NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BRIAN DONAL GORLA, Appellant.

No. 1 CA-CR 18-0075

Appeal from the Superior Court in Maricopa County

No. CR2017-102970-001

The Honorable Julie Ann Mata, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Adele Ponce

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellant

FILED 1-8-2019
STATE v. GORLA

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 Brian Donal Gorla appeals his conviction and sentence for 

first-degree burglary. Gorla argues the trial court erred in finding that a

two-drawer filing cabinet falls within the definition of a nonresidential 

structure under Arizona Revised Statutes (“A.R.S.”) section 13-1501(10) and 

(12). He also argues that prosecutorial misconduct denied him due process. 

For the following reasons, we affirm. 

BACKGROUND

¶2 After receiving a mobile notification that something had 

triggered his home’s motion sensors and seeing a flashlight beam outside,

T.B. grabbed his gun and went to investigate. Once outside, T.B. saw Gorla

holding a flashlight and looking inside the drawer of a filing cabinet located 

next to the garage door of T.B.’s home. T.B. pointed his gun and told Gorla

to “freeze,” but Gorla ran away, yelling, “Don’t shoot. I’m unarmed.”

Hearing the commotion, one of T.B.’s neighbors came outside, 

apprehended Gorla, and held him at gun point.

¶3 Police officers who arrived shortly thereafter removed a gun

from Gorla’s possession and found a pair of safety goggles located next to 

a neighboring wall, which according to T.B. had been stored in the filing 

cabinet. Gorla implicitly admitted he had been “inside” the filing cabinet 

but claimed he thought it was trash. 

¶4 The State charged Gorla with burglary in the first degree, a 

class 3 felony. Before trial, Gorla filed a motion in limine requesting that 

the court determine “a filing cabinet is not a non-residential structure 

pursuant to A.R.S. § 13-1501.” The trial court denied the motion, explaining 

that the filing cabinet is “a non-residential structure pursuant both to 

statute and . . . case law.”

¶5 Gorla raised this same argument, among others, at the 

conclusion of the State’s presentation of evidence in his motion for a

judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 
STATE v. GORLA

Decision of the Court

3

(“Rule”) 20. The court denied the motion, stating it would “stand on the 

prior ruling that a file cabinet is a nonresidential structure.” A jury found

Gorla guilty as charged. He was sentenced to eight years’ imprisonment

and he timely appealed.

DISCUSSION

A. Rule 20 Motion

¶6 Gorla asserts the court erred in denying his Rule 20 motion, 

arguing there was insufficient evidence supporting his entry of a 

nonresidential structure because a filing cabinet is not a nonresidential 

structure. We review the denial of a Rule 20 motion de novo, asking 

“whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” State v. West, 226 Ariz. 

559, 562, ¶¶ 15, 16 (2011) (citation omitted). “We review issues of statutory 

interpretation de novo.” State v. Francis, 243 Ariz. 434, 435, ¶ 6 (2018). 

“When the statutory language is clear and has only one reasonable 

construction, we apply it according to its plain meaning.” Id. 

¶7 The State had the burden to prove beyond a reasonable doubt 

that Gorla entered a nonresidential structure with the intent to commit any 

theft or any felony, A.R.S. § 13-1506, and that he did so while knowingly 

possessing a deadly weapon, A.R.S. § 13-1508. The legislature has defined 

a “nonresidential structure” as a “structure other than a residential 

structure.” A.R.S. § 13-1501(10). A “structure,” in relevant part, “means . . .

any 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) (emphasis added). 

¶8 Gorla argues T.B.’s filing cabinet is not a nonresidential

structure because it was not “separately securable from any other structure 

attached to it.” However, “§ 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.” State v. Bon, 236 

Ariz. 249, 252, ¶ 10 (App. 2014). Thus, the “separately securable”

requirement does not apply, as T.B.’s filing cabinet was an independent 

structure placed next to his garage. 

¶9 Gorla’s next argument revolves around the size of the filing 

cabinet and its movability. He asserts that labeling a “small, two-drawer 

. . . filing cabinet” a nonresidential structure “broadens the legislative 
STATE v. GORLA

Decision of the Court

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definition to an absurd degree” because any “object that can simply be . . .

carried away cannot logically be a ‘structure,’ for if that is true [then]

anything capable of being locked and large enough to store anything at all 

is a structure for purposes of the burglary statutes.” While it is conceivable 

that applying the statutory definition of a nonresidential structure could 

lead to an absurd result at some point, that situation is not before us. See 

Velasco v. Mallory, 5 Ariz. App. 406, 410–11 (1967) (“We will not render 

advisory opinions anticipative of troubles which do not exist; may never 

exist; and the precise form of which, should they ever arise, we cannot 

predict.”). The filing cabinet is plainly an object and the evidence shows it 

was used for storage; therefore, the court did not err in denying Gorla’s 

Rule 20 motion because a rational trier of fact could find the evidence 

supported an unlawful entry into a nonresidential structure. 

