ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROSS G. THOMAS STEVE CARTER
Dillon Law Office Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOSEPH BOCKO, )
vs. ) No. 58A01-0109-CR-346
STATE OF INDIANA, )
APPEAL FROM THE OHIO CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 58C01-9909-CF-8B
June 11, 2002
OPINION FOR PUBLICATION
Joseph Bocko appeals his convictions after a jury trial of possession of cocaine,
a Class C felony; possession of marijuana, a Class A misdemeanor; and reckless
possession of paraphernalia, a Class A misdemeanor. He raises five issues on
appeal, which we restate as:
FACTS AND PROCEDURAL HISTORY
1.) whether there was sufficient evidence to support Bockos conviction of reckless possession of
2.) whether the trial court erred in admitting evidence in the form of heroin,
when Bocko was not charged with possession of heroin;
3.) whether the trial court erred in declining to declare a mistrial after the
prosecutor made references to Bockos failure to call certain witnesses;
4.) whether the trial court properly considered aggravating and mitigating circumstances in sentencing Bocko;
5.) whether Bockos sentence was manifestly unreasonable.
We affirm in part and reverse in part.
Bocko and Frank Lamagna were the only two persons gambling at a table
at a casino in Rising Sun. The dealer working at that table
saw Lamagna pass to Bocko a plastic bag containing white powder. The
dealer reported the incident to her supervisor, and three state police troopers assigned
to the casino were called to view the surveillance video of the incident.
The troopers went to the table and asked Bocko to come to
their office. As Bocko gathered his belongings, he threw three bags on
Bocko and Lamagna were arrested and the bags recovered. One bag contained
cocaine, the other heroin, and the third marijuana. When Bocko was searched,
police found a straw and a plastic bag in his pocket. Both
the straw and the bag were coated with a white residue, which was
found to contain cocaine.
Bocko was sentenced to eight years for possession of cocaine, one year for
possession of marijuana, and one year for reckless possession of paraphernalia. The
sentences were to be served concurrently.
DISCUSSION AND DECISION
1. Reckless Possession of Paraphernalia
In reviewing sufficiency of the evidence, we will affirm a conviction if, considering
only the probative evidence and reasonable inferences supporting the verdict, and without weighing
evidence or assessing witness credibility, a reasonable trier of fact could conclude that
the defendant was guilty beyond a reasonable doubt. Rogers v. State, 741
N.E.2d 395, 396 (Ind. Ct. App. 2000), rehg denied, trans. denied 753 N.E.2d
16 (Ind. 2001). When a conviction is based on circumstantial evidence, we
will not disturb the verdict if the factfinder could reasonably infer from the
evidence presented that the defendant is guilty beyond a reasonable doubt. Id.
A person who recklessly possesses a raw material, an instrument, a device, or
other object that is to be used primarily for: (1) introducing into
the person's body a controlled substance; (2) testing the strength, effectiveness, or purity
of a controlled substance; or (3) enhancing the effect of a controlled substance;
commits reckless possession of paraphernalia, a Class A misdemeanor. Ind. Code §
35-48-4-8.3(c). A person engages in conduct "recklessly" if he engages in the
conduct in plain, conscious, and unjustifiable disregard of harm that might result and
the disregard involves a substantial deviation from acceptable standards of conduct. Ind.
Code § 35-41-2-2(c). It does not appear that our courts have addressed
the recklessness standard in the context of possession of drug paraphernalia.
Bocko notes there is no evidence the straw was ever out of his
pocket until the police removed it. Neither was there evidence of the
harm that might result from his possession of the straw in his pocket,
nor that his possession of the straw showed his disregard of the harm
that might result from his conduct or that it involved a substantial deviation
from acceptable standards of conduct. Rather, the evidence demonstrated only that Bocko
possessed the straw. Mere possession without a showing of recklessness is a
Class A infraction. Ind. Code § 35-48-4-8.3(a).
The State appears to argue recklessness can be inferred from the evidence that
the straw was found in Bockos pocket. It cannot. A trier
of fact may reasonably infer that a defendant knows the contents of his
Collins v. State, 549 N.E.2d 89, 95 (Ind. Ct. App.
1990), rehg denied, trans. denied. From this premise the State asserts, without
explanation, that It is also reasonable to infer that Defendant cut the straw
himself, and carried it for the purpose of using it to ingest cocaine
. . . It is clear that if such an item is carried
it will be used to ingest illegal drugs . . . It could
be inferred that the straw was used to ingest the contents of an
empty plastic bag containing cocaine residue found in Bockos pocket. (Br. of
Appellee at 5.) Deliberately carrying the straw, the State asserts, demonstrates Bockos
plain, conscious, and unjustifiable disregard of harm that might result from his conduct;
therefore, the evidence is sufficient to show reckless possession of paraphernalia in the
form of the straw.
It is true, as indicated above, that when a conviction is based on
circumstantial evidence we will not disturb the verdict if the factfinder can reasonably
infer from the evidence presented the defendants guilt beyond a reasonable doubt.
However, an inference is not reasonable when it rests on no more than
speculation or conjecture. Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 458 (Ind.
