¶1(dissenting).
¶2I would affirm the judgment and sentence of the trial court and therefore dissent from the majority opinion.
¶3First, in my opinion, there-is substantial evidence in the record to support the embezzlement conviction. Appellant’s counsel, in his opening statement, extensively outlined appellant’s defense to the indictment: that Mr. Stacey gave the appellant the $22,000 check as a part of a business deal involving them both. Then, as a part of the State’s case in-chief, two witnesses testified that the appellant admitted to them that he had obtained Mr. Stacey’s signature on the $22,000 check as a part of appellant’s audit procedure in order for appellant to demonstrate to Mr. Stacey the extremely inadequate internal controls existing within Mr. Stacey’s construction company. After obtaining the check from Mr. Stacey, appellant told these witnesses that he could not bring himself to do what he had intended to do with the check so he used the check and its proceeds for his own purposes. This evidence is, in my opinion, sufficient to support the jury verdict on appeal.
¶4Before passing from this point, I acknowledge that the opening statement of appellant’s counsel is not evidence in the ordinary sense. See Walker v. County of Coconino, 12 Ariz.App. 547, 473 P.2d 472 (1970). However, for some purposes, the opening statement of counsel can take on the character of a judicial admission. See Trollope v. Koerner, 106 Ariz. 10, 470 P.2d 91 (1970). I believe that such a case exists here for appeal purposes, where the appellant did not take the stand in his own defense and presented no defense evidence, but instead relied upon his counsel’s opening statement, in its broad narrative and documentary form, to place his theory of the case, his defense, before the jury in order to create doubt.
¶5Second, regarding the instruction question, appellant failed to comply with Rules 5(b)(10) and 15, Rules of the Supreme Court, A.R.S. 17A, which require that such instruction be set forth in “haec verba in the appendix to the brief”, consequently, the court is not obliged to consider the trial court’s refusal to give appellant’s requested instruction, made subsequent to the court’s instruction of the jury. See State v. Madden, 104 Ariz. 111, 449 P.2d 39 (1969). Furthermore, even reviewing the instruction shows that it was not in proper form or correct at law; consequently, it was not error for the trial court to refuse to give the jury a legally defective instruction. See State v. Denton, 101 Ariz. 455, 420 P.2d 930 (1966). Under the facts of this case, it is my opinion that the trial court did not commit fundamental error in not instructing on the lesser-included offense.