Rick Whipple v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 26 2014, 7:14 am
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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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).
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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
Marijuana2 and 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).
3
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
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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
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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.
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