Ct. App. 2000). We addressed a similar invitation to infer guilt in
Bass v. State, 512 N.E.2d 460, 464 (Ind. Ct. App. 1987). There,
two individuals were convicted of visiting a common nuisance after they were found
sitting on a couch in a residence. A drug-smoking device was on
a coffee table in front of the couch. The device was cold
when the police officer picked it up and the individuals on the couch
did not appear to be under the influence of drugs. We determined
that [i]n order to conclude [the defendants] knew that the controlled substances were
used at Cullison's residence, we must infer that they saw the contents of
the paraphernalia and recognized the contents as controlled substances. Under the facts
of this case, such an inference is not reasonable. Id.
We decline to accept the States invitation to infer from the fact Bocko
had a straw in his pocket that: 1) Bocko cut the straw himself,
2) that he did so for the purpose of ingesting cocaine, 3) that
a cut straw carried in ones pocket will be used to ingest cocaine,
and 4) Bocko used the straw for that purpose. There is insufficient
evidence that Bockos possession of the straw was reckless. Thus, we reverse
2. Admission of Heroin
We review the denial of a motion to suppress evidence in a manner
similar to allegations of insufficient evidence. We do not reweigh the evidence,
and we consider conflicting evidence most favorable to the trial court's ruling.
Washington v. State, 740 N.E.2d 1241, 1243 (Ind. Ct. App. 2000), trans. denied
753 N.E.2d 7 (Ind. 2001). However, unlike the typical sufficiency of the
evidence case where only the evidence favorable to the judgment is considered, in
reviewing a denial of a motion to suppress, we must also consider the
uncontested evidence most favorable to the defendant. Id. Trial courts have
wide latitude in weighing the probative value of evidence against the danger of
unfair prejudice, and we review that determination for abuse of discretion. Ingram
v. State, 715 N.E.2d 405, 408 (Ind. 1999).
One of the three bags Bocko threw to the floor as he prepared
to go to the police office contained heroin. The heroin was admitted
into evidence over Bockos objection, even though he was not being tried for
Bocko asserts the heroin was not relevant and should have been excluded on
that ground under Ind. Evidence Rule 402 (evidence that is not relevant is
not admissible). We disagree. Evidence is relevant if it has any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would
be without the evidence. Evid. R. 401. Evidence of happenings near
in time and place that complete the story of the crime is admissible
even if it tends to establish the commission of other crimes not included
among those being prosecuted.
Minnick v. State, 544 N.E.2d 471, 480 (Ind.
1989), rehg denied. Because the heroin evidence served to complete the story
of Bockos crime, we cannot say the trial court abused its discretion in
Even if relevant, Bocko argues, the heroin evidence should have been excluded under
Evid. R. 404(b), which limits the admissibility of other crimes, wrongs, or acts.
The following test is applied in deciding whether such challenged evidence is
admissible: (1) the court must determine that the evidence of other crimes,
wrongs, or acts is relevant to a matter at issue other than the
person's propensity to commit the charged act; and (2) the court must balance
the probative value of the evidence against its prejudicial effect pursuant to Rule
See footnote In short, if the evidence bears on some issue other than
criminal propensity and clears the balancing hurdle of Rule 403, it is admissible.
Roop v. State, 730 N.E.2d 1267, 1270 (Ind. 2000).
Bocko asserts the heroin evidence was prejudicial in that the jurors might be
more likely to convict Bocko of the crimes charged because they believed he
might have committed an even more serious offense that was not charged.
The State does not address whether the heroin evidence was unfairly prejudicial.
Instead, it argues the admission of the evidence was harmless because there was
ample additional evidence that Bocko possessed marijuana and cocaine.
The improper admission of evidence is harmless error when the conviction is supported
by substantial independent evidence of guilt as to satisfy the reviewing court that
there is no substantial likelihood the questioned evidence contributed to the conviction.
Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000). In light of
the testimony, physical evidence, and video surveillance evidence of Bockos guilt, we are
convinced there is no substantial likelihood that the erroneously admitted evidence contributed to
the jury's verdict. Therefore, even if the trial court erred by allowing
the questioned testimony into evidence, the error was harmless.
3. The Mistrial Motions
The decision to grant or deny a motion for mistrial lies within the
discretion of the trial court, and its determination will be reversed only where
an abuse of discretion can be established. West v. State, 758 N.E.2d
54, 56 (Ind. 2001). To prevail, the appellant must establish that he
was placed in a position of grave peril to which he should not
have been subjected. Id. The gravity of the peril is determined
by the probable persuasive effect on the jury's decision. Id.
Bocko chose not to present a case in chief, and he made his
mistrial motions during the rebuttal portion of the States closing argument.
See footnote The
first motion came after the prosecutor noted that Bocko had not presented witnesses
to challenge the testimony of the States forensic chemist: Now, they didnt
come here with any expert witnesses to say that what [the chemist] had
was a bunch of bunk . . . We didnt have any expert
witness on that. (Tr. at 730-731.) The second came after the
prosecutor commented that the floor boss on duty at the casino the day
Bocko was arrested was not called: And I think if Eleanor had
anything to say, shed be here.
