COA: Illinois and Indiana aggravated battery statutes not substantially similar

The Indiana Court of Appeals has reversed a man’s felony conviction of unlawful possession of a firearm by a serious violent felon after determining the Illinois aggravated battery statute used to establish the man as a serious violent felon is not substantially similar to the same statute in Indiana.

In Saalik M. Berberena v. State of Indiana, 79A02-1705-CR-1137, Kimberly Held noticed Saalik Berberena lying a neighbor’s yard and stopped to ask if he was OK. When Berberena did not respond to either Held or her son, she called 911 because it was a cold night and he was only wearing a hoodie.

When Lafayette Police Department Officers arrived, they believed Berberena was unconscious, conducted a portable breath test and learned he had consumed alcohol. Officers also removed a loaded handgun that was sticking out of Berberena’s pocket and placed him in handcuffs.

Berberena was eventually charged with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony carrying a handgun while having a prior felony conviction, Class A misdemeanor carrying a handgun without being license and Class B misdemeanor public intoxication. Berberena was convicted on the misdemeanor convictions during the first phase of his trial.

Prior to the beginning of the second phase, the state argued Berberena had a prior Illinois conviction for aggravated battery and that Illinois’ aggravated battery statute was substantially similar to its Indiana counterpart. The state sought to use the Illinois conviction as the basis for classifying Berberena as a serious violent felon, and the Tippecanoe Superior Court agreed the two statutes were substantially similar.

Then, during the trial’s second phase, the state introduced evidence of the prior Illinois conviction and a jury found Berberena guilty of the felony charges. The trial court entered judgment of conviction accordingly and sentenced Berberena to 10 years in the Indiana Department of Correction on the Level 4 felony charge.

On appeal, Berberena claimed the trial court erred in finding his Illinois conviction qualified him as a serious violent felon in Indiana. The Indiana Court of Appeals agreed, with Judge Edward Najam writing that Illinois’ aggravated battery statute is not substantially similar to Indiana’s statute, Indiana Code section 35-42-2-1.5.

Illinois’ statute, at the time of Berberena’s offense in that state, held that a “person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” In contrast, Indiana’s statute held that a person committed aggravated battery if they created a substantial risk of death or caused serious permanent disfigurement, loss or impairment of the function of a bodily member or organ, or loss of a fetus.

The appellate panel agreed with Berberena that the “great bodily harm” standard in Illinois is broader than Indiana’s “substantial risk of death” standard.

“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,” Najam wrote.

Thus, Berberena’s conviction of unlawful possession of a firearm by a serious violent felon was reversed.

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