The memorandum summarizes that reaching over a counter to take money from a cash register constitutes burglary under Arizona law. It discusses that (1) entering a store with the intent to commit theft makes the entry unlawful even if the store is otherwise open to the public, and (2) a cash register qualifies as a "structure" as defined by the burglary statute since it is used for business purposes and can be secured. Case law establishes that the crime is complete upon unlawful entry with criminal intent and that minimal intrusion, such as reaching an arm over a counter, satisfies the entry element of burglary.

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MEMORANDUM
To: Megan Page, Attorney
From: Tiffany Schorn, Law Clerk
Date: 6-28-2016
Re: Gutierrez, CR20162582
QUESTIONS PRESENTED
(1) Does reaching over a counter to take money from a cash register constitute burglary?
(a) Does reaching over a counter constitute entry when the person is standing somewhere
open to the general public?
(b) Does a cash register constitute a structure under the statute?
BRIEF ANSWERS
(1) Yes, burglary in the third degree is committed when a person enters or remains
unlawfully in a nonresidential structure with intent to commit any theft or felony. A.R.S.
§ 13-1506. Unlawful entry has been defined under the statute to include entering, or
remaining on premises, when the intent of the person is unauthorized, except when the
entry is to commit theft of merchandise.
(a) Yes, under the statute the term ‘entry’ means intrusion of any part of a person’s body
inside external boundaries of a structure or unit of real property. A.R.S. § 13-1501
(3).
(b) Yes, under the statute a structure is defined as any object that is separately securable
from any other structure attached and is used for business. A.R.S. § 13-1501 (12).
DISCUSSION
(1) ENTERING THE CONVENIENCE STORE WITH INTENT TO STEAL MONEY FROM
THE CASH REGISTER CONSTITUTES BURGLARY UNDER THE STATUTE
Burglary in the third degree is committed when a person enters or remains unlawfully in
a nonresidential structure with intent to commit any theft or felony. A.R.S. § 13-1506. Under the
statute once a person enters or remains on premises when the intent of the person is not
authorized or licensed, that entry becomes ‘an unlawful entry’. A.R.S. § 13-1501 (2). “[T]he
crime of burglary is complete when entrance to the [residential yard] or structure is made with
the requisite criminal intent.” State v. Johnson, 215 Ariz. 28, 32, ¶ 17 156 P.3d 445, 449 (App.
2007). “The essence of the crime of burglary is not value, but rather entry into a specific

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structure with the intent to commit a theft or any felony therein.” State v. Taylor, 25 Ariz. App.
497, 499, 544 P.2d 714, 716 (1976). “Intent to commit theft or any felony can be shown by
circumstantial evidence.” Id. It is clearly established that even if entry is objectively legitimate,
such as entry to a convenience store, when the subject enters with intent to commit a crime the
elements of burglary have been met. State v. Van Dyke, 127 Ariz. 335, 336-37, 337 621 P.2d 22,
23-24 (1980).
In State v. Van Dyke the defendant tried to argue that because he sometimes shared a
residence with the victim, he could not commit an armed burglary. Id. at 336. The defendant in
Van Dyke lived on and off with his girlfriend in the residence which was primarily hers. Id. The
Van Dyke court held that even though his entry may have been objectively lawful, entering with
intent to commit a crime constitutes burglary. Id. at 337. Similarly, in the case at hand, entering
the convenience store may have been objectively lawful or with permission, however when the
intent was formed to take money from the cash register, the intent made the entry unlawful under
A.R.S. § 13-1501(2). License to enter a place is based off intent, and when the intent is not
licensed the person no longer has the right of privilege to be there. Id. Therefore, in the case at
hand, like in Van Dyke the entry was unlawful and a burglary has occurred.
(a) REACHING OVER A COUNTER AND INTO A CASH REGISTER CONSTITUTES
ENTRY UNDER THE STATUTE.
Intrusion of any tool, or part of any person’s body inside the external boundaries of a structure is
considered entry under the statute. A.R.S. § 13-1501 (3). Inserting a pry bar into a door jamb
constitutes entry under the statute. State v. Kindred, 232 Ariz. 611, 614, ¶ 9 307 P.3d 1038, 1041
(App. 2013).

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In Kindred, the defendant used a pry bar to try to gain entry to a vacant apartment. Id.
The door remained closed with the deadbolt intact with the frame slightly ajar and a visible gap
between the door and the frame. Id. at ¶ 2. Although the defendant in Kindred had not physically
entered the apartment, the Court of Appeals found that penetration of the outer barrier violated
security of the home and constituted entry. Id. at ¶ 8. Similarly, here it is not relevant that
Gutierrez did not step behind the counter when he took the money from the cash register,
because his hand entered into the structure to take the money.
(b) A CASH REGISTER IS A STRUCTURE UNDER THE STATUTE
Under the statute a ‘structure’ is defined as any building, object or place that is separately
securable from attached structures and is used for business, transportation, recreation or storage.
A.R.S. § 13-1501 (12). A mailbox is a ‘nonresidential structure within the meaning of the third-
degree burglary statute in Arizona. State v. Gill, 235 Ariz. 418, 422 ¶ 15 333 P.3d 36 (App.
2014).
In Gill the court held that a mailbox is a structure under the ‘object’ provision in the
statute. Id. The Gill court further held that a structure does not need to have sides and a floor
unless it is a place, and that a structure does not need to be large enough for a person to stand
inside. Id. at ¶ 7. The court pointed out that the legislature has expanded the scope of what is
considered burglary, and that courts must give substantial deference to the legislature and
legislative policy judgments. Id. at 421 ¶ 14. In their determination of a mailbox as a
nonresidential structure, the Gill court had to determine that a mailbox was used for storage, and
that it was securable. Id. at¶ 15. In the case at hand, it is clear a cash register is used for business
purposes, and cash registers typically have locks on them making them securable. Therefore, like
a mailbox, a cash register is a structure under the statute.

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CONCLUSION
It is clear from both the plain language of the statute, as well as case law that the act
of reaching over a counter to take money from a cash register is burglary under Arizona law.
A.R.S.§§ 13-1506, 1501(2), (3), (12). Gutierrez entered the commercial building, and
intentionally reached over the counter to take money from the cash register. Though Gutierrez
was standing in a place that was open to the public at large, license to enter that place is based
off of intent. Therefore, because Gutierrez took the money, he did not have the right or ‘license’
to enter the store, making his actions a burglary. Additionally, the cash register would likely be
considered a structure for the purposes of the statute, and reaching the hand in to the cash drawer
is sufficient to constitute entry.