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

2

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.
STATE V. BURBEY

Opinion of the Court

3

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 
STATE V. BURBEY

Opinion of the Court

4

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 
STATE V. BURBEY

Opinion of the Court

5

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 
STATE V. BURBEY

Opinion of the Court

6

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.
STATE V. BURBEY

Opinion of the Court

7

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 
STATE V. BURBEY

Opinion of the Court

8

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 
STATE V. BURBEY

Opinion of the Court

9

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.