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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MICHAEL ANTHONY ASTON, Appellant.

                             No. 1 CA-CR 18-0146
                               FILED 8-13-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-002929-001
                     The Honorable John Rea, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Heath Law Firm, PLLC, Mesa
By Mark Heath
Counsel for Appellant
                            STATE v. ASTON
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P E R K I N S, Judge:

¶1            Michael Anthony Aston appeals his convictions and
sentences for two counts of first-degree burglary and two counts of first-
degree murder in the deaths of K.L. and M.E. Aston argues that the trial
court erred by permitting the State to impeach a witness with prior
inconsistent statements when the witness appeared to have difficulty
remembering those statements. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            We view the facts in the light most favorable to upholding the
jury’s verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). On November
9, 2015, a neighbor discovered K.L. and M.E. bleeding from gunshot
wounds on the patio of their apartment. K.L. was shot twice, once through
the arm and once in the torso, and died a few hours later during surgery.
Police identified Aston as the shooter and Arnez Gonzales, the brother of
Aston’s girlfriend, as an accomplice.

¶3            Before Aston’s and Gonzales’s arrests, police interviewed
Parker McKinsey and Adam Plotner. Both told police that on November 9,
2015, they were playing video games with Aston and Gonzales in
Gonzales’s apartment when someone suggested that they get some
marijuana. The group went to a nearby apartment complex where Aston
and Gonzales continued inside, while McKinsey and Plotner stayed behind
and waited. At some point, McKinsey and Plotner heard gunshots. A few
minutes later, Gonzales returned alone, urging McKinsey and Plotner to
leave. The three returned to Gonzales’s apartment and Aston arrived a few
minutes later and stated, “I fucked up.”

¶4            A grand jury indicted Aston and Gonzales for first-degree
burglary and first-degree murder in the deaths of K.L. and M.E. The court
severed their cases before trial and the State first proceeded with Aston’s
trial. McKinsey testified to smoking marijuana and Percocet sometime after
midnight before coming to court. He also admitted to being high on the day



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                             STATE v. ASTON
                            Decision of the Court

of the murders and to using marijuana daily in November 2015. McKinsey
testified that at the time of his October 2017 defense interview with the
attorneys he was in recovery and “trying to stay clean and sober.”

¶5           After an eight-day trial, the jury found Aston guilty on all
counts. The trial judge sentenced Aston to concurrent 10.5-year terms for
each burglary count and natural life for each count of first-degree murder.
Aston now appeals.

                               DISCUSSION

¶6               Aston argues the trial court improperly admitted three
pretrial statements from McKinsey as prior inconsistent statements. We
review the admission of the first two statements for an abuse of discretion,
State v. Hausner, 230 Ariz. 60, 76, ¶ 58 (2012), but we review admission of
the third statement for fundamental error because Aston never objected at
trial, State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). Aston further argues
the court erred in allowing testimony from admitted drug users, as they
cannot be reliable witnesses, and that the admission of hearsay evidence
violates his right to confront witnesses against him. We review questions of
constitutional interpretation de novo. Hausner, 230 Ariz. at 70, ¶ 23.

   I.     McKinsey’s Prior Inconsistent Statements

¶7              Aston contests the admission of three prior statements from
McKinsey. On November 23, 2015, Scottsdale Police Detective Anthony
Jones interviewed McKinsey and the State later introduced two statements
from this interview at trial to impeach McKinsey. The prosecutor and
defense attorney also interviewed McKinsey in October 2017 and McKinsey
testified at trial about a statement he made during that interview. Aston
challenges each of these prior statements as improperly admitted hearsay.

¶8             The first statement concerned when McKinsey last saw
Gonzales with a pistol. At trial, McKinsey testified that he saw Gonzales
with a pistol “way before [the shooting],” or “more than six” months before.
In follow up, the State asked if McKinsey remembered telling Detective
Jones that he last saw Gonzales with a pistol two months before the
shooting, and McKinsey testified he did not remember.

¶9           The second prior statement concerned how many gunshots
McKinsey heard. At trial, McKinsey testified that he had “no idea” how
many gunshots he heard. When confronted with his statement to Detective
Jones that he heard two gunshots, McKinsey responded, “I don’t recall
that.”


