SHARP II v. STATE (2026)

MEMORANDUM DECISION

[1] Tony Allen Sharp, II (“Sharp”) appeals following a bench trial, challenging the sufficiency of evidence supporting his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”).¹ We affirm.

Facts and Procedural History

[2] At approximately 9:00 p.m. on June 17, 2024, the IU Health Police Department dispatched Sergeant Ceasar Elvir (“Sergeant Elvir”) to a childcare center in Marion County to investigate a report of loitering. Sergeant Elvir encountered Sharp in the parking lot of the childcare center, where Sharp seemed to have “set [up] camp” with “a bunch of items on the ground.” Tr. Vol. II p. 14. Sharp was within five feet of the items, which included a bicycle, a bag, and clothing. Sergeant Elvir also noticed “phones charging near an outlet adjacent to the building.” Id. at 15. Sergeant Elvir—who was in his full police uniform—initiated an interaction with Sharp, who “was kind of pacing around.” Id. When asked why he was on the property, Sharp said he was charging his phones. Sergeant Elvir asked for Sharp's ID, at which point Sergeant Elvir noticed a knife on the ground. Sharp said his ID was in a bag. Because the only bag Sergeant Elvir saw was near the knife, he told Sharp to step back, and then he obtained Sharp's permission to personally obtain the ID.

[3] Sergeant Elvir grabbed Sharp's bag and opened a zipper. Inside, he saw Sharp's ID next to baggies containing a leafy substance that Sergeant Elvir believed to be marijuana. By that point, additional officers had responded to the scene. Sharp was arrested, and as one officer searched Sharp's person, Sergeant Elvir “searched the collection of items” on the ground. Id. at 17. Sergeant Elvir later recounted that “[n]ext to the bag, which was also next to the knife, probably about two inches away from the bag, was a pile of clothing” that he thought was “a shirt or a pair of pants.” Id. at 18. Sergeant Elvir said: “I removed that, and that's when I located a black firearm.” Id. The black firearm was a small, loaded handgun with a pistol grip. Upon this discovery, law enforcement decided to move Sharp into a police vehicle. When they did so, Sharp “made statements ․ claiming that he wanted his property.” Id. at 17. Sergeant Elvir “remember[ed] [Sharp] saying that he wanted all his property, his bike, his clothing, everything that was on the floor[,] and his phones.” Id. at 21.

[4] On June 21, 2024, the State charged Sharp with Level 4 felony unlawful possession of a firearm by an SVF and Class B misdemeanor possession of marijuana. A bench trial was held on April 14, 2025, where Sergeant Elvir testified, as did Sharp and an additional responding officer. Following an initial guilt phase, the trial court found Sharp not guilty of possession of marijuana but determined that Sharp possessed the firearm. The parties then stipulated to the admission of certified records from a 2017 criminal case where Sharp was convicted of Level 5 felony battery resulting in bodily injury. At that point, the trial court found Sharp guilty of the SVF offense. The court later held the sentencing hearing and imposed a six-year sentence. Sharp now appeals.

Discussion and Decision

[5] Sharp challenges the sufficiency of evidence supporting his conviction of unlawful possession of a firearm by an SVF. In reviewing this type of challenge, we apply a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). Rather, we consider only evidence that supports the fact-finder's determination, “not evidence that might undermine it.” Id. “A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)).

[6] Under Indiana Code section 35-47-4-5, a person commits Level 4 felony unlawful possession of a firearm by an SVF if he “knowingly or intentionally possesses a firearm” while having the statutorily defined status of an SVF. Here, Sharp does not dispute that he had SVF status due to his 2017 conviction for Level 5 felony battery resulting in bodily injury. See Ind. Code § 35-47-4-5(b)(5) (including Level 5 felony battery as a predicate offense for SVF status). Rather, Sharp focuses on whether the State proved that he possessed a firearm.

[7] “A conviction for possession of a firearm may rest upon proof of either actual or constructive possession.” Cruz v. State, 218 N.E.3d 632, 639 (Ind. Ct. App. 2023) (quoting Smith v. State, 113 N.E.3d 1266, 1269 (Ind. Ct. App. 2018), trans. denied), trans. denied. Actual possession occurs when a person has “direct physical control” over a firearm. Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). Here, there was no evidence of direct physical control over the firearm, which was found on the ground beneath clothing. Thus, the State relied on a theory of constructive possession. To establish constructive possession, the State must prove “the defendant had ‘both the intent and capability to maintain dominion and control over the [firearm].’ ” Cruz, 218 N.E.3d at 639 (quoting Bradshaw v. State, 818 N.E.2d 59, 62–63 (Ind. Ct. App. 2004)). Dominion and control is established by, among other things, evidence of “(1) incriminating statements made by a defendant; (2) attempted flight or furtive gestures; (3) proximity of contraband to the defendant; (4) location of the contraband within the defendant's plain view; or (5) the mingling of the contraband with other items owned by the defendant.” Bradshaw, 818 N.E.2d at 63.

[8] In this case, Sergeant Elvir encountered Sharp outside the childcare center where he seemed to have “set [up] camp[.]” Tr. Vol. II p. 14. Sharp was within five feet of “a bunch of items,” including a bag on the ground within two inches of a pile of clothing. Id. at 15. When Sergeant Elvir sought Sharp's identification, Sharp directed him to the bag. After suspected contraband was found in the bag, Sharp was arrested, and law enforcement discovered a firearm underneath the clothing on the ground. Sharp was moved to a police vehicle, at which point he “made statements ․ claiming that he wanted his property.” Id. at 17. Sergeant Elvir recalled Sharp saying “he wanted all his property, his bike, his clothing, everything that was on the floor[,] and his phones.” Id. at 21.

[9] On appeal, Sharp argues the items on the ground were “outside a building” and “accessible to anyone who walked past[.]” Appellant's Br. p. 7. Sharp also points out that there was no evidence of the sizes of any article of clothing, which “would have helped prove or disprove they belonged to him.” Id. at 8. Moreover, Sharp characterizes Sergeant Elvir's testimony as “conclusory” and asserts that “[t]he State did not introduce any photographic evidence from which the [fact-finder] could determine for itself if, or the extent to which, the firearm was commingled with items that allegedly belonged to [him].” Id.

[10] Sharp's arguments distill to a request to reweigh evidence, which is inconsistent with our deferential standard of review. The evidence favorable to the judgment indicated that law enforcement encountered Sharp within five feet of several items on the ground, among them, a bag containing his identification. Shortly thereafter, law enforcement found a firearm underneath clothing that was two inches away from Sharp's bag. Further, Sharp's own statements indicated that the clothing belonged to him, with Sharp telling law enforcement that he “wanted all his property, his bike, his clothing, everything that was on the floor[,] and his phones.” Id. at 21. This was sufficient evidence of probative value from which the fact-finder could conclude, beyond a reasonable doubt, that Sharp constructively possessed the firearm under the clothing. Thus, sufficient evidence supported the conviction.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c).

Foley, Judge.

May, J. and Altice, J., concur.