concurring.
The Court today affirms Guyton's convictions for murder and possession of a handgun based on our holding in Mickens v. State, 742 N.E.2d 927 (Ind.2001), that possessing the gun is one crime and killing with it is another. I agree, but I believe we need to explain how this ruling relates to the double jeopardy doctrine announced in Richardson v. State, 717 N.E.2d 32 (Ind.1999), which the Court cites, then does not mention again. I also believe we should directly address Guyton's claim that Richardson precludes use of the same evidence-Buttsg' testimony-to convict him of both erimes.
In Richardson, a three Justice majority announced an "actual evidence" test for double jeopardy under the Indiana Constitution as applied to multiple convictions in the same trial. Richordson formulated the test for Indiana constitutional double jeopardy as whether there is a "reasonable possibility" that the "evidentiary facts" supporting one conviction were used by the jury to support another. In substance, applying this Richardson test means opting for (1) psychoanalyzing the jury based on evidence, argument, instructions and charging instruments and indulging in the irrebuttable presumption the jury followed all of these; (2) the "reasonable possibility" standard to determine whether that occurred, and (8) the requirement that "all" not just one of the "evidentiary facts" overlap.
After citing Richardson, the Court today reaffirms several "rules" that preclude imposition of multiple punishments under some cireumstances. As formulated by Justice Sullivan's concurring opinion in Richardson, these turn in large part on whether the "very same act" supports two convictions. The problem Richardson *1149sought to address, albeit with a slim majority, was how we know when we have two crimes supported by the "very same act." I think we owe an explanation of this mystery because I believe today we have in effect abandoned Richardson, and should be explicit in doing this so future trial and appellate courts can follow a consistent methodology in reviewing double jeopardy claims. Guyton's claim under a Richardson analysis is a claim that the evidentiary facts supporting his handgun conviction are included in those supporting his murder conviction. The Court makes no mention of what the jury might have found, and there is no reference to the "reasonable probability" standard. Rather, we are told, and I agree, that carrying the handgun is one thing and firing it is another. For the reasons that follow, I believe this represents an abandonment of Richardson and a return to the pre-Richardson methodology of reviewing the evidence, instructions, charging instrument and argument of counsel under a de novo standard to determine whether it is more probable than not that the facts supporting one conviction are embraced within those supporting another. On this basis, I concur in the Court's opinion.
Guyton's claim under a Richardson analysis is a claim that the evidentiary facts supporting his handgun conviction are included in those supporting his murder conviction. The Court makes no mention of what the jury might have found, and there is no reference to the "reasonable probability" standard. Rather, we are told, and I agree, that carrying the handgun is one thing and firing it is another. For the reasons that follow, I believe this represents an abandonment of Richardson and a return to the pre-Richardson methodology of reviewing the evidence, instructions, charging instrument and argument of counsel under a de novo standard to determine whether it is more probable than not that the facts supporting one conviction are embraced within those supporting another. On this basis, I concur in the Court's opinion.
A. Some History
Justice Sullivan, concurring in Richardson, identified several situations in which two convictions cannot coexist. They were: 1) lesser included offenses; 2) the two crimes "consist of the very same act"; 3) one crime consists of the very same act as an element of the other; 4) an enhancement of one erime "imposed for the very same behavior or harm" as another crime; and 5) conspiracy where the overt act is the very same act as another crime. I thought then, and think now, that the double jeopardy clause of the Indiana Constitution has other and more important work to do in addressing subsequent prosecutions. Richardson, 717 N.E.2d at 57-73 (Boehm, J., concurring in result). However, under stare decisis, I accept the Court's view that the Indiana Constitution addresses multiple convictions.
Richardson sought to establish "a single comprehensive rule [of double jeopardy] synthesizing and superseding previous formulations and exceptions." Spivey v. State, 761 N.E.2d 831, 832 (Ind.2002). Subsequent experience has made clear that this goal was not achievable, at least not without upsetting a number of the precedents supporting the rules cited by Justice Sullivan. For example, the requirement of Richardson that all facts of one crime be embraced within that of the other limits its application to the rules prohibiting conviction for lesser included offenses. In recognition of the incompatibility of the actual evidence test with these precedents, Pierce v. State, 761 N.E.2d 826 (Ind.2002), acknowledged that some of these doctrines were not of constitutional dimensions and were not governed by Richardson. Accordingly some of these rules (e.g., the same bodily injury does not elevate two crimes) are not subject to a Richardson analysis, and can prohibit double enhancement through a single common element. At the same time, in Spivey, we reiterated that the Richardson constitutional test required all, not just one, of the "evidentiary facts" of one crime to be embraced within those of another before the constitutional test of Richardson would bar two convictions. Spivey, 761 N.E.2d at 833.
