FILED
Aug 31 2026, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana Wayne T. Kelly,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
August 31, 2026
Court of Appeals Case No.
26A-CR-665
Appeal from the Lake Superior Court The Honorable Samuel L. Cappas, Judge Trial Court Cause No.
45G04-2111-F4-205
Opinion by Chief Judge Tavitas Judges Bradford and Felix concur.
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 1 of 17
Tavitas, Chief Judge.
Case Summary [1] Following a bench trial, Wayne Kelly was convicted of unlawful possession of
a firearm by a serious violent felon, a Level 4 felony, and resisting law enforcement, a Level 6 felony. On appeal, Kelly claims that the evidence is insufficient to support his conviction for unlawful possession of a firearm by a serious violent felon. We agree and, accordingly, reverse and remand.
Issue [2] Kelly presents two issues, one of which we find dispositive and restate as:
whether the State presented sufficient evidence to prove that Kelly was a serious violent felon.1
Facts [3] On November 1, 2021, Indiana State Police Trooper Elias Espinoza was
patrolling on Interstate 65 in Lake County when he observed a black Chevrolet Camaro approach his vehicle from behind and pass him at a high speed. Trooper Espinoza activated his emergency lights and pulled the Camaro over. When he approached the car, Trooper Espinoza saw three people inside: Kelly, who was the driver, Lauren Taylor, who was seated in the front passenger seat,
1 Because we conclude that there was insufficient evidence to prove that Kelly was a serious violent felon, we need not address his argument that there was also insufficient evidence to prove that he actually or constructively possessed a firearm.
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 2 of 17 and Terrel Holt, who was in the back seat. Kelly admitted that he was speeding, but when asked for his driver’s license, Kelly stated that he did not have it in his possession at the time. Trooper Espinoza noticed that Holt was not wearing a seatbelt. Trooper Espinoza also smelled the odor of marijuana emanating from the car. Kelly admitted that he had smoked marijuana earlier that day but denied the presence of guns or drugs in the car when asked.
[4] When Trooper Espinoza returned to his patrol vehicle to run a records search, Kelly began to move around inside the car and leaned over into the passenger seat. A black handgun was then tossed from the passenger’s side window, landing in the ditch beside the road. Kelly drove off, leading the police on a high-speed chase. Eventually, Kelly collided with two other vehicles and crashed into a median ditch. The two passengers remained at the scene of the crash, but Kelly fled the scene and was apprehended shortly thereafter. The police located the handgun that had been tossed from the car and took fingerprints and DNA swabs from Kelly. Subsequent testing revealed the presence of Kelly’s DNA and fingerprints on the weapon.
[5] Kelly’s fingerprints linked him to two prior convictions in Illinois: in 2009, Kelly was convicted of Class 3 felony theft and Class 2 felony burglary; and in 2015, Kelly was convicted of Class 4 felony aggravated fleeing from law enforcement. The certified records of the 2009 burglary conviction indicated that Illinois had initially indicted Kelly for Class 1 felony residential burglary based on his entry into the dwelling place of another. The original indictment identified the victim by name and gave her street address, including a unit number. Pursuant to a plea agreement, the indictment was amended to Class 2 felony burglary, and Kelly pleaded guilty as charged to the amended indictment. The amendment substituted the word “building” for “dwelling” in the burglary count but retained the victim’s address. Ex. Vol. I p. 46.
[6] On November 2, 2021, the State charged Kelly with: Count I, unlawful possession of a firearm by a serious violent felon, a Level 4 felony; Count II, resisting law enforcement, a Level 6 felony; Count III, leaving the scene of an accident causing bodily injury, a Class A misdemeanor; Count IV, resisting law enforcement, a Class A misdemeanor; and Count V, leaving the scene of an accident, a Class B misdemeanor. A bench trial was held on October 9, 2025, at the conclusion of which the trial court found Kelly guilty on Counts I and II but not guilty on the remaining counts. At a February 13, 2026 sentencing hearing, the trial court imposed an aggregate sentence of ten years. Kelly now appeals.
