State of Arizona v. Lynn Lavern Burbey ( 2017 )


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  •                                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.
    2
    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 Ҥ 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
    3
    STATE V. BURBEY
    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
    4
    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
    5
    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.
    6
    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
    7
    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
    8
    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.
    9