I concur in everything the Court says. I nevertheless believe the widespread confusion reflected in the Court of Appeals cases attempting to apply Richardson requires us to try to explain how future cases are to be analyzed.2 The first *1150van rule is the statutory elements test, identical to federal double jeopardy under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The second and third prohibit dual convictions under an analysis substantially the same as identification of a "factually" lesser included offense, as that term is explained in Wright v. State, 658 N.E.2d 563 (Ind.1995).3 Both Richardson and Wright teach that we look to the charging instruments and evidence to determine whether one crime is a "factually" lesser included offense. Richardson and several of its progeny make clear that the charging instrument,4 the instructions,5 arguments of counsel,6 and the evidence itself7 may be relevant to a determination whether the "evidentiary facts" of one crime are included among those of another.
The fourth Sullivan rule requires us to determine whether "the very same behavior or harm" enhanced two erimes, but we are not told how that is to be determined or reviewed on appeal. The fifth similarly turns on whether the overt act supporting a conspiracy is "the very same act" as another crime. All of the foregoing is acceptable to me, but I think we should be clear what we are doing and what we expect the Court of Appeals to do in reviewing these claims. Accordingly, I set forth how I think we are, or should be, approaching these claims in light of the Court's holding today.
B. The "Actual Evidence," or "Same Facts," Test Under Richardson
Although the "actual evidence" test has acquired that sobriquet, in my view it could also have been accurately described as a "same facts" test. Richardson described it as "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 see-ond challenged offense." 717 N.E.2d at 53. Thus, to prevail under that test, Richardson taught that Guyton must demonstrate a "reasonable possibility" that the same "evidentiary facts" used by the jury to establish the essential elements of the murder charge were also used to establish the essential elements of the handgun offense. And, as we recently noted in Spivey v. State, 761 N.E.2d 831 (Ind.2002), the "use" of facts establishing one crime to establish a second means all, not just some, of the evidentiary facts establishing one are included among the evidentiary facts establishing the other.
By "evidentiary fact," I take Richardson to mean the events found to have occurred, without regard to their legal consequences and independent of the terms lawyers and judges may use to describe them or the legal results these facts produce. Some might prefer the simple term "fact," or "historical fact" or "event or circumstance." The Court today uses "the very same act." By that term, I think the *1151Court also means the same thing as "same fact" in its embrace of the Sullivan rules. But using the term "same act" is problematic because it limits review of the facts to what the defendant did. Some elements of crimes are the consequences or cireum-stances of the crimes. Thus the same "act"-e.g., burning down a building-can result in conviction of two murders if there are two victims. Cf. Burnett v. State, 736 N.E.2d 259, 263 n. 3 (no double jeopardy where there are multiple victims). For this reason I believe it is more useful to use "fact" rather than "act" to describe the overlap that precludes conviction for two crimes.
Finally, Richardson refers to "essential elements." Because proof of all elements of a crime is essential to conviction, I use "elements" interchangeably with "essential elements." I understand that Richardson's majority intended the latter term to include not only statutory elements, but also the elements as charged. Thus, although the statutory elements of a felony murder are killing in the course of a felony, if the charging instrument alleges killing in the course of a robbery on June 18, 1999, these then are among the "essential elements" as charged. It is in this sense that I use the term "elements" to mean what needs to be proven to satisfy the statute and the charging instrument.
C. Unanswered Questions
Justice Sullivan's rules, as he formulated them and as the Court states and applies them today, do not turn on a Richardson analysis. Each of them requires a determination whether "the very same act" or the "very same behavior or harm" is involved in two erimes, but none elaborates how that determination is to be made. When the Court tells us that none of the five Sullivan rules is breached by Guyton's convictions, it impliedly holds that (1) the handgun and murder convictions were not based on the very same act and (2) no element of either crime consisted of the very same act that constituted the other. The Court's formulation gives us a result: carrying the gun and firing it are two different things. I agree, but this explanation does not address any of the following issues:
1) Is this a ruling on a point of law or a finding of fact? '
2) Guyton's claim is that the same evidence established both the carrying and the firing of the gun, and this violates Richardson. Is the evidence in Guyton's case relevant to this finding by this Court? If not, how does Richardson relate to this case? If Richardson is applicable, how do we determine whether there is a "reasonable possibility". that the jury used the same facts to find. Guyton guilty of the possession and murder charges?
