STATE of Arizona, Appellant, v. Elizabeth Lee Anne GILL, Appellee.
No. 1 CA-CR 13-0790.
Court of Appeals of Arizona, Division 1.
Aug. 21, 2014.
333 P.3d 36 | 235 Ariz. 418
Presiding Judge JOHN C. GEMMILL delivered the opinion of the Court, in which Judge PETER B. SWANN and Judge PATRICIA A. OROZCO joined.
Yavapai County Attorney’s Office By Dennis M. McGrane, Prescott, for Appellant. C. Kenneth Ray, II, P.C. By C. Kenneth Ray, II, Prescott, for Appellee. Jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(1).
GEMMILL, Judge.
¶ 1 The State of Arizona appeals from an order dismissing without prejudice five counts of third-degree burglary pursuant to
BACKGROUND
¶ 2 While Gill was on felony probation, she was found by a probation officer to be in possession of several letters and checks addressed to numerous individuals who lived on her newspaper delivery route. Gill admitted she took the items out of the victims’ mailboxes.
¶ 3 Gill was charged with one count of aggravated taking the identity of another person or entity, a class three felony, five counts of third-degree burglary, class four felonies, and one count of theft of property holding a value less than $1,000, a class 1 misdemeanor. Gill accepted a plea agreement requiring her to plead guilty to one count of third-degree burglary. The trial court, however, refused to accept the plea agreement because the court did not agree with the State that a mailbox was a “nonresidential structure” as defined in
ANALYSIS
¶ 4 The issue we must decide is whether a mailbox is a “nonresidential structure” as defined by
¶ 5 The legislature has defined third-degree burglary in
Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
(Emphasis added.) “‘Nonresidential structure’ means any structure other than a residential structure and includes a retail establishment.”
[A]ny vending machine or any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.
¶ 6 Regarding the first requirement, we conclude that the qualifying phrase “with sides and a floor” applies only to the antecedent noun “place,” based on the sentence structure in
¶ 7 The trial court ruled that because the bottom of a mailbox is not large enough for a person to stand on, it is not a “place with sides and a floor.” The State challenges this ruling. But we need not decide if a mailbox is a “place with sides and a floor,” however, because a mailbox may be reasonably described as an “object,” thereby satisfying the first requirement of a “structure” under
¶ 8 We further conclude, based on the language and structure of
¶ 9 The parties acknowledge that a mailbox is “separately securable from any other structures attached to it,” as required by the second requirement to be a “structure.” Addressing the third element then, we must evaluate whether a mailbox is “used for lodging, business, transportation, recreation or storage” within the meaning of
¶ 10 Common sense and the plain meaning of “lodging,” “transportation,” and “recreation” indicate that a mailbox is not used for any of these purposes. See State v. Barragan-Sierra, 219 Ariz. 276, 282, ¶ 17, 196 P.3d 879, 885 (App.2008) (employing “a common sense approach” to interpreting statutes). We resolve this issue by concluding that a mailbox is used for “storage.” Accordingly, we do not address whether or under what circumstances a mailbox is used for “business.”
¶ 11 The State asserts that a mailbox “is used for storage of mail until such time as the recipient picks it up.” Gill concedes that a mailbox could be used for storage, but only in a “temporary” sense. We have considered this court’s opinion in State v. Mann, 129 Ariz. 24, 628 P.2d 61 (App.1981), which held that a Salvation Army “collection box,” the contents of which were picked up approximately every 36 hours, was a nonresidential structure. The Mann court did not analyze
¶ 12 We agree with the State that a mailbox is used for “storage” of outgoing mail awaiting pickup by the mail carrier and of incoming mail until it is retrieved by the intended recipient. Additionally, the items taken by Gill out of the mailboxes were not in the midst of a “transitory period” such as “loading and unloading” as in Jones. In our view, this case is more akin to Mann, in which mail delivered to a mailbox is “stored” until the intended recipient removes it from the mailbox. Moreover, the ordinary meaning of the term “storage” does not indicate that a thing must be in storage for a specific amount of time before it can be considered “stored” or “in storage.” See The New Oxford American Dictionary 1671 (2d ed.2005) (defining “storage” as “the action or method of storing something for future use”). For these reasons, a mailbox is used for “storage.”
¶ 13 Although we resolve this appeal by interpreting the language of the applicable statutes, we have considered whether unlawful entry of a mailbox constitutes traditional burglary. The trial court, before dismissing the burglary charges against Gill, drew a distinction between burglary and theft, suggesting that the act at issue here was more appropriately described as theft. The trial court’s distinction is not without historical merit—“entering” a mailbox appears substantially beyond the scope of burglary as understood at common law. See Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L.Rev. 629, 633-34 (2012) (observing that burglary initially focused on the breaking and entering of a dwelling with the intent to commit a crime). Nevertheless, modern definitions of burglary, as reflected in various states’ statutes, have considerably broadened the range of acts that may constitute burglary. See generally Minturn T. Wright III, Statutory Burglary—The Magic of Four Walls and a Roof 100 U. Pa. L.Rev. 411, 414-24 (1951) (tracing the development of burglary in moving away from focusing on common law elements such as “breaking” and “dwelling”). Arizona has embraced this conceptual broadening of burglary by enacting statutes such as
¶ 14 It is squarely within the legislature’s authority to define crimes and set penalties. See State v. Casey, 205 Ariz. 359, 362, ¶ 10, 71 P.3d 351, 354 (2003) (citations omitted) (superseded by statute on other grounds); State v. Jackson, 186 Ariz. 490, 491, 924 P.2d 494, 495 (App.1996) (“The authority to define crimes and fix the penalties for such crimes rests with the legislature, not the judiciary.”). Furthermore, we note that the third-degree burglary offenses alleged against Gill, if proven, involve an infringement of the victims’ privacy. Therefore, despite the logical distinction between theft and burglary identified by the trial court, we defer to the legislature’s policy judgment expanding the scope of the offense of burglary, and we base our interpretation on the words and sentences enacted by the legislature. See State v. Berger, 212 Ariz. 473, 476, ¶ 13, 134 P.3d 378, 381 (2006) (noting that “courts must accord substantial deference to the legislature and its policy judgments” in analyzing sentencing statutes); State v. Wagstaff, 164 Ariz. 485, 490, 794 P.2d 118, 123 (1990) (affirming that “statutory language is
CONCLUSION
¶ 15 We hold that, for the purposes of third-degree burglary, a mailbox meets the definition of “nonresidential structure” under