State v. Cabret

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONY IRVING CABASSA CABRET, Appellant.

No. 1 CA-CR 24-0213
FILED 01-23-2025

Appeal from the Superior Court in Coconino County
No. S0300CR202200844
The Honorable Stacy Lynn Krueger, Judge

AFFIRMED

COUNSEL

Coconino County Legal Defender’s Office, Flagstaff
By Joseph A. Carver
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Alice M. Jones, Madeline Shupe
Counsel for Appellee
 STATE v. CABRET
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Paul J. McMurdie joined.

B R O W N, Judge:

¶1 Tony Cabret appeals from his convictions and sentences for
transportation of dangerous drugs for sale and transportation of narcotic
drugs for sale. For the following reasons, we affirm.

BACKGROUND

¶2 On the morning of July 23, 2022, Cabret was driving a rental
car on Interstate 40 in Coconino County with a passenger. A Department
of Public Safety (“DPS”) trooper noticed Cabret driving ten miles per hour
above the posted speed limit and a cell phone was mounted to the
windshield. After initiating a traffic stop, the trooper informed Cabret he
would receive a warning. Cabret then agreed to sit in the front passenger
seat of the patrol vehicle while the trooper wrote the warning.

¶3 Cabret explained that he and his passenger “Louie,” who
Cabret identified as his co-worker, were traveling from California to
Tennessee for a two-day nutritional supplement convention. Cabret said
the event was in “downtown Tennessee,” but he could not remember the
specific city when the trooper asked about it. Likewise, Cabret could not
recall the name of the company he and Louie worked for, only that it was
for a person named “Sean” who owned a warehouse. The trooper
eventually asked Cabret for permission to search the car, noting there was
a significant problem with drug trafficking across state lines. Cabret
initially rebuffed the trooper’s request, claiming that the only luggage was
his bag in the car’s rear seat.

¶4 After a few minutes, the trooper printed a warning and a form
giving the trooper consent to search Cabret’s car. Again, Cabret rejected
the request to search, and when the officer asked if he could bring a K-9 to
sniff the car, Cabret stated, “if that’s what you want to do.” While waiting
for the K-9, the trooper asked if Cabret had anything in the SUV he was
worried about. This time, Cabret acknowledged there was “luggage” in the
back, which he claimed was not his or Louie’s, and that the luggage was in

2
 STATE v. CABRET
Decision of the Court

the car when he rented it. Cabret also claimed they discovered the luggage
at a gas station, but that Cabret never opened it and had no knowledge
about its contents. Eventually, Cabret gave the trooper permission to
remove and search the luggage, but the trooper decided to wait for the K-9
to arrive before conducting any search.

¶5 The trooper then spoke with Cabret’s passenger. Contrary to
Cabret’s account, the passenger claimed to be heading to New Mexico,
rather than Tennessee, to visit family. After the K-9 alerted to the car, the
trooper found three bags in the car’s cargo area, including a red suitcase
containing what looked like a large quantity of methamphetamine. After
Cabret and the passenger were arrested, the passenger was identified as
Phillip Garcia rather than “Louie,” as Cabret had stated earlier. A DPS
officer later found additional bundles of drugs in the luggage, which
appeared to contain fentanyl pills and fentanyl powder. Subsequent testing
confirmed that the luggage in Cabret’s car contained methamphetamine
and fentanyl.

¶6 At the DPS facility, officers found a “Burlington” receipt in
the car and when they asked Cabret whether he had purchased the cell
phone mount from that store, he claimed he bought it at a gas station.
However, video surveillance footage obtained from a Burlington store the
evening before the stop shows Cabret and Garcia entering together, and
Cabret appears to be buying an item resembling a cell phone car mount.
The video also shows Garcia buying a large, red suitcase.

¶7 Cabret was charged with one count of sale or transportation
of dangerous drugs for the methamphetamine, and one count of sale or
transportation of narcotic drugs for the fentanyl. At trial, the two DPS
officers who conducted the stop and search testified, as well as the forensic
scientist who tested the drugs. Cabret and his son testified, each claiming
that Cabret struggled with memory issues. Cabret also testified that he first
met Garcia at a party several weeks before the stop, and that Garcia asked
if Cabret could take him to New Mexico. Cabret acknowledged he had lied
to the trooper when he claimed Garcia was his co-worker and that they
were both going to Tennessee. Instead, Cabret claimed that he hoped
Garcia would eventually become his co-worker. Cabret also recounted that
he and Garcia had gone to a Burlington store before the trip; Garcia bought
luggage and Cabret bought the cell phone mount. Again, Cabret
acknowledged he lied to officers about not buying the mount at Burlington.
Cabret also explained that just after noticing that a “police officer was
behind us,” Garcia urged him not to tell the officer about the luggage or the
Burlington trip. Despite this, Cabret maintained that he never touched the

3
 STATE v. CABRET
Decision of the Court

bag containing the drugs and had nothing to do with the luggage or its
contents.

