                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                    DOMINIC RODOLPHO FLORES,
                            Appellant.

                      No. 2 CA-CR 2013-0552
                      Filed October 10, 2014


          Appeal from the Superior Court in Pima County
                       No. CR20123110001
          The Honorable Howard Fell, Judge Pro Tempore

                            AFFIRMED


                             COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller and David J. Euchner, Assistant Public
Defenders, Tucson
Counsel for Appellant
                          STATE v. FLORES
                         Opinion of the Court


                              OPINION

Judge Howard authored the opinion of this Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.


H O W A R D, Judge:

¶1          Dominic Flores appeals from his convictions and
sentences for eight counts of first-degree trafficking in stolen
property and one count of theft. He argues the trial court erred in
sentencing him as a repetitive offender pursuant to A.R.S. § 13-
703(B)(1) because the jury, and not the court, should have
determined whether his offenses had been committed “on the same
occasion.” We affirm.

¶2            Flores initially was charged with seven counts of
second-degree burglary, nine counts of first-degree trafficking in
stolen property, and theft of property valued between $4,000 and
$25,000. The state alleged that all but the theft and one of the
trafficking counts were not committed on the same occasion but
consolidated for trial. See § 13-703(B)(1). The charges stemmed from
seven home burglaries between May 14 and June 11, 2012. Flores
had pawned much of the property taken in those burglaries on the
same day as the burglaries, and other items stolen in those
burglaries were found in his home. The trafficking count not alleged
to fall within § 13-703(B)(1) was dismissed before trial. After a jury
trial, Flores was acquitted of the burglary charges but convicted of
the remaining trafficking counts as well as theft.

¶3           Before the jury returned its verdicts, Flores argued,
based on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), that the jury was
required to determine whether the offenses had been committed on
the same occasion.       The trial court rejected that argument,
concluding those cases were inapplicable and finding the offenses
had not been committed on the same occasion and were not “spree
offenses.” It sentenced Flores as a repetitive offender for all but the


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                          STATE v. FLORES
                         Opinion of the Court

first trafficking count and theft count, imposing concurrent prison
terms the longest of which is seven years.

¶4           On appeal, Flores repeats his argument that the jury,
and not the trial court, was required to find that the trafficking
offenses had not been committed on the same occasion before he
could be sentenced as a repetitive offender under § 13-703(B)(1).
Pursuant to Alleyne and Apprendi, “[a]ny fact that, by law, increases
the penalty for a crime is an ‘element’ that must be submitted to the
jury and found beyond a reasonable doubt.” Alleyne, ___ U.S. at ___,
133 S. Ct. at 2155. This rule encompasses facts that increase a
sentence’s mandatory minimum, id., and those that increase a
sentence beyond the presumptive term, State v. Price, 217 Ariz. 182,
¶ 8, 171 P.3d 1223, 1226 (2007).

¶5            Section 13-703(B)(1) provides that a person who “[i]s
convicted of three or more felony offenses that were not committed
on the same occasion but that either are consolidated for trial
purposes or are not historical prior felony convictions” is sentenced
as a category-two repetitive offender, and therefore the person is
subject to a higher sentencing range than a category-one or first-time
offender. See generally A.R.S. §§ 13-702 through 13-703. The finding
that the offenses were not committed on the same occasion but
consolidated for trial enhanced Flores’s sentence.              See § 13-
703(B)(1), (I). Accordingly, the determination whether his offenses
had been committed on the same occasion pursuant to § 13-703(B)
was required to have been submitted to the jury, inherent in the
jury’s verdicts, or otherwise excepted from Alleyne and Apprendi.1
Cf. State v. Gatliff, 209 Ariz. 362, ¶¶ 17-18, 102 P.3d 981, 984-85 (App.
2004) (no separate dangerousness finding required under Apprendi
when dangerousness inherent in offense).




      1We   need not determine whether the analysis would differ in
determining if prior convictions were “committed on the same
occasion” pursuant to § 13-703(L), or whether the Apprendi prior-
conviction exception would apply to that analysis. See Apprendi, 530
U.S. at 490 (“fact of a prior conviction” need not be found by jury).


