State of Indiana v. Kinshasha Johnson

FILED

Oct 01 2025, 8:49 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

State of Indiana,

Appellant-Plaintiff

v.

Kinshasha Johnson,

Appellee-Defendant

October 1, 2025

Court of Appeals Case No.

24A-CR-2146

Appeal from the Tippecanoe Superior Court

The Honorable Randy J. Williams, Judge

Trial Court Cause No.

79D01-2403-F4-13

Opinion by Judge Bradford

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Judges Pyle and Kenworthy concur.

Bradford, Judge.

Case Summary

[1] On March 13, 2024, the State charged Kinshasha Johnson with numerous

crimes, including Level 4 felony unlawful possession of a firearm by a serious

violent felon (“SVF”) and Level 5 felony unlawful carrying of a handgun.

Johnson subsequently moved to dismiss these two charges. The trial court

granted Johnson’s motion, finding that neither charge stated the alleged offense

with sufficient certainty nor constituted an offense as charged. The State argues

that the trial court abused its discretion in dismissing the two charges because

both had been sufficiently pled to apprise Johnson of the allegations against him

and constituted crimes under the Indiana criminal code. Concluding that the

trial court abused its discretion in dismissing the challenged charges, we reverse

the judgment of the trial court and remand for further proceedings.

Facts and Procedural History

[2] The facts, as alleged in the affidavit of probable cause, are that on or about

March 12, 2024, Laphina McDaniels called 911 and complained of an

unwanted guest at her home. McDaniels indicated that Johnson “was at the

residence acting aggressively and had a firearm.” Appellant’s App. Vol. II p.

18.

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Upon arrival, officers located a male who was smoking

marijuana on the porch of the residence. The male, later

identified as [Johnson], provided officers with a rolled cigarette

containing marijuana in a clear plastic tube. Officers searched

Johnson’s person and located a pill wrapped in a dollar bill in

Johnson’s jacket pocket. Johnson advised the pill was ecstasy.

Officers observed Johnson was wearing a bulletproof vest and

officers located an unloaded handgun in the vest. Officers also

located nine rounds of ammunition in the bulletproof vest. The

pill was subsequently field tested and had a positive result for

ecstasy.

Appellant’s App. Vol. II p. 18. Review of Johnson’s criminal history revealed

that he had previously amassed multiple felony convictions in Illinois.

[3] On March 13, 2024, the State charged Johnson with Count I, Level 4 felony

unlawful possession of a firearm by an SVF; Count II, Level 5 felony unlawful

carrying of a handgun; Count III, Class A misdemeanor unlawful carrying of a

handgun; Count IV, Level 6 felony unlawful use of body armor; Count V, Class

B misdemeanor possession of marijuana; and Count VI, Class A misdemeanor

possession of a controlled substance. The State also alleged that Johnson was a

habitual offender. With regard to Count I, the State alleged that

[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did possess a firearm, while having

previously been convicted of committing a serious violent felony,

to-wit: on October l9, 2015, [Johnson] was convicted of

Exploitation, a X Felony, in the Circuit Court of Cook County,

State of Illinois, under cause number 2015CR084550[.]

All of which is contrary to the form of the statute in such cases

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made and provided, to wit: I.C. 35-47-4-5(c) , and against the

peace and dignity of the State of Indiana.

Appellant’s App. Vol. II p. 10. With regard to Count II, the State alleged that

[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did knowingly or intentionally carry a

handgun after having previously been convicted of a felony

within fifteen (15) years, to-wit: on October 19, 2015, [Johnson]

was convicted of Exploitation, a X Felony, in the Circuit Court

of Cook County, State of Illinois, under cause number

2015CR084550[.]

All of which is contrary to the form of the statute in such cases

made and provided, to wit: IC. 35-47-2-l.5(b) and I.C. 35-47-2-

l.5(e)(2)(B), and against the peace and dignity of the State of

Indiana.

Appellant’s App. Vol. II p. 11.

