dissenting.
The majority opinion acknowledges the law as set forth in Washington v. State (1987) Ind., 517 N.E.2d 77 yet proceeds to disregard it. A creative but unpersuasive rationale is fashioned for ignoring Washington. The majority concludes that it is “reasonable to presume that a defendant who has a valid license for his handgun will present that license to avoid conviction for the crime” (Op. *32at 30) and that therefore such a defendant will never be convicted of possession of a handgun without a license and another crime involving that firearm. While the innovative speculation is an understandable effort to avoid the applicable law, it does not alter the fact that “[p]roof that a defendant does not possess a license to carry a handgun is not an element of ... the statute which delineates the crime.” Washington v. State, supra, 517 N.E.2d at 79.4 That a given defendant may have a defense to a particular crime does not make the substance of that defense an element of the crime, whether for purposes of double jeopardy or otherwise.
In articulating the test for determining the existence of an included offense, the majority erroneously states that in addition to a comparison of the two statutory provisions defining the respective crimes and examination of the facts alleged in the respective charges, we must assess “the facts upon which the charges were predicated ...” (Op. at 29). Baker v. State (1991) Ind.App., 569 N.E.2d 369, is cited for this proposition. The eviden-tiary facts upon which charges are based and which evolve during trial are not an appropriate factor to consider in determining whether a defendant may be convicted of an offense not inherently included as within the statutory definition of the greater crime nor included within the greater offense, as charged.
In this regard, it should be noted that Baker v. State, supra, involved the refusal of instructions concerning lesser included offenses, as did the three cases cited in Baker. Viewing the evidentiary facts in that context is appropriate because a defendant is entitled to an instruction only if there is evidence to support it. That premise, however, is not an appropriate test as to what is and what is not an included offense in a given case. See Meriweather v. State (1995) Ind.App., 659 N.E.2d 133.
Perhaps, the inclusion of an evidentiary analysis in the included offense context is a result of the inappropriate and apparently inadvertent use of that concept in Hitch v. State (1972) 259 Ind. 1, 284 N.E.2d 783. Hitch did not involve an instructional issue but rather concerned a straightforward question as to whether theft was a lesser included offense of robbery. The court mistakenly drew from an instruction case, Hash v. State (1972) 258 Ind. 692, 284 N.E.2d 770, in stating that the test for included offenses involves the requirement that not only must the statutes and the charges be examined but that “the evidence of the particular case” must be considered. Id. at 791, 284 N.E.2d 770. Even a cursory reading of Hash discloses that the viewing of the evidence there, was solely with reference to whether the lesser offense instruction should have been given.
I further disagree with the majority’s conclusion that the criminal recklessness conviction and the possession of the handgun conviction were each supported by different conduct. Here Fields’s possession of the handgun was continuous and uninterrupted throughout the entire criminal episode. It is this possession which was alleged in the criminal recklessness charge. The logical result of the majority’s view in this respect would be to permit multiple convictions for every temporal period during the occurrence and for every isolated change in location or position during the time in question. We do not permit a separate drug possession conviction when there has been a sale of that drug even though the perpetrator must necessarily have had the drug in his possession immediately preceding the actual sale. Abron v. State (1992) Ind.App., 591 N.E.2d 634; Stephens v. State (1992) Ind.App., 588 *33N.E.2d 564; Cf., Quick v. State (1996) Ind. App., 660 N.E.2d 598. Neither should we permit the separate convictions here.
I would reverse the conviction for possession of a handgun without a license, affirm the criminal recklessness conviction and the probation revocation and would remand for a new sentencing hearing,
. The majority opinion relies upon Bigbee v. State (1992) Ind.App., 596 N.E.2d 970, which held that conviction of armed robbery and possession of a handgun did not violate double jeopardy principles because the possession charge has an "additional element of lack of license." Id. at 973. Quite simply, Bigbee is an erroneous decision and failed to recognize the clear and unmistakable holding of Washington.