                                     IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                     STATE OF ARIZONA, Appellant,

                                       v.

                 ELIZABETH LEE ANNE GILL, Appellee.

                           No. 1 CA-CR 13-0790
                            FILED 08-21-2014


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201300747
                  The Honorable Cele Hancock, Judge

                     VACATED AND REMANDED


                                 COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dennis M. McGrane
Counsel for Appellant

C. Kenneth Ray, II, P.C., Prescott
By C. Kenneth Ray, II
Counsel for Appellee



                                 OPINION

Presiding Judge John C. Gemmill delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G E M M I L L, Judge:
                               STATE v. GILL
                             Opinion of the Court

¶1           The State of Arizona appeals from an order dismissing
without prejudice five counts of third-degree burglary pursuant to Arizona
Revised Statutes (“A.R.S.”) section 13-1506(A)(1) against Defendant
Elizabeth Lee Anne Gill. The issue presented is whether a mailbox is a
“nonresidential structure” as defined in A.R.S. § 13-1501(10) and (12) for
purposes of third-degree burglary. Because we conclude a mailbox is a
nonresidential structure that can be burglarized, we vacate the trial court’s
ruling and remand for further proceedings.

                              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 A.R.S. § 13-1501(10) and (12). Gill
then moved to dismiss the five third-degree burglary counts. After oral
argument, the trial court granted Gill’s motion, dismissing the burglary
counts without prejudice. The State timely appeals, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(1).

                                  ANALYSIS

¶4             The issue we must decide is whether a mailbox is a
“nonresidential structure” as defined by A.R.S. § 13-1501(10) and (12), and
therefore whether “[e]ntering or remaining unlawfully” in or on a mailbox
“with the intent to commit any theft or any felony therein” constitutes third-
degree burglary as defined in A.R.S. § 13-1506(A)(1). We review de novo
the trial court’s interpretation of these statutes, and our interpretation is
derived from the language of the statutes. See State v. Garcia, 219 Ariz. 104,
105-06, ¶ 6, 193 P.3d 798, 799-800 (App. 2008).

¶5            The legislature has defined third-degree burglary in A.R.S. §
13-1506(A)(1) as:



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                            Opinion of the Court


       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.R.S. §
13-1501(10). And the term “structure” means:

       [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.

A.R.S. § 13-1501(12). In accordance with this statutory language, 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 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 § 13-1501(12) and
Arizona’s “last antecedent rule,” which recognizes that, absent a contrary
expression of intent by the legislature, a qualifying phrase shall be applied
to the word or phrase immediately preceding it. See New Sun Business Park,
LLC v. Yuma County, 221 Ariz. 43, 47, ¶ 15, 209 P.3d 179, 183 (App. 2009)
(regarding the last antecedent rule); Advanced Property Tax Liens, Inc. v.
Sherman, 227 Ariz. 528, 531, ¶ 14, 260 P.3d 1093, 1096 (App. 2011)
(considering “the language and sentence structure” in interpreting a statute
to “harmonize” its provisions). The requirement of “sides and a floor,”
therefore, does not apply to the other items that may constitute a structure
under § 13-1501(12) — “any vending machine or any building, object,
vehicle, [or] railroad car.”

¶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




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                              STATE v. GILL
                            Opinion of the Court

may be reasonably described as an “object,” thereby satisfying the first
requirement of a “structure” under § 13-1501(12).

¶8             We further conclude, based on the language and structure of
§ 13-1501(12), that any of the listed items meeting the first requirement must
also be “separately securable from any other structure attached to it” and
“used for lodging, business, transportation, recreation or storage” because
each of these requirements is separated from those within the first
requirement – and from each other – by the phrase “that is.” The word
“that” may be used to introduce “a subordinate clause expressing a
statement” and the phrase “that is” may identify “a formula introducing . .
. an explanation or further clarification of a preceding word or words.” The
New Oxford American Dictionary 1747 (2d ed. 2005).1 With these uses in
mind, we interpret the phrase “that is” in § 13-1501(12) as introducing
words of limitation on the scope of those options described in the first
requirement. See Corporation Comm’n v. Equitable Life Assur. Soc. of U.S., 73
Ariz. 171, 179, 239 P.2d 360, 365 (1951) (noting that the legislature may insert
“words of limitation” to make a statute “more definite and certain”); cf.
State v. Weinstein, 182 Ariz. 564, 568, 898 P.2d 513, 517 (App. 1995) (noting
the impropriety of a court inserting “words of limitation” into a statute that
do not already exist). We reject an interpretation that would apply the
second and third requirements — “separately securable” and “used for
lodging, business, transportation, recreation or storage” — only to a “place
with sides and a floor.” The statute’s use of the words “that is” to add the
second and third requirements of a “structure” compels our conclusion and
is the most consistent and logical reading of the statute.

¶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 A.R.S. § 13-
1501(12). If it is, a mailbox is a “nonresidential structure” for third-degree
burglary purposes.

¶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,


1 We may consult respected dictionaries to determine the ordinary
meanings of words. See Stout v. Taylor, 233 Ariz. 275, 278, ¶ 12, 311 P.3d
1088, 1091 (App. 2013).


                                       4
                              STATE v. GILL
                            Opinion of the Court

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 the question of
“storage” in depth but stated that the collection box “was used for storage.”
Id. at 25-26, 628 P.2d at 62-63. Likewise, we have considered an opinion of
this court that preceded Mann, State v. Jones, 27 Ariz. App. 180, 182, 552 P.2d
769, 771 (App. 1976), which analyzed whether items stolen in the course of
loading and unloading in a commercial yard could be considered “stored.”
The Jones court said that the “mere transitory period involved in loading
and unloading” was not “storage.” Id.

¶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



                                      5
                              STATE v. GILL
                            Opinion of the Court

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 A.R.S. §§ 13-1506 and -
1501(10) and (12), which make the unlawful “entering or remaining” on a
“nonresidential structure” with the requisite intent a felony. We also note
that this court has previously explained that a significant purpose behind
burglary as an offense is to protect one’s privacy in addition to one’s person
and property. See State v. Mitchell, 138 Ariz. 478, 480, 675 P.2d 738, 740 (App.
1983) (observing that “the crime of burglary necessarily involves an
infringement of the victim’s right to privacy”); State v. Hinden, 224 Ariz. 508,
511, ¶ 13, 233 P.3d 621, 624 (App. 2010) (similar).

¶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 given its plain meaning unless
impossible or absurd consequences would result.”).

                               CONCLUSION

¶15          We hold that, for the purposes of third-degree burglary, a
mailbox meets the definition of “nonresidential structure” under A.R.S. §
13-1501(10) and (12) because it is an object that is separately securable and



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                            STATE v. GILL
                          Opinion of the Court

used for storage. Accordingly, we vacate the trial court’s dismissal of the
third-degree burglary charges against Gill and remand for further
proceedings.




                                  :gsh




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