[4] On May 4, 2024, Johnson moved to dismiss Counts I and II. Johnson asserted

that the charging information for these two Counts was defective and did not

state the offenses with sufficient certainty. Johnson further asserted that the

facts alleged in these Counts did not constitute an offense. He also asked the

trial court to overturn the Indiana Supreme Court’s decision in State v. Hancock,

65 N.E.3d 585 (Ind. 2016).

[5] On June 5, 2024, the State moved to amend Counts I and II. In its motion, the

State indicated that it had “cited the prior conviction as ‘Exploitation’ in

2015CR84550[,]” but, upon receiving a certified copy of Johnson’s conviction

in 2015CR084550, it had “learned that [Johnson’s] conviction was in …

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2015CR0845501 for Involuntary Sexual Servitude of a Minor, a Class X

Felony.” Appellant’s App. Vol. II p. 62. Thus, the State amended Count I to

allege that

[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did possess a firearm, while having

previously been convicted of committing a serious violent felony,

to-wit: on October 19, 2015, [Johnson] was convicted of

Involuntary Sexual Servitude of a Minor, a Class X Felony, in

the Circuit Court of Cook County, State of Illinois, under cause

number 2015CR0845501[.]

All of which is contrary to the form of the statute in such cases

made and provided, to wit: I.C. 35-47-4-5(c), and against the

peace and dignity of the State of Indiana.

Appellant’s App. Vol. II p. 64. It amended Count II to allege that

[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did knowingly or intentionally carry a

handgun after having previously been convicted of a felony

within fifteen (15) years, to-wit: on October 19, 2015, [Johnson]

was convicted of Involuntary Sexual Servitude of a Minor, a

Class X Felony[.]

All of which is contrary to the form of the statute in such cases

made and provided, to wit: I.C. 35-47-2-1.5(b) and I.C. 35-47-2-

1.5(e)(2)(B), and against the peace and dignity of the State of

Indiana.

Appellant’s App. Vol. II p. 65. The State also argued against Johnson’s motion

to dismiss, claiming that the statutes supporting the charges were not void for

vagueness and that Johnson’s prior Illinois conviction for involuntary sexual

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servitude of a minor is substantially similar to Indiana’s crime of promotion of

child sexual trafficking. The State further argued that the amended Counts I

and II were sufficiently certain as to what criminal behavior was being alleged

and constituted valid offenses. Johnson filed a supplemental motion to dismiss,

in which he reiterated his previously-raised assertions. Following a hearing, the

trial court granted Johnson’s motion.

Discussion and Decision

[6] “We review a trial court’s ruling on a motion to dismiss a charging information

for an abuse of discretion.” A.-H.Y. v. State, 975 N.E.2d 1273, 1276 (Ind. 2012).

“‘An abuse of discretion occurs when the trial court’s decision is clearly against

the logic and effect of the facts and circumstances before it.’” Id. (quoting

Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012)). “A trial court also abuses

its discretion when it misinterprets the law.” Id.

In deciding whether an information fails to state facts

constituting an offense, we take the facts alleged in the

information as true. Pavlovich v. State, 6 N.E.3d 969, 974 (Ind.

Ct. App. 2014), trans. denied. Facts permitted to be raised in a

motion to dismiss a charging information generally concern only

pre-trial procedural matters, such as jurisdictional issues, double

jeopardy, collateral estoppel, and the like. Id. (citing State v. King,

502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987)). “Questions of fact

to be decided at trial or facts constituting a defense are not

properly raised by a motion to dismiss.” State v. Isaacs, 794

N.E.2d 1120, 1122 (Ind. Ct. App. 2003). “It is only when an

information is facially deficient in stating an alleged crime that

dismissal for failure to state an offense is warranted.” Pavlovich, 6

N.E.3d at 969; see also Isaacs, 794 N.E.2d at 1123 (holding

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dismissal of charge was warranted where information alleged

defendant operated a vehicle with a schedule I or II controlled

substance in the body, but substances alleged to be in defendant’s

body were schedule IV controlled substances or non-controlled

substances, and it was not a crime to operate a vehicle with such

substances in the body).

Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans. denied. In

granting Johnson’s motion to dismiss, the trial court found that “Counts I and

II neither state the offenses with sufficient certainty nor do they constitute an

offense as the cited Illinois statute is not substantially similar to Indiana’s.”

