State v. Kabinto

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL JOE KABINTO, Appellant.

No. 1 CA-CR 24-0414
FILED 05-15-2025

Appeal from the Superior Court in Coconino County
No. S0300CR202400016
The Honorable Theodore Campagnolo, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip A. Tomas
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
 STATE v. KABINTO
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Defendant Daniel Kabinto appeals from his probation
revocation and resulting sentence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2024, Kabinto pled guilty to one count of possession of
drug paraphernalia, a class 6 felony, and one count of shoplifting, a class 1
misdemeanor. The trial court placed Kabinto on three years’ intensive
probation.

¶3 The trial court provided Kabinto with a written copy of his
probation terms and conditions, which required, inter alia, that Kabinto: (1)
obey all criminal laws (“Term One”), (2) report to the adult probation
department (“APD”) as directed (“Term Three”), and (3) provide APD with
his current address (“Term Five”). Kabinto signed the following
acknowledgment: “I acknowledge receipt of the conditions of probation
and any attachments added. I understand that by not abiding by the
conditions of probation my probation could be revoked and the Court may
sentence me in accordance with the law.”

¶4 The following month, Kabinto met with APD. Because he was
homeless, Kabinto named a shelter as his residence. APD directed Kabinto
to report in person each Wednesday.

¶5 Within days, however, Kabinto violated his probation.
Kabinto agreed to serve eight days in jail followed by residential treatment.
But he “self-discharged” from the residential treatment facility just days
later, did not return to the shelter, and failed to report for his Wednesday
check-in with APD.

¶6 The next day, Kabinto was arrested after “refusing to leave” a
Circle K, taking “a fighting stance multiple times before [police] were able
to calm him down,” and refusing to provide police with his identification.

2
 STATE v. KABINTO
Decision of the Court

Once arrested, police found a temporary paper license with Kabinto’s name
on it.

¶7 APD petitioned to revoke Kabinto’s probation, alleging he
violated Terms One, Three, and Five of his probation. At his own request,
and after much discussion with the trial court, Kabinto represented himself
at the probation violation hearing.

¶8 At the probation violation hearing, Kabinto’s probation
officer testified as outlined, supra ¶¶ 4–6. She also stated that Kabinto had
called her to inform he was considering leaving the residential treatment
facility “because he was disrespected by another patient.” The probation
officer “advised [Kabinto] against the self-discharge” and stated that
Kabinto “did not specify a date when he was going to be self-discharging.”

¶9 For his part, Kabinto testified he went to APD on Tuesday
after self-discharging from the residential treatment facility but arrived
after the office had closed for the day. He acknowledged he failed to report
to APD on Wednesday as required, stating, “I take full responsibility for
that. [I]t was my mistake.” He also testified he stayed at a friend’s house
after leaving the residential treatment facility, and that if there were no
records of him previously staying at the shelter, it was because he “go[es]
by a different name” there, “one that [he] never mentioned to [APD].”

¶10 As for the incident at Circle K, Kabinto testified he went there
“to use the bathroom and buy me some food to eat.” While in the bathroom,
“[t]he store clerk walked in [and] just blatantly spouted, I’ll call the cops on
you.” Kabinto stated he then left the store, but the store clerk continued to
“yell” at him. “I didn’t even respond. I just [] continued walking out of the
store.” When asked about his refusal to provide his name to police, Kabinto
stated, “[t]hey already had my name. They already [] told me my name.”

¶11 The trial court found Kabinto had violated Terms One, Three,
and Five of his probation. After finding a single mitigating circumstance
(alcohol addiction) and several aggravating circumstances (including three
prior felonies, thirty misdemeanors, failure to complete court-ordered
treatment, and an inability to comply with probation terms over a short
period of time), the court revoked Kabinto’s probation and sentenced him
to a slightly aggravated term of one and a half years’ imprisonment for the
class 6 felony, with credit for time served for the class 1 misdemeanor.

¶12 This timely appeal followed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4033(A)(1).

3
 STATE v. KABINTO
Decision of the Court

DISCUSSION

¶13 Kabinto does not challenge the trial court’s finding that he
violated either Term Three or Term Five of his probation. State v. Gortarez, 141 Ariz. 254, 262 (1984) (holding issues not raised in appellate briefing
“must be considered waived”). According to the acknowledgment Kabinto
signed, supra ¶ 3, a violation of either term justified the court revoking
Kabinto’s probation. Instead, Kabinto only challenges the court’s finding
that he violated Term One when it considered “unreliable double hearsay
from the unidentified Circle K clerk.” Because Kabinto did not object to the
store clerk’s statements at the probation violation hearing, we review for
fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018).

¶14 At a probation violation hearing, the State bears the burden of
proof by a preponderance of the evidence that a probationer violated a
condition of his probation. Ariz. R. Crim. P. 27.8(b)(3). The rules of evidence
are relaxed at such hearings and the trial court “may receive any reliable
evidence, including hearsay, that is not legally privileged.” Id. “[H]earsay
is unreliable when the speaker is not identified.” Plowman v. Ariz. State
Liquor Bd., 152 Ariz. 331, 337 (App. 1986).

¶15 Despite Kabinto’s contention to the contrary, the Circle K
clerk was identified (though not by name) as the person who made
statements on the night Kabinto was arrested. And though Kabinto urges
us to consider the “level of [the out-of-court] speaker on the hearsay ladder”
and deem the store clerk’s statements unreliable, see State v. Portis, 187 Ariz.
336, 339 (App. 1996), that is not this court’s role. The trial court stands in the
best position to determine witness credibility and we “will not reverse any
finding of the trier of fact unless that finding is arbitrary and unsupported
by any theory of the evidence.” State v. Stotts, 144 Ariz. 72, 79 (1985).
Furthermore, because Kabinto did not object at the probation violation
hearing to the hearsay statements, the evidence was unchallenged and thus
“considered reliable.” Id. at 82. Kabinto has failed to show error,
fundamental or otherwise.

4
 STATE v. KABINTO
Decision of the Court

CONCLUSION

¶16 We affirm Kabinto’s sentence.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

5