State v. Fedorsha

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Nos. 1 CA-CR 24-0208, 1 CA-CR 24-0210
(Consolidated)
FILED 02-25-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-107715-001, CR2023-108440-001
(Consolidated)
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee

The Law Office of Kyle T. Green, Mesa
By Kyle Green
Counsel for Appellant
 STATE v. FEDORSHA
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Brian Y. Furuya and Chief Judge David B. Gass
joined.

H O W E, Judge:

¶1 Kenneth Joseph Fedorsha appeals his convictions and
sentences in two separately tried cases, which we consolidate for this
appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. First Trial

¶2 In 2022, the State charged Fedorsha with four drug-related
offenses and two counts of misconduct involving weapons. On the first day
of trial on these charges, the superior court asked Fedorsha to state his name
and date of birth. Fedorsha responded, “I do not consent. I have been
denied due process, and I make a reservation of my rights under the
common law.” He responded to all questions in this way and would
periodically interrupt the proceedings with this statement. The superior
court repeatedly warned him he would be removed from the courtroom if
he continued with the disruptive behavior and ultimately ordered him
removed.

¶3 Fedorsha was present each morning of trial and repeated the
same conduct. On each day of trial, he was removed from the courtroom
after the superior court warned him that if he continued to obstruct the
proceedings, he would be removed. Fedorsha repeated the same statement
when the superior court asked him if intended to testify. And when asked
if he would consent to being fingerprinted, he said, “I do not consent to
these court proceedings.”

¶4 During opening arguments, the State referred to the “fentanyl
crisis plaguing our country” and referenced names of Fedorsha’s
customers. Fedorsha objected to hearsay and foundation and moved for a
mistrial. The superior court denied the motion, reasoning both that “it’s
general knowledge that fentanyl is [] an epidemic” and “the jury has been
instructed that they are not to consider statements of lawyers as evidence.”

2
 STATE v. FEDORSHA
Decision of the Court

¶5 The jury convicted Fedorsha of one count of possession of
dangerous drugs for sale, one count of sale or transportation of dangerous
drugs, one count of possession of narcotic drugs for sale, and one count of
sale or transportation of narcotic drugs but found him not guilty him of one
count of weapons misconduct. The other weapons misconduct charge was
dismissed.

II. Second Trial

¶6 In a separate case, Fedorsha was tried on four drug-related
offenses. He acted the same as he did at the first trial. When asked to state
his name and date of birth, he responded “I do not consent. I have been
denied due process and I make a reservation of my rights under the
common law.” He responded to all questions with some version of this
statement. On each day of trial, the superior court removed him from the
courtroom after warning him that if he continued to obstruct the
proceedings, he would be removed.

¶7 Before the State gave its opening in the second trial, the
superior court asked the State to avoid discussing the opioid crisis and
instead focus on the facts of the case. The State agreed. The jury convicted
Fedorsha of one count of possession of narcotic drugs for sale, one count of
possession of dangerous drugs, one count of possession or use of drug
paraphernalia, and one count of possession or use of narcotic drugs.

¶8 Fedorsha timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

I. Removal from the Courtroom

¶9 Fedorsha argues that his removal from the courtroom during
trial violated his constitutional rights because his behavior was not
disruptive. Further he argues the superior court violated Arizona Rule of
Criminal Procedure (“Rule”) 9.2 by not allowing him to view the trial,
confer with counsel, or provide him with an opportunity to return.

¶10 We review a defendant’s exclusion from trial for an abuse of
discretion. See State v. Jones, 26 Ariz. App. 68, 73 (1976) (holding that the trial
court has “considerable latitude” to determine whether a defendant should
be removed from the courtroom for improper behavior). In this case,
Fedorsha did not object to his removal during trial. We therefore review his
removal during trial for fundamental error. See State v. Escalante, 245 Ariz.

3
 STATE v. FEDORSHA
Decision of the Court

135, 138 ¶ 1 (2018) (“When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error.”) He thus bears the
burden to show, first, that his removal constitutes trial error, second, that
the error was fundamental, and third, that the error was prejudicial. Id. at
142 ¶ 21.

¶11 Both the United States and Arizona constitutions protect a
defendant’s right to be present at trial. See U.S. Const. amends. VI, XIV;
Ariz. Const. art. 2, § 24. A defendant may forfeit this right if, “after he has
been warned by the judge that he will be removed if he continues his
disruptive behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court that his trial
cannot be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S.
337, 343 (1970); see also Rule 9.2(a) (“A defendant who engages in disruptive
conduct, after being warned that such conduct will result in expulsion from
a proceeding, forfeits the right to be present at that proceeding.”). “After
expulsion, the court must use every feasible means to allow the defendant
to watch, hear, and be informed of the proceeding’s progress, and to consult
with counsel at reasonable intervals.” Rule 9.2(b). Further, the defendant
must be allowed to return if “the defendant assures the court of future good
behavior.” Rule 9.2(c).

