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: ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN GREGORY F. ZOELLER

Acklin Law Office, LLC Attorney General of Indiana

Westfield, Indiana

JESSE R. DRUM

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

RICK WHIPPLE, )

)

Appellant-Defendant, )

)

vs. ) No. 29A02-1312-CR-1000

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HAMILTON SUPERIOR COURT

The Honorable J. Richard Campbell, Judge

Cause No. 29D04-1307-CM-5207

June 26, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
2

Case Summary

Rick Whipple (“Whipple”) was convicted after a bench trial of Possession of 

Paraphernalia, as a Class A misdemeanor.1 He now appeals, raising for our review only one 

issue: whether there was sufficient evidence to sustain his conviction.

We affirm.

Facts and Procedural History

On July 2, 2013, Noblesville Police Officer Bradley Purvis (“Officer Purvis”) 

responded to a dispatch reporting two people yelling at a house on Cherry Street in 

Noblesville.

Upon arriving at the home, Officer Purvis knocked on the door. After a brief delay, 

Whipple and a female companion answered the door. Both were immediately hostile toward 

Officer Purvis, and Whipple refused to allow his female companion to answer Officer 

Purvis’s questions.

While standing on the front porch of the home, Officer Purvis smelled the odor of 

burnt marijuana coming from inside the residence. After other officers arrived, Whipple was 

handcuffed, and Officer Purvis drove to a judge’s residence to obtain a search warrant while 

other officers secured the premises prior to the search.

Upon Officer Purvis’s return, he and another officer executed the search warrant. 

Officer Purvis found approximately 0.44 grams of raw marijuana and a blue glass pipe used 

for smoking marijuana. The only personal items in the home were men’s clothing and other 

 

1

Ind. Code §§ 35-48-4-8.3(a)(1) & (b).
3

belongings. When Officer Purvis asked Whipple if he knew what was found in the home, 

Whipple admitted knowledge of the blue glass pipe. As a result of the items found during the 

search and Whipple’s admission, Officer Purvis arrested Whipple.

On July 3, 2013, Whipple was charged with one count each of Possession of 

Marijuana2and Possession of Paraphernalia, as Class A misdemeanors.

On October 17, 2013, a bench trial was conducted. At its conclusion, the trial court 

found Whipple guilty of Possession of Paraphernalia, and found him not guilty of Possession 

of Marijuana. Whipple was sentenced to 180 days imprisonment.

This appeal ensued.

Discussion and Decision

Whipple appeals his conviction after a bench trial, and claims there was insufficient 

evidence to sustain the judgment. Our standard of review on challenges to the sufficiency of 

the evidence is well settled. We consider only the probative evidence and reasonable 

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do 

not assess the credibility of witnesses or reweigh evidence. Id. We will affirm the 

conviction unless “no reasonable fact-finder could find the elements of the crime proven 

beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). 

“The evidence is sufficient if an inference may reasonably be drawn from it to support the 

verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

 

2

I.C. § 35-48-4-11(1).
4

Whipple was convicted of Possession of Paraphernalia, as a Class A misdemeanor. 

To convict him of the offense, as charged, the State was required to prove beyond a 

reasonable doubt that Whipple knowingly possessed a blue glass smoking pipe that he 

intended to use to introduce marijuana into his body. See I.C. §§ 35-48-4-8.3(a)(1) & (b); 

App’x at 6.

Whipple contends there was insufficient evidence that he possessed the blue pipe. 

Possession may be either actual or constructive. Actual possession exists when an individual 

“‘has direct physical control over an item.’” Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. 

App. 2004) (quoting Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999)). Whipple did not 

have actual possession of the pipe at the time of the arrest, as the pipe was found in the 

drawer of a nightstand. Thus, the State was required to prove that Whipple had constructive 

possession of the pipe. “In order to prove constructive possession, the State must show that 

the defendant has both (1) the intent to maintain dominion and control and (2) the capability 

to maintain dominion and control over the contraband.” Iddings v. State, 772 N.E.2d 1006, 

1015 (Ind. Ct. App. 2002), trans. denied. Whipple contends there was insufficient evidence 

to establish either of these.

Turning first to his contention as to any evidence of intent to maintain control and 

dominion over the pipe, Whipple notes that the trial court concluded there was no evidence 

that he owned, rented, or lived in the home, and that there was no other evidence tying him to 

the residence. Thus, the State was required to prove the existence of additional 

circumstances that could support an inference that Whipple had the requisite intent to 
5

maintain dominion and control over the blue glass pipe. Gee v. State, 810 N.E.2d 338, 341 

(Ind. 2004) (holding that where possession of premises is nonexclusive, additional 

circumstances may establish “knowledge of the nature of the controlled substances and their 

presence”). Such additional circumstances “have been shown by various means”:

(1) incriminating statements made by the defendant, (2) attempted flight or 

furtive gestures, (3) location of substances like drugs in settings that suggest 

manufacturing, (4) proximity of the contraband to the defendant, (5) location 

of the contraband within the defendant's plain view, and (6) the mingling of the

contraband with other items owned by the defendant.

Id. These additional circumstances “are not exclusive. Rather, the State is required to show 

that whatever factor or set of factors it relies upon ... must demonstrate the probability that 

the defendant was aware of the presence of the contraband and its illegal character.” Id. at 

344.

We find no insufficiency of the evidence in this regard. Officer Purvis testified that 

upon searching the home, he found the blue glass smoking pipe in the drawer of a nightstand. 

After he completed the search, Officer Purvis asked Whipple if he knew what was found, and 

Purvis acknowledged the presence of the glass pipe. The location of the pipe in what 

Whipple characterizes as “a closed container normally holding highly personal items,” see

Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005), together with Whipple’s 

acknowledgement to Officer Purvis of the presence of the pipe, is sufficient to establish 

Whipple’s awareness of the pipe. See Gee, 810 N.E.2d at 344.

We turn next to Whipple’s second contention, that there was insufficient evidence of 

his possessory interest in the Cherry Street residence. Our supreme court has stated that, “In 
6

essence the law infers that the party in possession of the premises is capable of exercising 

dominion and control over all items on the premises. And this is so whether possession of 

the premises is exclusive or not.” Id. at 340-31.

Here, there is sufficient evidence of Whipple’s capability of exercising dominion and 

control over the items in the home. Officer Purvis testified that when he arrived at the 

residence, Whipple opened the door to the home and actively prevented police from talking 

to his female companion. Whipple’s conduct was consistent with the nature of the call that 

resulted in Officer Purvis’s dispatch: two individuals arguing in the Cherry Street home. 

Only Whipple and his female companion were present at the home, and there were only 

men’s clothes in the residence. And, again, Officer Purvis testified that Whipple expressed 

awareness of the presence of the blue pipe, which as Whipple notes on appeal had been 

placed in a highly personal location. All this is sufficient to support an inference that 

Whipple had a possessory interest in the home—even without direct testimony establishing 

his tenancy.

We accordingly find sufficient evidence to sustain the trial court’s judgment 

convicting Whipple of Possession of Paraphernalia.

Affirmed.

KIRSCH, J., and MAY, J., concur.