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Majority: No double jeopardy in enhancement

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In a matter of first impression, the Indiana Court of Appeals was divided about whether a man's sentence enhancement based on his use of a deadly weapon violated the application of double-jeopardy principals.

The majority ruled no and affirmed the trial court's 5-year sentence enhancement for the use of a firearm following Joshua Nicoson's convictions of criminal confinement with a deadly weapon as a Class B felony. He was also charged with four counts of pointing a firearm as a Class D felony.

In Joshua G. Nicoson v. State of Indiana, No. 32A04-0905-CR-241, Nicoson argued the enhanced penalty constituted an impermissible double enhancement in violation of double-jeopardy principles.

Nicoson went to a gas station with a gun to confront his friend's boyfriend and to help her end her relationship with the man. The boyfriend and three others arrived in a car and saw Nicoson pointing a gun in the air. He also pointed the gun at the boyfriend and a passenger, fired a warning shot in the air, ordered the people at gunpoint to lie on the ground, and then fired at the car when the people escaped.

Indiana Code Section 35-50-2-11 allows a judge to enhance a person's sentence to an additional fixed term of 5 years if the state can prove beyond a reasonable doubt the person "used" a firearm in the commission of the offense.

The majority concluded it was apparent that Nicoson's convictions for confinement and the enhancement for that offense relied on separate facts. His criminal confinement conviction was elevated to a Class B felony because he was armed with a deadly weapon, and there's no requirement that the state has to prove a defendant actually used the weapon during the commission of the offense, wrote Chief Judge John Baker. The enhancement provision refers to actual use.

"In sum, the enhancement of the sentence is connected to, and punishes a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon," he wrote.

The chief judge noted that two other jurisdictions addressing this issue also found the enhancements to be proper.

Judge Carr Darden dissented because Nicoson was charged and convicted of confining the victims while armed with a deadly weapon and of using a firearm while committing the confinement. If the deadly weapon is a firearm, how could a person thereby armed not also commit the offense of confinement using a firearm, questioned Judge Darden. He found the enhancement violated double jeopardy provisions under the Richardson "actual evidence test."

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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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