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                            STATE v. ASTON
                           Decision of the Court

¶10            McKinsey’s third inconsistent statement addressed whether
he saw Aston with a pistol when Aston returned to Gonzales’s apartment.
During a defense interview in October 2017, McKinsey said that he saw
Aston with a pistol tucked into his waistband when Aston returned to
Gonzales’s apartment. At trial, McKinsey said he remembered telling the
attorneys about the pistol but could no longer remember if Aston really had
a pistol in his waistband. The State did not introduce an audio clip of the
October interview or another witness to impeach McKinsey. Instead,
McKinsey testified about his own prior statement in response to the State’s
questioning.

¶11           A prior out-of-court statement is not hearsay when “[t]he
declarant testifies and is subject to cross-examination about a prior
statement, and the statement is inconsistent with the declarant’s
testimony.” Ariz. R. Evid. 801(d)(1)(A). Actual memory loss, as compared
to feigned memory loss, does not render a prior statement “inconsistent.”
State v. Just, 138 Ariz. 534, 544 (App. 1983). Thus, prior out-of-court
statements are not admissible under Rule 801(d)(1)(A) when the witness is
actually unable to remember them. Id. The trial court “has considerable
discretion in determining whether a witness’s evasive answers or lack of
recollection may be considered inconsistent with that witness’s prior out-
of-court statements.” State v. Salazar, 216 Ariz. 316, 319, ¶ 15 (App. 2007).

¶12          Aston argues that the trial court erred by admitting all three
statements because McKinsey’s memory loss was due to drug use and thus
genuine, not feigned. The court had broad discretion in determining that
McKinsey’s memory loss was feigned. Id.

¶13           The trial court did not abuse its discretion in admitting
McKinsey’s statements as prior inconsistent statements. Though the court
did not detail its reasoning in admitting each of McKinsey’s statements, the
record contains ample evidence to support that McKinsey feigned his
memory loss. McKinsey testified that he could remember that Gonzales and
Aston were in Gonzales’s apartment on November 6 and that he specifically
remembered smoking marijuana that day. Though McKinsey initially
claimed he could not remember who suggested leaving the apartment to
“go get some weed,” he later conceded it was either Gonzales or Aston.
McKinsey went on to testify about specific details from that night in
November 2015 but claimed he could not recall details once Aston returned
to Gonzales’s apartment and could not recall his interview with police two
weeks after the shooting. McKinsey insisted he could not remember seeing
or hearing Gonzales jump a wall at the victims’ apartment complex but on
further questioning admitted he heard Gonzales jump the wall. From


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                            STATE v. ASTON
                           Decision of the Court

McKinsey’s shifting recollection and evasive answers, the court could
conclude McKinsey was feigning his memory loss. Thus, the court did not
err in admitting McKinsey’s three statements as prior inconsistent
statements under Rule 801(d)(1)(A). See Just, 138 Ariz. at 544; Salazar, 216
Ariz. at 319, ¶15.

   II.    Additional Issues

¶14           Aston contends the court violated his confrontation rights by
admitting McKinsey’s prior inconsistent out-of-court statements at trial.
But Arizona law firmly establishes that his rights were not violated because
McKinsey and the detective who interviewed him both testified and were
subject to cross examination. See State v. King, 180 Ariz. 268, 276 (1994)
(holding that the confrontation clause is satisfied when the hearsay
declarant is subject to cross-examination).

¶15           Aston also argues that the trial court erred by finding
McKinsey and Plotner, who also admitted to substantial drug use,
competent to testify despite their history of drug abuse and drug use before
trial. But the Arizona Supreme Court has rejected this very argument,
holding that witnesses under the influence of drugs, or with a history of
drug use, are not automatically incompetent to testify. State v. Moore, 222
Ariz. 1, 11–12, ¶¶ 46, 48 (2009). “[W]e are bound by decisions of the Arizona
Supreme Court and have no authority to overrule, modify, or disregard
them” and we therefore reject these arguments. Myers v. Reeb, 190 Ariz. 341,
342 (App. 1997) (alteration in original).

                              CONCLUSION

¶16          We affirm Aston’s convictions and sentences.




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




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