                               IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Appellee,

                                  v.

                        LYNN LAVERN BURBEY,
                             Appellant.



                         No. CR-16-0390-PR
                        Filed October 13, 2017


            Appeal from the Superior Court in Pima County
                   The Honorable Scott Rash, Judge
                        No. CR20144529-001
                             REVERSED

             Opinion of the Court of Appeals, Division Two
                       240 Ariz. 496 (App. 2016)
                              VACATED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Eric Knobloch (argued),
Assistant Attorney General Criminal Appeals Section, Phoenix, Attorneys
for State of Arizona

Pima County Legal Defender’s Office, Dean Brault, Robb P. Holmes
(argued), Assistant Legal Defender, Tucson, Attorneys for Lynn Lavern
Burbey
                            STATE V. BURBEY
                           Opinion of the Court


Sarah L. Mayhew (argued), Pima County Public Defender’s Office, Tucson,
Attorney for Amicus Curiae Pima County Public Defender’s Office


JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, TIMMER, and GOULD, and JUDGE McMURDIE joined. *



JUSTICE BOLICK, opinion of the Court:

¶1              Registered sex offenders must notify law enforcement
officials of their new “residence” or address within seventy-two hours after
they move and must “register as a transient not less than every ninety days”
if the person “does not have an address or a permanent place of residence.”
A.R.S. § 13-3822(A). Lynn Lavern Burbey was convicted of a felony for
failing to satisfy the first requirement after leaving a halfway house and
becoming homeless. We overturn the conviction, holding that only the
second requirement applies to transient individuals.

                           I.     BACKGROUND

¶2            In April 2014, Burbey registered as a sex offender when he
was released from prison to a halfway house. A.R.S. § 13-3821(I). In his
registration, Burbey listed the address of the halfway house as his
residence. That September, he left the halfway house and became homeless,
living outdoors near the Speedway/Alvernon intersection in Tucson. He
did not notify the Pima County Sheriff’s Department that he left the
halfway house, nor did he register as a transient. Within the month
thereafter, Burbey was arrested for failing to notify authorities within
seventy-two hours that he had moved from the halfway house, in violation
of § 13-3822(A), a class four felony. At trial, the court rejected Burbey’s

* Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Paul J.
McMurdie, Judge of the Arizona Court of Appeals, Division One, was
designated to sit in this matter.

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                            STATE V. BURBEY
                           Opinion of the Court


proposed instruction regarding the meaning of “registration” under
§ 13-3822(A) and instructed the jury that the statute required notice within
seventy-two hours of moving. Burbey was convicted and sentenced to
seven years in prison.

¶3             The court of appeals affirmed. State v. Burbey, 240 Ariz. 496,
498 ¶ 1 (App. 2016). After considering the statute’s language, purpose, and
history, the court concluded that “§ 13-3822(A), while imposing on
homeless registrants a reporting obligation not less than every ninety days
so long as the person remains homeless, also plainly requires that all
registrants, including those who become homeless, notify the sheriff, in
person and in writing, within seventy-two hours of moving from a
previously registered address.” Id. at 501 ¶ 14 (emphasis in original).

¶4            We granted review to determine whether a person must
register a new residence or address within seventy-two hours of becoming
homeless, a recurring issue of statewide concern. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.

                             II.    DISCUSSION

¶5            We review trial court rulings regarding jury instructions for
abuse of discretion. State v. Garza, 216 Ariz. 56, 66 ¶ 42 (2007). We review
issues of “whether jury instructions properly state the law” and statutory
interpretation de novo. State v. Payne, 233 Ariz. 484, 505 ¶ 68 (2013).

