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For fear of creating grounds for appeal, prosecutors have dismissed a firearms enhancement charge against Jason Paul Davidson, 34.
Davidson recently was found guilty of murder by a 12-person jury in Kosciusko Circuit Court with Judge Rex Reed presiding. He will be sentenced Oct. 7 for the May 2, 2002, killing of Samuel Creekmore.
Davidson originally was charged with murder, with an additional penalty for committing murder with a gun. The firearms enhancement charge would have added an additional five years to Davidson's upcoming sentence.
The charge was dismissed, according to Davidson attorney Dennis Hartley, Colorado Springs, Colo., because it created a potential conflict with the Indiana Constitution.
Reed concurred, saying, "There's a potential for a conflict there. ... There's potential for an argument that it may create a double jeopardy situation."
Stated in Indiana Criminal Code 2002 and referring to double jeopardy, "a prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense ..."
In Davidson's case, because he soon will be sentenced for murder, including the firearms charge could be seen as prosecuting him a second time for the same charge.
Firearms enhancement charges cannot be pressed except when included as an additional charge to a crime. In this situation, because he was prosecuted for murdering with a gun, charging him additionally for using a gun to commit murder could be seen as double jeopardy, despite its technical legality under the Indiana Criminal Code.
An argument of double jeopardy may have given the defense solid grounds for an appeal.
