concurring in part and concurring in result in part.
I respectfully concur as to Parts I and III. I concur in result as to Part II.
With respect to the latter, I am unable to agree that the quotation from Spivey v. State, 761 N.E.2d 831 (Ind.2002) set forth in the majority opinion on page 176, accurately reflects the law in its current state. The Spivey quotation states that “the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, hut not all, of the essential elements of a second offense.” (Emphasis supplied). This sentence read in isolation can only be read to hold that there is a double jeopardy violation only when all of the elements of one crime are established by evidence proving all of the elements of the second crime.
*180I submit that the law is otherwise. As stated in our opinion upon rehearing in Alexander v. State, 772 N.E.2d 476 at 478 (Ind.Ct.App.2002), trans. denied:
“... the Richardson actual evidence test, as applied by our Supreme Court, has found double jeopardy to be violated where the evidentiary fact(s) establishing one or more elements of one challenged offense establish all the elements of the second challenged offense. For there to be a double jeopardy violation it is not required that the evidentiary facts establishing all of the elements of one challenged offense also establish all of the essential elements of a second challenged offense (Original emphasis). To be sure, if such is the case, double jeopardy has been violated, but that scenario is not the only situation in which double jeopardy prohibitions exist. Both of the offenses being analyzed for double jeopardy purposes must be viewed in the context of the other offense. If the evidentiary facts establishing any one or more elements of one of the challenged offenses establishes the essential elements of the second challenged offense, double jeopardy considerations prohibit multiple convictions.”
In Justice Sullivan’s separate concurrence in Richardson he noted that the prohibition against multiple convictions is implicated in five different categories. One such category was defined as follows:
“3. Conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished” (Emphasis supplied).
Justice Sullivan’s analysis and approach to such situations prohibiting multiple punishments has been acknowledged and accepted by our Supreme Court. See Guyton v. State, 771 N.E.2d 1141 (Ind.2002).
Subject to the above commentary, I concur.