State v. Kolbe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MAGIKAL KANE KOLBE, Appellant.

No. 1 CA-CR 25-0417
FILED 09-21-2026

Appeal from the Superior Court in Maricopa County
No. CR2025-109920-001
The Honorable Pamela Hearn Dunne, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Abigail Smith
Counsel for Appellant

STATE v. KOLBE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Michael J. Brown joined.

B A I L E Y, Judge:

¶1 Magikal Kane Kolbe appeals his convictions for sexual abuse,
public sexual indecency, and indecent exposure. Because Kolbe has not
established that the prosecutor committed error in her closing argument,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

¶3 On March 2, 2025, Anna1 went to the pool area of her Phoenix
hotel to use the hot tub. Upon seeing it was occupied by Kolbe, Anna sat
on a lounge chair to wait for him to leave. About half an hour later, Anna
heard Kolbe step out of the hot tub and looked up to see that he was naked
and walking towards her. Once Kolbe neared Anna he “grab[bed] his
penis” and then “pounce[d] on top of [her].” Anna screamed for help, while
Kolbe made “grunting noises” and was “kind of like moving, positioning
on [Anna].” Kolbe then “pushed off” of Anna and jumped into the pool.

¶4 Anna fled the pool area and ran into Lisa, another hotel guest.
Lisa, a stranger to Anna, had approached the pool area after hearing a
“blood curdling” cry for help. Together the women entered the hotel lobby
and asked the front desk to call the police. From the lobby window Lisa
watched Kolbe exit the pool naked, dress himself, and hop over the pool
fence to leave.

¶5 Police apprehended Kolbe at a nearby shopping center about
twenty minutes later. Kolbe’s hair and shorts were wet, and “the skin on
his hands and feet were both pruney as if he had been submerged in water
for an extended period of time.” The police brought Anna and Lisa to

1 We use pseudonyms for the victims to protect their identities.

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identify Kolbe together, and each separately confirmed he was the man
who had been naked in the hotel pool.

¶6 Kolbe was charged with one count of sexual abuse, a class 5
felony, and one count of public sexual indecency, a class 1 misdemeanor, as
to Anna; he was charged with one count of indecent exposure, a class 1
misdemeanor, as to Lisa. The jury found him guilty as charged. The jury
also found multiple aggravating factors, including that Kolbe was on
probation and had three prior felony convictions. The court sentenced him
to 6.5 years’ imprisonment for sexual abuse, and concurrent terms of six
months’ imprisonment for the misdemeanors. He was also ordered to
register as a sex offender.

¶7 Kolbe timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
sections 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶8 Kolbe contends that he was deprived of a fair trial because the
prosecutor misstated the law during her closing argument rebuttal by
telling the jury it could not question the credibility of the State’s evidence.
Kolbe failed to object to the alleged prosecutorial error at trial, so we review
for fundamental error. See State v. Murray, 250 Ariz. 543, 548, ¶ 14 (2021).
To prevail under fundamental error review, Kolbe must show that error
occurred, that the error was fundamental, and that the error resulted in
prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶9 To succeed on a prosecutorial error claim, a defendant must
establish “that the prosecutor’s [error] so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Murray, 250
Ariz. at 548, ¶ 13 (quoting State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007)).
To demonstrate this, the defendant must show that “(1) [error] exists and
(2) ‘a reasonable likelihood exists that the [error] could have affected the
jury’s verdict, thereby denying [the] defendant a fair trial.’” Id. (quoting
Morris, 215 Ariz. at 335, ¶ 46).

¶10 Kolbe argues that the prosecutor misstated the law numerous
times in her rebuttal. In reviewing a prosecutor’s statements, we “look[] at
the context in which the statements were made as well as ‘the entire record
and . . . the totality of the circumstances.’” State v. Goudeau, 239 Ariz. 421,
466, ¶ 196 (2016) (quoting State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012)).
We also keep in mind that prosecutors are given “wide latitude” in
presenting closing arguments to the jury so long as they do not misstate the

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STATE v. KOLBE
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law. Murray, 250 Ariz. at 549, ¶ 18 (quoting Goudeau, 239 Ariz. at 466,
¶ 196).

¶11 During his closing argument, Kolbe urged that Anna and Lisa
were not credible witnesses and cited several examples for the jury to
consider. The prosecutor addressed each example in rebuttal. First, the
prosecutor challenged Kolbe’s argument that Anna’s and Lisa’s
identification of him was tainted because the police brought them to
identify Kolbe together. The prosecutor argued that no evidence was
presented to show that either victim’s identification was unfairly
influenced by the other. She then told the jury, “[t]here’s no evidence of
collusion” and asserted that “[d]efense is asking you to break the cardinal
rule of the duty of a juror. The very first thing you heard, you should not
guess about any fact. That’s what defense is asking you to do. They’re
asking you to guess.” She then stated that “the defense says that there were
police missteps here. Now, that’s for you to decide, and if there were, if it
had any bearing on this.”

