concurring in result.
A.
In Part II, the Court acknowledges that Guyton contends that his convictions of murder and carrying a handgun without a license violate the Double Jeopardy Clause of the Indiana Constitution, as implemented in our actual evidence test in Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). The Court does not address this constitutional claim but instead discusses only the related issue of whether his convictions violate the rules of statutory construction and common law that we recognize to provide a basis for relief separate from and additional to the state constitutional claim. See Henderson v. State, 769 N.E.2d 172, 178 (Ind.2002); Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002); Spivey v. State, 761 N.E.2d 831, 834 (Ind.2002).
The unaddressed constitutional claim, however, is not meritorious. To prevail in his asserted violation of the Indiana Double Jeopardy Clause under Richardson, Guyton must demonstrate that there is a "reasonable, not speculative or remote," possibility that the jury used the same evidentiary facts to establish all the essential elements of both murder and carrying a handgun without a license. Griffin v. State, 717 N.E.2d 73, 89 (Ind.1999), cert. denied, 530 U.S. 1247, 120 S.Ct. 2697, 147 L.Ed.2d 968 (2000).
To prove the murder, the State demonstrated that Guyton caused Larrimore's death by shooting him twice with a handgun. It also showed that Guyton carried the gun both when he met with Sherry Akers before the shooting and then later when he used it to shoot Larrimore. In this case there was direct evidence, apart from Guyton's firing the weapon, that he carried a handgun without a license. Guy-ton testified that before he arrived at the murder seene he had stopped to talk with *1146Akers and had a handgun wrapped in a towel underneath his leg. He also admitted that he did not have a permit to carry it. Record at 451.
It is not reasonably possible that the jury ignored this evidence and instead based its finding of guilt for the handgun offense solely on the defendant's possession of the weapon at the time he fired it at Larrimore. For this reason, Guyton has failed to establish his claimed violation of the Indiana Double Jeopardy Clause.
B.
In his separate concurring opinion, Justice Boehm proposes a methodology that modifies the Richardson actual evidence test by requiring the evidence proving each offense at trial to be analyzed to determine each constituent "evidentiary fact" or "fact" established by or inferred from the evidence. Thus in this case, Justice Boehm takes the body of evidence showing that Guyton fired a handgun from his car to fatally shoot Larrimore, subdivides it into multiple component "facts," and then concludes that there was no reasonable possibility that the jury based both convictions on the same group of "facts."
It is certainly true that throughout Richardson, we used the phrase "eviden-tiary facts" instead of "evidence." We used "evidentiary facts" when first articulating the test, id. at 53, when we applied the test to the facts of the case, id. at 54, and when evaluating the proper remedy, id. at 55. See also id. at 53 n. 46 (noting that the Indiana Double Jeopardy Clause permits convictions for multiple offenses committed in a protracted criminal episode when the verdicts are not "based on the same evidentiary facts."). However, there is nothing in Richardson or the analysis on which it is based to support the parsing of one evidentiary fact to create multiple evi-dentiary facts.
Justice Boehm's proposed analysis, I believe, significantly lessens the protection provided by the Indiana Double Jeopardy Clause. If this methodology had been followed in several of our earlier post-Richardson opinions that found double jeopardy violations, we would have reached an opposite result.
For example, in Turnley v. State, 725 N.E.2d 87 (Ind.2000), the defendant and an accomplice broke into a home to steal money and agreed to kill the female occupant if necessary. While Turnley held her hands, his accomplice choked her to death. Turnley was convicted of multiple crimes including both murder and conspiracy to commit murder. The conspiracy count alleged that Turnley's restraint of the victim was the overt act element of conspiracy. Under Justice Boehm's proposed methodology, a reviewing court would break the evidence into component "evidentiary facts" including: (1) Turnley and his accomplice agreed to kill the victim; (2) they intended to kill; (8) Turnley assisted by restraining the victim; (4) the accomplice strangled her; and (5) the victim died from the strangulation. Using the proposed analysis the court would then determine that the jury used "evidentiary facts" (1), (2) and (8) to establish the essential cle-ments of the conspiracy count, and that the jury used "evidentiary facts" (2), (4), (5) and possibly (8) to establish the murder. The result would be that there is no double jeopardy because there is no reasonable possibility that the jury relied upon the same body of "evidentiary facts" to establish both offenses, i.e., no possibility that all the "evidentiary facts" establishing one offense are included among those that establish another offense, or stated differently, no possibility that the "eviden-tiary" facts used by the jury to establish all the elements of one offense were also used to establish all the elements of another offense.
