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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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