¶6           Section 13-3822(A) provides:

             Within seventy-two hours, excluding weekends
             and legal holidays, after moving from the
             person’s residence within a county . . . , a person
             who is required to register under this article
             shall inform the sheriff in person and in writing
             of the person’s new residence [or] address . . . .
             If the person moves to a location that is not a
             residence and the person receives mail
             anywhere, including a post office box, the

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                            Opinion of the Court


              person shall notify the sheriff of the person’s
              address. If the person has more than one
              residence or does not have an address or a
              permanent place of residence, the person shall
              register as a transient not less than every ninety
              days with the sheriff in whose jurisdiction the
              transient is physically present.

Two of the relevant terms are defined. “‘Address’ means the location at
which the person receives mail.” § 13-3822(D)(1). “‘Residence’ means the
person’s dwelling place, whether permanent or temporary.” Id. § 13-
3822(D)(3).      “Dwelling place,” “permanent,” and “temporary” are
undefined, so we use their ordinary meaning unless the context suggests
otherwise. See State v. Pena, 235 Ariz. 277, 279 ¶ 6 (2014); see also Stambaugh
v. Killian, 242 Ariz. 508, 575 ¶ 7 (2017).

¶7             To determine a statute’s meaning, we look first to its text.
State v. Holle, 240 Ariz. 300, 302 ¶ 11 (2016). When the text is clear and
unambiguous, we apply the plain meaning and our inquiry ends. See
Stambaugh, 242 Ariz. at 575 ¶ 7, 577 ¶ 17 (2017). Where the statutory
language yields different reasonable meanings, we consider secondary
interpretation methods, including consideration of the statute’s “subject
matter, its historical background, its effect and consequences, and its spirit
and purpose.” State ex rel. Polk v. Campbell, 239 Ariz. 405, 406 ¶ 5 (2016)
(citation and internal quotations omitted) (quoting Ariz. Citizens Clean
Elections Comm’n v. Brain, 234 Ariz. 322, 325 ¶ 11 (2014)).

¶8            Both parties argue that the statute’s plain language supports
their respective interpretations. The State argues, and the court of appeals
agreed, that the first sentence plainly requires notice within seventy-two
hours of “moving from the person’s residence,” and that when the move is
to the streets, the person is also required to register every ninety days
thereafter as a transient. See Burbey, 240 Ariz. at 501 ¶ 14. Burbey argues
that a homeless person, by definition, cannot inform the sheriff of a new
residence or address because he has none, hence only the transient
registration requirement applies.

¶9            Either reading is plausible and § 13-3822(A)’s language is

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                             STATE V. BURBEY
                            Opinion of the Court


therefore ambiguous. Curiously, either interpretation leads to anomalous
results. As the court of appeals observed, Burbey’s interpretation “would
allow an individual who becomes homeless after residing at a registered
address to essentially ‘slip through the cracks’ and disappear from law
enforcement surveillance until that person registers as a transient, up to
ninety days later.” Id. at ¶ 13. By contrast, reading the statute to encompass
reporting a homeless person’s change of “residence” or “address” could
trigger the same notice requirement every time the person moves from one
street location to another. That would defeat the acknowledged purpose of
the 2006 amendment adding the transient registration requirement: “to ease
compliance for homeless persons.” Id. at ¶ 11.

¶10            The flaw in the State and court of appeals’ plain-meaning
analysis is that it emphasizes the “moving” part of the seventy-two hour
notice requirement but neglects the “residence” and “address”
components. See, e.g., id. at 500 ¶ 9 (the 2006 amendment “left in place the
requirement that ‘moving’ from a registered address be reported within
seventy-two hours”). If the statute simply required registration within
seventy-two hours of moving from a residence, we would agree with the
State. But what must be reported under the statute, in person and in
writing, is “the person’s new residence [or] address.” § 13-3822(A). In
construing a statute, we must, if possible, give effect to every word, not
merely select words. Cain v. Horne, 220 Ariz. 77, 80 ¶ 10 (2009) (“Each word,
phrase, clause, and sentence must be given meaning so that no part will be
void, inert, redundant, or trivial.” (quoting City of Phoenix v. Yates, 69 Ariz.
68, 72 (1949))).

