                                                                           FILED
                                                                       Oct 30 2017, 9:58 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                          Curtis T. Hill, Jr.
      Lafayette, Indiana                                         Attorney General of Indiana

                                                                 Matthew B. MacKenzie
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Saalik M. Berberena,                                       October 30, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 79A02-1705-CR-1137
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven P. Meyer,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 79D02-1511-F4-13



      Najam, Judge.


                                        Statement of the Case
[1]   Saalik M. Berberena appeals his conviction, following a jury trial, for unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony. Berberena

      raises one issue on appeal, namely, whether the trial court erred when it

      Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017              Page 1 of 10
      determined that an Illinois statute was substantially similar to an Indiana

      statute for purposes of the serious violent felon charge.


[2]   We reverse.


                                  Facts and Procedural History
[3]   On November 18, 2015, Kimberly Held and her son saw Berberena lying in

      their neighbor’s yard. Held rolled down the window of her car and asked if he

      was okay, but Berberena did not respond. Held’s son then got out of the car to

      check on him, but he still did not respond. Because it was a cold night and

      Berberena “just had on a hoodie” and because they were concerned for him,

      Held called 9-1-1. Tr. at 73.


[4]   Officers with the Lafayette Police Department responded to the report. Officer

      Michael Barthelemy arrived and observed Berberena lying in the yard. Officer

      Barthelemy believed that Berberena was unconscious. When Officer

      Barthelemy approached Berberena, he noticed a handgun sticking out of

      Berberena’s waistband. After he had removed it, Officer Barthelemy identified

      the firearm as a black and silver Smith and Wesson semi-automatic pistol,

      which had been loaded with sixteen bullets. Officer Barthelemy secured the

      gun, and other officers on the scene placed Berberena in handcuffs. The officers

      conducted a portable breath test, which indicated that Berberena had consumed

      alcohol.


[5]   On November 20, the State charged Berberena with one count of unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony; one count of
      Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017   Page 2 of 10
      carrying a handgun while having a prior felony conviction, as a Level 5 felony;

      one count of carrying a handgun without being licensed, as a Class A

      misdemeanor; and one count of public intoxication, a Class B misdemeanor.

      The trial court held a bifurcated trial on May 24, 2016. During the first phase

      of the trial, Berberena moved for a directed verdict on the public intoxication

      charge, which the trial court granted. At the close of the first phase of the trial,

      the jury found Berberena guilty of carrying a handgun without being licensed.

      The trial court entered judgment of conviction accordingly and proceeded to the

      second phase of the trial the same day.


[6]   Prior to the start of the second phase of the trial, the State argued that

      Berberena had a prior conviction in Illinois for aggravated battery and that the

      language in Illinois’ aggravated battery statute was substantially similar to

      Indiana’s aggravated battery statute, and the State sought to use that prior

      conviction as a basis for classifying Berberena as a serious violent felon for the

      charge of unlawful possession of a firearm by a serious violent felon. Berberena

      contended that “there is some difference between the two” statutes and that the

      statutes are not substantially similar. Tr. at 125. The trial court concluded that

      the Illinois statute and the Indiana statute “are substantially similar in terms of

      the definition of aggravated battery for purposes of proceeding here today.” Id.

      at 126.


[7]   During the second phase of the trial, the State introduced evidence of

      Berberena’s prior conviction for aggravated battery in Illinois. The jury found

      Berberena guilty of unlawful possession of a firearm by a serious violent felon

      Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017   Page 3 of 10
      and carrying a handgun while having a prior felony conviction. The trial court

      entered judgment of conviction accordingly. On June 17, 2016, the trial court

      sentenced Berberena to an executed sentence of ten years in the Indiana

      Department of Correction for the conviction of unlawful possession of a firearm

      by a serious violent felon.1 This appeal ensued.


                                       Discussion and Decision
[8]   Berberena contends that the trial court erred when it concluded that his prior

      conviction in Illinois for the offense of aggravated battery qualified him as a

      serious violent felon in Indiana. In order to convict Berberena of unlawful

      possession of a firearm by a serious violent felon, the State needed to prove that

      Berberena had been convicted of a serious violent felony in Indiana or in “any

      other jurisdiction in which the elements of the crime for which the conviction

      was entered are substantially similar to the elements of a serious violent felony”

      in Indiana. Ind. Code § 35-47-4-5(a)(1) (2015). The statute lists several offenses

      that qualify as serious violent felonies, including our own version of aggravated

      battery. I.C. § 35-47-4-5(b)(6); see also I.C. § 35-42-2-1.5 (aggravated battery).