Appellant’s App. Vol. II p. 107.

I. Whether Counts I and II Were Pled with Sufficient

Certainty

[7] The State contends that the charging information was legally sufficient and

“Johnson demonstrated that he knew the full extent of the charges.”

Appellant’s Br. p. 15. The purpose of a charging information “is to advise the

defendant of the particular crime charged so that [he] can prepare a defense.”

Myers v. State, 510 N.E.2d 1360, 1366 (Ind. 1987). A charging information shall

state, among other things, “the nature and elements of the offense charged in

plain and concise language without unnecessary repetition[,]” “the date of the

offense with sufficient particularity to show that the offense was committed

within the period of limitations applicable to that offense[,] and “the place of

the offense with sufficient particularity to show that the offense was committed

within the jurisdiction of the court where the charge is to be filed[.]” Ind. Code

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§ 35-34-1-2(a)(4), (5), (7). A trial court may, upon motion of the defendant,

dismiss the charging information if “[t]he indictment or information does not

state the offense with sufficient certainty.” Ind. Code § 35-34-1-4(4). However,

“[t]he State is not required to include detailed factual allegations

in a charging information.” Laney v. State, 868 N.E.2d 561, 567

(Ind. Ct. App. 2007), trans. denied. “An information that enables

an accused, the court, and the jury to determine the crime for

which conviction is sought satisfies due process. Errors in the

information are fatal only if they mislead the defendant or fail to

give him notice of the charge filed against him.” Dickenson v.

State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005) (citations and

quotation marks omitted), trans. denied. “[W]here a charging

instrument may lack appropriate factual detail, additional

materials such as the probable cause affidavit supporting the

charging instrument may be taken into account in assessing

whether a defendant has been apprised of the charges against

him.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010),

trans. denied.

Gutenstein, 59 N.E.3d at 995 (brackets in original).

[8] Johnson argued below that the charging information for Counts I and II lacked

sufficient certainty because it did not include the code citations for either the

prior Illinois offense or the alleged substantially similar Indiana offense. In

reiterating this argument on appeal, Johnson asserts that “[t]his ultimately

prevents [him] from preparing a defense and fails to provide adequate notice as

it is not known what statutes are applicable when reviewing the charging

information.” Appellee’s Br. p. 10. Johnson cites the Indiana Supreme Court’s

decision in Tiplick v. State, 43 N.E.3d 1259, 1269–70 (Ind. 2015), in support.

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The Indiana Supreme Court limited its holding in Tiplick, however, to drug-

related cases involving synthetic drugs and classifications of such as illegal by

the Indiana Board of Pharmacy and noted that in other cases, the Court had

“no quarrel with” the broader standard for “determining the adequacy of an

information in general” as had been discussed in Dickenson and Lampitok v.

State, 817 N.E.2d 630, 636 (Ind. Ct. App. 2004), trans. denied. Tiplick, 43

N.E.3d at 1270. Both Dickenson and Lampitok provide that “‘[a]n information

that enables an accused, the court, and the jury to determine the crime for

which conviction is sought satisfies due process.’” Dickenson, 835 N.E.2d at 550

(quoting Lampitok, 817 N.E.2d at 636). As such, the question before us is

whether the charging information for Counts I and II enables Johnson, the trial

court, and the jury to determine the crimes for which conviction is sought. We

conclude that it does.

[9] Again, Count I, as amended, alleges that

[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did possess a firearm, while having

previously been convicted of committing a serious violent felony,

to-wit: on October 19, 2015, [Johnson] was convicted of

Involuntary Sexual Servitude of a Minor, a Class X Felony, in

the Circuit Court of Cook County, State of Illinois, under cause

number 2015CR0845501[.]

All of which is contrary to the form of the statute in such cases

made and provided, to wit: I.C. 35-47-4-5(c), and against the

peace and dignity of the State of Indiana.

