Deshaun Lamont Tharpe v. State of Indiana

Opinion

IN THE

Court of Appeals of Indiana FILED Deshaun Lamont Tharpe, Feb 27 2025, 10:05 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.

State of Indiana, Appellee-Plaintiff

February 27, 2025 Court of Appeals Case No. 24A-CR-2303 Appeal from the Marion Superior Court The Honorable Marc T. Rothenberg, Judge Steven J. Rubick, Magistrate Trial Court Cause No. 49D19-2405-CM-13557

Court of Appeals of Indiana | Opinion 24A-CR-2303 | February 27, 2025 Page 1 of 5 Opinion by Judge Bradford Judges Pyle and Kenworthy concur.

Bradford, Judge.

Case Summary [1] After Deshaun Tharpe pled guilty to Class A misdemeanor unlawful carrying a

handgun, the trial court ordered that the two handguns that had been seized at

the time of Tharpe’s arrest be destroyed. Tharpe challenges the trial court’s

order regarding the destruction of the handguns. For its part, the State indicates

that the trial court appears to have departed from the scope of authority granted

to it by Indiana Code section 35-47-3-2 in ordering destruction of the handguns.

Because we disagree, we affirm.

Facts and Procedural History [2] On May 14, 2024, the State charged Tharpe with Class A misdemeanor

unlawful carrying of a handgun, alleging that Tharpe, “being a person under

indictment did knowingly or intentionally” unlawfully carry a handgun on May

13, 2024. Appellant’s App. Vol. II p. 16. On September 6, 2024, the parties

entered into a plea agreement, pursuant to which Tharpe agreed to plead guilty

and the parties agreed that “[w]hether all guns seized in arrest are to be

destroyed, is open to argument to the Court at [the] change of plea hearing.”

Appellant’s App. Vol. II p. 48.

Court of Appeals of Indiana | Opinion 24A-CR-2303 | February 27, 2025 Page 2 of 5 [3] The trial court held a guilty plea hearing on September 9, 2024. At the

conclusion of this hearing, the trial court accepted Tharpe’s guilty plea and

sentenced him to 360 days with credit for time served and the remainder

suspended. The State petitioned the trial court to destroy two handguns that

had been seized at the time of Tharpe’s arrest. After considering the parties’

arguments relating to the destruction of the handguns, the trial court ordered

that the handguns be destroyed. The trial court further ordered that three other

firearms be released to Tharpe’s mother, with instructions that she was “not to

release those weapons to [Tharpe] during the pendency of his sentence.” Tr.

Vol. II p. 11.

Discussion and Decision [4] When a trial court orders the destruction of a firearm as a part of a criminal

sentence, “we will treat this issue like any other claim that a trial court has

violated its statutory authority in imposing a sentence.” Trice v. State, 114

N.E.3d 496, 499 (Ind. Ct. App. 2018), trans. denied. We will affirm “unless the

decision is clearly erroneous and cannot be sustained on any legal theory

supported by the evidence.” Id.

[5] Tharpe contends that the trial court erred in ordering the destruction of his

handguns. In support, Tharpe cites to this court’s decisions in Trice and

Cleveland v. State, 129 N.E.3d 227 (Ind. Ct. App. 2019), trans. denied, in both of

which panels of this court concluded the trial court had erred in ordering the

destruction of a firearm. While the State reluctantly acknowledges that Trice

Court of Appeals of Indiana | Opinion 24A-CR-2303 | February 27, 2025 Page 3 of 5 and Cleveland would seem to suggest that the trial court’s destruction order was

improper based on the record before us, we note a split of opinion exists as to

what it means to “misuse” a firearm. Because we apply a broader definition

than applied in Trice and Cleveland, as was discussed in the dissent in each case,

we find the reasoning of Trice and Cleveland to be unpersuasive.

[6] Tharpe was convicted of unlawfully carrying a handgun pursuant to Indiana

Code section 35-47-2-1.5(b), which provides that a person who is under

indictment may not knowingly or intentionally carry a handgun. Generally

speaking, “[f]irearms shall be returned to the rightful owner at once following

final disposition of the cause[.]” Ind. Code § 35-47-3-2(b). “However, nothing

in this chapter shall be construed as requiring the return of firearms to rightful

owners who have been convicted for the misuse of firearms.” Ind. Code § 35-

47-3-2(b). Indiana Code section 35-47-3-2(c) authorizes the seizure and

disposal of firearms by the authorities when “the rightful owner has been

convicted of an offense related to the misuse of a firearm[.]” We have little

hesitation concluding that knowingly carrying a handgun while under

indictment qualifies as misuse of a firearm.

[7] The verb “to use” may be defined as “to put into action or service [or] have

recourse to or enjoyment of[,]” while the noun “misuse” may be defined as “wrong

or improper use[.]” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1447, 2523 (Phillip Babcock Gove et al. eds., G. & C. Merriam Company 1964)

(emphasis added). It seems reasonable to infer that a person carrying a

handgun is ensuring that he will have recourse to it should the need arise and

Court of Appeals of Indiana | Opinion 24A-CR-2303 | February 27, 2025 Page 4 of 5 may enjoy the sense of security its possession provides, even if it is not further

employed. In other words, he is “using” the handgun by carrying it with him.

This use becomes misuse, however, when the person is not legally entitled to

carry that handgun. Given that Tharpe has admitted that he was unlawfully

carrying the handguns in question at the time of his arrest, we conclude that the

record is sufficient to prove that he was misusing said handguns.

[8] The judgment of the trial court is affirmed.

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

ATTORNEY FOR APPELLANT Timothy J. Burns Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-2303 | February 27, 2025 Page 5 of 5