State v. Mann - 129 Ariz. 24, 628 P.2d 61 (Ct. App. 1981)

Rule:

The Salvation Army collection box is a structure within the meaning of Ariz. Rev. Stat. §§ 13-1506(A), 13-1501(8).

Facts:

Eric Owen Mann and Mary Lou Mann were caught by the police while they were removing used clothing from a Salvation Army collection box. The box in question was located on a corner of the intersection of Ft. Lowell Road and Dodge Boulevard in Tucson. It was approximately six feet high and four feet deep by four feet wide, made of tin metal. About four feet from the bottom of one side it had an unlockable chute-like door for depositing items. The items in the box were regularly collected about every 36 hours. The Salvation Army removed the articles through a locked trap door located near the bottom of another side. Mary Lou Mann removed the clothing by reaching into the unlocked chute.

A.R.S. Sec. 13-1506 provides in part:

"A. A person commits burglary in the third degree by entering or remaining unlawfully in a non-residential structure . . . with the intent to commit any theft . . . therein."

The word structure is defined in A.R.S. Sec. 13-1501(8):

"'Structure' means any building, object, vehicle, railroad car or place with sides and a floor, separately securable from any other structure attached to it and used for lodging, business, transportation, recreation or storage."

The Manns contended that the trial court erred when it instructed the jury that the Salvation Army collection box was a non-residential structure as a matter of law. They claim that this was a question of fact for the jury.

Issue:

Is the Salvation Army collection box a "structure" within the meaning of A.R.S. Sec. 13-1506(A) and Sec. 13-1501(8)?

Answer:

Yes

Conclusion:

The court affirmed the trial court's judgment and held that the trial court properly found that the collection box was a "structure" within the meaning of Ariz. Rev. Stat. § 13-1501(8). Further, the question was a question of law that was properly determined by the trial court. Additionally, the court found that a jury instruction regarding abandoned properly was properly refused by the trial court because the property was not abandoned. Rather, it had been donated to the Salvation Army. Finally, the court found that any error caused by instructing the jury on aiding and abetting was harmless because at trial, the Manns admitted that they took the clothes from the collection box and stated that they intended to sell the clothes.