¶12 At both trials, Fedorsha responded to all questions only with
some version of the statement “I do not consent. I have been denied due
process, and I make a reservation of my rights under the common law.” At
times, he interjected with this statement in the absence of a question. His
actions did not comply with the court’s orders and disrupted the trial. The
superior court did not err when removing him from the courtroom.
Contrary to his argument, he was allowed to return to the courtroom each
morning. But he repeated the same conduct each day resulting in his
removal.

¶13 Fedorsha does not point to, nor do we find, any evidence in
the record that he requested and was denied the opportunity to observe
trial. Likewise, he does not point to, nor do we find, any evidence in the
record suggesting he was denied the opportunity to consult with counsel.
Each morning before the trial began for the day, defense counsel spoke with
him to “let him know how the case was going” and “provided him copies
of any pleadings [she] filed.” And he called defense counsel’s office to
discuss the case as it progressed. Fundamental error did not occur when
Fedorsha was removed from trial.

4
 STATE v. FEDORSHA
Decision of the Court

II. Prosecutorial Error

¶14 Fedorsha argues the prosecutor committed prosecutorial
“misconduct” in his first trial during opening statements when he referred
to the “fentanyl crisis plaguing our country” and the names of Fedorsha’s
customers. “Prosecutorial misconduct” and “prosecutorial error” are not
the same. State v. Shortman, 254 Ariz. 338, 343 ¶ 20 (App. 2022). We
“differentiate between ‘error,’ which may not necessarily imply a
concurrent ethical rules violation, and ‘misconduct,’ which may suggest an
ethical violation.” In re Martinez, 248 Ariz. 458, 470
¶ 47 (2020). Because Fedorsha does not allege any ethical violations, we
review for prosecutorial error, not misconduct. See id. (explaining that
courts should avoid characterizing prosecutorial error as misconduct when
no ethical violation is alleged).

¶15 To prevail on a prosecutorial error claim, Fedorsha “must
show the error occurred, and it is reasonably likely the error could have
affected the jury’s verdict, thereby denying defendant a fair trial.” Shortman,
254 Ariz. at 343 ¶ 21 (cleaned up). “This court reviews errors cumulatively
to determine whether the conduct resulted in an unfair trial.” Id.

¶16 Fedorsha objected several times during the prosecutor’s
opening statement, but he did not object on the basis of prosecutorial error
or misconduct. “[R]aising one objection at trial does not preserve [a
different] objection on appeal.” State v. Long, 119 Ariz. 327, 328 (1978). To
preserve the issue of prosecutorial error for appeal, the objection must have
“adequately raise[d]” a claim for prosecutorial error at trial. State v.
Rutledge, 205 Ariz. 7, 13 ¶ 30 (2003). Because Fedorsha did not do so, we
review his claim of prosecutorial error solely for fundamental error. See
State v. Vargas, 251 Ariz. 157, 163–64 ¶ 10 (App. 2021); Escalante, 245 Ariz. at
140 ¶ 12.

¶17 Fedorsha moved for mistrial based on the prosecutor’s
opening statement, but the superior court denied the motion. The superior
court determined the prosecutor’s statements did not warrant a mistrial
because the fentanyl “epidemic” is discussed frequently in the news and a
ledger containing customer names was admitted into evidence. Further, the
jury was instructed that opening arguments are not evidence.

¶18 Fedorsha does not show that the prosecutor’s statements
called to the jury’s attention matters it should not have considered nor that
the statements influenced the jurors. The ledger containing names of
Fedorsha’s clients was admitted into evidence for the jury to consider.

5
 STATE v. FEDORSHA
Decision of the Court

Fedorsha was charged with possession for sale and transportation or sale
of fentanyl. As the superior court acknowledged, the fentanyl “epidemic”
is general knowledge heard daily in the news. Additionally, the jury was
instructed on the role that opening arguments play, and jurors are
presumed to follow the court’s instruction. See Vargas, 251 Ariz. at 165 ¶ 17.
The prosecutor’s opening statement in the first trial did not result in
fundamental error, and no such statements were made in the second trial’s
opening statements.

CONCLUSION

¶19 We affirm.

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

6