Indiana’s Reference Statute: A General “Felony” Predicate in the Handgun-Carry Ban Includes Out-of-State Felonies Without “Substantial Similarity”

Introduction

State of Indiana v. Augustine Armando Gomez Jr. is a direct appeal from the Tippecanoe Superior Court in which the State sought to prosecute Augustine Armando Gomez Jr. for unlawful carrying of a handgun after police allegedly found a handgun in his backpack during a domestic-violence response. The key factual predicate for the handgun counts was Gomez’s prior Illinois felony conviction (Aggravated Unlawful Use of a Weapon/Vehicle, 2016).

The case presented two interconnected issues:

  1. Pleading/notice: whether Counts II and III of the charging information (read with the probable cause affidavit) stated the handgun offenses with “sufficient certainty” and alleged facts constituting an offense.
  2. Statutory interpretation (and a constitutional detour): whether Indiana’s “reference statute,” Indiana Code § 1-1-2-4, required an out-of-state felony used for enhancement to be “substantially similar” to an Indiana offense—and, if so, whether that standard was unconstitutionally vague.

The trial court dismissed both handgun counts (Counts II and III) and declared part of the reference statute unconstitutional. The Indiana Supreme Court reversed, reinstating the charges and rejecting the trial court’s path into constitutional adjudication.

Summary of the Opinion

Justice Massa, writing for the Court, held:

  • Counts II and III were sufficiently pleaded when the charging informations were read together with the probable cause affidavit; Gomez had adequate notice of the predicate Illinois felony conviction.
  • The trial court misapplied Indiana Code § 1-1-2-4 by treating the handgun statute’s use of the general term “felony” as triggering a “substantial similarity” requirement under § 1-1-2-4(b)(3).
  • Because the handgun enhancement provision (Ind. Code § 35-47-2-1.5(e)(2)(B)) uses a general reference (“felony”), the State needed only allege a prior felony conviction within 15 years; no element-by-element comparison to an Indiana felony was required.
  • The Court declined to revisit State v. Hancock, 65 N.E.3d 585 (Ind. 2016), finding it inapplicable because Hancock involved a firearm statute that required “substantially similar” analysis for specific predicate offenses (the serious violent felon statute).
  • The Court avoided deciding constitutionality of the “substantially similar” language because it was unnecessary to resolve this case.

Chief Justice Rush concurred in result as to Count II but dissented as to Count III, arguing that § 1-1-2-4(b)(3) applies to general references like “felony” and thus requires substantial-similarity comparison and additional notice of the Indiana comparator offense.

Analysis

Precedents Cited

1) Review standards and dismissal authority

  • A.-H.Y v. State, 975 N.E.2d 1273 (Ind. 2012) (quoting Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012)) supplied the governing abuse-of-discretion framework and the proposition that misinterpreting law is an abuse of discretion.
  • State v. Econ. Freedom Fund, 959 N.E.2d 794 (Ind. 2011) reinforced that legal misinterpretation constitutes an abuse of discretion.
  • State v. Davis, 898 N.E.2d 281 (Ind. 2008) recognized courts’ inherent authority to dismiss charges when prosecution would violate constitutional rights, providing the doctrinal backdrop for the trial court’s attempt to dismiss on constitutional grounds.
  • Horner v. Curry, 125 N.E.3d 584 (Ind. 2019) established de novo review for constitutional questions.
  • Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250 (Ind. 2013) grounded the Court’s constitutional-avoidance approach: resolve on non-constitutional grounds if possible.

2) Charging-information notice and “reading in tandem”

  • State v. Katz, 179 N.E.3d 431 (Ind. 2022) supplied the foundational purpose of charging instruments: notice adequate to prepare a defense.
  • Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014) and Laney v. State, 868 N.E.2d 561 (Ind. Ct. App. 2007) supported the Court’s view that an information need not contain detailed factual allegations beyond essentials.
  • State v. Laker, 939 N.E.2d 1111 (Ind. Ct. App. 2010) and Woods v. State, 980 N.E.2d 439 (Ind. Ct. App. 2012) were central to the Court’s method: if the information lacks detail, courts may consider the probable cause affidavit filed alongside it.
  • Patterson v. State, 495 N.E.2d 714 (Ind. 1986) further supported viewing the charging information and probable cause affidavit together.
  • Lampitok v. State, 817 N.E.2d 630 (Ind. Ct. App. 2004) anchored the due-process endpoint: the documents must enable the accused, court, and jury to determine the crime for which conviction is sought.

