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Berberena v. State

Court of Appeals of Indiana

October 30, 2017

Saalik M. Berberena, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Tippecanoe Superior Court Trial Court Cause No. 79D02-1511-F4-13 The Honorable Steven P. Meyer, Judge

          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

          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 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 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 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 ...


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