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20 Section 13-116 provides that “[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.” Thus, “[t]he statute bars consecutive sentences when the defendant’s conduct is a ‘single act.’” ¶ 64 (2006) ().

¶33 Two crimes are separate and distinct if (1) after subtracting the evidence necessary to convict the defendant for one crime, sufficient evidence remains to convict the defendant of the other crime, and (2) “the defendant’s conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the [greater] crime.”

¶ 80 (2015) (–13 (1989)).

To determine whether a defendant's conduct constitutes a single act, and accordingly, whether consecutive sentencing is appropriate

We apply a –313 (1989), to determine whether a defendant committed a single act, requiring concurrent sentences, or multiple acts, authorizing consecutive sentences, ¶ 80 (2015).

To determine whether multiple offenses should be treated as arising from a single act or omission under § 13-116

§ 13-116, this Court applies the modified identical elements test described in State v. Gordon, which “focuses on the facts of the transaction.” n.5 & 315 (1989); ¶ 90 (2018).

§ 13-116 requires concurrent sentences, STATE v. FIGUEROA Decision of the Court 315 (1989).

State v. Gordon , , 315, , 1211 (1989).

("Kidnapping is often incidental to the commission of a more serious crime."); -15 (1989) (noting Arizona rejects rule imposed by other states that one who moves a victim in the course of committing a robbery does not commit kidnapping if the movement did not substantially increase victim's risk of harm).

To determine whether § 13-116 bars consecutive sentences

(holding that it is the manner in which an instrument was utilized against a victim that determines whether it was used as a dangerous instrument).

§ 13-105(13); (“Because the Arizona statute increases the punishment for the crime if the defendant either uses a dangerous instrument or causes serious harm, no purpose exists for allowing the jury to find that body parts are dangerous instruments just because they caused serious bodily harm.”).

§ 13-116 ; State v. Gordon , , 314-15, , 1210-11 (1989).

Specifically, Barrow contends the court misapplied the test, STATE v. BARROW Decision of the Court 312 (1989), for determining “whether a constellation of facts constitutes a single act .

-11 (1989) (holding trial court erred in enhancing defendant’s kidnapping and sexual assault sentences based on jury’s finding that defendant’s fists constituted dangerous instruments).

First, the court must decide which of the two crimes is the “ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges.”