3) “Facts constitute an offense” and facial sufficiency

  • Hernandez v. State, 220 N.E.3d 68 (Ind. Ct. App. 2023) framed “facts constitute an offense” as a facial alignment between alleged facts and statutory elements.
  • State v. Dickens, 261 N.E.3d 778 (Ind. Ct. App. 2025) supplied the standard: taking allegations as true, does the information allege a criminal offense?
  • Gordon v. State, 645 N.E.2d 25 (Ind. Ct. App. 1995) supported the conclusion that technical omissions (like not citing the exact out-of-state statute) do not mandate dismissal where the defendant is not misled.

4) Firearms precedent and the Court’s refusal to expand it

  • State v. Hancock, 65 N.E.3d 585 (Ind. 2016) was the decision the trial court invoked (and questioned) when it attempted a “substantial similarity” comparison for Gomez’s Illinois conviction. The Supreme Court distinguished Hancock as a case about a different firearm restriction (the serious violent felon statute), historically tied to explicit “substantial similarity” language for specific enumerated predicate offenses.

5) Dissent’s cited authorities (illustrating the interpretive counter-model)

The separate opinion relied on interpretive and lenity principles and charging-notice cases—e.g., Calvary Temple Church of Evansville, Inc. v. Kirsch, 251 N.E.3d 1056 (Ind. 2025), Ind. Right to Life Victory Fund v. Morales, 217 N.E.3d 517 (Ind. 2023), State v. Neukam, 189 N.E.3d 152 (Ind. 2022), Turner v. State, 253 N.E.3d 526 (Ind. 2025), Fix v. State, 186 N.E.3d 1134 (Ind. 2022), Wright v. State, 658 N.E.2d 563 (Ind. 1995), and Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015)—to argue that the reference statute’s “substantial similarity” requirement applies broadly and that any ambiguity should be resolved in the defendant’s favor.

Legal Reasoning

1) Notice: information + probable cause affidavit

The Court treated the charging informations and the probable cause affidavit as a combined notice package. Even if Count II did not recite the precise Illinois statutory citation, the affidavit and Count III identified the Illinois conviction by name, date, court, and cause number. That was enough to: (a) inform Gomez what predicate conviction the State relied on and (b) enable preparation of a defense.

2) Elements: the handgun statute’s structure

The Court emphasized that Ind. Code § 35-47-2-1.5(b)(1) defines the core prohibition (persons convicted of a federal or state offense punishable by more than one year may not carry a handgun), while § 35-47-2-1.5(e)(2)(B) enhances the offense to a Level 5 felony when the person has been convicted of a felony within fifteen years. The allegations fit those elements: a handgun in Indiana plus a qualifying prior conviction.

3) The interpretive pivot: how to apply Indiana Code § 1-1-2-4

The case’s doctrinal core is the Court’s reading of the 2020-enacted “reference statute,” Ind. Code § 1-1-2-4. The Court drew a functional distinction:

  • When a predicate statute refers to a specific Indiana offense, an out-of-state conviction qualifies only if it is a “substantially similar offense committed in another jurisdiction” under § 1-1-2-4(b)(3).
  • When a predicate statute refers only to a general class (like “a felony”), the Court held that no “substantial similarity” comparison is required; it is enough to allege the defendant has a felony conviction within the enhancement window.

On that reading, the trial court’s move—forcing a substantial-similarity comparison for Count III and then declaring the standard unconstitutionally vague—was a category error: the handgun enhancement does not, in the majority’s view, call for that comparison at all.

4) Constitutional avoidance and Hancock’s containment

The Court invoked the principle from Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc. to avoid constitutional adjudication. Because the trial court had applied the wrong statutory subsection (in the majority’s view), the “void for vagueness” ruling was unnecessary.