¶8 Before closing arguments, the court gave each juror a copy of
the final instructions and read them aloud. The document included an
instruction on the State’s burden to prove the elements of the charged
crimes beyond a reasonable doubt, which tracked the language set forth in
State v. Portillo, 182 Ariz. 592 (1995). At the outset of the State’s closing
argument, the prosecutor urged the jury to consider direct and
circumstantial evidence because “[t]here’s no way to look into somebody’s
mind and know what they’re thinking at a given second.” The prosecutor
then explained:

It’s a difficult task trying to decide what a person was
thinking. But this is in the scope of the burden of proof the
State has. And what you have to conclude is that you’re
firmly convinced. You’re firmly convinced that the
Defendant knew about the drugs. All right? You don’t have
to know beyond any doubt whatsoever. As the jury
instruction says, it’s whether there’s a reasonable likelihood. Is
there a reasonable likelihood that he didn’t know that this is—
that if there’s a reasonable likelihood that he didn’t know, then
he should be found not guilty.

(Emphasis added.) Defense counsel did not object, even though the
prosecutor’s references to “reasonable likelihood” differed from the “real
possibility” language used in the Portillo instruction.

¶9 The jury convicted Cabret as charged. The superior court
later sentenced Cabret to concurrent prison terms of six years on the
methamphetamine count and four and a half years on the fentanyl count.
Cabret appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, -4033.

DISCUSSION

¶10 Cabret argues the State improperly characterized the
reasonable doubt standard during closing arguments. Because he did not
raise an objection at trial to the prosecutor’s closing arguments, we will not
reverse unless Cabret can demonstrate fundamental, prejudicial error. State
v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶11 Recognizing the critical role the reasonable doubt standard
plays in securing a defendant’s due process rights, along with the difficulty

4
 STATE v. CABRET
Decision of the Court

in defining the concept of reasonable doubt, in Portillo, 182 Ariz. at 596, our
supreme court adopted a jury instruction that “most fairly and accurately
conveys the meaning of reasonable doubt”:

The state has the burden of proving the defendant guilty
beyond a reasonable doubt. In civil cases, it is only necessary
to prove that a fact is more likely true than not or that its truth
is highly probable. In criminal cases such as this, the state’s
proof must be more powerful than that. It must be beyond a
reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt. There are very few
things in this world that we know with absolute certainty, and
in criminal cases the law does not require proof that
overcomes every doubt. If, based on your consideration of
the evidence, you are firmly convinced that the defendant is
guilty of the crime charged, you must find him/her guilty. If,
on the other hand, you think there is a real possibility that he/she is
not guilty, you must give him/her the benefit of the doubt and find
him/her not guilty.

Id. at 596 (emphasis added). Cabret argues the State altered this burden
when the prosecutor argued that Cabret should be found not guilty if the
jury determined there was “a reasonable likelihood,” rather than a “real
possibility,” that Cabret did not know about the drugs in the car. Cabret
contends the prosecutor’s use of the phrase “’reasonable likelihood’
overstated the degree of doubt required for [an] acquittal.” However, we
need not determine whether the prosecutor erred, or the error would be
fundamental, because even assuming the prosecutor inaccurately described
that portion of the reasonable doubt instruction, Cabret has not established
he was prejudiced.

¶12 Before addressing prejudice, we note that the importance of
the reasonable doubt standard in criminal trials cannot be overstated. “The
standard provides concrete substance for the presumption of innocence—
that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies
at the foundation of the administration of our criminal law.’” In re Winship,
397 U.S. 358, 363 (1970) (citation omitted). This standard is constitutionally
required. See id. at 364 (holding “that the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged”);
Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) (explaining that the Fifth and

5
 STATE v. CABRET
Decision of the Court

Sixth Amendments require a jury to determine the State has established
guilt beyond a reasonable doubt).

¶13 Consistent with these principles, our supreme court has
specifically instructed courts and parties on how to describe the reasonable
doubt standard, Portillo, 182 Ariz. at 596, and reaffirmed that language
numerous times. See, e.g., State v. Forde, 233 Ariz. 543, 565, ¶ 86 (2014); State
v. Dann, 220 Ariz. 351, 365, ¶ 65 (2009); State v. Lamar, 205 Ariz. 431, 440–41,
¶¶ 49–50 (2003) (collecting cases). Even seemingly minor alterations to this
language can result in trial error. See State v. Sullivan, 205 Ariz. 285, 288,
¶¶ 13–16 (App. 2003) (finding error when a trial court replaced the final
sentence of a Portillo instruction with “Otherwise, you must find the
defendant not guilty”). Thus, we strongly urge parties to carefully follow
the language of our supreme court’s reasonable doubt instruction when
addressing the jury because there is no need for attempts to alter or clarify
the instruction. See Portillo, 182 Ariz. at 596 (“Use of a standard definition
thus will eliminate confusion and foster fairness for defendants, the state,
and jurors alike.”).