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Appellant’s App. Vol. II p. 64. Indiana Code section 35-47-4-5(c) provides that

an SVF “who knowingly or intentionally possesses a firearm commits unlawful

possession of a firearm by a [SVF], a Level 4 felony.” Indiana Code section 35-

47-4-5(b) lists numerous offenses that qualify an individual as an SVF, including

various sex offenses and human or sexual trafficking.

[10] The charging information tracks the language of Indiana Code section 35-47-4-

5(c) and includes identifying information relating to the prior offense, i.e., the

name of the offense and the cause number under which Johnson was convicted.

The charging information clearly alleged that Johnson was an SVF, by virtue of

his prior conviction for involuntary sexual servitude of a minor, and that he had

therefore illegally possessed a firearm. While the amended charging

information did not specify a qualifying conviction under Indiana Code section

35-47-4-5(b), subsection (b) lists several sex crimes, some specifically involving

child victims, and a reasonable person would infer that the Illinois conviction

for a sex crime involving a minor was substantially similar to or could

effectively equate to one of the sex crimes involving a minor under the Indiana

code. The State’s reference to Indiana Code section 35-47-4-5 is sufficient to

put Johnson on notice that the State was alleging that his Illinois conviction

was substantially similar to one of the Indiana qualifying convictions. As such,

we conclude that Count I, as amended, was sufficient to enable Johnson and

the trial court to “‘to determine the crime for which conviction is sought.’”

Dickenson, 835 N.E.2d at 550 (quoting Lampitok, 817 N.E.2d at 636).

[11] Count II, as amended, alleged that

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[o]n or about March 12, 2024, in Tippecanoe County, State of

Indiana, [Johnson], did knowingly or intentionally carry a

handgun after having previously been convicted of a felony

within fifteen (15) years, to-wit: on October l9, 2015, [Johnson]

was convicted of Involuntary Sexual Servitude of a Minor, a

Class X Felony, in the Circuit Court of Cook County, State of

Illinois, under cause number 2015CR0845501[.]

All of which is contrary to the form of the statute in such cases

made and provided, to wit: I.C. 35-47-2-1.5(b) and I.C. 35-47-2-

1.5(e)(2)(B), and against the peace and dignity of the State of

Indiana.

Appellant’s App. Vol. II p. 65. Indiana Code section 35-47-2-1.5(b) provides, in

relevant part, that “the following persons may not knowingly or intentionally

carry a handgun: (1) A person convicted of a federal or state offense punishable

by a term of imprisonment exceeding one (1) year.” Indiana Code section 35-

47-2-1.5(e)(2)(B) provides that “[a] person who violates this section commits

unlawful carrying of a handgun, a Class A misdemeanor. However, the offense

is a Level 5 felony if: … (2) the person: … (B) has been convicted of a felony

within fifteen (15) years before the date of the offense.”

[12] As was the case for Count I, the charging information tracks the language of

Indiana Code section 35-47-2-1.5(b)(1) and 35-47-2-1(e)(2)(B), and includes

identifying information relating to the prior offense, i.e., the name and level of

the alleged prior felony conviction as well as the cause number under which

Johnson had been convicted. The State also submitted the sentencing

information for the prior Illinois conviction in case number 15CR0845501,

which indicated that Johnson had been convicted of the felony offense of

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involuntary sexual servitude of a minor and sentenced to a term of twelve years.

Again, “as our Supreme Court has indicated, even where a charging instrument

may lack appropriate factual detail, additional materials such as the probable

cause affidavit supporting the charging instrument may be taken into account in

assessing whether a defendant has been apprised of the charges against him.”

Laker, 939 N.E.2d at 1113 (emphases added).

[13] Like a probable-cause affidavit, the sentencing documents relating to Johnson’s

Illinois conviction may be taken into account in assessing whether Johnson had

been apprised of the charges against him. See id. The charging information

clearly alleged that Johnson had illegally possessed a firearm because he had

been convicted of a felony within the preceding fifteen years and the sentencing

documents clarify that his sentence for this prior felony conviction had been

more than one year of imprisonment. We conclude that the charging

information, read together with the court documents from Johnson’s Illinois

case, was sufficient to provide Johnson with notice of the fact that he had been

charged with Level 5 felony unlawful carrying a handgun. See id. (“The

purpose of the charging information is to provide a defendant with notice of the

crime of which he is charged so that he is able to prepare a defense.”). Because

we conclude that the charging information for Counts I and II, as amended,

was sufficiently certain as to the crimes for which Johnson had been charged,

we further conclude that the trial court abused its discretion in dismissing the

charges on this ground.