The Court also declined to revisit State v. Hancock, treating it as a case about a different statutory design—one that required comparing elements of an out-of-state offense to enumerated Indiana predicate felonies. Here, by contrast, the handgun enhancement was framed as a general “felony within 15 years” trigger.

5) The dissent’s competing statutory sequence

Chief Justice Rush read § 1-1-2-4 as a mandatory three-step sequence: (a) “felony” is a reference to an Indiana criminal offense; (b) out-of-state convictions can satisfy that reference only via (b)(3)’s “substantially similar” requirement; (c) therefore Count III required pleading (or making apparent) the Indiana felony comparator. On that view, Count III failed for lack of certainty even if the Illinois conviction itself was identified.

Impact

1) Practical charging impact in firearms cases

The majority opinion materially strengthens the State’s ability to prosecute handgun-carry cases involving out-of-state felonies by treating the handgun enhancement’s “felony” language as a general reference that does not require litigating substantial similarity. This reduces pretrial motion practice and evidentiary complexity, because the State need not identify an Indiana comparator felony as part of the enhancement theory.

2) Uniformity and administrability (majority’s framing)

The Court stressed notice and administrability: a categorical rule—felons may not carry, regardless of where convicted—offers clearer ex ante guidance than a regime that turns on judicial comparisons of foreign elements to Indiana crimes.

3) Continuing fault line: how broadly “substantial similarity” applies under § 1-1-2-4

The decision tees up an important interpretive divide for future litigation: whether § 1-1-2-4(b)(3) applies only when a predicate statute references a specific Indiana offense (majority) or also when it uses general category terms like “felony” (dissent). That disagreement could recur outside firearms law anywhere Indiana statutes condition liability or enhancements on prior “felony,” “sex offense,” or “crime of domestic violence” convictions.

4) Constitutional litigation deferred, not resolved

The Court did not decide whether “substantially similar” is unconstitutionally vague because it found the analysis unnecessary. Thus, a future case that squarely requires a “substantially similar” comparison under § 1-1-2-4(b)(3) could still present the constitutional question the trial court tried to reach here.

Complex Concepts Simplified

Charging information
The formal written accusation stating what crime the State claims the defendant committed and the essential facts supporting that claim.
Probable cause affidavit
A sworn narrative (often from law enforcement) filed with the charges explaining the factual basis for the arrest and charges. Indiana courts may read it alongside the information when deciding whether the defendant received adequate notice.
“Sufficient certainty”
A due-process notice concept: the charge must be clear enough that the defendant can understand what he is accused of and prepare a defense, and that the court and jury can identify the offense being tried.
Reference statute (Ind. Code § 1-1-2-4)
A general interpretive rule telling courts how to read Indiana statutes that refer to prior convictions—especially how (and when) out-of-state convictions can count.
“Substantially similar”
A comparison standard asking whether the elements of an out-of-state offense are close enough to an Indiana offense that the foreign conviction should be treated as equivalent for the Indiana legal consequence at issue.
Constitutional avoidance
A judicial practice: if the case can be resolved by interpreting statutes, courts avoid deciding whether a statute is unconstitutional.

Conclusion

This decision re-centers the case on notice and correct statutory interpretation. The Indiana Supreme Court held that Gomez received adequate notice of the handgun charges when the charging informations were read with the probable cause affidavit. More significantly, the Court announced a consequential interpretation of Ind. Code § 1-1-2-4: when the predicate statute uses a general term like “felony” (as in the handgun enhancement, Ind. Code § 35-47-2-1.5(e)(2)(B)), the State need not plead or prove that an out-of-state felony is “substantially similar” to an Indiana felony.

The ruling reinstates Counts II and III and signals that, at least for Indiana’s felon-in-possession-style handgun-carry restrictions framed in general terms, out-of-state felony convictions can trigger Indiana liability without element-by-element comparator litigation—while leaving open for another day any constitutional attack on the “substantially similar” standard in cases where that comparison is truly required.