3) If the trial court made a finding on this point, what standard of review applies?
4) Is this determination that these do not overlap to be measured by the "reasonable possibility" of overlaps, or a preponderance of the evidence, or something else? _
D. Of Evidence, Facts, Elements and Conclusions
I believe one critical point for purposes of analyzing factually "lesser included" crimes under Richardson or. otherwise (Justice Sullivan's second and third rules) is that the law prohibits sentencing for two convictions if the facts supporting one conviction are embraced within the facts supporting the other. But it does not preclude two- convictions if each is based on a fact that is not required for the other. Guyton contends that the jury used the same fact-his carrying a firearm that he discharged at Larrimore-to convict him of both murder and carrying a handgun *1152without a license. This confuses facts with evidence.8 Guyton correctly points out that the evidence supporting the facts was the same, but I agree with the Court that the facts supported by the evidence-possessing a gun and firing it-are distinct.
In evaluating a claim of double jeopardy, we must distinguish not only between evidence and facts. We must also differentiate the elements and legal conclusions involved in the two crimes. Butts testified that Guyton fired a handgun at the group and, in the process, shot Larrimore. His testimony was evidence. Black's Law Dictionary 576 (7th ed.1999) (Evidence is "[the collective mass of things, esp. testimony and exhibits, presented before a tribunal in a given dispute."). Facts are the historical facts, acts, events or cireum-stances that a finder of fact, after considering the evidence, concludes occurred. They may include facts directly related by the evidence, and also reasonable inferences as to what happened that are drawn from the evidence. In order to support a conviction, the facts must in the aggregate establish the elements of a crime. The elements are the legal terms we use to describe a fact or an aggregation of facts. If each element is found, the finder of fact reaches the legal conclusion, or verdict, that a crime has been committed.
Although sometimes we use the same word to describe both a "fact" and an "element," elements are not the same as facts. Rather, elements are words of legal significance. Thus, a lay person might well describe an event by saying the defendant "forced the door open." But another witness might say the defendant "broke and entered." Both have described a fact that supports an element of burglary, whether or not they used the legal label that is pinned on the element. To further confuse us, some elements and some crimes are described by the same terms we use for the fact. Thus a witness in a rape case might well respond to the question "What happened next?" with "He raped me." But few would respond "He confined me" or "She battered me" to describe those crimes.
In short, despite our occasional or even frequent use of the same word to describe a fact, or an element, or the crime itself, the three are distinct from each other and from the evidence in the case. This is true for purposes of Richardson's double jeopardy analysis, and also for purposes of determining the "very same act" under the rules cited by the Court. Only the "facts" are critical for double jeopardy purposes. I use that term to include the Court's term ("act") and also consequences ("multiple victims," "bodily harm") and cireumstances ("absence of a license").
E. Amalysis of this Case Under Richardson
In my view Guyton's argument arguably prevails under Richardson. The facts critical to the murder charge in this case are: *1153(1) Guyton pointed a gun at Larrimore and shot him; (2) Larrimore died as a result; and (8) Guyton had the requisite mens rea because he either (g) intended to kill Lar-rimore, or (b) intended to kill someone else in the group under the doctrine of transferred intent, or (c) fired the shot with knowledge of a high probability that the shot would be fatal. The facts relevant to the elements of the handgun charge are (1) Guyton possessed the gun and (2) he did so on a public street. The piece of evidence that Guyton shot Larrimore from the car speaks directly to the fact of the defendant's action (firing the shot), and it also supports the inference of a second fact relevant to the murder charge, namely intent to kill. Owens v. State, 544 N.E.2d 1375, 1377 (Ind.1989). Thus, both shooting and the intent to kill are facts directly or inferentially drawn from Butts' testimony that Guyton fired a handgun at the group, and hit Larrimore.
