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Improperly requested jury instruction not considered on appeal

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The Arizona Court of Appeals recently issued a published opinion in the matter of State of Arizona v. Tracie Renee Geeslin. Ms. Geeslin was convicted at trial of a number of felony offenses including theft of means of transportation. During trial, Ms. Gesslin requested that the jury be permitted to consider the less serious crime of unlawful use of means of transportation. On appeal, she challenged the trial court’s rejection of that request.In its decision the Arizona Court of Appeals essentially held that, although it implicitly agreed with Ms. Geeslin that the jury should have been allowed to consider the less serious offense, the issue had not been properly raised during trial and therefore could not be considered on appeal. Specifically, Ms. Gesslin’s attorney apparently made the request to the judge and the prosecutor in an informal email and neglected to follow up by filing a formal motion with the court. Because emails of this nature are not considered part of the court’s official record, the request was treated by the court of appeals as if it was never made. Like most issues on appeal, a request for a specific jury instruction must be formally made during the course of trial in order for issue to be addressed on appeal.

This Court of Appeals decision underscores that the importance of “protecting the record” cannot be overstated. Because the defense attorney did not incorporate the request into the official court record, Ms. Gesslin forever lost the opportunity to raise that issue on appeal. Regardless of how strong her argument was that the court should have granted the request, the Court of Appeals would not even consider the issue.

While Geeslin
persuasively argues that unlawful use pursuant to A.R.S. § 13-
1803 (2001) is a lesser included offense of theft of means of
transportation pursuant to A.R.S. § 13-1814(A)(5), and that the
trial court should have given the lesser included instruction,
we are unable to address the issue. The record does not contain
the requested jury instruction and we will not find that a trial
court erred in failing to give an instruction that we cannot

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Categories : Criminal Law
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