Discussion and Decision [7] Kelly claims that the State failed to prove that he was a serious violent felon. 2
Kelly does not deny the facts underlying his current convictions. Nor does he deny that he has a prior conviction in Illinois. 3 But he claims that his 2009
2 Kelly does not challenge his conviction for resisting law enforcement.
3 In its summary of the argument, the State claims that Kelly’s 2015 Illinois conviction for Class 4 felony aggravated fleeing from law enforcement is substantially similar to Level 5 felony resisting law enforcement in Indiana, which is a serious violent felony. See Ind. Code § 35-47-4-5(b)(18)(B). We note that the State alleged only the Illinois burglary conviction as the predicate serious violent felony. See Appellant’s App. Vol. II p. 18. The State, moreover, does not further develop this claim in the argument section of its brief; the
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Illinois conviction for burglary is not substantially similar to the Indiana crime of burglary of a dwelling, a conviction for which would render Kelly a serious violent felon. This is a question of law we review de novo. Moore v. State, 49 N.E.3d 1095, 1104 (Ind. Ct. App. 2016). We keep in mind that “criminal statutes must be strictly construed against the State, and ‘may not be enlarged beyond the fair meaning of the language used . . . .” A.-H.Y. v. State, 975 N.E.2d 1273, 1279 (Ind. 2012) (quoting Bond v. State, 515 N.E.2d 856, 857-58 (Ind. 1987)). Also, “[when] general and specific statutes conflict in their application to a particular subject matter, the specific statute will prevail over the general statute.” Snider v. State, 753 N.E.2d 721, 723 (Ind. Ct. App. 2001), trans. denied.
A. The Serious Violent Felon Statute [8] “A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.” Ind. Code § 35-47-4-5(c). A serious violent felon is defined as “a person who has been convicted of committing a serious violent felony.” I.C. § 35-47-4-5(a). A serious violent felony is defined to include:
burglary (IC 35-43-2-1) as a:
State does not identify the Illinois statute under which Kelly was convicted for fleeing from law enforcement, nor does it compare the elements of that offense with the Indiana offense of resisting law enforcement as a Level 5 felony. This argument is, therefore, waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring appellate arguments to be supported by cogent reasoning). Accordingly, we address only that predicate offense.
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(A) Class A felony or Class B felony, for a crime committed before July 1, 2014; or
(B) Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony, for a crime committed after June 30, 2014[.]
I.C. § 35-47-4-5(b)(16).
[9] “Indiana appellate courts have held that a person may qualify as [a serious violent felon] based on felony convictions from another jurisdiction so long as the conviction is ‘substantially similar’ to an offense listed in Indiana Code [S]ection 35-47-4-5(b).” State v. Johnson, 270 N.E.3d 489, 498 (Ind. Ct. App. 2025) (citing State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016)), trans. denied. Prior versions of the serious violent felon statute directly included the “substantially similar” language, but that provision has since been moved to Indiana Code Section 1-1-2-4. Johnson, 270 N.E.3d at 498 n.1; see also State v. Gomez, No. 25S-CR-14, slip op. at 8 (Ind. June 30, 2026) (“Whenever [a] predicate offense statute makes a reference to a conviction for an Indiana criminal offense, it becomes subject to Indiana Code [S]ection 1-1-2-4, ‘the reference statute.’”), reh’g pending.
[10] This “reference statute” provides in relevant part:
Except as provided in subsection (c),[ 4] a reference to a conviction for an Indiana criminal offense appearing within the Indiana Code also includes a conviction for any of the following:
4 The parties appear to agree that subsection (c) is inapplicable here.
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 6 of 17
*****
(3) 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 “Indiana conviction” or a conviction “in Indiana” or under “Indiana law” or “laws of this state”.
I.C. § 1-1-2-4(b) (emphasis added).
[11] Our trial courts have the unenviable task of comparing foreign statutes to Indiana statutes to determine whether offenses are substantially similar. 5 To determine whether an offense in another jurisdiction is substantially similar to an Indiana offense, we must compare the foreign statute under which the defendant was convicted with the Indiana statute at the time of the current, Indiana offense. Moore, 49 N.E.3d at 1104; see also State v. Akins, 824 N.E.2d 676, 678 (Ind. 2005) (“The correct comparison is between the Michigan statute under which the defendant was convicted and the Indiana statute at the time of the Indiana offense.”).
The Indiana Code does not define “substantially similar,” but in State v. Bazan, 45 N.E.3d 856, 859 (Ind. Ct. App. 2015), we held
5 At trial here, the State made conclusory statements that Kelly was a serious violent felon based on his 2009 Illinois burglary conviction without comparing the Illinois and Indiana burglary statues. See Tr. Vol. II pp. 5, 88-89. Kelly’s defense counsel simply argued that there was insufficient proof that Kelly was in possession of the handgun thrown from the car. Id. at 94. But this does not mean that Kelly waived his appellate argument. It is well settled that “a claim of insufficiency of the evidence can be made for the first time on appeal.” Williams v. State, 64 N.E.3d 226, 227 (Ind. Ct. App. 2016) (citing Ind. Trial Rule 50(A)(5) (criminal defendant may challenge sufficiency of evidence at trial, in a motion to correct error, or for the first time on appeal); see also Collins v. State, 364 N.E.2d 750, 754 (Ind. 1977) (citing Trial Rule 50 in holding that “a defendant [may] raise sufficiency of the evidence for the first time on appeal.”).