¶12 Next, Kolbe argued Anna was not credible in her testimony
that Kolbe jumped on her while soaking wet. Kolbe then referenced a
picture taken while Anna was talking to police that seemed to show her
clothing was dry. In rebuttal, the prosecutor reviewed Anna’s testimony
that Kolbe’s “body was on top of her, I think she said for a minute maybe,
and she said her clothes felt damp.” She then argued that Kolbe “want[s]
you to guess, was [Anna’s clothing] wet, wasn’t it wet, should it have been
wet.”

¶13 Kolbe also argued that the victims’ lack of detail in describing
Kolbe’s genitalia raised credibility concerns. The prosecutor responded by
recounting Anna’s and Lisa’s testimony that they each saw Kolbe naked
with his penis exposed. She argued that the victims need not provide
specific details about Kolbe’s genitalia for the jury to find him guilty. In
reference to Lisa’s testimony, the prosecutor told the jury, “[y]ou get to
decide whether you take her at her word or not, that’s what you get to
decide. . . . You can believe some of what she says, all of what she says, or
none of it. . . . That’s what you get to decide. That’s what’s going to be left
to you.” She concluded, “[a]gain, you are not to guess about any fact. What
is the fact before you? It was genitalia. It was a penis that they both saw
. . . . Don’t guess. Don’t go outside—rule number one, do not guess about
any fact.”

¶14 Finally, the prosecutor responded to arguments Kolbe raised
about why the police did not seek surveillance footage of the shopping area

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where Kolbe was arrested. She argued, “[w]e don't know why they didn't
[look for surveillance camera footage] exactly. The officer gave you one
reason. Again, we do not guess. He told you why. We weigh and
measure.” And she concluded, “[a]gain, you are not supposed to guess.”

¶15 Kolbe contends the prosecutor’s arguments sought to prevent
the jury from properly weighing and evaluating the evidence against him
and thus deprived him of his right to be tried by an impartial jury. We
disagree. A prosecutor may offer a “fair rebuttal to an area opened by the
defense,” see State v. Gillies, 135 Ariz. 500, 510 (1983), and may argue the
State’s case has not been contradicted, see State v. Byrd, 109 Ariz. 10, 11
(1972). In his closing argument, Kolbe repeatedly sought to undermine the
credibility of the State’s witnesses by arguing they had not provided certain
details and by suggesting they had influenced each other’s identification of
him. The prosecutor could fairly rebut Kolbe’s arguments by reminding
the jury that it was not to guess what those facts not in evidence may have
been. See Salt River Valley Water Users’ Ass’n v. Blake, 53 Ariz. 498, 503 (1939)
(“[J]uries may not return verdicts on surmise or speculation . . . .”); Rev.
Ariz. Jury Instr. Stand. Crim. 1 (duty of jury) (6th ed. 2022) (The jury must
“[d]etermine the facts only from the evidence produced in court.”). And at
no point did the prosecutor tell the jury that it could not consider missing
information when evaluating the credibility of the State’s witnesses.

¶16 Further, the prosecution’s statements mirrored the superior
court’s final jury instructions, which Kolbe did not object to. The court
instructed the jury that it should “[d]etermine the facts only from the
evidence produced in court. . . . You should not guess about any fact.” The
jury was also instructed that its role included considering what testimony
to believe and evaluating the credibility of the witnesses. We presume the
jurors followed the court’s instructions. State v. Tucker, 215 Ariz. 298, 319,
¶ 89 (2007).

¶17 The prosecution’s statements did not improperly prevent the
jury from evaluating the credibility of the State’s evidence. And because
we conclude that the prosecutor’s challenged statements did not deny
Kolbe a fair trial, he has not met his burden of showing that these
statements, viewed in the context of the trial, were prosecutorial error. See
Murray, 250 Ariz. at 548, ¶ 13; Goudeau, 239 Ariz. at 466, ¶ 196. Given that
we conclude the statements were not error, we need not reach the second
prong of whether the alleged error affected the jury’s verdict. See Murray,
250 Ariz. at 548, ¶ 13.

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CONCLUSION

¶18 Kolbe has not established prosecutorial error. We affirm his
convictions and sentences.

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

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