727 P.2d 218 | Utah | 1986
Defendant appeals convictions of theft (U.C.A., 1953, § 76-6-404) and of being a habitual criminal (U.C.A., 1953, § 76-8-1001). The only issue presented on appeal concerns the trial court’s refusal to give the jury a lesser included offense instruction.
Defendant admitted at trial that on August 21, 1985, he took a used Corvette automobile from a dealer’s lot in Ogden, Utah. He placed his own personalized license plates on the vehicle and drove to his hometown in Texas. On September 6, 1985, he was arrested in Kingman, Arizona.
Defendant claims that he intended to use the car only temporarily and that when he was arrested, he was thwarted in his attempt to return the vehicle. At trial, he apparently requested the court to instruct the jury on the lesser included offense of joy riding under U.C.A., 1953, § 41-1-109. The trial court denied the instruction, and defendant took this appeal.
We have repeatedly stated that we will not review the denial of a requested instruction unless it is included in the record. State v. Lairby, 699 P.2d 1187, 1201 (Utah 1984); State v. Knill, 656 P.2d 1026, 1029 (Utah 1982). The record on appeal contains neither the instructions actually given to the jury nor those requested but denied. Because defendant has not included in the record his requested instruction on joy riding, we are precluded from addressing the issue.
There being no other points raised on appeal, defendant’s convictions are affirmed.