                                   3
                          STATE v. FLORES
                         Opinion of the Court

¶6           Flores argues that whether his offenses were committed
on the same occasion is not inherent in the jury verdict because the
facts necessary to that determination were not found by the jury. In
State v. Kelly, 190 Ariz. 532, ¶ 6, 950 P.2d 1153, 1155 (1997), our
supreme court identified five factors to be considered when
determining whether offenses were committed on the same
occasion: “1) time, 2) place, 3) number of victims, 4) whether the
crimes were continuous and uninterrupted, and 5) whether they
were directed to the accomplishment of a single criminal objective.”2

¶7           Flores reasons that the first three Kelly factors, the time,
place, and number of victims, are “not . . . element[s] of the
offense[s] and therefore not determined by the jury.” But the jury
verdict forms stated that the jurors found Flores guilty of the various
trafficking offenses “as alleged” in the relevant count of the
indictment. Each charge of trafficking in the indictment specified
the date of the offense, the property in question, and the identity of
the victim. Thus, by finding Flores guilty of those offenses, the jury
implicitly found those facts.3


      2  To the extent that Flores suggests the Kelly factors are
nonexclusive, we disagree. In noting that “[t]here is no all-
encompassing test for determining whether two offenses were
committed on the ‘same occasion,’” the court in Kelly was rejecting
an argument that the single criminal objective factor constituted a
standalone test. 190 Ariz. 532, ¶ 9, 950 P.2d at 1156, quoting State v.
Sheppard, 179 Ariz. 83, 84, 876 P.2d 579, 580 (1994). The court did not
intimate there were other relevant factors, id. ¶¶ 9-10, nor has any
other Arizona court done so, and Flores has not identified any such
factors.
      3Flores claims we cannot know “which facts were found by
the jury” because the state did not “elect a theory of trafficking,” and
thus the jury did not determine whether he had “initiate[d],
organize[d], plan[ned], finance[d], direct[ed], manage[d] or
supervise[d] the theft and trafficking.” A.R.S. § 13-2307(B). But he
has not explained why the jury was required to find the exact
manner in which he had committed the trafficking offenses in order
for the Kelly factors to be inherent in the verdict and for us to

                                   4
                         STATE v. FLORES
                        Opinion of the Court

¶8            Contrary to Flores’s argument, the facts alleged in the
indictment and found by the jury, viewed in light of the factors
enumerated in Kelly, lead inexorably to the conclusion that Flores’s
trafficking offenses were not committed on the same occasion. The
indictment describes different offense dates for each trafficking
offense, with at least nine different victims, each offense concerning
different property. And the underlying thefts similarly involved
different victims.4

¶9          Additionally, we have found no Arizona case
concluding that offenses were committed on the same occasion
when the crimes were committed on different days, involved
different property, or had unrelated victims. 5 See, e.g., State v.

determine whether he committed those offenses on the same
occasion. He states he might have engaged in some of that conduct
“all at the same time prior to the first crime,” but that argument
ignores the offense dates listed in the indictment and implicitly
found by the jury. In any event, the fact that he might have engaged
in some conduct in furtherance of his offenses before completing
them does not mean he committed the offenses on the same
occasion.
      4Although   the jury acquitted Flores of the burglary charges, it
necessarily found he had “initiate[d], organize[d], plan[ned],
finance[d], direct[ed], manage[d] or supervise[d]” the underlying
thefts by finding him guilty of first-degree trafficking in stolen
property. § 13-2307(B).
      5 Flores  suggested at oral argument that we should view
Arizona cases addressing this question as merely evaluating
whether the evidence was sufficient to support the trial court’s
ultimate determination—a highly deferential review. But the cases
we cited above make clear that courts have made this determination
as a matter of law. And those cases, viewed as a whole, illustrate the
extremely limited circumstances in which offenses will be found to
have been committed on the same occasion. See also State v. Derello,
199 Ariz. 435, ¶ 8, 18 P.3d 1234, 1236 (App. 2001) (appellate court
reviews de novo whether offenses committed on same occasion); cf.
United States v. Barbour, 750 F.3d 535, 538-39 (6th Cir. 2014) (“‘We

                                  5
                          STATE v. FLORES
                         Opinion of the Court

Sheppard, 179 Ariz. 83, 84-85, 876 P.2d 579, 580-81 (1994) (theft and
trafficking offense committed on same occasion when defendant
stole car and delivered it to undercover officer same day); State v.
Shulark, 162 Ariz. 482, 485, 784 P.2d 688, 691 (1989) (forgery offenses
not committed on same occasion when defendant presented forged
checks at different banks on same day); State v. Noble, 152 Ariz. 284,
284-86, 731 P.2d 1228, 1228-30 (1987) (kidnapping leading to sexual
assault committed on same occasion when offenses spanned thirty
minutes); State v. Perkins, 144 Ariz. 591, 595-97, 699 P.2d 364, 368-70
(1985) (robberies committed against distinct victims involving
different property within ninety-minute window in same area not
committed on same occasion), overruled on other grounds by Noble, 152
Ariz. at 288, 731 P.2d at 1232; State v. Rasul, 216 Ariz. 491, ¶¶ 20-24,
167 P.3d 1286, 1291-92 (App. 2007) (arson and conspiracy to commit
that arson committed on same occasion when committed against the
same victims on same day); State v. Derello, 199 Ariz. 435, ¶¶ 10-15,
18 P.3d 1234, 1237 (App. 2001) (unlawful flight and prohibited
possession occurred on same occasion when defendant shot
convenience store clerk during robbery and fled in vehicle); State v.
Williams, 169 Ariz. 376, 380-81, 819 P.2d 962, 966-67 (App. 1991)
(series of crimes committed against different victims on same day as
prison escape not committed on same occasion); State v. Shearer, 164
Ariz. 329, 341-42, 793 P.2d 86, 98-99 (App. 1989) (theft and
fraudulent schemes spanning several-month period not committed
on same occasion); State v. Bedoni, 161 Ariz. 480, 486, 779 P.2d 355,
361 (App. 1989) (driving under the influence and forgery committed
on same occasion when driver presented false document during
traffic stop); State v. Vild, 155 Ariz. 374, 376-77, 746 P.2d 1304,
1306-07 (App. 1987) (extended conspiracy leading to drug sale not
committed on same occasion as drug sale); State v. Schneider, 148
Ariz. 441, 448-49, 715 P.2d 297, 304-05 (App. 1985) (interrelated thefts
not committed on same occasion when spanning nineteen months
and involving different victims).



