¶1concurring in part and dissenting in part.
¶2I fully concur with respect to the seven issues discussed and decided in the majority opinion. This includes Part IV which holds that the sentence enhancement provision of the habitual offender statute does not violate the constitutional prohibition against double jeopardy.
¶3However, there is a serious double jeopardy concern arising from Ziebell's conviction for both murder and for conspiracy to commit murder. This concern prompts me to state that the conviction for conspiracy and the fifty-year concurrent sentence imposed thereon should be vacated.
¶4In Bruno v. State, 774 N.E.2d 880 (Ind. 2002), reh'g denied, our Supreme Court held that a conviction for conspiracy to commit murder could not co-exist with a murder conviction when the overt act alleged in the conspiracy charge was the very act alleged in the murder charge. To be sure, in Bruno, only one overt act was alleged in the conspiracy count whereas in the case before us the co-conspirators were alleged to have performed "one or more" of three acts. One of those three overt acts alleged was the shooting of the victim in the head with a shotgun, the very act which was alleged as constituting the crime of murder.
¶5In Long v. State, 743 N.E.2d 253 (Ind. 2001), reh'g denied, citing Griffin v. State, 717 N.E.2d 73 (Ind.1999), cert. denied by 530 U.S. 1247, 120 S.Ct. 2697, 147 L.Ed.2d 968 (2000), our Supreme Court found no double jeopardy violation under the "actual evidence" test of Richardson v. State, 717 N.E.2d 32 (Ind.1999), where multiple overt acts were alleged in the conspiracy charge. The Long court reached that conclusion upon the basis that "there is no reasonable possibility that the jury used the same evidentiary facts to establish the essential elements of both eriminal confinement and conspiracy to commit murder." - 743 N.E.2d at 261. In Long, the court pointed to the fact that the overt act common to the confinement charge was abduction of the victim but that the evidence was overwhelming as to the commission of the other overt acts of the conspiracy charge, le. rape and disposal of the victim's body. There, the abduction took place many days prior to the rape and murder of the victim. It was therefore a relatively minor (albeit a criminal) incident in the extended course of depraved acts engaged in by Long and his co-conspirators.
¶6In the case before us, the shooting of the victim was the heart and soul of the mur*916der conviction and there was not only a reasonable possibility but a very real likelihood that it was the overt act focused upon by the jury with respect to the conspiracy charge. I deduce that the appellant here has met the actual evidence test of Richardson and that the conspiracy con-viection should be set aside.