                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                           JOANN BON,
                            Appellant.

                     No. 2 CA-CR 2014-0054
                     Filed November 28, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20123968001
                The Honorable Scott Rash, Judge

                           AFFIRMED


                           COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise and Travis K. Ausland, Assistant Public Defenders,
Tucson
Counsel for Appellant
                          STATE v. BON
                        Opinion of the Court


                             OPINION

Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Howard concurred.


V Á S Q U E Z, Judge:

¶1           After a jury trial, Joann Bon was convicted of third-
degree burglary, theft of property having a value of $1,000 or more
but less than $2,000, and possession of drug paraphernalia. The trial
court sentenced her to concurrent prison terms, the longest of which
was three years, followed by a three-year term of probation. In this
appeal, we are asked to determine whether the act of removing
property from the open bed of a pickup truck constitutes entry of a
structure under our burglary statutes. For the reasons that follow,
we conclude it does and therefore affirm.

                Factual and Procedural Background

¶2           “We view the facts and all reasonable inferences
therefrom in the light most favorable to upholding the verdicts.”
State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). In
October 2012, two men working for a satellite television company
drove to an apartment complex to install a satellite dish. They left
their pickup truck in the parking lot and walked to the customer’s
building for an initial inspection of the site. When they returned, the
men found Bon standing on the far side of the truck, reaching into
its bed. As they approached, the men saw Bon holding a tool belt in
her hand. They later discovered she had removed their “tools,
hammer drill, impact gun, satellite meter, charger, [and] batteries”
from the bed of the truck. The men detained Bon and called 9-1-1.
Responding police officers found two crack pipes and a hypodermic
needle in Bon’s possession during a search following her arrest.

¶3           A grand jury indicted Bon for third-degree burglary,
theft of property or services with a value of $2,000 or more but less
than $3,000, and possession of drug paraphernalia. At the close of
evidence at trial, Bon moved for a judgment of acquittal on the


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                           STATE v. BON
                         Opinion of the Court

burglary charge pursuant to Rule 20(a), Ariz. R. Crim. P., arguing
that the truck bed did not meet the statutory definition of a structure
and that her actions did not amount to entry of a structure. The trial
court denied the motion and later instructed the jury that “a vehicle
includes the bed of a pickup truck, and a vehicle is a structure.”

¶4           The jury found Bon guilty on all counts but determined
that the tools and equipment had a value of $1,000 or more but less
than $2,000. The trial court sentenced her as described above, and
this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

                               Burglary

¶5            Bon argues “the trial court erred in ruling that the
unsecured, open-air bed of a pickup truck is a structure” within the
meaning of A.R.S. §§ 13-1501(12) and 13-1506. She also suggests that
the act of reaching into a truck bed does not constitute an “entry” of
a structure as defined by § 13-1501(3). We review the denial of a
Rule 20 motion, as well as issues of statutory interpretation, de novo.
See State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011); State
v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003).

¶6            “Our primary purpose in interpreting a statute is to
give effect to the legislature’s intent.” State v. Hinden, 224 Ariz. 508,
¶ 9, 233 P.3d 621, 623 (App. 2010). “‘We look first to the statute’s
language because we expect it to be the best and most reliable index
of a statute’s meaning.’” Id., quoting State v. Williams, 175 Ariz. 98,
100, 854 P.2d 131, 133 (1993). And, “[i]f statutory terms are defined,
we apply that definition; otherwise, we interpret statutory terms ‘in
accordance with their commonly accepted meanings.’” State v.
Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d 1174, 1178 (App. 2000), quoting
State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992).
“[T]here is no need to resort to other methods of statutory
interpretation to determine the legislature’s intent” if the statute’s
language is unambiguous. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d at
1243.

¶7          A person commits third-degree burglary by “[e]ntering
or remaining unlawfully in or on a nonresidential structure . . . with


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                           STATE v. BON
                         Opinion of the Court

the intent to commit any theft or any felony therein.” § 13-
1506(A)(1). Our legislature has provided several definitions to guide
our interpretation of § 13-1506. See Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d
at 1178. “Entry” is “the intrusion of . . . any part of a person’s body
inside the external boundaries of a structure.” § 13-1501(3). A
“structure” can include “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.” § 13-1501(12). And, a
“vehicle” is “a device in, upon or by which any person or property is
. . . transported or drawn upon a highway.” A.R.S. § 13-105(41).

