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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

STATE v. DIAZ
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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

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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.

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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 self-
incrimination 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,

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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

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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.

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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.

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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

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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

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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.

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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

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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

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