IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

ELIZABETH LEE ANNE GILL, Appellee.

No. 1 CA-CR 13-0790

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

2

¶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 thirddegree 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 thirddegree 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:
STATE v. GILL

Opinion of the Court

3

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 
STATE v. GILL

Opinion of the Court

4

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).
STATE v. GILL

Opinion of the Court

5

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 
STATE v. GILL

Opinion of the Court

6

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 thirddegree 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 
STATE v. GILL

Opinion of the Court

7

used for storage. Accordingly, we vacate the trial court’s dismissal of the 

third-degree burglary charges against Gill and remand for further 

proceedings.