¶11           Logically, a person either has a residence or is transient, but
cannot be both. If the location where a homeless person spends the night
were a residence, there would be no need for § 13-3822(A)’s second
sentence. That second sentence, while not directly applicable to the
circumstances here, demonstrates the legislature’s recognition that some
individuals will not have a residence at all: “If the person moves to a
location that is not a residence and the person receives mail anywhere,
including a post office box, the person shall notify the sheriff of the person’s
address.” § 13-3822(A). Likewise, if a person has neither a residence nor
an address the third sentence enters the equation: “If the person . . . does
not have an address or a permanent place of residence, the person shall

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                              STATE V. BURBEY
                             Opinion of the Court


register as a transient not less than every ninety days . . . .” Id.

¶12             Reading § 13-3822(A) as a whole therefore suggests that a
homeless person would not have to provide the seventy-two-hour notice
because no residence exists to report. The definition of “residence”
supports that reading. Section 13-3822(D)(3) defines residence as “the
person’s dwelling place, whether permanent or temporary.” A dwelling is
“a building or construction used for residence.” Dwelling, Webster’s Third
New International Dictionary 706 (1976); see Dwelling, Random House
Webster’s College Dictionary 407 (2000) (“a building or other place to live
in”); see also Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir.
2008) (defining “residence” under federal statute as “a temporary or
permanent dwelling place, abode, or habitation to which one intends to
return as distinguished from a place of temporary sojourn or transient
visit”). The definition of dwelling thus encompasses both a structural
aspect (a building or place of some sort to live in) and a temporal aspect (a
place someone returns to). 1 As a transient person would have neither an
address nor a residence to report, it would seem implausible that the
seventy-two-hour requirement to report a new address or residence would
apply. Indeed, if a cardboard box or a spot by a dumpster is a “residence”
for purposes of the seventy-two-hour reporting requirement, then
“moving” from it to another transient location would repeatedly trigger the
reporting requirement, which would render the ninety-day transient
registration requirement largely pointless. Ariz. Dep't of Revenue v. Action
Marine, Inc., 218 Ariz. 141, 143 ¶ 10 (2008) (stating that courts do not
interpret statutes in a way that makes provisions meaningless).

¶13             We also read other statutory provisions in pari materia to
determine legislative intent. Collins v. Stockwell, 137 Ariz. 416, 419 (1983).
Section 13-3821(I) pertains to initial sex offender registration. Under that
statute, as in § 13-3822(A), the person is required to register an address or a
permanent place of residence. § 13-3821(I). But if the person lacks either,
“the person shall provide a description and physical location of any
temporary residence and shall register as a transient not less than every

1 The State argues that the statute’s use of the term “dwelling place” rather
than “dwelling” suggests that any place, even a street, meets the definition;
but the use of the term “dwelling” unquestionably connotes a structure.
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                              STATE V. BURBEY
                             Opinion of the Court


ninety days . . . .” Id. This language suggests that a homeless person may
have a “temporary residence” that must be initially registered along with
the transient status. But again, if a transient location qualifies as a residence
for purposes of § 13-3822(A), as the State argues, it would trigger the
registration requirement every time a person moved locations and not
simply every ninety days as required at the time of initial registration. No
reason appears for such disparate treatment.

¶14            The court of appeals also grounded its interpretation in the
sex offender registration statute’s “overriding purpose,” which is “to
‘facilitat[e] the location of child sex offenders by law enforcement
personnel.’” Burbey, 240 Ariz. at 500 ¶ 10 (quoting State v. Noble, 171 Ariz.
171, 178 (1992)) (alteration in original). But the legislature could have
concluded that making it easier for transients to register would further that
overriding purpose, and the 2006 amendment’s legislative history supports
that view. At the House Judiciary Committee’s hearing on the 2006
amendment, the bill’s sponsor “stated this issue arose because of the
challenge of homeless sex offenders complying with the registration laws.
It creates a way for them to stay in compliance with the law.” Ariz. H.R.
Minutes of Comm. on Judiciary, 47th Leg., 2d Regular Sess. 14 (Ariz. 2006). It
would not make it easier for homeless persons to comply with the statute if
it created a new requirement in addition to the notification requirement
rather than replacing it.