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II. Whether the Illinois Conviction was Substantially Similar

to an Indiana Offense

[14] In granting Johnson’s motion to dismiss, the trial court also found that the

charges alleged in Counts I and II did not “constitute an offense as the cited

Illinois statute is not substantially similar to Indiana’s.” Appellant’s App. Vol.

II p. 107. A trial court may, upon motion of the defendant, dismiss the

charging information if “[t]he facts stated do not constitute an offense.” Ind.

Code § 35-34-1-4(5).

A. Count I–Unlawful Possession of a Firearm by an SVF

[15] As for Count I, the term “serious violent felon” has been defined as “a person

who has been convicted of committing a serious violent felony.” Ind. Code §

35-47-4-5(a). Indiana appellate courts have held that a person may qualify as

an SVF based on felony convictions from another jurisdiction so long as the

conviction is “substantially similar” to an offense listed in Indiana Code section

35-47-4-5(b). See, e.g., Hancock, 65 N.E.3d at 587 (discussing whether a

conviction from another jurisdiction was substantially similar to an Indiana

qualifying offense).1

1

While some cases on this point cite to a prior version of Indiana Code section 35-47-4-5, which included

the “substantially similar” language, we note that the Indiana General Assembly has since moved the

“substantially similar” language to Indiana Code section 1-1-2-4(b)(3), which states that

a reference to a conviction for an Indiana criminal offense appearing within the Indiana

Code also includes a conviction for … [a] substantially similar offense committed in

another jurisdiction, including an attempt or conspiracy to commit the offense, even if the

reference to the conviction for the Indiana criminal offense specifically refers to an

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[16] In Hancock,2 the Indiana Supreme Court construed the meaning of

“substantially similar,” stating the following:

This case requires us to construe the meaning of “substantially

similar” which is not defined by statute. We are thus presented

with a question of statutory construction which is a matter of law

we review de novo. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.

2016). When construing a statute our primary goal is to ascertain

the legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind.

2012). To discern that intent, we look to the statutory language

itself and give effect to the plain and ordinary meaning of

statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015).

Undefined words in a statute are given their plain, ordinary and

usual meaning. See I.C. § 1-1-4-1(1). And in determining the

plain and ordinary meaning of a statutory term, courts may

consult English language dictionaries. D.R. v. State, 729 N.E.2d

597, 599 (Ind. Ct. App. 2000). We do so here. In one such

dictionary “similar” is defined as “having characteristics in

common” or “alike in substance or essentials.” Webster’s Third

New International Dictionary 2120 (2002). In another, the term is

defined as “[r]elated in appearance or nature; alike though not

identical.” The American Heritage Dictionary of the English Language

1622 (2006). “Substantial” is defined as “consisting of, relating

to, sharing the nature of, or constituting substance[.]” Webster’s

at 2280; see also The American Heritage at 1727 (defining

“substantial” in part as “[c]onsiderable in importance, value,

degree, amount, or extent”). Reduced to their essence these

definitions can best be applied here to mean that the elements of

two statutes are “substantially similar” if they have common core

“Indiana conviction” or a conviction “in Indiana” or under “Indiana law” or “laws of this

state”.

2

As he did at the trial court level, Johnson requests that we overrule the Indiana Supreme Court’s opinion in

Hancock. We decline Johnson’s request, noting that “[a] published opinion of the [Indiana] Supreme Court is

binding precedent for all Indiana courts.” Ind. Appellate Rule 65(D)(1).

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characteristics that are largely, but not identically, alike in degree

or extent.

