MEMORANDUM DECISION
[1] Denver Damaria Smith (“Smith”) appeals the denial of his motion to dismiss the States charging information, which alleged Smith committed Level 5 felony dangerous possession of a firearm (as defined in a prior version of the statute, “the Dangerous Possession Statute”).
1
Smith presents a range of arguments, including claims under the state and federal constitutions. We address a single dispositive issue, which is whether, in light of K.C.G. v. State, 156 N.E.3d 1281 (Ind. 2020), dismissal was warranted because the State did not allege a valid Level 5 felony offense. Agreeing with Smith that the allegation was invalid under K.C.G., we reverse and remand with instructions to the trial court to dismiss the information in accordance with Indiana Code section 35-34-1-4(d).
Facts and Procedural History
[2] In May 2023, the State charged sixteen-year-old Smith as an adult, alleging he committed the criminal offense of dangerous possession of a firearm as a Level 5 felony. The Level 5 felony was premised on Smith having a prior juvenile adjudication for dangerous possession of a firearm. See Appellants App. Vol. 2 p. 12. Smith filed a motion to dismiss on July 2, 2023, which was more than twenty days prior to the omnibus date. See Appellants App. Vol. 2 pp. 23, 39–40. In a supporting memorandum, Smiths arguments for dismissal at times relied on the Indiana Supreme Courts decision in K.C.G., where our Supreme Court held that juvenile courts lack jurisdiction to adjudicate a violation of the Dangerous Possession Statute because the act is not an offense if committed by an adult. The trial court held a hearing and denied Smiths motion to dismiss the charging information. Smith then perfected this interlocutory appeal.
Discussion and Decision
[3] Smith moved for dismissal under Indiana Code section 35-34-1-4(a), seeking dismissal under subsections (1) and (11). This statute provides as follows:
The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense charged.
(7) The prosecution is barred by reason of a previous prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction of the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter of law.
Ind. Code § 35-34-1-4(a); cf. I.C. § 35-34-1-8 (governing other aspects of a motion to dismiss the information). As for subsection (a)(1), which contemplates dismissal for a “defective” count, Indiana Code section 35-34-1-6(a) states that an “information is defective when: (1) it does not substantially conform to the requirements of section 2(a) of this chapter; (2) the allegations demonstrate that the court does not have jurisdiction of the offense charged; or (3) the statute defining the offense charged is unconstitutional or otherwise invalid.”
[4] We generally review a ruling on a motion to dismiss for an abuse of discretion. See State v. Katz, 179 N.E.3d 431, 440 (Ind. 2022). But to the extent the ruling turned on a question of law, such as the interpretation of a statute, our review is de novo. See id. at 441. Here, the ruling turned on the interpretation of the Dangerous Possession Statute. Thus, our review is de novo.
[5] When we engage in statutory interpretation, our role is to apply the statute “consistent with its plain meaning, by giving effect to what the legislature both said and did not say.” Estabrook v. Mazak Corp., 140 N.E.3d 830, 834 (Ind. 2020) (quoting KS & E Sports v. Runnels, 72 N.E.3d 892, 907 (Ind. 2017)).
[6] The Dangerous Possession Statute provided as follows:
A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor. However, the offense is a Level 5 felony if the child has a prior conviction under this section or has been adjudicated a delinquent for an act that would be an offense under this section if committed by an adult.
I.C. § 35-47-10-5(a). The Indiana Supreme Court discussed the Dangerous Possession Statute in K.C.G., which involved a juvenile courts determination that a child was delinquent for committing dangerous possession of a firearm. On appeal, the child argued that the juvenile court lacked jurisdiction based on the way the Dangerous Possession Statute defined the offense. In resolving the appeal, our Supreme Court observed that “for the State to invoke the juvenile courts jurisdiction, it must allege the respondent is a child who committed an act that would be a crime if an adult did it.” K.C.G., 156 N.E.3d at 1283 (emphasis added). The Court turned to the Dangerous Possession Statute and determined that the “statute define[d] the offense in terms of a ‘child[.]’ ” Id. That is, the Court observed that the provision establishing the offense of dangerous possession of a firearm was “clear” and “applie[d] only to children; adults cannot commit dangerous possession of a firearm.” Id. Thus, because the “alleged possession of a firearm could never be an offense committed by an adult,” the juvenile court lacked jurisdiction over the delinquency petition. Id.
[7] Here, Smith was charged as an adult under the Dangerous Possession Statute. The State filed a single Level 5 felony count, specifically alleging as follows:
On our about May 8, 2023, in Tippecanoe County, State of Indiana, ․ Smith did knowingly, intentionally, or recklessly possess a firearm for any purpose other than a purpose described in Indiana Code [s]ection 35-47-10-1, while having a previous conviction or juvenile adjudication under this section, to wit: on January 10, 2023, ․ Smith was adjudicated a delinquent for the offense of Dangerous Possession of a Firearm, Class A Misdemeanor, in the Superior Court 3 of Tippecanoe County, State of Indiana, under cause number 79D03-2301-JD-2.
Appellants App. Vol. 2 p. 12. To convict Smith of the charged offense, the State was required to prove that Smith had previously been adjudicated a delinquent child “for an act that would [have been] an offense under [the Dangerous Possession Statute] if committed by an adult.” I.C. § 35-47-10-5(a). Yet, the Indiana Supreme Court found in K.C.G. that, as drafted, the Dangerous Possession Statute “applie[d] only to children; adults cannot commit dangerous possession of a firearm.” 156 N.E.3d at 1283. Thus, because dangerous possession of a firearm could not be committed by an adult, there is no way Smith could have obtained a prior delinquency adjudication satisfying the criteria to elevate the offense to a Level 5 felony.
2
In other words, to convict Smith, the State had to prove something that simply could not occur.
[8] On appeal, Smith argues dismissal is warranted under the circumstances. He specifically claims the charging information is “defective under K.C.G.” Appellants Br. p. 22. He also claims “the statute utilized ․ is invalid” because it is “impossible for the State to prove [an] essential element” to support the Level 5 felony offense. Id. at 23. At one point, the State argues dismissal is not the proper remedy and K.C.G. merely provides a factual defense. We disagree. Because there was no way the State could obtain a Level 5 felony conviction under the applicable statutory scheme, and because the State did not charge Smith at the misdemeanor level, we agree with Smith that the Level 5 felony allegation was invalid as a matter of law in that the offense was not cognizable. See Invalid, Blacks Law Dictionary (12th ed. 2024) (defining invalid in pertinent part as “[w]ithout basis in fact,” giving the example of “invalid allegations”). We therefore conclude Smith was entitled to dismissal of the information under Indiana Code section 35-34-1-4(a)(11).
[9] Because we have concluded that Smith was entitled to dismissal of the information, we reverse and remand with instructions to dismiss the information in accordance with Indiana Code section 35-34-1-4(d).
[10] Reversed and remanded.
FOOTNOTES
1
. The elevated offense was defined in Indiana Code section 35-47-10-5(a), which has since been amended to remove the language at issue in this case. See Pub. L. 148-2024, § 28 (effective July 1, 2024).
2
. The statute also contemplates a Level 5 felony based on “a prior conviction under this section[.]” I.C. § 35-47-10-5(a). However, the State is not suggesting Smiths prior delinquency adjudication is equivalent to a conviction. Cf. I.C. § 31-32-2-6(a) (“A child may not be considered a criminal as the result of an adjudication in a juvenile court, nor may an adjudication in juvenile court be considered a conviction of a crime.”).
Foley, Judge.
Riley, J., and Brown, J., concur.