dissenting.
T respectfully dissent.
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? According ly, 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"" Guyton v. State, 771 N.E.2d 1141, 1142 (Ind.2002) (citing Richardson v. State, 717 N.E.2d 32 (Ind.1999)).