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 7 of 17 that an out-of-state statute was not “substantially similar” to an Indiana statute when the out-of-state statute was broader than the Indiana statute. Specifically, we held that a New York statute for operating a vehicle while impaired was not substantially similar to Indiana’s statute for operating a vehicle while intoxicated because the Indiana statute required a greater showing of impairment. See id. In contrast, where an out-of-state statute was more stringent than an equivalent Indiana statute, our [S]upreme [C]ourt held that the statutes were substantially similar. See State v. Akins, 824 N.E.2d 676 (Ind. 2005) (holding that because Michigan’s statute for operating a vehicle while being under the influence of an intoxicating liquor or having an alcohol content of 0.10 grams or more per 100 milliliters of blood required a degree of intoxication greater than Indiana’s equivalent statute, the two statutes were substantially similar).
Moore, 49 N.E.3d at 1104 (some citations omitted). And in Hancock, our Supreme Court, after considering dictionary definitions of the words “substantial” and “similar,” held that “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.” 65 N.E.3d at 587.
B. The Illinois Burglary Statute [12] At the time Kelly committed his 2009 Illinois offense, 6 the Illinois statute defining the crime of burglary provided:
(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as
6 Kelly was convicted in March 2009 in Illinois of an offense that he committed on January 23, 2009.
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 8 of 17 defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code.
(b) Sentence.
Burglary is a Class 2 felony. A burglary committed in a school or place of worship is a Class 1 felony.
720 Ill. Comp. Stat. Ann. 5/19-1 (2001) (emphases added, footnotes omitted). At the same time, the Illinois offense of residential burglary was defined by a separate statute as follows:
(a) A person commits residential burglary who knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. This offense includes the offense of burglary as defined in Section 19-
1.
(b) Sentence. Residential burglary is a Class 1 felony.
720 Ill. Comp. Stat. Ann. 5/19-3 (2001) (emphasis added).
[13] Illinois, thus, has defined separate offenses for burglary generally and burglary of a dwelling specifically. See id. (“This offense includes the offense of burglary as defined in Section 19-1.”). Illinois’ choice to address dwelling-burglary through a separate, more specific statute confirms that the omission of a dwelling requirement from the general burglary statute was deliberate.
[14] Kelly was originally indicted under the Illinois residential burglary statute. The indictment alleged that he “knowingly and without authority entered the dwelling place” of the victim with the intent to commit theft therein. Ex. Vol. I p. 46. At the plea hearing, however, the Illinois trial court granted the prosecution leave to amend the bill of indictment by interlineation. Specifically, the word “dwelling” was marked out and the word “building” was substituted in its place. Id. The citation to the operative statute was also changed from the Illinois residential burglary statute to the Illinois burglary statute. The Illinois trial court then accepted Kelly’s plea to burglary as a Class 2 felony “as charged in” the amended indictment and entered judgment of conviction accordingly. Id. at 55. It is, therefore, clear that Kelly was convicted of the base offense of burglary in Illinois, not residential burglary.
C. The Indiana Burglary Statute [15] The offense of burglary in Indiana is defined 7 as follows:
A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary, a Level 5 felony. However, the offense is:
(1) a Level 4 felony if the building or structure is a dwelling . . . .
Ind. Code § 35-43-2-1.8
7 We must compare the Illinois burglary statute under which Kelly was convicted with the Indiana statute at the time of the instant, Indiana offense. Akins, 824 N.E.2d at 678; Moore, 49 N.E.3d at 1104. 8 Notably, both Illinois and Indiana grade burglary as a more serious offense when a dwelling is involved. This reinforces our conclusion that the dwelling element is what separates the more serious offense from the
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D. The Offenses Are Not Substantially Similar [16] Kelly claims that the Illinois offense of burglary is not substantially similar to the Indiana offense of burglary of a dwelling, a Level 4 felony, which is a serious violent felony. Accordingly, Kelly argues that he does not qualify as a serious violent felon and that the evidence is insufficient to sustain his conviction. We agree.
