COA affirms denial of motion to drop unlawful possession of a firearm charge

An Indianapolis man will not have his charge of unlawful possession of a firearm by a serious violent felon dropped, as the Court of Appeals of Indiana affirmed his constitutional rights weren’t infringed upon when the state applied Indiana Code § 35-47-4-5 to his case.

Courtney Reece was convicted of conspiracy to commit burglary as a Class B felony in August 2005. In January 2021, the state charged Reece with unlawful possession of a firearm by a serious violent felon as a Level 4 felony and possession of marijuana as a class B misdemeanor.

In April, Reece filed a motion to dismiss and argued that the felony charge was defective pursuant to I.C. 35-34-1-4(a)(1) because I.C. 35-47-4-5 was void for vagueness, as it “fails to provide adequate notice that Indiana attempts and conspiracies … can serve as predicate serious violent felonies” and must be dismissed under I.C. 35-34-1-4(a)(5).The Marion Superior Court held a hearing on April 28 and denied Reece’s motion.

On appeal, Reece argued that, just as the statute in Healthscript, Inc. v. State, 770 N.E.2d 810 (Ind. 2002), failed to give individuals fair warning and lacked the sufficient definiteness due process requires, I.C. 35-47-4-5 was similarly deficient. He also asserted the charging information contained no reference to I.C. 1-1-2-4(b).

The state cited Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015), but Reece argued Tiplick was distinguishable on the issue of vagueness and supported his position on the issue of deficient charging information.

The COA affirmed the trial court’s denial of Reece’s motion.

“Unlike in Healthscript, in which the Court found that to understand the prohibited conduct one would have to review an entire article of the Code as well as ‘the language of an agency regulation in the Indiana Administrative Code,’ and Tiplick, which involved the definition of a drug in the context of the evolving chemistry of synthetic cannabinoids and the application of an emergency rule adopted by the Indiana Board of Pharmacy, the present case requires an examination of only Ind. Code § 35-47-4-5 and Ind. Code § 1-1-2-4, which is found at the beginning of the Indiana Code under the broadly applicable Ind. Code Chapter 1-1-2, which is titled ‘Laws Governing the State,’” COA Judge Elaine Brown wrote.

“Further, that Ind. Code § 35-47-4-5 does not specifically reference Ind. Code § 1-1-2-4 does not render the statute vague as applied,” Brown continued. “The Indiana Supreme Court has observed that ‘[t]he legislature knows how to apply a statutory definition broadly’ and ‘[e]xamples abound of the legislature’s applying a definition throughout the entire code… .

“… Under these circumstances, we cannot say that Ind. Code § 35-47- 4-5 is void for vagueness as applied to Reece,” Brown concluded.

The case is Courtney L. Reece v. State of Indiana, 21A-CR-864.

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