Court of Appeals of Indiana | Opinion 79A02-1705-CR-1137 | October 30, 2017 Page 1 of 10

ATTORNEY FOR APPELLANT

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

79A02-1705-CR-1137

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

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 
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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 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 
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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 
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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.
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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 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). 
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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 

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 
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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 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 
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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).
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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 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 
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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.