SHEPARD, C.J.
Appellant Joshua Nicoson committed confinement while armed with a deadly weapon, earning a class B felony conviction. The trial court added five years to the regular class B sentence, relying on a statute authorizing an additional term where the perpetrator “used” a firearm while committing the offense. We hold that adding these years is consistent both with the statutes in question and with the prohibition against double jeopardy.
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The State charged Nicoson with four counts of confinement with a deadly weapon as a class B felony [footnote omitted] and four counts of pointing a firearm as a class D felony. [Footnote omitted.] The State later added count nine, an enhancement, alleging that Nicoson knowingly or intentionally used a firearm in the commission of criminal confinement as a class B felony.3 [3 Ind. Code § 35-50-2-11 (2008).]
Following a bench trial, the court found Nicoson guilty as charged . . . . It sentenced Nicoson to ten years for each confinement count and three years for each pointing conviction, all to be served concurrently. It added five years to one of the confinement convictions for the use of a firearm in the commission of the offense.
On appeal, Nicoson has contended that the additional five years was a “double enhancement” constituting double jeopardy under both the United States Constitution and the Indiana Constitution. . . . A divided Court of Appeals rejected Nicoson’s arguments. Nicoson v. State, 919 N.E.2d 1203 (Ind. Ct. App. 2010), vacated. The Court held that being armed with a deadly weapon was the basis for the confinement enhancements to class B felonies and the additional five year enhancement was to “punish[] a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon.” Id. at 1206. We granted transfer Nicoson v. State, 929 N.E.2d 788 (Ind. 2010) (table). We conclude the Court of Appeals was right, and thus affirm.
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Indiana‘s Double Jeopardy Clause was intended to “prevent the State from being able to proceed against a person twice for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under the analysis laid out in Richardson, “two or more offenses are the ‘same offense’ . . . if, with respect to either the statutory elements of the challenge crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson, 717 N.E.2d at 49.
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Largely for the reasons given by the Court of Appeals, there is no double jeopardy violation in these circumstances. The Richardson constitutional rule aims principally at multiple convictions. Miller v. State, 790 N.E.2d 437, 438 (Ind. 2003). Thus, while Double Jeopardy does govern claims about the elements of multiple counts, Pierce v. State, 761 N.E.2d 826, 829–30 (Ind. 2002), claims of multiple sentencing enhancements turn on statutory interpretation.
Sentencing schemes have presented us with a series of “double enhancement” questions. We have regularly held that “the general rule against double enhancements ‘absent explicit legislative direction’” remains intact. Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007). We often emphasize the crux of these cases revolves around what, if any, legislative direction we are given. See Mills, 868 N.E.2d at 452; State v. Downey, 770 N.E.2d 794, 798 (Ind. 2002). [Footnote omitted.] We review matters of statutory interpretation de novo because they present pure questions of law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).
Nicoson’s criminal confinement was elevated to a class B felony because it was committed while armed with a deadly weapon, as per subsection [35-42-3-]3(b)(2)(A). A deadly weapon includes a loaded or unloaded firearm. Ind. Code § 35-41-1-8(a)(1).
The criminal confinement statute straightforwardly provides six ways for upgrading the standard class D felony to a C and B offense, including the one used in Nicoson’s case. The Court of Appeals has addressed this particular increase in class of felony by observing that “[w]e 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.” Mallard v. State, 816 N.E.2d 53, 57 (Ind. Ct. App. 2004).
The “extra’ five years about which Nicoson complains is not part of these provisions in the confinement statutes that authorize higher classes of felonies to be charged. Rather, it appears in the part of the Code on penalties. The section at issue authorizes an additional fixed sentence for the underlying offense where a firearm is used. Ind. Code §§ 35-50-2-11, 35-50-1-2(e) (2004).
The General Assembly originally crafted this additional penalty for defendants who committed an offense “knowingly or intentionally us[ing] an assault weapon.” Ind. Code § 35-50-2-11 (1994) (amended 1996, 2005). In 1996, it broadened the language so the applicable offenses would include those involving the use of “firearm[s]” rather than only “assault weapon[s].” Ind. Code § 35-50-2-11(a) (1996) (amended 2005). In 2005, the legislature revised the language of subsection (d) [footnote omitted] and set the additional imprisonment to the current fixed term of five years. Ind. Code § 35-50-2-11(e) (2005).
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Subsections [IC 35-50-2-11] (b), (c) and (e) have particular relevance here. A plain reading of these subsections reveals at least two features worth noting. First, subsections (c) and (e) require the “use[]” of a firearm in the commission of the underlying offense. Mere possession of a firearm or being “armed” with a deadly weapon is not enough. As the Court of Appeals pointed out, it is reasonable to infer that the General Assembly was recognizing the additional escalation of danger associated with the actual use of a firearm versus the mere possession of one during the commission of an offense. Thus, it was Nicoson’s use of the weapon as noted by the trial court that necessitated the additional enhancement of five years: “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. at 417.)
Second, we note that in crafting the list of applicable offenses in which the additional fixed term may be imposed, the General Assembly specifically listed “criminal confinement as a Class B felony” as one of the offenses to which the five years may be added. Ind. Code § 35-42-3-3(b)(2). This is fairly powerful evidence of legislative intent, to say the least. Moreover, the General Assembly has amended the statute at least once since expanding its scope to include firearms and has had ample opportunity to do so again if a double enhancement was not desired.
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Here, the State initially needed to prove only that Nicoson committed confinement while armed with a deadly weapon. Ind. Code § 35-42-3-3. To apply the additional fixed five-year term the statute requires the State to prove Nicoson “used” a firearm in commission of his offense. Ind. Code § 35-50-2-11. The record clearly reveals that Nicoson was not only armed with a deadly weapon, but that he used the firearm—firing it into the air, ordering the victims from the vehicle with it, and firing at the victims‘ vehicle as they drove away.
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The legislative direction in the language of the statutes is explicit. The enumeration of criminal confinement in the “firearm use statute” is authorization by the General Assembly for this type of enhancement.
Dickson and David, JJ., concur.
RUCKER, J., dissents with separate opinion in which Sullivan, J., joins:
In sum, the relevant facts show that the Nicoson was “armed” with the firearm the entire time he was “us[ing]” it. Essentially there was no distinction between the two. In Richardson terms, the evidentiary facts the trial court relied on to find Nicoson guilty of Class B criminal confinement—specifically, the facts used to determine that Nicoson was “armed with a deadly
weapon” —were the same facts used to find that he “used a firearm.” In Guyton terms, the multiple enhancements were based on the “very same behavior.” 771 N.E.2d at 1143. Either way the enhancements were prohibited. I would therefore reverse the judgment of the trial court on this issue and remand for resentencing.