¶14 To demonstrate prejudice, Cabret has the burden of showing
that without the error, “a reasonable jury could have plausibly and
intelligently returned a different verdict.” Escalante, 245 Ariz. at 144, ¶ 31.
This standard is not easily satisfied and is met only in “rare cases.” Id.
Prejudice is an objective inquiry that “necessarily excludes imaginative
guesswork.” Id. We consider the entire record to determine whether a
defendant has shown prejudice, including the parties’ arguments, theories
of the case, and the evidence presented at trial. Id.

¶15 Cabret relies on our supreme court’s decision in State v.
Murray, 250 Ariz. 543 (2021), to support his argument that the prosecution’s
references to “a reasonable likelihood” prejudiced him. In that case, the
court found that a single misstatement of the reasonable doubt standard
constituted fundamental, prejudicial error when the prosecutor suggested
to the jury that the State had met its burden of proof beyond a reasonable
doubt if they thought “one or both defendants might be guilty.” Murray, 250
Ariz. at 547, ¶ 6 (emphasis added). The court noted that the statements,
which equated “reasonable doubt” with “might be guilty,” provided the
jury with a roadmap to “circumvent [the reasonable doubt standard] while
ostensibly following it.” Id. at 554, ¶ 39. Additionally, the statements were
made during rebuttal closing, where the statements would have the
greatest impact. Id. at 552, ¶ 32.

6
 STATE v. CABRET
Decision of the Court

¶16 Cabret urges us to reach a similar conclusion in his case. But
the prosecution’s statement that the jury should acquit Cabret if there was
a “reasonable likelihood” he was not guilty is distinguishable from the error
in Murray. There, the supreme court explained that “[t]he prosecutor’s
comments’ potential to mislead arises, therefore, not from any
misstatement of the Portillo standard, but rather from the subtle conflating
of ‘might be guilty’ with ‘having been persuaded by the evidence in the case
beyond a reasonable doubt.’” Murray, 250 Ariz. at 552, ¶ 33. Even
assuming the prosecutor’s statements in the present case were erroneous,
they were only brief misstatements of the Portillo standard. And the
superior court provided verbal and written instructions on the reasonable
doubt standard that correctly tracked the language of Portillo. Unlike what
occurred in Murray, these correct instructions could cure the issues with the
prosecutor’s improper phrasing. See Sullivan, 205 Ariz. at 289, ¶ 20 (finding
that an edit of the Portillo instruction was harmless because the instruction
still conveyed that the State bore the burden of proving each element
beyond a reasonable doubt).

¶17 Additionally, the erroneous framing of the reasonable doubt
standard in Murray was substantially more serious than the assumed error
in this case. The Murray court explained that the “might be guilty” standard
fell below even a preponderance of the evidence; in fact, the prosecution’s
characterization reflected something more akin to probable cause. See
Murray, 250 Ariz. at 551, ¶ 23; see also State v. Morris, 246 Ariz. 154, 157, ¶ 9
(App. 2019) (describing probable cause standard as enough information to
justify a reasonable belief that an offense has been committed and requiring
only a substantial chance of criminal activity). Assuming there is a legal
difference between a “reasonable likelihood” and a “real possibility” that
Cabret was not guilty, the gap between those two is substantially less than
the chasm between “probable cause” and “beyond a reasonable doubt.”

¶18 Finally, unlike the situation in Murray, the prosecutor’s
misstatement at Cabret’s trial did not occur during the rebuttal closing
argument, when defense counsel would have had no opportunity to
respond. See Murray, 250 Ariz. at 552, ¶ 32; see also State v. Acuna-Valenzuela,
245 Ariz. 197, 220, ¶ 91 (2018) (finding no prejudice when potentially
erroneous statements shifting burden to the defendant occurred near the
beginning of the closing argument, both parties discussed the reasonable
doubt standard after the statements were made, and the court had provided
proper instructions before closing). After consideration of the parties’
arguments, the evidence presented at trial, and the context of the
prosecutor’s arguably improper characterization of the burden of proof,

7
 STATE v. CABRET
Decision of the Court

Cabret has not shown that a reasonable jury could have plausibly and
intelligently reached a different verdict.

CONCLUSION

¶19 We affirm.

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

8