concurs in part and concurs in result in part
I concur fully with the majority on issues two and three. However, I only concur in result on issue one. I do so because I believe the double jeopardy issue should be analyzed under the actual evidence test enunciated in Richardson v. State, 717 N.E.2d 32 (Ind.1999) and not the common law. In Richardson, a majority of our Supreme Court set forth two tests the statutory elements test and the actual evidence test to determine whether the Indiana Double Jeopardy Clause prohibits multiple punishments for the same offense. Two or more offenses were deemed the same offense for double jeopardy purposes if, with respect to either the statutory elements of the challenged offenses or the actual evidence used to convict, the essential elements of one challenged offense also established the essential elements of another challenged offense. Richardson, 717 N.E.2d at 49. In my opinion, the Richardson actual evidence test was meant to supersede the common law. Nevertheless, the majority analyzes this case by citing the common law rule of Thompson v. State, 259 Ind. 587, 290 N.E.2d 724, 727 (1972) and not the actual evidence test of Richardson. While the difference might not make a difference and the distinction is admittedly minute, analyzing the case using Thompson implies that the common law analysis survives Richardson.
Applying the actual evidence test, the evidence must be examined to determine whether each challenged offense was established by separate and distinct facts. As the majority correctly concludes, the attempted arson, the arson for hire and the arson with the intent to defraud all arose from Clark offering to another person money to burn his house so that he could collect insurance proceeds. Thus, each offense was not established by separate and distinct facts. Therefore, I concur with the majority in reversing Clark’s convictions for attempted arson and attempted arson with the intent to defraud an insurance company and affirming the attempted arson for hire conviction.