¶8           When discussing burglary of a truck in State v.
Zinsmeyer, this court suggested a truck’s cabin was included in the
statutory definition of “vehicle,” concluding “a truck is plainly a
vehicle” and “the legislature must have intended third-degree
burglary to include burglary of a truck.” 222 Ariz. 612, ¶ 29, 218
P.3d 1069, 1081 (App. 2009), overruled on other grounds by State v.
Bonfiglio, 231 Ariz. 371, ¶¶ 6, 15, 295 P.3d 948, 950-51 (2013). The
facts of this case do not lead us to a different result. Under the
statute’s plain language, the bed of the truck—upon which
“property is . . . transported or drawn,” § 13-105(41)—is a part of the
vehicle and is therefore a part of that structure, see § 13-1501(12).
And, the act of reaching into a truck bed amounts to an intrusion
beyond the external boundaries of that structure. See § 13-1501(3);
Christian, 205 Ariz. 64, ¶ 6, 66 P.3d at 1243.

¶9           Bon nevertheless argues burglary must be limited to
spaces that are securable, such as the cabin of a truck. We disagree.
This court recently parsed the language of § 13-1501(12) in State v.
Gill:

             [A] “structure” for these purposes must
             satisfy three requirements: the structure
             must be (1) “any vending machine or any
             building, object, vehicle, railroad car or
             place with sides and a floor” that is
             (2) “separately securable from any other
             structure attached to it” and (3) “used for



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                          STATE v. BON
                        Opinion of the Court

             lodging,       business,     transportation,
             recreation or storage.”

235 Ariz. 418, ¶ 5, 333 P.3d 36, 37 (App. 2014). We explained that the
second element represents “words of limitation on the scope of those
options described in the first requirement.” Id. ¶ 8.

¶10          As it relates to a vehicle, the second requirement applies
only to other structures that may be attached to the vehicle. In this
case, however, the truck bed was not an independent structure, but
a part of the vehicle itself. See § 13-1501(12). Consequently, it is
immaterial whether the bed was separately securable. And, in any
event, Bon’s argument essentially asks us to apply only the initial
portion of this limitation: “separately securable.” But we must read
the words of the second requirement as a whole. See Gill, 235 Ariz.
418, ¶ 6, 333 P.3d at 37-38 (“last antecedent rule” requires qualifying
phrase to be “applied to the word or phrase immediately preceding
it”). Thus, § 13-1501(12) does not require that all parts of a single
structure be “securable.” Rather, the second requirement applies to
two “separately securable” structures that are attached. See State v.
Gardella, 156 Ariz. 340, 341-42, 751 P.2d 1000, 1001-02 (App. 1988)
(resolving “conceptual problems” created by this distinction). In
other contexts, this requirement has helped distinguish between
residential and commercial structures found within or attached to
another structure. Id. (laundry room within hotel); see also State v.
Ekmanis, 183 Ariz. 180, 182-83, 901 P.2d 1210, 1212-13 (App. 1995)
(storage room attached to residence).

¶11         Bon also argues a truck bed cannot be burglarized
because § 13-1501(12) does not expressly list the “parts of the vehicle
as prohibited space.” She relies on a decision by the New Mexico
Supreme Court rejecting a lower court’s application of the plain
meaning of “vehicle” in the context of a truck bed burglary.1 State v.



      1New  Mexico’s burglary statute states: “Burglary consists of
the unauthorized entry of any vehicle . . . or other structure,
movable or immovable, with the intent to commit any felony or theft
therein.” N.M. Stat. § 30-16-3.


                                   5
                            STATE v. BON
                          Opinion of the Court

Office of Public Defender ex rel. Muqqddin, 285 P.3d 622, ¶¶ 37-38
(N.M. 2012). The court reasoned:

             By giving the term “vehicle” its plain
             meaning, the meaning of the statute as a
             whole [becomes] far from customary. For
             example, if an ordinary person were told to
             “enter” a pickup, he or she would find a
             seat in the passenger compartment, not lay
             down in the bed of the pickup.

Id. ¶ 38. The court also noted that, unlike New Mexico, other
jurisdictions explicitly include “‘any part of a vehicle,’” id. ¶ 37,
quoting Tex. Penal Code Ann. § 30.04 (Vernon 2007), or “‘any part
thereof,’” id. ¶ 37, quoting 720 Ill. Comp. Stat. 5/19-1 (2010), in their
burglary statutes. And, the court explained that, without similar
language to clarify the New Mexico legislature’s intent, the court
would not resort to the “‘beguiling simplicity’” of a plain-language
interpretation. Id. ¶ 38, quoting State ex rel. Helman v. Gallegos, 871
P.2d 1352, ¶ 23 (N.M. 1994).