B. Prosecutorial Misconduct

¶10 Gorla also argues the prosecutor committed prosecutorial 

misconduct, depriving him of a “fair deliberation,” by characterizing

Gorla’s offense in closing argument as “porch thievery” and making the

following comments to the jury during rebuttal:

[I]n the day and age when you have people ordering things 

online and people having things dropped off next to their 

porch, at a holiday season coming up--when you have all of 

these things happening and you have a defendant who is out 

in January, at midnight, in a strange place, taking things that 

[do] not belong to him, you folks get to decide what kind of a 

community you want to live in. That’s your job . . . 

Use your common sense. What kind of a community do you 

want to live in . . . [w]here it’s allowed--where this guy can 

walk up and do what he wants on a stranger’s yard and get 

caught and say, “[o]ops. I’m sorry.” 

¶11 Gorla did not object to these statements at trial, so we review 

for “error that was both fundamental and prejudicial.” State v. Escalante, 

245 Ariz. 135, 140, ¶ 12 (2018). To prevail on appeal, Gorla must first prove 

that a fundamental error occurred, which is established by “showing that 

(1) the error went to the foundation of the case, (2) the error took from the 

defendant a right essential to his defense, or (3) the error was so egregious 

that he could not possibly have received a fair trial.” Id. at 142, ¶ 21. If he 

establishes fundamental error under either prong one or two, Gorla must 

then make a separate, “fact intensive” showing of prejudice. Id. (citation 
STATE v. GORLA

Decision of the Court

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omitted). If he establishes fundamental error under prong three, prejudice 

is presumed, and a new trial will be granted. Id.

¶12 Prosecutorial misconduct must be so egregious that it

“infect[s] the trial with unfairness” such that the “resulting conviction is a 

denial of due process.” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citation 

omitted). To meet this standard, Gorla must demonstrate the State acted in 

an intentionally improper or prejudicial manner, State v. Ramos, 235 Ariz. 

230, 237, ¶ 22 (App. 2014), so “pronounced and persistent that it 

permeate[d] the entire atmosphere of the trial,” State v. Atwood, 171 Ariz. 

576, 611 (citation omitted). 

¶13 Gorla asserts the porch-thievery characterization misstated 

the facts because he never approached the porch of the home, and the 

comments during the State’s rebuttal improperly encouraged the jurors to 

preserve law and order. The prosecutor’s use of “porch -thievery” was not 

misconduct because the State clarified it meant “taking property . . . from 

the front of someone else’s home,” which the evidence supports because

Gorla was found to be taking property from in front of T.B.’s home. As for 

the comments during the State’s rebuttal closing argument, a prosecutor 

cannot “urge jurors to convict a criminal defendant in order to protect 

community values, preserve civil order, or deter future law breaking.” State 

v. Herrera, 174 Ariz. 387, 396 (1993) (citation omitted). Here, although the 

prosecutor implicitly urged the jury to deter future law breaking and 

preserve civil order, the comments were not “pronounced and persistent,”

Atwood, 171 Ariz. at 611, nor did they pervade the entirety of the trial so as 

to deprive Gorla “of a fair trial and render the resulting conviction a denial 

of due process,” State v. Hernandez, 170 Ariz. 301, 307 (App. 1991). 

¶14 Finally, the evidence overwhelmingly supports a conviction. 

T.B. saw Gorla looking into a drawer of a filing cabinet T.B. used for storage. 

After T.B. confronted Gorla and he fled, officers found safety glasses—

initially located inside the filing cabinet—near a neighboring wall, which 

indicates Gorla’s entry into the filing cabinet. Furthermore, Gorla admitted 

to entering the filing cabinet, although he claimed he did so thinking it was 

trash. Given the strength of this evidence, it is not reasonable to conclude 

Gorla was convicted based on the prosecutor’s comment about preserving 

law and order. See State v. Comer, 165 Ariz. 413, 427 (1990) (considering 

overwhelming evidence of guilt to render prosecutor’s comments 

harmless). For these reasons, Gorla has not established that fundamental 

error occurred due to prosecutorial misconduct.
STATE v. GORLA

Decision of the Court

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CONCLUSION

¶15 Gorla’s conviction and sentence are affirmed.