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Wednesday, December 15, 2010

Ind. Decisions - Supreme Court issues two opinions today

In Joshua G. Nicoson v. State of Indiana, a 10-page, 3-2 opinion, Chief Justice Shepard writes:

Appellant Joshua Nicoson committed confinement while armed with a deadly weapon, earning a class B felony conviction. The trial court added five years to the regular class B sentence, relying on a statute authorizing an additional term where the perpetrator "used" a firearm while committing the offense. We hold that adding these years is consistent both with the statutes in question and with the prohibition against double jeopardy. * * *

Here, the State initially needed to prove only that Nicoson committed confinement while armed with a deadly weapon. Ind. Code § 35-42-3-3. To apply the additional fixed five-year term the statute requires the State to prove Nicoson "used" a firearm in commission of his offense. Ind. Code § 35-50-2-11. The record clearly reveals that Nicoson was not only armed with a deadly weapon, but that he used the firearm—firing it into the air, ordering the victims from the vehicle with it, and firing at the victims‘ vehicle as they drove away.

In effect, Nicoson is contending that the State proved too much too soon. He has to mean that the legislative design seeks to impose a greater penalty on a perpetrator who brings a gun to the scene of his crime and eventually pulls it out of his pocket and aims it, but a lesser penalty for a perpetrator who discharges the weapon as a warning, aims it at other human beings, and brandishes it throughout the whole encounter. It cannot be so.

The legislative direction in the language of the statutes is explicit. The enumeration of criminal confinement in the "firearm use statute" is authorization by the General Assembly for this type of enhancement.

Dickson and David, JJ., concur.

Rucker, J., dissents with separate opinion in which Sullivan, J., joins. [[that concludes] In sum, the relevant facts show that the Nicoson was "armed" with the firearm the entire time he was "us[ing]" it. Essentially there was no distinction between the two. In Richardson terms, the evidentiary facts the trial court relied on to find Nicoson guilty of Class B criminal confinement — specifically, the facts used to determine that Nicoson was "armed with a deadly weapon" — were the same facts used to find that he "used a firearm." In Guyton terms, the multiple enhancements were based on the "very same behavior." 771 N.E.2d at 1143. Either way the enhancements were prohibited. I would therefore reverse the judgment of the trial court on this issue and remand for resentencing.

In Hamilton County Property Tax Assessment Board of Appeals & Hamilton County Assessor v. Oaken Bucket Partners, LLC, an 8-page, 5-0 opinion, Justice Rucker writes:
In this opinion we determine that charging below market rent for part of a building rented to a church is insufficient, standing alone, to justify a religious and charitable purpose property tax exemption. Instead, an owner of leased property must provide evidence that it possesses an exempt purpose separate and distinct from the exempt purpose of its lessee. * * *

In sum, although leasing space to Heartland for charitable and religious purposes, Oaken Bucket has failed to demonstrate it owned the property for such purposes because Oaken Bucket did not possess an exempt purpose independent of Heartland’s charitable and religious purpose. As such, Oaken Bucket has not met its burden of proving it is entitled to an exemption.

We reverse the judgment of the Tax Court.

Posted by Marcia Oddi on December 15, 2010 03:42 PM
Posted to Ind. Sup.Ct. Decisions