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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ANDREW ASCHENBRENNER, Appellant.

                             No. 1 CA-CR 16-0325
                               FILED 7-6-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-426135-001 DT
                 The Honorable Pamela S. Gates, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                       STATE v. ASCHENBRENNER
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


C R U Z, Judge:

¶1           Appellant Andrew Aschenbrenner challenges his conviction
and sentence for second degree murder.

               FACTUAL AND PROCEDURAL HISTORY1

¶2           In June 2013, Aschenbrenner’s younger brother, Randy, and
several of Randy’s friends were involved in a fight with victim D.H. and
D.H.’s friends. At some point the fight ended and the two groups
separated. Later, one of Randy’s friends called Aschenbrenner for support.
Aschenbrenner arrived and confronted D.H. and his friends. D.H. and
Aschenbrenner began to fight, and eventually D.H. collapsed. D.H. had
sustained fatal stab wounds.         While D.H. was on the ground,
Aschenbrenner kicked him.

¶3           As Aschenbrenner and D.H. fought, several other members of
the group were also fighting among themselves, stopping only when they
noticed D.H. making a loud noise as if he were gasping for air.

¶4            Once D.H. was on the ground, Aschenbrenner, Randy, and
Randy’s friends began to leave the scene, but Aschenbrenner and Randy’s
friend, Eric Leinberger, returned for Aschenbrenner’s knife; however, they
could not locate it. Both Aschenbrenner and Leinberger were arrested as
they began to walk away from the scene. D.H. later died of the stab wounds
to his chest and abdomen. Aschenbrenner’s knife was recovered from
D.H.’s body.




1      “We view the facts in the light most favorable to sustaining the
verdicts.” State v. Dixon, 226 Ariz. 545, 548 n.2, 250 P.3d 1174, 1177 n.2 (2011)
(internal quotations and citation omitted).



                                       2
                      STATE v. ASCHENBRENNER
                         Decision of the Court

¶5             A grand jury indicted Aschenbrenner for first degree murder,
a Class 1 dangerous felony. Ariz. Rev. Stat. (“A.R.S.”) § 13-1105.2 The State
later alleged the aggravating circumstances of causing physical, emotional,
or financial harm to the victim’s immediate family. A.R.S. § 13-701(D)(9).

¶6           At trial, witness Stephanie Davis made conflicting statements
about whether: (1) Aschenbrenner threatened to stab D.H. or merely stated
he had a knife; (2) she saw Aschenbrenner stab D.H.; (3) she saw a knife in
D.H.’s hand; (4) Aschenbrenner was kicking D.H. alone or if Randy and
Randy’s friends joined in; and (5) Leinberger was standing next to D.H.
when D.H. collapsed.

¶7           Witness Megan Maestas made conflicting statements about
whether: (1) she saw a knife in Aschenbrenner’s hand; (2) Aschenbrenner
was the only person fighting with D.H. before D.H. collapsed; and (3)
Aschenbrenner was kicking D.H. alone or if Randy and Randy’s friends
joined in.

¶8             On direct examination, Maestas and Davis testified about
their recollections of the confrontation.        During cross-examination,
Aschenbrenner elicited prior inconsistent statements made by Maestas and
Davis, and the State sought to rehabilitate them with their prior consistent
statements. To rehabilitate Maestas during redirect examination, the State
asked whether Maestas had previously told police “that when [D.H.] went
down to the ground [Aschenbrenner] was the only one fighting with him,”
and Aschenbrenner objected that the State was “[m]isstating what was said
. . . .” Aschenbrenner sought to have part of an audio recording of Maestas’
police interview played for the jury pursuant to Arizona Rule of Evidence
(“Rule”) 106.3     After listening to the recording, the court denied
Aschenbrenner’s request because Maestas admitted to the prior
inconsistent statements during cross-examination.

¶9          During redirect examination of Davis, the State asked
whether Davis told police “that [she was] diverted to [Maestas] who
wanted to intervene after [Aschenbrenner] had displayed the knife.”


2     We cite the current version of the relevant statutes unless revisions
material to this decision have occurred since the events in question.