[17] The Illinois offense of burglary has three elements. In contrast, the Indiana burglary-of-a-dwelling statute—which elevates the offense to a Level 4 felony and qualifies as a serious violent felony—requires four elements. The following chart compares the elements of these statutes:
Illinois Indiana
1. knowingly entering or remaining 1. breaking and entering within without authority
2. a building, housetrailer, 2. a building or structure of another watercraft, aircraft, motor vehicle, person railroad car, or any part thereof
3. with the intent to commit therein a 3. with the intent to commit a felony felony or theft or theft in it
4. the building or structure is a dwelling
lesser one in both states. Compare 730 Ill. Comp. Stat. Ann. 5/5-4.5-35 (providing that a Class 2 felony, such as general burglary, is punishable by three to seven years of imprisonment), and 730 Ill. Comp. Stat. Ann. 5/5-4.5-30 (providing that a Class 1 felony, such as residential burglary, is punishable by four to fifteen years of imprisonment), with Ind. Code § 35-50-2-6(b) (providing that a Level 5 felony, which includes burglary of a non-dwelling structure, is punishable by one to six years of imprisonment), and Ind. Code § 35-50-2-5.5 (providing that a Level 4 felony, which includes burglary of a dwelling, is punishable by two to twelve years’ imprisonment).
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 11 of 17 720 Ill. Comp. Stat. Ann. 5/19-1 (2001); Ind. Code § 35-43-2-1(1).
[18] Simply put, the Illinois burglary statute contains no requirement that the structure at issue be a dwelling. “Dwelling” under Indiana law means “a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person’s home or place of lodging.” Ind. Code § 35-31.5-2- 107. “[O]ur courts have said that burglary of a dwelling is not so much an offense against property as it is an offense against the sanctity and security of habitation.” Howell v. State, 53 N.E.3d 546, 549 (Ind. Ct. App. 2016) (citing Watt v. State, 446 N.E.2d 644, 645 (Ind. Ct. App. 1983)), trans. denied. The Illinois burglary statute is indifferent to habitation, and it protects various forms of property, including those not typically used as dwellings.
[19] We conclude, therefore, that the Illinois burglary statute under which Kelly was convicted is broader than Indiana’s burglary-of-a-dwelling statute because conduct violating the Illinois statute would not necessarily constitute burglary of a dwelling in Indiana. “[A]n out-of-state statute is not substantially similar to an Indiana statute where the out-of-state statute is broader than the Indiana statute.” Hancock, 65 N.E.3d at 590.
[20] The State notes that two statutes need not be identically worded to be substantially similar, so long as they display a “high degree of likeness.” Id. at 587, 590. Although “substantial similarity” does not require identical statutory language, see id. at 587, the difference here is not merely one of wording. The Illinois statute reaches conduct the Indiana statute does not reach at all:
entering a watercraft, aircraft, motor vehicle, or railroad car is burglary in Illinois, but it is not burglary of a dwelling in Indiana. Nor is the dwelling element incidental. Burglary qualifies as a serious violent felony only if it is at least a Level 4 felony, and—absent bodily injury or a deadly weapon, neither of which were alleged here—the dwelling requirement is what elevates the offense to that level in Indiana. I.C. § 35-43-2-1. The element the Illinois statute lacks is precisely what makes the Indiana offense a serious violent felony. Moreover, a separate Illinois statute defines the distinct offense of residential burglary— burglary of a dwelling; and Kelly did not plead guilty to that offense but to the lesser, base offense of burglary.
[21] The State claims that Hancock permits courts to look beyond the text to consider the conduct underlying the out-of-state conviction. The State contends that the charging instrument shows Kelly broke into an apartment, which would qualify as a dwelling and would, therefore, make the offense burglary as a Level 4 felony, sufficient to render Kelly a serious violent felon. The State’s argument relies on the portion of the Hancock opinion in which the Court observed that elements “may be considered substantially similar with respect to specific characteristics such as the underlying conduct sought to be regulated.” 65 N.E.3d at 587 (emphasis added). We do not read Hancock so broadly.
[22] First, the Court in Hancock referred to the underlying conduct the statute at issue seeks to regulate, not the specific conduct of the defendant in a particular case. Id. at 586. Moreover, the Court in Hancock did not base its decision on what the defendant had done in the out-of-state conviction. In fact, the Court noted that the underlying facts of the out-of-state conviction were not entirely clear. Id. at 586. The Court then compared the elements of each offense, considered Ohio’s classification of criminal offenses, and consulted law from both states to construe the terms of the statutes. Id. at 588. If consideration of the defendant’s underlying conduct were sufficient, none of the Court’s discussion of Ohio law would have been necessary. 9 Also, in that case, the predicate Ohio statute required trespass in an occupied structure maintained as a permanent or temporary habitation, with another person present or likely present. Id. at 591-92. The Court found substantial similarity because those elements aligned with Indiana’s dwelling requirement such that conduct violating the Ohio statute would necessarily violate Indiana’s burglary-of-a- dwelling statute. Id. In contrast, here, the Illinois burglary statute can be violated by entry into several structures, such as a railroad car, which would not constitute burglary of a dwelling in Indiana.