review de novo’ a district court’s conclusion that two offenses ‘were
committed on occasions different from one another.’”), quoting
United States v. Hill, 440 F.3d 292, 295 (6th Cir. 2006).


                                   6
                          STATE v. FLORES
                         Opinion of the Court

¶10          Flores insists, however, that his crimes were
“continuous and uninterrupted” under the fourth Kelly factor, and
thus could have been committed on the same occasion, because he
“maintained some of the property from each of the burglaries.” But,
even assuming he did so, that does not mean his crimes were
continuous and uninterrupted as that term has been applied in our
case law. Possession of property related to one offense while
committing another offense does not mean that a series of otherwise
clearly separate offenses against different victims spanning a month-
long period can reasonably be described as “continuous and
uninterrupted.” Flores has not cited, nor have we found, any
authority suggesting the contrary. See, e.g., Noble, 152 Ariz. at
284-86, 731 P.2d at 1228-30 (kidnapping and child molestation
spanning thirty minutes “continuous and uninterrupted”); Derello,
199 Ariz. 435, ¶ 14, 18 P.3d at 1237 (prohibited possession and flight
“continuous and uninterrupted” because “[d]efendant continued to
possess a weapon during his flight from the police”). And, no
appellate court has found this factor to be present when there was
any appreciable lapse of time or intervening event between the
offenses. Thus, the fact the offenses were committed days apart
mandates the conclusion they were not continuous and
uninterrupted.

¶11          As to the final Kelly factor, Flores asserts that his
offenses were directed to accomplish a “single criminal objective,”
that of “obtaining cash for stolen property.”6 But our supreme court


      6The  fifth Kelly factor is difficult to reconcile with Alleyne and
Apprendi, which place the burden on the state to prove any facts
underlying the determination that offenses were not committed on
the same occasion. Alleyne, ___ U.S. at ___, 133 S. Ct. at 2155. While
the first four Kelly factors are susceptible to affirmative proof, the
last factor places on the state the arguably impossible burden of
proving a negative—that there is no overarching criminal objective
motivating the defendant’s crimes. Cf. United States v. Forbes, 515
F.2d 676, 680 n.9 (D.C. Cir. 1975) (noting that “Congress obviously
did not intend to place on the Government the near impossible
burden of proving a negative in order to establish a violation”); see
generally State v. Verdugo, 183 Ariz. 135, 138, 901 P.2d 1165, 1168

                                   7
                          STATE v. FLORES
                         Opinion of the Court

has flatly rejected the notion that a scheme to commit multiple
crimes in order to make money is a single criminal objective, even
when some Kelly factors are present. In Perkins, the court concluded
that “distinct crimes committed against distinct victims, with
different valuables taken in each,” despite spanning only one day
and occurring in the same location, did not occur on the same
occasion despite defendant’s assertion of an overarching scheme “to
rob whomever they could” in that area. 144 Ariz. at 593, 595-97,
699 P.2d at 366, 369-71.

¶12          Moreover, even if there were some “single criminal
objective” present in this case, that fact alone would not permit the
conclusion that Flores’s offenses were committed on the same
occasion. The supreme court in Kelly stated offenses could be
designated as occurring on the same occasion even when the other
factors “were not strictly or individually satisfied” if those offenses
“were directed to the accomplishment of a single criminal objective.”
190 Ariz. 532, ¶¶ 6, 9, 950 P.2d at 1155-56. Our supreme court
further instructed, however, that the fifth factor must be evaluated
“in conjunction with the [other four] factors to determine whether
two offenses were committed on the ‘same occasion.’” Id. ¶ 9. Thus,
in the absence of any support for the other four factors, the fifth
factor cannot alone sustain a finding the offenses were committed on
the same occasion.