¶12          Bon’s reliance on Muqqddin is unavailing. First, as the
state points out, unlike other jurisdictions, our legislature has
provided a statutory definition of “entry.” See § 13-1501(3). And,
entry is not limited to those spaces a person might occupy. See
Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d at 623. Moreover, we disagree
that the plain meaning of this definition would lead to absurd
results such that we must disregard it. See State v. Wagstaff, 164 Ariz.
485, 490, 794 P.2d 118, 123 (1990) (plain language applies “unless
impossible or absurd consequences would result”). Second, we can
glean no legislative intent from the absence of a list of vehicle parts
in the definition of structure. See § 13-1501(12). Here, § 13-1501(12)
simply states “vehicle” without distinguishing any of its constituent
parts. Thus, we are bound to apply the plain meaning of “vehicle”
without resorting to other methods of statutory construction. See
Christian, 205 Ariz. 64, ¶ 6, 66 P.3d at 1243; Petrak, 198 Ariz. 260, ¶ 10,
8 P.3d at 1178.

¶13        Lastly, Bon suggests her actions did not result in an
“entry” of the structure. She notes that the phrase “external


                                    6
                            STATE v. BON
                          Opinion of the Court

boundaries” lacks a definition and argues the rule of lenity requires
that we resolve that ambiguity in her favor. The rule of lenity,
however, is a construction principle of last resort. See State v.
Sanchez, 209 Ariz. 66, ¶ 6, 97 P.3d 891, 893 (App. 2004). We only
resolve ambiguity in favor of a defendant if the statutory language is
unclear and other forms of statutory construction have failed to
reveal the legislature’s intent. See State v. Fell, 203 Ariz. 186, ¶ 10, 52
P.3d 218, 221 (App. 2002).

¶14            Moreover, we disagree that the phrase “external
boundaries” is ambiguous under the facts of this case. 2 A
“boundary” in this context marks the distinct periphery of a
structure specified in § 13-1506(A). See Webster’s Third New Int’l
Dictionary 260 (1971) (defining boundary as “something that
indicates or fixes a limit or extent: something that marks a bound
(as of a territory or a playing field): a bounding or separating line”).
Although the term is most often used in the context of real property,
it also applies here. The sides of the truck bed indicate the external
boundary of that part of the vehicle. And, reaching into the truck
bed amounts to an entry. See § 13-1501(3); Hinden, 224 Ariz. 508, ¶ 9,
233 P.3d at 623.




      2Bon  also cites State v. Hamblin, 217 Ariz. 481, ¶ 14, 176 P.3d
49, 53 (App. 2008), to argue that the statutory language is
ambiguous. The portion of that case on which she relies interprets
§ 13-1506(A)(2), which concerns burglary of a vehicle using a
manipulation or master key. Hamblin, 217 Ariz. 481, ¶ 14, 176 P.3d
at 53. We stated that under that subsection, “jurors would not have
to decide if the truck or storage area of a motor vehicle fell within
the definition of ‘structure,’” because the subsection expressly
includes “‘any part of a motor vehicle.’” Id., quoting § 13-1506(A)(2).

      As Bon acknowledges, however, “the addition of . . . § 13-
1506(A)(2) neither expands or limits subsection (A)(1).” And,
because the present issue was not before the court in Hamblin, the
reference to subsection (A)(1) was dictum. See State v. Altamirano,
166 Ariz. 432, 435, 803 P.2d 425, 428 (App. 1990).


                                    7
                         STATE v. BON
                       Opinion of the Court

¶15          In sum, the truck in this case, including its bed, is a
structure pursuant to § 13-1501(12). The evidence established that
Bon reached inside the truck bed to remove tools and other
equipment from the vehicle. See §§ 13-1501(3), 13-1506(A)(1).
Therefore, the trial court did not err in denying Bon’s motion for a
judgment of acquittal on the charge of burglary. See West, 226 Ariz.
559, ¶ 15, 250 P.3d at 1191.

                           Disposition

¶16         For the foregoing reasons, we affirm Bon’s convictions
and sentences.




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