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

2

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 
STATE v. FLORES

Opinion of the Court

3

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 priorconviction exception would apply to that analysis. See Apprendi, 530 

U.S. at 490 (“fact of a prior conviction” need not be found by jury).
STATE v. FLORES

Opinion of the Court

4

¶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 allencompassing 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 
STATE v. FLORES

Opinion of the Court

5

¶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 
STATE v. FLORES

Opinion of the Court

6

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).
STATE v. FLORES

Opinion of the Court

7

¶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 monthlong 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 
STATE v. FLORES

Opinion of the Court

8

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. 
STATE v. FLORES

Opinion of the Court

9

¶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.
STATE v. FLORES

Opinion of the Court

10

¶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).