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
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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