We are still left with the question of how do we evaluate these

core characteristics. For example, elements may be substantially

similar with respect to general characteristics such as wording

and type of element. On the other hand, elements may be

considered substantially similar with respect to specific

characteristics such as the underlying conduct sought to be

regulated. See, e.g., United States v. Thomas, 367 F.3d 194, 198

(4th Cir. 2004) (a case involving Maryland and Virginia driving

while intoxicated statutes, declaring “[a] statute is substantially

similar if any actions violating the [out-of-state Maryland] statute

necessarily would violate the Virginia statute as well” (citation

omitted)). To help answer the question we set out the relevant

text of each offense, separate the offenses into elements

conducive to comparison, and then look for substantial similarity

between the elements.

65 N.E.3d at 587 (Emphasis and brackets in original).

[17] Indiana Code section 35-47-4-5(b)(11) provides that the term “serious violent

felony” includes a human or sexual trafficking offense under Indiana Code

chapter 35-42-3.5. It is undisputed that Johnson was convicted of involuntary

sexual servitude of a minor, a Class X felony in Illinois, in 2015. The relevant

statute defines this crime as follows:

Involuntary sexual servitude of a minor. A person commits

involuntary sexual servitude of a minor when he or she

knowingly recruits, entices, harbors, transports, provides, or

obtains by any means, or attempts to recruit, entice, harbor,

provide, or obtain by any means, another person under 18 years

of age, knowing that the minor will engage in commercial sexual

activity, a sexually-explicit performance, or the production of

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pornography, or causes or attempts to cause a minor to engage in

one or more of those activities and:

…

(2) there is no overt force or threat and the minor is under the age

of 17 years[.]

…

Sentence. … [A] violation of subsection … (c)(2) is a Class X

felony[.]

720 Ill. Comp. Stat. Ann. § 5/10-9(c)(2) (2015). The relevant Indiana statute,

Indiana Code section 35-42-3.5-1.2(a), provides that

(a) A person who knowingly or intentionally recruits, entices,

harbors, or transports a child less than eighteen (18) years of age

with the intent of causing the child to engage in:

(1) prostitution or juvenile prostitution; or

(2) a performance or incident that includes sexual

conduct in violation of IC 35-42-4-4(b) or IC 35-42-4-

4(c) (child exploitation);

commits promotion of child sexual trafficking, a Level 3 felony.

The question before us is whether the Illinois crime of involuntary sexual

servitude of a minor is substantially similar to the Indiana crime of promotion

of child sexual trafficking. We conclude that it is.

[18] A side-by-side comparison of the elements of each crime is as follows:

Illinois offense: Involuntary sexual Indiana offense: Promotion of child

servitude of a minor. sexual trafficking.

1. Defendant 1. Defendant

2. Knowingly 2. Knowingly or intentionally

3. Recruits, entices, harbors, 3. Recruits, entices, harbors, or

transports, provides, or obtains by transports

any means, or attempts to recruit,

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entice, harbor, provide, or obtain by

any means

4. Another person under 17 years of 4. A child less than 18 years of age

age

5. Knowing that the minor will 5. With the intent of causing the

engage in commercial sexual activity, child to engage in: (1) prostitution or

a sexually-explicit performance, or juvenile prostitution; or (2) a

the production of pornography, or performance or incident that includes

causes or attempts to cause a minor sexual conduct

to engage in one or more of those

activities

Again, “the elements of two statutes are ‘substantially similar’ if they have

common core characteristics that are largely, but not identically, alike in degree

or extent.” Hancock, 65 N.E.3d at 587. After comparing the two relevant

offenses, we conclude that the Illinois offense of involuntary sexual servitude of

a minor is substantially similar to the Indiana offense of promotion of child

sexual trafficking. The core characteristics of the two offenses, while not

identical, are largely alike in degree.

[19] Both require that the defendant act with a similar degree of culpability. Illinois

law provides that

[a] person knows, or acts knowingly or with knowledge of:

(a) The nature or attendant circumstances of his or her conduct,

described by the statute defining the offense, when he or she is

consciously aware that his or her conduct is of that nature or that

those circumstances exist. Knowledge of a material fact includes

awareness of the substantial probability that the fact exists.

(b) The result of his or her conduct, described by the statute

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defining the offense, when he or she is consciously aware that that

result is practically certain to be caused by his conduct.

