Arruda admitted roughhousing with Kaimana Larry Dias-Duque on Oct. 30, 2004, and told the 5th Circuit Court he was responsible for failing to get medical attention after the boy was injured. Deputy prosecutor Richard Minatoya said Arruda was the home alone with the child and was serving as his primary caregiver at the time.

Minatoya said Arruda tossed the child into the air twice and dropped him, and then swung him around by his legs, causing him to hit his head on a coffee table. He did not get medical help, and did not tell the child's mother about the incident when she came home.

Dias-Duque had difficulty breathing several hours after suffering the head injury, at which time he was taken to a doctor. He died after two days in the hospital.

Arruda's attorney, Mark Zenger, said he plans to argue to the court that probation is an alternative to a full sentence, but Minatoya said his reading of the law is that probation is not an option when the victim is a child.