the acts alleged" did not
allow him to raise a "consent" defense).

B. Sanction for Non-Disclosure.

¶18 Diaz argues the court improperly sanctioned him for his non-
disclosure when it restricted his expert's testimony.

¶19 "The choice of the appropriate sanction for the violation of
discovery rules is within the trial court's sound discretion and will not be
reversed absent an abuse of discretion." State v. Lukezic, 143 Ariz. 60, 69
(1984). Sanctions for nondisclosure include "precluding or limiting a
witness, the use of evidence, or an argument supporting . . . [the] defense."
Ariz. R. Crim. P. 15.7(c)(1). But "[p]reclusion as a sanction should be
invoked only when other less stringent sanctions are not applicable to effect
the ends of justice." State v. Alder, 146 Ariz. 125, 130 (App. 1985).

¶20 Diaz contends the superior court should have used a less
restrictive sanction. We discern no abuse of discretion. See State v. Naranjo, 234 Ariz. 233, 244, ¶ 47 (2014) (holding that harsher sanctions are
permissible "if the record demonstrates [the superior court] could have found
lesser sanctions insufficient"). Diaz failed to comply with court-imposed
disclosure requirements and failed to share the methods and data his expert
used. And, despite these failures, the court allowed his expert to testify
about a possible sleepwalking condition in support of the involuntary-act
defense and only restricted his expert's testimony about a lack of other
conditions. See id. at ¶¶ 44, 47 (upholding the superior court's decision to
limit defendant's expert's testimony and denying defendant's argument
that a continuance was an appropriate, less restrictive sanction because it

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was unclear if a continuance would "suffice to allow the State to review" an
expert's assessment after an untimely disclosure).

¶21 Accordingly, because Diaz violated the disclosure
requirements, see supra ¶¶ 14–17, the superior court did not abuse its
discretion in restricting his expert's testimony. See State v. Burns, 237 Ariz.
1, 24, ¶ 95 (2015) (allowing the restriction of expert testimony when the
prosecutor had no chance to review the expert's analysis, the defense had
not disclosed the expert's analysis before trial, and the expert could testify
about other issues); Naranjo, 234 Ariz. at 245, ¶ 53 (finding no abuse of
discretion for restricting testimony when an expert did not disclose data
because the State had "no fair opportunity to refute" the testimony); State v.
Ramos, 239 Ariz. 501, 505, ¶¶ 12–13 (App. 2016) (allowing the preclusion of
an alibi witness due to untimely disclosure); Alder, 146 Ariz. at 130
(affirming the preclusion of a defense when defendant disclosed "an
entirely new line of defense the day before the trial").

II. Willits Instruction.

¶22 Diaz contends the superior court abused its discretion by
declining his request for a Willits instruction. We review the denial of a
Willits instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz.
147, 150, ¶ 7 (2014).

¶23 A defendant is entitled to a Willits instruction when: "(1) the
state failed to preserve material and reasonably accessible evidence that
could have had a tendency to exonerate the accused, and (2) there was
resulting prejudice." Id. at ¶ 8 (quoting State v. Smith, 158 Ariz. 222, 227
(1988)). A "tendency to exonerate" requires more than speculation about
whether "the evidence might have been helpful." Id. at ¶ 9. Further, the
State must preserve evidence it is aware of that is "obviously material and
reasonably within its grasp." State v. Perez, 141 Ariz. 459, 463 (1984).
Evidence is "obviously material" when the State relies on it as part of the
investigation or knows the defendant would use it in his or her defense.
State v. Hernandez, 250 Ariz. 28, 32, ¶ 12 (2020). "[T]he state does not have
an affirmative duty to seek out and gain possession of potentially
exculpatory evidence," State v. Rivera, 152 Ariz. 507, 511 (1987), "nor does it
have a duty to gather evidence for a defendant to use in establishing a
defense," Hernandez, 250 Ariz. at 32, ¶ 11.

¶24 The State had no duty to obtain a blood sample from Diaz
because intoxication is not an element of sexual assault. See A.R.S. § 13-
1406; Rivera, 152 Ariz. at 512 (holding the State has no duty "to gather blood

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alcohol evidence for the defense" when "intoxication is not an element of
the crime").

¶25 And Diaz never informed police, the court, or the State he
intended to use an involuntary-intoxication defense. Indeed, Diaz never
suggested someone had involuntarily drugged him or implied that a blood
sample would be necessary for his defense. Further, the only facts
presented at trial that could have supported an involuntary-intoxication
defense were questionable. For example, there was no evidence suggesting
that any substances that could have caused Diaz to be involuntarily
intoxicated were present or in use at the party. See State v. Fulminante, 193
Ariz. 485, 503, ¶ 63 (1999) (affirming the denial of a Willits instruction when
it was "highly questionable" that the evidence was exculpatory); State v.
Davis, 205 Ariz. 174, 180, ¶ 38 (App. 2002) (affirming the denial of a Willits
instruction because defendant's claim that the items may have produced
exculpatory evidence was "sheer speculation").

¶26 Because the State had no reason to suspect Diaz's defense
would require a blood sample, the superior court did not abuse its
discretion in denying his request for a Willits instruction. See Hernandez,
250 Ariz. at 33, ¶ 19 (denying a requested Willits instruction because police
"had no knowledge that [the defendant] would later assert" an alternate
defense); State v. Tyler, 149 Ariz. 312, 317 (App. 1986) (affirming the denial
of a Willits instruction because the State has "no duty to seek out and gain"
evidence unless "it is aware" the evidence is material to the defense).

CONCLUSION

¶27 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: TM

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