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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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).
STATE v. ASCHENBRENNER

Decision of the Court

3

¶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.
STATE v. ASCHENBRENNER

Decision of the Court

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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 
STATE v. ASCHENBRENNER

Decision of the Court

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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.
STATE v. ASCHENBRENNER

Decision of the Court

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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.