State v. Frasard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH SHAWN FRASARD, Appellant.

No. 1 CA-CR 24-0020
FILED 03-13-2025

Appeal from the Superior Court in Yavapai County
No. V1300CR202280451
The Honorable Michael P. McGill, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

C. Kenneth Ray II, P.L.L.C, Prescott
By C. Kenneth Ray II
Counsel for Appellant

Kenneth Shawn Frasard, Eloy
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Kenneth Shawn Frasard appeals his convictions and
sentences for the following Counts: (1) Possession of Dangerous Drugs
(Methamphetamine) for Sale, a class 2 felony; (2) Possession of Narcotic
Drugs (Fentanyl) for Sale, a class 2 felony; (3) Possession of Marijuana for
Sale, a class 4 felony; (4) Misconduct Involving Weapons, a class 4 felony;
(5) Possession of Drug Paraphernalia (Involving Methamphetamine), a
class 6 designated felony; (6) Possession of Drug Paraphernalia (non-
Methamphetamine related), a class 6 designated felony; and (7) Misconduct
Involving Weapons, a class 4 felony.

¶2 After searching the entire record, Frasard's defense counsel
identified no arguable, non-frivolous question of law. In accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asks this Court to search the record for fundamental
error. Frasard filed a supplemental brief in propria persona, which we have
considered. For the following reasons, we vacate the conviction and
sentence for Count 6 but affirm his remaining convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶3 In August 2022, police executed a search warrant for Frasard's
residence, surrounding property, and truck. Officers found and seized
methamphetamine, fentanyl, marijuana, two large knives, drug
paraphernalia, and a cellphone containing messages indicative of drug
sales. A scientific expert from the Arizona Department of Public Safety
confirmed the authenticity of the drugs.

¶4 The State charged Frasard with the seven counts listed, supra
¶ 1. Prior to trial, Frasard moved to suppress evidence gathered pursuant
to the search warrant. He argued the search warrant was unreliable, lacked
sufficient detail, and was not lawfully issued or supported by probable
cause. The superior court held a hearing and denied the motion.

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¶5 Frasard pled guilty to Count 7, and the remaining counts
proceeded to trial. During trial, the State presented testimony from officers
and a forensic scientist who tested the authenticity of the seized drugs. The
State also presented body-worn-camera footage of the search and messages
and videos indicative of drug transactions found on Frasard's cellphone.

¶6 The jury found Frasard guilty on Counts 1–6. Following trial,
he: (1) stipulated to a sentencing enhancement for committing a felony
offense while on release, mandating an additional two years'
imprisonment; and (2) waived his right to a jury trial regarding his prior
felony convictions and committing the offenses for pecuniary gain.

¶7 At sentencing, the superior court reviewed evidence and
found Frasard had three historical prior felony convictions, rendering him
a category-three repetitive offender. The superior court also found
aggravators of at least one prior felony conviction in the last 10 years, and
that Frasard committed the offenses for pecuniary gain. Last, the court
found an enhancement due to the offenses being committed while on
release. The court sentenced Frasard to aggravated, concurrent prison
terms, with an additional two years per Count for committing the offenses
while on release. The longest sentence was 18 years' flat time, plus two
years for the on-release sentencing enhancement. It also awarded 500 days
of presentence-incarceration credit.

¶8 Frasard timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶9 Frasard raises several issues in his supplemental brief that he
failed to raise at trial. Thus, we review only for fundamental, prejudicial
error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). We view the facts in
the light most favorable to sustaining Frasard's convictions and resolve all
reasonable inferences against him. State v. Fontes, 195 Ariz. 229, 230, ¶ 2
(App. 1998).

I. Sentence and Aggravators.

¶10 Frasard challenges the superior court's resulting sentence
having applied his aggravators and sentencing enhancements.

¶11 "We review a superior court's sentencing decision for an
abuse of discretion." State v. Burns, 231 Ariz. 563, 564, ¶ 6 (App. 2013). Here,
Frasard stipulated that he committed the charged offenses while on release.

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And he received a legally sufficient colloquy before waiving his right to a
jury trial regarding allegations of prior felony convictions and committing
the offenses for pecuniary gain. The superior court heard evidence,
including Frasard's own admission to prior offenses, during trial.
Accordingly, no fundamental, prejudicial error occurred. Escalante, 245
Ariz. at 140, ¶ 12.

II. Confrontation Clause Rights and Search Warrant Challenge.

¶12 Frasard argues that his Confrontation Clause rights were
violated because certain evidence was admitted without affording him an
opportunity to confront the source, a confidential informant.