3      “If a party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of any other
part--or any other writing or recorded statement--that in fairness ought to
be considered at the same time.” Ariz. R. Evid. 106.


                                     3
                      STATE v. ASCHENBRENNER
                         Decision of the Court

Aschenbrenner objected, asserting the State was misstating the evidence.
Aschenbrenner offered to play the recording, but it was not admitted or
played for the jury. The court initially sustained Aschenbrenner’s objection,
but later allowed the State to rephrase the question to avoid
mischaracterizing what Davis had previously told police. No audio
recordings of either Maestas’ or Davis’ interviews were played for the jury.

¶10           A jury found Aschenbrenner guilty of the lesser-included
offense of second degree murder and found the State proved the alleged
aggravating factor beyond a reasonable doubt. The superior court
sentenced Aschenbrenner to eighteen years’ imprisonment, crediting him
1056 days of presentence incarceration. Aschenbrenner filed a motion for
new trial, arguing the court erred by failing to admit portions of audio and
video statements of witnesses Maestas and Davis to place their respective
statements in the proper context. The court denied the motion.

¶11          Aschenbrenner timely appealed. We have jurisdiction
pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

                               DISCUSSION

¶12            Aschenbrenner asserts the court erred by: (1) denying his
request to play portions of the recorded statements of eyewitnesses after
the State introduced statements that he claims were misleading to the jury;
and (2) crediting him with only 1056 days of presentence incarceration
when he was entitled to 1058. The State concedes Aschenbrenner is entitled
to 1058 days of presentence incarceration credit, and we therefore modify
the court’s sentence to reflect 1058 days of presentence incarceration credit
and address Aschenbrenner’s remaining arguments.

¶13            We review evidentiary rulings for abuse of discretion. State
v. Steinle, 239 Ariz. 415, 417, ¶ 6, 372 P.3d 939, 941 (2016). However, if a
claim is raised for the first time on appeal, we review only for fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).

¶14           As an initial matter, Aschenbrenner’s argument that he
should have been allowed to introduce a portion of witness Maestas’
recorded police interview under Rule 106 fails. Maestas admitted making
the prior inconsistent statements, therefore no further impeachment was
necessary and the trial court properly barred the recording, which was




                                      4
                      STATE v. ASCHENBRENNER
                         Decision of the Court

cumulative as to the same facts.4 Accordingly, the court did not abuse its
discretion in denying Aschenbrenner’s request to admit Maestas’ recorded
interview.

¶15            Aschenbrenner next argues he should have been allowed to
introduce a portion of witness Davis’ recorded police interview pursuant to
Rule 106. However, Aschenbrenner did not raise this issue until his motion
for new trial, therefore this claim is subject only to fundamental error
review.5 State v. Spreitz, 190 Ariz. 129, 145, 945 P.2d 1260, 1276 (1997)
(stating objection on one ground does not preserve a different evidentiary
theory presented for the first time on appeal); State v. Larin, 233 Ariz. 202,
208, ¶ 14, 310 P.3d 990, 996 (App. 2013) (“By failing to timely raise an issue
at trial, . . . the defendant waives the right to seek relief for all but
fundamental, prejudicial error.”). Aschenbrenner does not argue the
court’s failure to admit Davis’ recorded police interview was fundamental
error, nor that the error was prejudicial. Therefore, he has waived the
argument. State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17, 185 P.3d 135,
140 (App. 2008) (holding that because appellant failed to argue alleged error
was fundamental, the argument was waived).




4      “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Ariz. R.
Evid. 403.

5     Aschenbrenner did object at trial to the State misstating the record,
however, the only reference to defense counsel “[having] the statement”
was for the judge to hear. No argument was made that the statement
should be played for the jury to provide completeness under Rule 106.


                                      5
                   STATE v. ASCHENBRENNER
                      Decision of the Court

                          CONCLUSION

¶16          For the foregoing reasons, we affirm Aschenbrenner’s
conviction but modify the court’s sentence to reflect 1058 days of
presentence incarceration credit.




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




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