The jury obviously could have inferred the presence and possession of the gun in a public street for some span of time including the instant of its use. If so, Richardson would not bar both convictions. But under these cireumstances it is not obvious that the jury did draw that inference. That leaves us with a reasonable possibility that the jury "used" the fact of shooting to support the handgun charge. Yet to force the conclusion that Richardson permits both convictions we must say there is no reasonable possibility that the same fact-Guyton shot Larrimore-was "used" by the jury. I think it is more appropriate and certainly easier to follow if we admit that we are holding as a matter of law that the evidence supports both convictions. Thus, Butts' testimony, although one item of evidence might or might not have produced distinct eviden-tiary facts found by the jury: (1) Guyton shot Larrimore; (2) Guyton had the requisite mens rea; and (3) Guyton possessed a handgun on a public street.9
F. The Court's Holding Today
I agree with the Court that none of Justice Sullivan's rules is breached by Guyton's two convictions. But I think that it takes some explanation as to why that is true, and what methodology is required to reach that conclusion. Guyton was con-vieted of murder and possession of a handgun without a license. The elements of murder are (1) intentional or knowing (2) killing of (8) a human being. The elements of carrying a handgun without a license are: (1) carrying a handgun in any . vehicle or about the person (2) except in one's dwelling, on one's property or fixed place of business.10 Clearly we have no statutory elements problem here. And it is obvious that the fourth (double enhancement) and fifth (conspiracy) of Justice Sullivan's rules do not apply to this situation.
The remaining issue is whether the same facts support both convictions. It seems to me that the Court today handles this the way pre-Richardson appellate courts typically did by determining, under *1154a de novo review of whatever is relevant, whether the facts of one crime are such that the "same fact" fits one of the Sullivan rules. Thus, just as under Richardson, we look to. see if, under the statutes, charging instruments, evidence and arguments of counsel, it seems to us that the facts establishing one crime are the same as the facts establishing another (Rule 2) or establishing one or more elements of another (Rule 3). But we do this de novo, and without any effort to analyze what the jury might have considered. Whatever the jury's reasoning was, we find as a matter of law that the evidence did or did not support both convictions.
Conclusion
In sum, although the evidence supporting the facts necessary for the handgun conviction was included in the evidence necessary for the murder conviction, the issue, in my view, is whether the facts supporting these two crimes are distinct. It seems to me we cannot say that there is no reasonable possibility the jury based both of Guyton's convictions on the same set of facts. But it is easy to say that the gun did not appear magically in Guyton's hand at the instant of firing. Therefore, viewed de novo there was evidence supporting the facts essential to the murder conviction and also the fact that Guyton possessed a handgun whether or not he fired it. If so, the facts supporting the murder do not embrace all the facts supporting the handgun offense. Therefore, Guyton's convictions for murder and carrying a handgun without a license do not violate the Indiana Double Jeopardy Clause. ' -
. See, e.g., Vestal v. State, 745 N.E.2d 249 251-52 (Ind.Ct.App.2001) (concluding that a *1150""strict application of Richardson" in that case would lead to "absurd results").
. Wright held that where one offense is factually lesser included in another, viewed in light of the charging instrument and the evidence, an instruction on the lesser included offense is required if requested. Because Wright set out the steps to determine whether an instruction was needed, obviously this analysis, unlike Richardson, did not require reference to an instruction.
. Richardson, 717 N.E.2d at 50.
. Guffey v. State, 717 N.E.2d 103, 107 (Ind.1999).
. Johnson v. State, 749 N.E.2d 1103, 1109 (Ind.2001).
. Wieland v. State, 736 N.E.2d 1198, 1205 (Ind.2000).
. The distinction was not made as precisely or as clearly as it could have been in the opinions that followed Richardson. Compare Cutter v. State, 725 N.E.2d 401, 410 (Ind.2000) (referring to same "evidence" rather than "evidentiary facts" and holding that elevating rape to a Class A felony based on the same use of force supporting murder conviction was constitutional double jeopardy) and Mitchell v. State, 726 N.E.2d 1228, 1244 (Ind.2000) (constitutional double jeopardy where killing and bodily injury for Class B neglect based on same "evidence") with Marcum v. State, 725 N.E.2d 852, 864 (Ind.2000) (overt act for conspiracy to commit burglary conviction also basis of auto theft conviction; referring to "evidentiary facts"). In each of these cases, the evidence and the facts were both overlapping, so the result, if not the terminology, is consistent with the analysis offered here. In other words, none of these cases presented the situation we have here, where the same evidence directly or by inference supports multiple facts.
. I do not think it useful or possible to attempt to reconcile all past cases with this or any other theory. I would say, however, that I think Justice Dickson's view of what we are in substance doing slices matters too thinly. I view the Turnley case as an example of Sullivan Rule 5: the overt act supporting the conspiracy cannot be the "very same act" as the crime that is the object of the conspiracy. Turnley's restraint of the victim was the "act' by which he participated in the murder.
. The absence of a license is not an element, but rather its presence is an affirmative defense. Washington v. State, 517 N.E.2d 77, 79 (Ind.1987).