(App. 1995) (observing that burden is best placed on party “‘who
presumably has peculiar means of knowledge’” of that issue),
quoting 9 J. Wigmore, Evidence in Trials at Common Law § 2486 (James
H. Chadbourn ed., rev. ed. 1981). It may be that the fifth Kelly factor
should be eliminated, or that it is more appropriately viewed as
analogous to an affirmative defense, thus requiring the defendant to
produce at least some evidence of an appropriate single criminal
objective. See generally State v. Kelly, 210 Ariz. 460, ¶¶ 14-15, 112 P.3d
682, 686 (App. 2005) (discussing burden of proof and persuasion and
noting “neither the state nor federal constitutions prohibit assigning
the defendant the burden of persuasion for an affirmative defense”).
But, as we explain, because the other Kelly factors are entirely absent
here, we need not resolve this issue.


                                    8
                          STATE v. FLORES
                         Opinion of the Court

¶13          Consistent with our supreme court’s directive in Kelly,
we have found no cases finding the fifth factor, standing alone,
sufficient to conclude that offenses were committed on the same
occasion. For example, in Sheppard, our supreme court found that
theft and trafficking had been committed on the same occasion
when the defendant stole the vehicle and delivered it to an
undercover officer the same day, showing the offenses were close in
time. 179 Ariz. at 84-85, 876 P.2d at 580-81. Additionally, the
offenses involved the same property, suggesting the defendant’s
criminal conduct was, in that respect, continuous and uninterrupted.
Id.

¶14           Similarly, in Noble, although the court noted the
defendant’s kidnapping and molestation offenses were directed
toward a single criminal objective, it also observed that the conduct
involved a single victim, was continuous and uninterrupted, and
encompassed a “very brief” time period. 152 Ariz. at 286, 731 P.2d
at 1230.     And in Derello, although we concluded prohibited
possession and flight furthered the defendant’s single criminal
objective of robbery, we discussed the presence of several other Kelly
factors, including that the events were continuous and
uninterrupted and that the offenses were “closely related both by
time and distance.” 199 Ariz. 435, ¶¶ 13-15, 18 P.3d at 1237.

¶15           In Rasul, this court evaluated the connection between
prior convictions for arson and conspiracy to commit arson, which
had been committed on the same day. 216 Ariz. 491, ¶ 23, 167 P.3d
at 1292. We observed that, although the “‘spatial and temporal
relationship between the two crimes’” was “fairly close,” that
relationship “may not independently support a finding that they
occurred on the same occasion.” Id., quoting Derello, 199 Ariz. 435
¶ 9, 18 P.3d at 1236. The offenses, however, were directed toward
the same victim. Id. ¶ 24. Viewing those factors in light of the fact
the offenses were directed toward a single criminal objective, we
concluded they had been committed on the same occasion. Id. This
analysis is, like that in the other cases discussed, entirely consistent
with our conclusion that the fifth Kelly factor cannot alone support a
finding that offenses were committed on the same occasion.




                                   9
                          STATE v. FLORES
                         Opinion of the Court

¶16          Here, the indictment demonstrates that the first four
factors are wholly not present, not merely “not strictly or
individually satisfied.” Kelly, 190 Ariz. 532, ¶ 6, 950 P.2d at 1155.
And the facts inherent in the jury’s verdicts conclusively establish
that Flores’s offenses were not committed on the same occasion.7
Accordingly, irrespective of what criminal objective could
theoretically exist, the trial court properly imposed enhanced
sentences pursuant to § 13-703.

¶17         For the reasons stated, we affirm Flores’s convictions
and sentences.




      7Our  conclusion is consistent with those reached by federal
courts addressing the analytically similar question whether prior
offenses were “committed on occasions different from one another”
for the purposes of imposing an increased sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Federal trial
courts may evaluate that question by examining, inter alia, the
charging documents, jury instructions, and verdicts. See United
States v. Weeks, 711 F.3d 1255, 1259-61 (11th Cir. 2013); Kirkland v.
United States, 687 F.3d 878, 887-88 (7th Cir. 2012); United States v.
Boykin, 669 F.3d 467, 470-71 (4th Cir. 2012); United States v. Thomas,
572 F.3d 945, 950-51 (D.C. Cir. 2009); United States v. Harris, 447 F.3d
1300, 1306 (10th Cir. 2006). And other jurisdictions have recognized
that the determination whether offenses were committed on the
same occasion may be inherent in the verdicts. See People v. Nunn,
148 P.3d 222, 226-27 (Colo. App. 2006); State v. Cuevas, 326 P.3d 1242,
1255-56 (Or. Ct. App. 2014).


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