*1147Our opinion, however, reached the opposite result. Finding a violation of the Indiana Double Jeopardy clause, we held that "there is at least a reasonable 'possibility-indeed a high probability-that the jury used the same evidentiary fact-the restraining and strangulation of [the victim]l-to prove an essential element of the conspiracy to commit murder (the overt act) and also the essential element of murder." Turnley, 725 N.E.2d at 91.
The methodology proposed by Justice Boehm would also have required a different result in Richardson itself. There the defendant and several others brutally beat the victim and took his wallet. The proposed methodology would parse this evidence into several component "evidentiary facts" including: (1) defendant intended to batter; (2) defendant intended to take the wallet; (8) defendant and others beat the victim; (4) they took the victim's billfold; (5) the victim suffered injuries. It would then be probable to conclude that the jury used "evidentiary facts" (1), (8), and (5) to prove class A misdemeanor battery, but used "evidentiary facts" (2), (8), and (4) to establish class C felony robbery. As in Turnley, above, there would be no reasonable possibility that the jury used the same group of "evidentiary facts" to establish all the elements of both offenses, and thus no double jeopardy. In Richardson, however, we reached the opposite conclusion and found that the Indiana Double Jeopardy Clause was violated. Without disaggre-gating the evidence into separate "eviden-tiary facts," we concluded that the same body of evidence (brutal beating plus taking wallet) may reasonably have been used by the jury to prove both offenses.
I acknowledge that, in many cases where a defendant is convicted of both an offense committed with a handgun and the offense of carrying a handgun without a license, the Richardson actual evidence test may, at first blush, appear to require that the handgun offense be vacated. The same evidence proving an offense involving use of a handgun would also appear to prove the elements of carrying a handgun without a license-if we presume that, because the existence of a license is a matter of affirmative defense for the defendant, it is not considered as an element of the offense. See Ind.Code § 85-47-2-24; Washington. v. State, 517 N.E.2d 77, 79 (Ind.1987). I contend, however, that this presumption is inappropriate.
To determine if a defendant has been punished twice for the same offense under the Richardson actual evidence test, a better approach is to consider all three statutory elements of the offense of carrying a handgun without a license: (a) carrying a handgun in any vehicle or on or about his person (b) except in his dwelling, his property, or fixed place of business, (8) without a proper license in his possession. Ind. Code § 35-47-2-1.1 This is not necessarily inconsistent with Washington because it was addressing whether the existence of a license is an element that must be disproved by the State or a matter that constitutes an affirmative defense to be proved by a defendant. 517 N.E.2d at 79. It was in this context, not that of double jeopardy, that we declared in Washington: "Proof that a defendant does not possess a license to carry a handgun is not an element of ... the statute which delineates this crime.". Id. at 79. ~
*1148In contrast to this language in Washington, our Court of Appeals recently found no violation of the Indiana Double Jeopardy Clause under the Richardson actual evidence test by assessing the "essential elements" of the offense of carrying a handgun without a license to include both the elements which the State must prove and that which the defense must prove. Ho v. State, 725 N.E.2d 988 (Ind.Ct.App.2000). In essence, the Ho court held that there was no violation of the Indiana Double Jeopardy Clause because the evidence used by the jury to establish robbery while armed with a handgun did not also relate to whether or not Ho possessed a valid license. See id. at 998. In applying the actual evidence test for violation of the Indiana Double Jeopardy Clause, the Ho court used the term "element" in a different sense than it was used in Washington, where we used the phrase "not an element" merely to succinetly express the idea that such proof is not an element on which the State carries the burden of proof. We recently expressed approval of Ho in Mickens v. State, 742 N.E.2d 927, 931 (Ind.2001), which also rejected a double jeopardy claim arising from convictions for murder and carrying a handgun without a license.
In the present case, even if we did not consider the separate evidence of Guyton's unlicensed possession of the handgun before he arrived at the murder seene, Guy-ton's convictions for murder and carrying a handgun without a license would not violate the Indiana Double Jeopardy Clause. There would be no reasonable possibility that the evidentiary facts used by the jury to establish the elements of murder were also used to establish the essential elements of carrying a handgun without a license. The evidence proving the murder did not involve the existence or absence of a license for the handgun, and the facts proving carrying an unlicensed handgun did not include the resulting death of the victim.
. Indiana Code § 35-47-2-1 provides: "Except as provided in section 2 of this chapter, a person shall not carry a handgun in any vehicle or on or about his person except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession." Indiana Code § 35-47-2-24 declares in part, "The burden of proof is on the defendant to prove ' that he is exempt under section 2 of this chapter, or that he has a license as required , under this chapter."