      1
        In its sentencing order, the trial court merged the charge of carrying a handgun without a license into the
      charge of carrying a handgun while having a prior felony conviction. The trial court declined to enter
      judgment of conviction for the charge of carrying a handgun without a license and vacated the judgment of
      conviction entered at the close of the first phase of the trial. The trial court entered judgment of conviction
      for carrying a handgun while having a prior felony conviction and sentenced Berberena to an executed
      sentence of five years in the Indiana Department of Correction, to run concurrent with the ten-year sentence.
      However, Berberena does not appeal the convictions for those charges or the sentences imposed on them.

      Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017                        Page 4 of 10
       The trial court concluded that the Illinois statute for aggravated battery was

       substantially similar to the Indiana statute for aggravated battery.


[9]    Berberena contends that the Illinois aggravated battery statute, 720 Illinois

       Compiled Statutes 5/12-4(a) (West 2010), is not substantially similar to

       Indiana’s aggravated battery statute, Indiana Code Section 35-42-2-1.5.2

       Berberena’s argument on appeal requires us to interpret and apply Illinois law.

       “Our standard of review for questions of foreign law is de novo.” Hollingsworth v.

       State, 907 N.E.2d 1026, 1030 (Ind. Ct. App. 2009).


[10]   “[T]he elements of two statutes are ‘substantially similar’ if they have common

       core characteristics that are largely, but not identically, alike in degree or

       extent.” State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016). In evaluating those

       common core characteristics, “elements may be considered substantially similar

       with respect to specific characteristics such as the underlying conduct sought to

       be regulated.” Id. However, “an out-of-state statute is not substantially similar

       to an Indiana statute where the out-of-state statute is broader than the Indiana

       statute.” Id. at 589. That is, when an out-of-state statute captures more

       conduct than the Indiana statute at issue, we cannot say that the two statutes

       are substantially similar. It is a fundamental principle that “people have a right




       2
         To address Berberena’s argument on appeal, we compare the Illinois statute under which Berberena was
       convicted as it was written at the time of his Illinois offense with the Indiana statute as it was written at the
       time of his subsequent Indiana offenses. State v. Atkins, 824 N.E.2d 676, 678 (Ind. 2005).

       Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017                            Page 5 of 10
       to fair warning of the criminal penalties that may result from their conduct.”

       Tyson v. State, 51 N.E.3d 88, 92 (Ind. 2016).


[11]   Illinois’ statute on aggravated battery at the time of Berberena’s Illinois offense

       provided that “[a] person who, in committing a battery, intentionally or

       knowingly causes great bodily harm, or permanent disability or disfigurement

       commits aggravated battery.” 720 Ill. Comp. Stat. Ann. 5/12-4(a) (West 2010).

       Aggravated battery in Indiana at the time of Berberena’s Indiana offenses was

       defined as:


               A person who knowingly or intentionally inflicts injury on a
               person that creates a substantial risk of death or causes:


                        (1) serious permanent disfigurement;


                        (2) protracted loss or impairment of the function of a
                        bodily member or organ; or


                        (3) the loss of a fetus;


               commits aggravated battery, a Level 3 felony. However, the
               offense is a Level 1 felony if it results in the death of a child less
               than fourteen (14) years of age and is committed by a person at
               least eighteen (18) years of age.


       I.C. § 35-42-2-1.5.


[12]   The Illinois and Indiana statutes have two elements that are substantially

       similar. A person can be convicted of aggravated battery in Illinois if the person


       Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017      Page 6 of 10
       causes “permanent disability or disfigurement” while a person can be convicted

       of aggravated battery in Indiana if the person causes “serious permanent

       disfigurement” or “protracted loss of impairment of the function of a bodily

       member or organ.” However, Berberena asserts that the element of “great

       bodily harm” in Illinois’ statute is not substantially similar to the “substantial

       risk of death” element in Indiana’s statute because the harm that can be shown

       to support the Illinois statute is broader than the harm that can be shown to

       support Indiana’s statute.


[13]   In particular, Berberena asserts that the Illinois element of “great bodily harm”

       includes any harm that is greater than “bodily harm,” the latter of which is

       defined in Illinois as including “temporary or permanent lacerations, bruises, or

       abrasions.” People v. Doran, 628 N.E.2d 260, 264 (Ill. Ct. App. 1993). As such,

       Berberena continues, aggravated battery under the Illinois statute could be

       shown by a battery that results only in “moderate bodily injury” in Indiana,

       which is defined in Indiana as “any impairment of physical condition that

       includes substantial pain.” I.C. § 35-31.5-2-204.5. Battery that results in

       moderate bodily injury is not a serious violent felony under Indiana Code

       Section 35-47-4-5(b)(4).