¶13 The Sixth Amendment prohibits introduction of testimonial
statements by a non-testifying witness, unless the witness is "unavailable to
testify, and the defendant had had a prior opportunity for cross-
examination." Ohio v. Clark, 576 U.S. 237, 243 (2015) (citing Crawford v.
Washington, 541 U.S. 36, 54 (2004)). "At a suppression hearing, the court
may rely on hearsay and other evidence, even though that evidence would
not be admissible at trial." United States v. Raddatz, 447 U.S. 667, 679 (1980);
see also State v. Riley, 196 Ariz. 40, 43, ¶ 7 (App. 1999) ("It is well established,
however, that confrontation rights do not apply to the same extent at a
pretrial suppression hearing as they do at trial.").

¶14 Here, the confidential informant's statements were not
introduced at trial, but at a suppression hearing regarding validity of the
search warrant. The confidential informant's "statements" were included in
an affidavit to establish probable cause for the warrant. The superior court
conducted a hearing and determined the affidavit underlying the warrant
provided sufficient facts from which the issuing judge could conclude the
confidential informant's reliability. See State v. Watling, 104 Ariz. 354, 356–
58 (1969) (explaining hearsay can form the basis for a warrant if there is a
substantial basis for the court to conclude that the information was reliable).
Accordingly, the information from the confidential informant discussed at
this hearing did not implicate the Confrontation Clause and we find no
fundamental error.

III. Sufficiency of the Evidence.

¶15 Frasard challenges the sufficiency of the evidence supporting
his convictions. "Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction." State v. Scott, 113 Ariz. 423, 424–25 (1976).

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¶16 Here, the record reflects ample evidence supporting the
elements of the charged offenses. Officers served a search warrant at
Frasard's home and truck, and found methamphetamine, fentanyl,
marijuana, drug paraphernalia, and two large knives. A forensic scientist
confirmed the identity of the substances through chemical analysis.
Viewing the facts in the light most favorable to sustaining the verdicts, we
conclude that sufficient evidence supports Frasard's convictions. Fontes,
195 Ariz. at 230, ¶ 2.

IV. Ineffective Assistance of Counsel.

¶17 Frasard asserts his counsel was ineffective. We will not
consider claims of ineffective assistance of counsel on direct appeal. State
v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (finding that ineffective-assistance-of-
counsel claims must be brought in a petition for post-conviction relief).

V. No Fundamental Error.

¶18 In addition to evaluating the arguments raised in Frasard's
supplemental brief, we have conducted an independent review of the
record. Our review revealed no fundamental error. See Leon, 104 Ariz. at
300. All proceedings were conducted in compliance with the Arizona Rules
of Criminal Procedure, and the record reveals that Frasard was present at
all critical stages of the proceedings and represented by counsel. Ariz. R.
Crim. P. 6.1, 19.2. The jury was comprised of twelve members. A.R.S. § 21-
102(A). The superior court properly instructed the jury on the presumption
of innocence, the burden of proof, and the elements of the charged offenses.
The court received a presentence report. Ariz. R. Crim. P. 26.4. The court
afforded Frasard an opportunity to speak at sentencing, imposed sentences
within the statutory limits, and stated on the record the evidence and
factors it considered in imposing the sentences. See A.R.S. §§ 13-701, -703(J),
-708(D), -3407(A)(2) -3408(A)(2), -3415(A); Ariz. R. Crim. P. 26.9–26.10.

VI. Multiple Charges for Possession of Drug Paraphernalia.

¶19 Frasard was convicted of two Counts of possession of drug
paraphernalia for conduct stemming from the same incident. Possessing
multiple paraphernalia items at once constitutes a single violation of A.R.S.
§ 13-3415(A). See State v. Soza, 249 Ariz. 13, 18, ¶ 23 (App. 2020) (finding
one violation when defendant had "baggies and [a] scale"). Even when
sentences are concurrent, imposing multiple punishments for a single
offense is fundamental error. Id. at 14, ¶ 6. Accordingly, we vacate
Frasard's conviction and sentence for Count 6, possession of drug
paraphernalia, and modify the judgment to reflect a single conviction under

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A.R.S. § 13-3415(A). Id. at 19, ¶ 27; see State v. Waters, 1 CA-CR 20-0527, 2021
WL 4317697, at *3, ¶ 16 (Ariz. App. Sept. 23, 2021) (mem. decision) (vacating
a count of possession of drug paraphernalia during Anders review when
two counts stemmed from the same instance).

CONCLUSION

¶20 We vacate Frasard's conviction and sentence for Count 6
(possession of drug paraphernalia) and modify the judgment to reflect a
single conviction for that offense. We affirm his other convictions and
sentences. Upon the filing of this decision, defense counsel shall inform
Frasard of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). This Court, of its
own accord, grants Frasard 30 days from the date of this decision to file an
in propria persona motion for reconsideration. But see Ariz. R. Crim. P.
31.20(c) (allowing 15 days to file a motion for reconsideration). Frasard has
30 days from the date of this decision to proceed, if he wishes, with an in
propria persona petition for review or, if Frasard files a timely motion for
reconsideration, he has 15 days after the motion is decided. See Ariz. R.
Crim. P. 31.21(b)(2).

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

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