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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Anna Onaitis Holden

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Abraham Vargas,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 10, 2018

Court of Appeals Case No.

18A-CR-333

Appeal from the Marion Superior 

Court

The Honorable Barbara Crawford, 

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 2 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 3 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 4 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 5 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 6 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.