Rucker, J.
Appellant challenges his convictions and aggregate 38-year sentence following resentencing for various crimes arising from a foiled drug sale. In this appeal, we address whether the appellant’s firearm enhancement is based on the same behavior used to convict and sentence the appellant for carrying a handgun without a permit. We conclude that it is and therefore vacate his conviction and five-year firearm enhancement.
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The relevant facts are these. Cross drove to a Shelbyville hotel room with another person where he met a confidential informant to whom he had previously sold cocaine. Once inside the hotel room Cross pulled out a bag of cocaine at which point the police entered from their stakeout position in the bathroom and ordered Cross to the ground. Cross “reach[ed] for his waistband,” which led the officer to believe that Cross was “reaching for a weapon.” Tr. at 139 (emphasis added). Cross “continued to struggle” with the officer and “continued to reach toward his waistband.” Tr. at 140. The officer was eventually able to subdue Cross at which point he “felt something slide down [Cross’] pants leg.” Tr. at 142. A later search revealed a gun on Cross’ person as well as three grams of cocaine. Cross was eventually charged with and convicted of multiple offenses including carrying a handgun without a permit after a felony conviction, and using or possessing a firearm while dealing in a controlled substance.
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. . . Cross contends the post-conviction court violated Indiana double jeopardy principles by entering convictions and imposing sentence for both carrying a handgun without a permit and an enhancement based on the same handgun. The State counters that Cross makes no claim that carrying a handgun without a permit as a convicted felon and use of a firearm in a controlled substance offense have the same statutory elements or that Richardson’s “actual evidence” rule was violated. Br. of Appellee at 11. The State’s point is not without merit. But also entrenched in Indiana jurisprudence is “a series of rules of statutory construction and common law that supplements the constitutional protections afforded by the Indiana Double Jeopardy Clause.” Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003). One such rule “prohibit[s] conviction and punishment ‘for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.”’ Id. (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).
Here, Cross contends that “the dual convictions for the firearm enhancement and carrying a handgun without a license were based on the ‘very same behavior or harm’—and cannot stand.” . . . .
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. . . [T]he statute makes clear that a sentence may be enhanced based on an accused’s use or possession of a firearm. However as the State correctly concedes the charging information in this case specifically alleged that “Cross did knowingly or intentionally possess a handgun in violation of I.C. 35-47-2-1 . . . .” App. at 12 (emphasis added). And the record is clear this is the very same handgun that “Christopher A. Cross did carry . . . in his vehicle or on his person . . . without a license permitting him to carry a handgun, after having a felony conviction within the past 15 years . . . .” App. at 11 (emphasis added).
Without parsing the distinction, if any, between “possess” and “carry” it appears to the Court that on its face, the charging information for the handgun enhancement count seeks a conviction for “the very same behavior or harm” alleged in the controlled substance count. Guyton, 771 N.E.2d at 1143. But such a conviction would not amount to an Indiana Double Jeopardy violation if the evidence produced at trial demonstrated separate and distinct acts of possession upon which each count was based. See, e.g., Miller, 790 N.E.2d at 439 (“The defendant’s use of the same weapon in the commission of separate and distinct offenses thus does not present a violation of the Indiana Double Jeopardy Clause.”).
The relevant facts are these. Cross drove to a Shebyville hotel room with another person where he met a confidential informant to whom he had previously sold cocaine. Once inside the hotel room Cross pulled out a bag of cocaine at which point the police entered from their stakeout position in the bathroom and ordered Cross to the ground. Cross “reach[ed] for his waistband,” which led the officer to believe that Cross was “reaching for a weapon.” Tr. at 139 (emphasis added). Cross “continued to struggle” with the officer and “continued to reach toward his waistband.” Tr. at 140. The officer was eventually able to subdue Cross at which point he “felt something slide down [Cross’] pants leg.” Tr. at 142. A later search revealed a gun on Cross’ person as well as three grams of cocaine. Cross was eventually charged with and convicted of multiple offenses including carrying a handgun without a permit after a felony conviction, and using or possessing a firearm while dealing in a controlled substance.
As this Court has previously declared: “Mere possession of a firearm or being ‘armed’ with a deadly weapon is not enough[]” to impose multiple enhancements. Nicoson v. State, 938 N.E.2d 660, 665 (Ind. 2010). See also Miller, 790 N.E.2d at 439 (Sullivan, J., concurring) (explaining that “it would be improper to impose more than one enhancement” if “the defendant [had] merely been armed with the weapon while committing multiple crimes, and not actually used it”). In this case, rather than supporting the proposition of two separate and distinct acts of possession justifying two separate convictions and sentences, the record before us reveals Cross’ continual possession of the weapon from the time he drove to the hotel room until he was taken into custody by officers of the Shelbyville Police Department.
We vacate Cross’ conviction and five-year sentence imposed under the handgun enhancement charge. This cause is remanded to the trial court for further proceedings.
Rush, C.J., and Dickson, David and Massa, JJ., concur.