720 Ill. Comp. Stat. Ann. 5/4-5 (emphasis added). Under Indiana law, “[a]

person engages in conduct ‘intentionally’ if, when he engages in the conduct, it

is his conscious objective to do so.” Ind. Code § 35-41-2-2(a) (emphasis added). “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b)

(emphasis added). Thus, both statutes require that the defendant be aware that

his actions are highly probable or practically certain to violate the law. We find

the culpability requirements to be substantially similar.

[20] By their clear terms, both statutes also require the defendant to recruit, entice,

harbor, or transport a minor, knowing or with the intent that, the minor will

engage in (a) commercial sexual activity, i.e., prostitution, or (b) sexually-

explicit performance, i.e., a performance that includes sexual conduct. While

the statutes use different terms to describe the prohibited conduct, it is clear that

both statutes are describing essentially the same prohibited acts. Furthermore,

while the Illinois statute includes criminal liability for an attempt to commit one

of these acts, Indiana codifies criminal liability for an attempt to commit any

crime in another statutory section, i.e., Indiana Code section 35-41-5-1.

Because the two offenses require proof of essentially the same prohibited acts

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involving minors,3 we conclude that the trial court abused its discretion in

determining that the two offenses were not “substantially similar.”

B. Count II–Unlawful Carrying a Handgun

[21] Again, Indiana Code section 35-47-2-1.5(b)(1) provides that a person, who has

been convicted “of a federal or state offense punishable by a term of

imprisonment exceeding one (1) year[,]” may not knowingly or intentionally

carry a handgun. Indiana Code section 35-47-2-1.5(e)(2)(B) provides that the

offense is a Level 5 felony if the person “has been convicted of a felony within

fifteen (15) years before the date of the offense.” We agree with the State that

“[i]t appears from the trial court’s order that the trial court mistakenly believed

that Johnson’s underlying conviction from Illinois had to be substantially

similar to an Indiana offense to qualify as a felony conviction for purposes of

the unlawful carrying of a handgun charge.” Appellant’s Br. p. 31. As charged

in this case, Indiana Code section 35-47-2-1.5 does not require that the prior

conviction be for any particular crime, beyond requiring a conviction for a

felony that was punishable by a term of imprisonment exceeding one year. The

charging information and supporting judicial records clearly alleged the

required facts. We therefore conclude that the trial court abused its discretion

3

The fact that the Illinois statute has additional language that changes the level of felony based on whether

the defendant employed overt force or a threat does not change our analysis as the two statutes do not need

to be identical to be found “substantially similar.” See Hancock, 65 N.E.3d at 587 (“[E]lements of two statutes

are ‘substantially similar’ if they have common core characteristics that are largely, but not identically, alike in

degree or extent.” Emphasis added.). Regardless of the level, both statutes outline felonies that, again,

require proof of essentially the same prohibited conduct.

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in dismissing Count II on the grounds that the Illinois conviction was not

substantially similar to an Indiana offense.

III. Whether the Statutes are Unconstitutional

[22] Although the trial court did not make a ruling on the parties’ arguments relating

to whether Indiana Code sections 35-47-4-5 and 35-47-2-1.5 are

unconstitutionally vague, the parties again raise the question on appeal.

A challenge to the validity of a statute must overcome a

presumption that the statute is constitutional. State v. Lombardo,

738 N.E.2d 653 (Ind. 2000). The party challenging the statute

has the burden of proving otherwise. Jackson v. State, 634 N.E.2d

532 (Ind. Ct. App. 1994).

The “analysis of a due process vagueness challenge under the

Indiana Constitution and the U.S. Constitution is identical, and

the Indiana courts rely on the same cases and standards in ruling

on these challenges.” Whatley v. Zatecky, 833 F.3d 762, 771 (7th

Cir. 2016) (citing e.g., Brown v. State, 868 N.E.2d 464 (Ind. 2007)).