[23] Much of the State’s argument is based on the original indictment, which alleged that Kelly entered a dwelling without authorization. But this indictment was amended before Kelly pleaded guilty, most notably by eliminating the word “dwelling” and substituting in its place the word “building.” Ex. Vol. I p. 46.
9 The State’s reliance on Spencer v. State, 153 N.E.3d 289 (Ind. Ct. App. 2020), is misplaced. In that case, the court addressed whether certain Florida offenses were “substantially equivalent” to the Indiana offense of child molesting. Id. at 296 (quoting Ind. Code § 35-38-1-7.5(b)(1)(K)). But there, neither party disputed how the Florida offenses compared with their Indiana counterparts, and the court ultimately resolved the case on the ground that the Florida offenses were committed before the date the Indiana statute required. See id. at 296-98. Even assuming that Spencer permits a court to consider the facts underlying an out-of-state conviction, we do not read it to allow consideration of an allegation that was struck from the charging instrument as part of the defendant’s guilty plea.
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The State refers to the rule in Illinois that a voluntary guilty plea admits the facts of the offense charged. People v. Gonzalez, 259 N.E.3d 288, 294-95 (Ill. App. Ct. 2025). But what was ultimately charged in Illinois, after the amendment, was unauthorized entry into a building, not a dwelling. And this is the offense to which Kelly pleaded guilty and the offense for which he was convicted. The State also notes that the amended indictment retained the victim’s street address, which included a unit number. 10 But the mere fact that the victim’s address included a unit number and that the premises was, therefore, likely a dwelling does not mean that Kelly pleaded guilty to residential burglary; to the contrary, he pleaded guilty to the lesser, base offense of burglary, where entry into a dwelling was not an element of the offense. 11
[24] In short, we conclude that the Illinois burglary statute is not substantially similar to the Indiana statute defining burglary of a dwelling, a Level 4 felony,
10 The State makes the same argument regarding the theft count of the amended indictment, to which Kelly also pleaded guilty. This count retained the victim’s name and address and alleged that she owned the property. But an allegation contained in a separate count is not an element of the burglary offense to which Kelly pleaded guilty. These details may well establish that the building Kelly entered was, in fact, a dwelling. But that is not the question; the question is for which offense judgment of conviction was entered. And, here, the Illinois trial court entered a judgment of conviction for an offense that could be committed by entering any building. This makes the Illinois offense broader and, therefore, not substantially similar to the Indiana offense of burglary of a dwelling. 11 The State’s position would lead to absurd results if applied to Indiana law. Imagine a defendant who breaks and enters a dwelling with the intent to commit a felony therein; this defendant is charged with burglary of a dwelling, a Level 4 felony, which would make the defendant a serious violent felon if convicted. But, during plea bargaining, the State agreed to lower the offense to the base offense of burglary, a Level 5 felony. Under the State’s position, a court could look to the defendant’s conduct forming the basis of the original charge to conclude that the defendant actually committed an offense that would be Level 4 felony burglary of a dwelling—and that the defendant was, thus, a serious violent felon—even though he pleaded guilty to the lesser-included base offense of burglary of a structure. The same would be true of an habitual offender enhancement—it would permit a court to look at the facts underlying the offense and conclude that the offense committed was, in fact, a felony, even if the defendant was convicted of a misdemeanor. This would be an untenable result.
Court of Appeals of Indiana | Opinion 26A-CR-665 | August 31, 2026 Page 15 of 17 which is required to qualify burglary as a serious violent felony. Kelly is, therefore, not a serious violent felon, and we must reverse his conviction for unlawful possession of a firearm by a serious violent felon.
Conclusion [25] The Illinois burglary statute under which Kelly was convicted is not
substantially similar to the Indiana statute defining burglary of a dwelling, a conviction for which would qualify Kelly as a serious violent felon. Kelly is, thus, not a serious violent felon based on the Illinois conviction. Accordingly, we reverse Kelly’s conviction for unlawful possession of a firearm by a serious violent felon and remand to the trial court with instructions to vacate Kelly’s conviction and sentence on that count.
[26] Reversed and remanded.
Bradford, J., and Felix, J., concur.
ATTORNEY FOR APPELLANT R. Brian Woodward Appellate Public Defender Crown Point, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Kelly A. Loy Section Chief for Criminal Appeals
Alexa R. Rojas Deputy Attorney General Indianapolis, Indiana