State v. Geeslin

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0205-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 06-0314
TRACIE RENEE GEESLIN, aka TRACI )
RENEE FERNANDEZ-GEESLIN, ) Maricopa County
) Superior Court
Appellant. ) No. CR2003-025483-002 DT
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Brian R. Hauser, Judge

Opinion of the Court of Appeals, Division One
221 Ariz. 574, 212 P.3d 912(2009)

VACATED IN PART AND REMANDED

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Michael T. O'Toole, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Attorneys for Tracie Renee Geeslin
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 In this case, the court of appeals declined to

consider whether the trial court erred in refusing to instruct
the jury on a necessarily included offense. We conclude that

the court of appeals should have addressed the issue.

I.

¶2 Tracie Geeslin was arrested after placing shoplifted

items into a stolen car. She was charged with several crimes,

including theft of a means of transportation in violation of

A.R.S. § 13-1814(A)(5) (2001). At trial, Geeslin requested that

the jury also be instructed on unlawful use of a means of

transportation. See A.R.S. § 13-1803(A) (2001). The court

denied that request, and Geeslin was convicted on all counts

charged.

¶3 The court of appeals affirmed Geeslin’s convictions,

but remanded for further sentencing proceedings. State v.

Geeslin, 221 Ariz. 574, 579 ¶ 20, 212 P.3d 912, 917 (App. 2009).

That court refused to consider Geeslin’s argument that the

unlawful use instruction should have been given. Id. at 577

¶ 7, 212 P.3d at 915. Noting that the record on appeal did not

contain Geeslin’s requested instruction, the court of appeals

presumed that the missing record supported the trial court’s

decision. Id. at 577 ¶¶ 7, 9, 212 P.3d at 915.

¶4 We granted review because appellate review of a trial

court’s rulings regarding jury instructions is a recurring issue

of statewide importance. We have jurisdiction pursuant to

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Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

§ 12-120.24 (2003).

II.

¶5 An appellant bears the burden of proving trial error.

See State v. Diaz, ___ Ariz. ___, ___ ¶¶ 13, 16, ___ P.3d ___,

___ (2010). “It is the duty of counsel who raise objections on

appeal to see that the record . . . contains the material to

which they take exception.” State v. Zuck, 134 Ariz. 509, 512-

13, 658 P.2d 162, 165-66 (1982). When “matters are not included

in the record on appeal, the missing portions of the record will

be presumed to support the action of the trial court.” Id. at

513, 658 P.2d at 166; see also State v. Lujan, 124 Ariz. 365,

370, 604 P.2d 629, 634 (1979) (refusing to “speculate as to

[the] exact content” of a requested instruction not in the

record).

¶6 We do not retreat from the general rule announced in

Zuck. Under the circumstances of this case, however, we find

that defense counsel’s failure to make an appropriate record did

not preclude appellate review of the claimed error.

¶7 “If requested to do so and the evidence supports it,

the trial judge must . . . instruct the jurors on all offenses

‘necessarily included’ in the offense charged.” State v. Wall,

212 Ariz. 1, 3 ¶ 13, 126 P.3d 148, 150 (2006). Determining

whether one offense is necessarily included within another
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involves a two-step inquiry. The first question is whether the

uncharged offense is a “lesser-included” offense of the charged

crime. A lesser-included offense is “composed solely of some

but not all of the elements of the greater crime so that it is

impossible to have committed the crime charged without having

committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251,

660 P.2d 849, 852 (1983). The second question is whether the

evidence is “such that a jury could reasonably find that only

the elements of a lesser offense have been proved.” Wall, 212

Ariz. at 3 ¶ 14, 126 P.3d at 150.

¶8 The trial judge in this case carefully explained why

he refused to give the requested instruction. He did not base

that decision on any defect in the proposed instruction.

Rather, the judge concluded that theft of a means of

transportation can be committed under § 13-1814(A)(5) without

also committing unlawful use under § 13-1803(A), and the latter

therefore did not qualify as a lesser-included offense.

¶9 Whether one offense is included within another is an

issue of statutory construction, Celaya, 135 Ariz. at 252, 660

P.2d at 853, which an appellate court reviews de novo, In re

James P., 214 Ariz. 420, 423 ¶ 12, 153 P.3d 1049, 1052 (App.

2007). The court of appeals did not need the missing

instruction to determine whether the trial court erred in

concluding that unlawful use under § 13-1803(A) is not a lesser-
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included offense of theft of a means of transportation under

§ 13-1814(A)(5). The record on appeal, which contained the

trial transcript and all exhibits, also provided the court of

appeals with everything necessary to determine whether the

evidence warranted the requested instruction. See State v.

Dugan, 125 Ariz. 194, 196, 608 P.2d 771, 773 (1980) (reviewing

the record on appeal to determine whether evidence supported

necessarily included offense instruction).

¶10 In short, given the express basis of the trial judge’s

ruling, the missing portion of the record was not necessary for

full appellate review of Geeslin’s claim that an instruction

under § 13-1803(A) should have been given. The court of appeals

should have addressed this argument on its merits.

III.

¶11 For the reasons above, we vacate ¶¶ 7-9 of court of

appeals’ opinion, and remand for further proceedings consistent

with this opinion.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

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_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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