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
2
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
3
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-
4
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
5
_____________________________________
Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
6