Court of Appeals of Indiana | Opinion 79A02

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A TTORNEY FOR A PPELLANT Timothy P. Broden Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA
Saalik M. Berberena , Appellant

- Defendant,
v. 

### State of Indiana , Appellee

- Plaintiff

. October 30, 2017 Court of Appeals Ca se No. 79A02

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- 1137 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02

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Najam , Judge . 

### Statement of the Case
[1] Saalik M. Berberena appeals his conviction, following a jury trial, for unlawful possession of a fir earm by a serious violent felon , a Level 4 felony. Berberena raises one issue on appeal, namely, whether the trial court erred when itCourt of Appeals of Indiana | Opinion 79A02

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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 Proc edural 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 hi m, 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] O fficers with the Lafayette Police Department responded to the report. Officer Mich ael Barthelemy arrived and observed Berberena lying in the yard. Officer Barthelemy believed that Berberena was unconscious. When O fficer Barthelemy approached Berberena, he noticed a handgun sticking out of Berberena’s waistband. After he had removed i t , 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 ofCourt of Appeals of Indiana | Opinion 79A02

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carry ing a handgun while having a prior felony conviction , as a Level 5 felony; one count of carrying a handgun without being license d , as a C l ass A misdemeanor; and one count of public intoxication, a C l as s B misdemeanor

. The trial court held a bifurcated tri al 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 license d

. 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 conv iction in Illinois for aggravated battery and that the language in Illinois’ aggravated battery statute wa s 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 statu tes 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] D uring the second phase of the trial , the S tate 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 felonCourt of Appeals of Indiana | Opinion 79A02

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and carrying a handgun wh ile 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 unl awful 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 batter y qualified h im 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 ha d been convicted of a serious violent felony in Indiana or in “any other jur isdiction 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

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- 5(a)(1) (201 5 )

. The statute lists several offenses that qualify as se rious violent felonies, including our own version of aggravated battery . I.C. § 35

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- 5(b) (6) ; see also I.C. § 35

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- 1.5 (aggravated battery)

.

1 In its sentencing order, t he 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 th o se charges or the sentence s imposed on them

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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 Ill inois Comp iled Stat utes 5/12

- 4(a) ( West 2010) , is not substantially similar to Indiana’s aggravated battery statute, Indiana Code Section 35

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- 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 o r extent.” State v. Hancock , 65 N.E.3d 585, 587 (Ind. 2016). In evaluating th os e 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

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- state statute is not substantially similar to an Indiana statute where the out

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- state statute i s broader than the Indiana statute.” Id . at 589

. That is, when an out

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- state st atute captures more conduct than the Indiana statute at issue, we cannot say that the two statu tes 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 u nder which Berberena was convicted as it was written at the time of his Illinois offense with the Indiana statute a s it was written at the time of his subsequent Indiana offenses. State v. Atkins , 824 N.E.2d 676, 678 (Ind. 2005)

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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
co mmits aggravated battery. ” 720 Ill. Comp. Stat. Ann. 5/12

- 4(a) (West 2010). A ggravated battery in Indiana at the time of Berberena’s Indiana offense s was defined as : A person who knowingly or intentionally inflicts injury on a person that creates a subst antial 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

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- 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 personCourt of Appeals of Indiana | Opinion 79A02

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causes “permanent disability or disfigurement” while a person can be convicted of aggravated battery in Indiana if the person causes “serious permane nt 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” eleme nt 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 , 2 64 (Ill. Ct. App. 1993). As such, Berberena continues, ag gravated battery under the Illinois statute could be shown by a battery that results only in “moderate bodily injury” in Indiana , wh ich is defined in Indiana as “any impairment of physical condition that includes substantial pain

. ” I.C. § 35

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. Battery that results in moderate bodily injury is not a serious violent felony under Indiana Code Section 35

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- 5(b)(4).
[14] The legislature in Illinois has defined two levels of batter y. The first level is battery, which is defined as causing bodily har m 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 permanentCourt of Appeals of Indiana | Opinion 79A02

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disability or disfigurement. ” 720 Ill. Comp. Stat. Ann. 5/12

- 4 (a) (West 2010)

. As Berberena recognizes, “ g reat bodily harm , ” as used in the Illinois aggravated battery statute, is any harm that is a “more serious or grave injury th an ‘bodily harm [. ] ’ ” Doran , 628 N.E.2d at 263

. Thus, i n order to be convicted of aggravated battery in Illinois, a defendant must have committed a battery that resulted in a ny harm that was more serious or grave than the “bodily harm ” required b y simple battery

. [15] Unlike in Illinois, which only ha s 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

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- 1(c ) ; see also I.C. § 35

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. However, battery is a Level 6 felony in Indiana if it results in moderate bo d ily injury. I.C. § 35

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- 1(d ) (1)

. Further, battery that results in

“ serious bodily injury ,” which is an y 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

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- 1(f)(1), (h ), and ( i ) ; 3 see also I.C. § 35

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- 292 . A nd a person commits aggravated battery in Indiana , a Level 3 felony, if the battery results in

3 A conviction under an y of those subsections would be considered a serious violent felony under Indiana Code Section 35

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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 o f a fetus. I.C. § 35

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[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 a ny 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

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- 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 grea ter 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 I llinois statute is broader than theCourt of Appeals of Indiana | Opinion 79A02

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Indiana statute, following our Supreme Court’s analysis in Hancock , the two statutes are not substantially similar for purpose s of Indiana Code Section 35

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- 5 . 65 N.E.3d at 589.
[18] In sum, w e 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 sta tutes are not substantially similar under Indiana Code Section 35

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- 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

.