“A criminal statute may be invalidated for vagueness for either of

two independent reasons: (1) for failing to provide notice

enabling ordinary people to understand the conduct that it

prohibits, and (2) for the possibility that it authorizes or

encourages arbitrary or discriminatory enforcement.” Brown, 868

N.E.2d at 467 (citing City of Chicago v. Morales, [527 U.S. 41, 56]

(1999)). Further, “‘it is well established that vagueness

challenges to statutes which do not involve First Amendment

freedoms must be examined in the light of the facts of the case at

hand.’” Davis v. State, 476 N.E.2d 127, 130 (Ind. Ct. App. 1985)

(quoting U.S. v. Mazurie, [419 U.S. 544, 550] (1975)), trans. denied.

York v. State, 210 N.E.3d 307, 310–11 (Ind. Ct. App. 2023) (footnote omitted).

Court of Appeals of Indiana | Opinion 24A-CR-2146 | October 1, 2025 Page 20 of 23

[23] Johnson’s challenge to the constitutionality of the challenged statutes does not

involve First Amendment freedoms and therefore must be examined in light of

the facts of the case at hand. Id. Further, while Johnson contends that both of

the challenged statutes are unconstitutionally vague, his arguments appear to be

focused on Indiana Code section 35-47-4-5, specifically the question of what

foreign convictions would be considered substantially similar to the statutorily

proscribed Indiana crimes that qualify one as an SVF, rather than any part of

Indiana Code section 35-47-2-1.5. Johnson asserts that the challenged statutes

are unconstitutionally vague because they fail to provide notice to an ordinary

person of what conduct is prohibited. Specifically, he claims that an ordinary

person would not be able to understand what conduct is prohibited as it relates

to substantially similar convictions from other jurisdictions.

[24] Despite Johnson’s claim to the contrary, we believe that an ordinary person

would be able to understand what convictions, whether for Indiana criminal

violations or substantially similar convictions from other jurisdictions, would

qualify an individual as an SVF. Again, Indiana Code section 35-47-4-5(a)

provides that an SVF is “a person who has been convicted of committing a

serious violent felony.” Subsection (b) of the statute sets forth thirty-two crimes

that a conviction for which would qualify an individual as an SVF. Indiana

Code section 1-1-2-4(b) provides that

a reference to a conviction for an Indiana criminal offense

appearing within the Indiana Code also includes a conviction for

… [a] substantially similar offense committed in another

jurisdiction, including an attempt or conspiracy to commit the

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offense, even if the reference to the conviction for the Indiana

criminal offense specifically refers to an “Indiana conviction” or

a conviction “in Indiana” or under “Indiana law” or “laws of this

state”.

The types of crimes, whether by Indiana conviction or a conviction for a

substantially similar offense from a foreign jurisdiction, are plainly stated in the

statute, giving any individual charged under Indiana Code section 35-47-4-5

clear notice of what conduct is prohibited.

[25] We are likewise unconvinced by Johnson’s claim that the challenged statutes

are unconstitutionally vague merely because “substantially similar” is not

defined in the criminal code. The Indiana Supreme Court has defined the term,

see Hancock, 65 N.E.3d at 587, and acknowledged the “longstanding legal

principle [which] presumes that citizens know the law and must obey it.”

Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 467 (Ind. 2017).

“[C]entral to the presumption that persons know the law is that the law is

accessible[,] id., and we note that Indiana caselaw and the Indiana criminal

code are available to the public via multiple mediums such as the internet and

publicly accessible law libraries. Again, “‘[a] statute will not be found

unconstitutionally vague if individuals of ordinary intelligence would

comprehend it adequately to inform them of the proscribed conduct.’” York,

210 N.E.3d at 311 (quoting Lombardo, 738 N.E.2d at 656). Johnson has failed

to convince us that the challenged statutes fall short of this standard.

Court of Appeals of Indiana | Opinion 24A-CR-2146 | October 1, 2025 Page 22 of 23

[26] The judgment of the trial court is reversed, and the matter is remanded for

further proceedings.

Pyle, J., and Kenworthy, J., concur.

ATTORNEYS FOR APPELLANT

Theodore E. Rokita

Indiana Attorney General

Courtney L. Staton

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Shay J. Hughes

Tippecanoe County Public Defender’s Office

Lafayette, Indiana

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