¶1concurring.
¶2A handgun is a deadly weapon. It therefore follows that Woods committed Criminal Recklessness as a Class D felony by the use of the handgun which he was carrying without a license.
¶3Here, however, Woods does not frame his double jeopardy challenge under the "same evidence" prong of the Richardson v. State, 717 N.E.2d 32 (Ind.1999). Nevertheless our Supreme Court has held a violation of the same evidence test of double jeopardy to be reviewable sua sponte. Logan v. State, 729 N.E.2d 125 (Ind.2000). A double jeopardy violation is fundamental error. Cuto v. State, 709 N.E.2d 356 (Ind.Ct.App.1999); Garcia v. State, 686 N.E.2d 883 (Ind.Ct.App.1997); Odom v. State, 647 N.E.2d 377(Ind.Ct.App.1995), trans denied.
¶4Be that as it may, although there is a reasonable possibility that the jury looked to the same evidence of the handgun to establish an element of each crime, that *1029evidence did not establish all of the elements of either crime. Accordingly, the dual convictions do not run afoul of the Richardson test as recently considered in Spivey v. State, 761 N.E.2d 831 (Ind.2002).
¶5In all other respects I fully concur.
¶6. The Richardson/Spivey analysis is considered in Alexander v. State, 768 N.E.2d 971 (Ind.Ct.App.2002) also decided this date. A/ exander has concluded that a double jeopardy violation occurs where establishment of an essential element of one offense also establishes all of the essential elements of the second offense. The convictions in the case before us do not violate this standard.