BAKER, C.J.
Today we decide an issue of first impression regarding the application of double jeopardy principles when a defendant’s sentence is enhanced based on his use of a deadly weapon. Appellant-defendant Joshua G. Nicoson appeals the five-year sentence enhancement that the trial court imposed for the use of a firearm following his conviction for Criminal Confinement with a Deadly Weapon, [footnote omitted] a class B felony.
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Contrary to Nicoson’s argument, there is no requirement in the confinement statute that the State must prove that a deadly weapon was “used” during the commission of the offense. Id. Rather, the crime is completed the moment that the defendant confines the victim while in possession of a deadly weapon. Thus, Nicoson’s mere possession, alone, increased the potential for harm and warranted an enhancement of the charge to a class B felony. See Mallard, 816 N.E.2d at 57 (observing that “we can reasonably infer that our General Assembly considered the heightened risk to a confined victim if the perpetrator is armed with a deadly weapon when it determined that a Class B felony enhancement was warranted in such cases”).
On the other hand, the enhancement provision set forth in Indiana Code Section 35-50-2-11 refers to the actual “use” of a firearm in the commission of an offense. The plain language of the statute dictates that the State must prove that a defendant actually used the weapon before it applies. Indeed, the trial court implicitly recognized the distinction between Nicoson’s mere possession of the gun and his actual use of it at sentencing, when it made the following comment: “Sir, I can’t get beyond the fact in this case that you uh, held a loaded 9 millimeter weapon to somebody’s head as they were lying in a prone position [.]” Tr. p. 417.
In sum, the enhancement of the sentence is connected to, and punishes a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon. Thus, the trial court sentenced Nicoson for criminal confinement as a class B felony because he was in possession of a deadly weapon, and it subsequently enhanced the sentence pursuant to Indiana Code section 35-50-2-11in light of Nicoson‟s use of the gun. As a result, we reject Nicoson‟s argument that the sentence amounted to an impermissible double enhancement in violation of federal or state double jeopardy prohibitions.
MAY, J., concurs.
DARDEN, J., dissents with opinion:
As noted, Nicoson was charged and convicted of confining the victims while “armed with a deadly weapon,” and of “us[ing]” a firearm while committing the confinement. The majority concludes that the second offense/conviction merely constitutes an enhancement of the first, but I cannot agree. If that “deadly weapon” is a firearm, how could a person thereby armed not also commit the offense of confinement “us[ing]” a firearm? Accordingly, I would find that such violates the Double Jeopardy provisions of the Indiana Constitution under the Richardson “actual evidence test,” which held “that the Double Jeopardy clause is violated if there is a ‘reasonable possibility that the evidentiary facts used by the fact finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.’”