MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                    Oct 10 2018, 11:22 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Abraham Vargas,                                          October 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-333
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Ronnie Huerta,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G09-1506-F6-022866



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018              Page 1 of 6
                                                Case Summary

[1]   Following a jury trial, Abraham Vargas was convicted of Class A Misdemeanor

      carrying a handgun without a license and Level 6 Felony criminal recklessness.

      On appeal, Vargas argues that the State failed to present sufficient evidence to

      sustain his convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of June 28, 2015, Samantha Dennison noticed a shiny object

      protruding from the front passenger window of a green Cadillac. Traveling east

      on Raymond Street, Dennison drove near the Cadillac and observed that the

      shiny object was in fact a silver handgun.


[4]   Although she was unable to make out the facial details of the passenger waving

      the gun, Dennison noted that the passenger was a “light skinned” male.

      Transcript Vol. II at 133, 146. The driver was a female, and the Cadillac was

      occupied by at least three people. Because the person waving the gun had his

      finger on the trigger, and because Raymond Street was littered with bumps and

      potholes, Dennison felt endangered. She called 9-1-1 at approximately 6:30

      p.m.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018   Page 2 of 6
[5]   Indianapolis Metropolitan Police Department (IMPD) Officer Nicholas Hubbs

      received a dispatch describing a green Cadillac with several passengers inside.

      Because he was already near the Raymond Street location indicated by the

      dispatch, Officer Hubbs located the green Cadillac within five or six minutes.

      The Cadillac was pulling out of a gas station at the corner of Raymond Street

      and Shelby Street. Officer Hubbs approached the Cadillac after it pulled into

      the White Castle parking lot across the street.


[6]   Officer Hubbs found four adults and a toddler in the Cadillac. Vargas, a man of

      Hispanic descent, occupied the front passenger seat. He wore a neck-tie, but no

      shirt. Vargas’s wife, a Caucasian female, was the driver. A Caucasian male, a

      Caucasian female, and a toddler occupied the back seats.


[7]   Once Officer Hubbs’s backup arrived, the officers removed each passenger and

      searched the vehicle. While officers searched the Cadillac, Dennison arrived

      and confirmed it was the same green Cadillac she had reported. Dennison was

      never asked, however, to identify any of the passengers. The officers discovered

      a silver .380 semi-automatic pistol beneath the front passenger seat. A white

      shirt had been wrapped around a gun holster and left on the front passenger seat

      cushion. The holster fit the silver handgun. Another handgun was discovered

      beneath the rear driver-side seat. An IMPD dispatcher requested a search

      through the Indiana State Police firearms licensing database and discovered

      that Vargas was not licensed to carry a firearm.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018   Page 3 of 6
[8]    On July 1, 2015, the State charged Vargas with Level 6 Felony pointing a

       firearm and Class A Misdemeanor carrying a handgun without a license. The

       charging information was later amended to add an additional charge: Level 6

       Felony criminal recklessness. Following a jury trial on October 25, 2017, the

       State dismissed the Level 6 Felony pointing a firearm charge, and Vargas was

       found guilty of Class A Misdemeanor carrying a handgun without a license and

       Level 6 Felony criminal recklessness. On appeal, Vargas challenges the

       sufficiency of the evidence sustaining his convictions.


                                           Discussion & Decision


[9]    When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the conviction. Id. We will affirm if there is

       probative evidence from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


                              1. Carrying a Handgun Without a License


[10]   Indiana Code § 35-47-2-1(a) provides that “a person shall not carry a handgun

       in any vehicle or on or about the person’s body without being licensed under

       this chapter to carry a handgun.” This statute required the State to prove

       beyond a reasonable doubt that Vargas had actual or constructive possession of

       a handgun. Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App. 2007), trans

       denied. Here, the State proceeded under a theory of constructive possession.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018   Page 4 of 6
[11]   Constructive possession of a handgun is demonstrated by a defendant’s intent

       and capability to maintain dominion and control over the handgun. Ericksen v.

       State, 68 N.E.3d 597, 601 (Ind. Ct. App. 2017), trans denied. Where the

       defendant does not have exclusive control of the vehicle containing the

       handgun, dominion and control over the handgun may be inferred from a

       variety of circumstances. Id. Pointing to the defendant’s knowledge of the

       handgun’s presence, such circumstances include, but are not limited to, the

       proximity of the handgun to the defendant and the mingling of the handgun

       with other items owned by the defendant. Id. (defendant constructively

       possessed a handgun where the defendant sat in the driver-side back seat and

       the handgun was found beneath the driver’s seat); Bradshaw v. State, 818 N.E.2d

       59, 63 (Ind. Ct. App. 2004) (defendant constructively possessed a handgun

       where the handgun was found directly beneath the defendant’s seat).


[12]   The evidence is sufficient to establish that Vargas constructively possessed the

       silver handgun. Dennison observed the silver handgun being displayed outside

       the Cadillac’s front passenger window. Officers discovered the handgun

       beneath the front passenger seat where Vargas sat, and a matching holster was

       wrapped in a shirt on top of the passenger seat. Taken together, these

       circumstances indicate that Vargas was within immediate reach of the handgun

       and that he knew it was there. It was therefore reasonable for the jury to

       determine that Vargas constructively possessed the handgun.


                                         2. Criminal Recklessness



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018   Page 5 of 6
[13]   Vargas does not dispute whether the evidence establishes the elements of

       criminal recklessness. Instead, Vargas asserts that the evidence is insufficient to

       establish his identity as the person observed committing criminal recklessness.


[14]   Identity may be established entirely by inferences drawn from circumstantial

       evidence. Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016), trans. denied.

       Identification testimony is not considered insufficient to sustain a conviction

       just because it is not entirely unambiguous. Id. Here, the jury reasonably

       inferred that Vargas was the person seen displaying a handgun from the

       window of the green Cadillac.


[15]   Though Dennison was unable to discern Vargas’s facial features, Dennison

       observed that the person displaying the gun was a male sitting in the front

       passenger seat. She described that the male’s complexion was “light skinned,”

       but not of a dark hue. Transcript Vol. II at 133, 146. Five or six minutes after

       receiving the dispatch, Officer Hubbs discovered Vargas sitting in the front

       passenger seat of the Cadillac. Vargas was the only non-Caucasian male in the

       vehicle. Furthermore, Vargas was not wearing a shirt, and a matching gun

       holster was found wrapped in a shirt. The jury reasonably inferred from this

       evidence, albeit circumstantial, that Vargas was in fact the person who wielded

       the loaded handgun outside the passenger window.


[16]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-333 | October 10, 2018   Page 6 of 6