[14]   The legislature in Illinois has defined two levels of battery. The first level is

       battery, which is defined as causing bodily harm to an individual or making

       physical contact of an insulting or provoking nature. 720 Ill. Comp. Stat. Ann.

       5/12-3 (West 2010). The second level is aggravated battery, which requires the

       heightened level of harm described as “great bodily harm, or permanent

       Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017   Page 7 of 10
       disability or disfigurement.” 720 Ill. Comp. Stat. Ann. 5/12-4(a) (West 2010).

       As Berberena recognizes, “great bodily harm,” as used in the Illinois aggravated

       battery statute, is any harm that is a “more serious or grave injury than ‘bodily

       harm[.]’” Doran, 628 N.E.2d at 263. Thus, in order to be convicted of

       aggravated battery in Illinois, a defendant must have committed a battery that

       resulted in any harm that was more serious or grave than the “bodily harm”

       required by simple battery.


[15]   Unlike in Illinois, which only has two levels of battery, Indiana law has a

       nuanced approach to bodily injury and multiple levels of battery offenses that

       reflect that nuance. For example, a person commits battery, as a Class A

       misdemeanor, if the battery results in bodily injury, that is, any impairment of

       physical condition, including physical pain. I.C. § 35-42-2-1(c); see also I.C. §

       35-31.5-2-29. However, battery is a Level 6 felony in Indiana if it results in

       moderate bodily injury. I.C. § 35-42-2-1(d)(1). Further, battery that results in

       “serious bodily injury,” which is any bodily injury that creates a substantial risk

       of death or that causes serious permanent disfigurement, unconsciousness,

       extreme pain, permanent or protracted loss or impairment of the function of a

       bodily member or organ, or loss of a fetus, can be a Level 3, 4, or 5 felony. See

       I.C. § 35-42-2-1(f)(1), (h), and (i); 3 see also I.C. § 35-31.5-2-292. And a person

       commits aggravated battery in Indiana, a Level 3 felony, if the battery results in




       3
        A conviction under any of those subsections would be considered a serious violent felony under Indiana
       Code Section 35-47-4-5(b)(4).

       Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017                   Page 8 of 10
       an injury that specifically, and narrowly, creates a substantial risk of death or

       causes serious permanent disfigurement, protracted loss or impairment of the

       function of a bodily member or organ, or the loss of a fetus. I.C. § 35-42-2-1.5.


[16]   In Illinois, it is possible to be convicted of aggravated battery whenever the

       battery results in any harm greater than “bodily harm.” However, in Indiana, a

       battery that results in harm greater than “bodily injury” could be any number of

       offenses ranging from Level 1 felonies to Level 6 felonies, not all of which

       qualify as serious violent felonies under Indiana Code Section 35-47-4-5(b). For

       example, an Indiana battery that results in “moderate bodily injury” as a Level

       6 felony would be premised on harm greater than “bodily injury” and would

       not qualify as a serious violent felony. In Illinois, a battery that results in that

       same degree of harm would satisfy the “great bodily injury” requirement for

       Illinois’s offense of aggravated battery.


[17]   A person convicted in Indiana of aggravated battery, which requires the highest

       level of harm, would be convicted in Illinois of aggravated battery under the

       same set of facts because a person only needs to cause harm that is more than

       bodily harm. However, the converse is not true. It is possible for a person to be

       convicted in Illinois of aggravated battery for certain conduct but not be

       convicted in Indiana of aggravated battery for the same conduct because the

       harm, while greater than “bodily harm,” did not rise to the heightened level of

       harm required by Indiana’s aggravated battery statute. As such, the Illinois

       aggravated battery statute is broader and more inclusive than Indiana’s

       aggravated battery statute. Because the Illinois statute is broader than the

       Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017   Page 9 of 10
       Indiana statute, following our Supreme Court’s analysis in Hancock, the two

       statutes are not substantially similar for purposes of Indiana Code Section 35-

       47-4-5. 65 N.E.3d at 589.


[18]   In sum, we conclude that the Illinois aggravated battery statute under which

       Berberena was convicted is broader than Indiana’s aggravated battery statute.

       The two statutes have significantly different thresholds for establishing the harm

       required to demonstrate an offense. Thus, the two statutes are not substantially

       similar under Indiana Code Section 35-47-4-5, and we must reverse Berberena’s

       conviction for unlawful possession of a firearm by a serious violent felon.


[19]   Reversed.


       Kirsch, J., and Brown, J., concur.




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