¶15            Our interpretation is further supported by considering the
constitutional ramifications of the State’s view. Burbey argues that the
statute is unconstitutionally vague because the obligations are unclear. “A
statute is void for vagueness if it fails to give ‘the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that
he [or she] may act accordingly.’” State v. Wagner, 194 Ariz. 310, 312 ¶ 11
(1999) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972))
(alteration in original). Such laws violate due process because they fail to
provide fair warning of criminal conduct and do not provide clear
standards to law enforcement to avoid arbitrary or discriminatory
enforcement. State v. Western, 168 Ariz. 169, 171 (1991); see also A.R.S.
§ 13-101(2) (“It is declared that the public policy of this state [is] . . . [t]o
give fair warning of the nature of the conduct proscribed . . . .”). Courts in
other states have held sexual offender registration laws void for vagueness

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                              STATE V. BURBEY
                             Opinion of the Court


when they failed to provide adequate notice of the required conduct. See
People v. North, 5 Cal. Rptr. 3d 337, 345–47 (Cal. Ct. App. 2003) (statute failed
to specify what constitutes a “location”); Santos v. State, 668 S.E.2d 676, 678
(Ga. 2008) (statute contains “no objective standard or guidelines that would
put homeless sexual offenders without a street or route address on notice
of what conduct is required of them, thus leaving them to guess as to how
to achieve compliance with the statute’s reporting provisions”).

¶16             Section 13-3822(A) on its face does not provide clear notice
whether a person who moves from a registered residence to homelessness
must both provide notification of the move and a new “residence” and
register as a transient, or only the latter. The confusion is illustrated by the
Arizona Department of Public Safety form that Burbey was required to sign
upon prison release. He was required to acknowledge, among other things,
two obligations that are relevant here. First, “I understand upon changing
my residence . . . within the county, I am required to inform the Sheriff of
the county in person within seventy-two (72) hours.” Second, four
provisions later, “I understand that if I do not have an address or
permanent place of residence (homeless), I must register my physical
location (i.e. crossroads) every 90 days with the Sheriff in whose jurisdiction
I am physically present.” (Emphasis in original.) A person might well not
consider moving from a halfway house to homelessness “changing my
residence.” The transient registration obligation would thereafter clearly
apply, but not necessarily the residence change requirement.

¶17            Although the statute does not provide clear notice to transient
sex offenders about what is required of them, we need not hold it
unconstitutional because there is a plausible way to construe it in a
constitutional manner. When we can reasonably interpret a statute in a way
that preserves its constitutionality, we pursue that course. State v.
Thompson, 204 Ariz. 471, 478 ¶ 27 (2003) (stating courts have a duty to
construe statutes in a way that “not only gives effect to the legislature’s
intent, [] but also in a way that maintains its constitutionality”). Here, it is
reasonable to construe § 13-3822(A)’s residence notification and transient
registration provisions as separate requirements, with only the latter
applying to persons who transition from residences to homelessness, and
we therefore interpret the statute in that manner. If the legislature
disagrees, it can, of course, amend the statute to clearly set forth the criteria

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                           STATE V. BURBEY
                          Opinion of the Court


necessary for registration when a person becomes transient.

¶18          As Burbey was convicted of failing to notify the sheriff of a
new residence, which is not required of transient sex offenders, the
conviction cannot be sustained.

                           III.   CONCLUSION

¶19          For the foregoing reasons, we vacate the court of appeals’
opinion and reverse Burbey’s conviction and resulting sentence.




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