Id. at 733. Bocko characterizes
those statements as improperly suggesting that a defendant who has chosen to present
no witnesses nevertheless had the burden of proof by inquiring in closing argument
why the defendant did not call a witness to testify on his behalf.
(Br. of the Appellant at 13.)
The State does not explicitly argue the remarks were proper;
rather, it characterizes
the remarks as response to the Defendants arguments concerning the same matters.
(Br. of Appellee at 9.) In closing argument, Bockos counsel did discuss
at length the States failure to call the floor boss who was on
duty that day: Eleanor appears, to me, to be standing right there
and looking at Joe Bocko . . . But we didnt hear from
Eleanor, did we? Eleanors not a witness in this case . .
. Shes the closest with the best angle, probably the only person that
could see what they say supposedly happened. She didnt come in to
tell you that thats what she saw. They didnt bring her in
to talk to you. (Tr. at 695-96.)
Bockos counsel also referred to the testimony by the States forensic chemist:
He tested something with a screen. I dont know what it was,
I dont know whose case it came from, I dont know which officer
submitted it, but he tested something with a screen. (Tr. at 722.)
[The chemist] said well, the way we do it is, the scale
is calibrated - - once a year somebody comes in, and then once
a month somebody comes in. He didnt say he tested it before
and after its [sic] use. So you dont know if that 4.67
grams is accurate. Id. at 724.
To the extent the States remarks did respond to Bockos statements in closing
argument, they were permissible. In Carter v. State, 738 N.E.2d 665, 677
(Ind. 2000), Carter argued the trial court committed fundamental error when it permitted
the prosecutor to refer to witnesses he (the prosecutor) did not call.
Our supreme court rejected that argument, noting that the prosecutors comment was clearly
a reply to a comment in defense counsels closing argument: "[T]he State
could have called as many witnesses as they wanted to testify . .
. but how many did they bring in and who did they bring
in?" The court characterized the prosecutor's statement as clearly aimed at rebutting
this attack and explaining that any other possible witnesses would bring little to
the case. Id. The challenged statements in the case before us
could be characterized as rebutting Bockos attack and explaining that other witnesses, specifically
the floor boss, would bring little to the case. We cannot say
the trial court abused its discretion when it denied Bockos motions for mistrial.
4. Aggravating and Mitigating Circumstances
Sentencing lies within the discretion of the trial court. Thacker v. State,
709 N.E.2d 3, 9 (Ind. 1999), rehg denied. If a trial court
uses aggravating or mitigating circumstances to enhance the presumptive sentence, it must (1)
identify all significant mitigating and aggravating circumstances; (2) state the specific reason why
each circumstance is determined to be mitigating or aggravating; and (3) articulate the
courts evaluation and balancing of the circumstances. Id. The trial court
is not required to find the presence of mitigating circumstances. Fugate v.
State, 608 N.E.2d 1370, 1374 (Ind. 1993). When a defendant offers evidence
of mitigators, the trial court has the discretion to determine whether the factors
are mitigating, and it is not required to explain why it does not
find the proffered factors to be mitigating. Taylor v. State, 681 N.E.2d
1105, 1112 (Ind. 1997). The trial courts assessment of the proper weight
of mitigating and aggravating circumstances and the appropriateness of the sentence as a
whole is entitled to great deference and will be set aside only upon
a showing of a manifest abuse of discretion. Thacker, 709 N.E.2d at
10. Even a single aggravating circumstance may support the imposition of an
enhanced sentence. Ajabu v. State, 722 N.E.2d 339, 344 (Ind. 2000).
Bocko asserts the trial court found improper aggravating circumstances and failed to recognize
and weigh mitigating circumstances. The trial court found three aggravating circumstances:
1) the risk Bocko would commit another crime; 2) the nature and circumstances
of the crime; and 3) Bockos need of rehabilitative treatment best provided by
commitment to a penal facility. It found no mitigating factors.
The trial courts determination that there was a risk Bocko would commit another
crime was premised on evidence that Bocko had been involved with illegal drugs
during this case and prior to his sentencing. Bocko had been under
surveillance and had been found with cocaine in Ohio after his arrest on
the present charges and some four months before his trial. Charges were
filed against Bocko in Ohio about a month after his trial and were
pending at the time of the sentencing hearing. We cannot say the
trial court abused its discretion when it took into account this aggravator.
See Oberst v. State, 748 N.E.2d 870, 880 (Ind. Ct. App. 2001) (trial
court did not abuse its discretion in relying on the risk that defendant
may commit another crime of a similar nature as an aggravating factor when
testimony at trial established only one incidence of sexual intercourse but it was
clear that the defendant had engaged in inappropriate sexual behavior with the victim
on more than one occasion).
The nature and circumstances of the crime that the trial court found to
be an aggravator included the evidence that Bocko had heroin as well as
marijuana and cocaine in his possession when he was arrested, and that Bocko
tried to hide the evidence of the crimes by throwing the bags containing
the drugs to the floor. This is a statutory aggravator, Ind. Code
§ 35-38-1-7.1(a)(2), but Bocko asserts it was improper here because the trial court
cited no specific facts or circumstances which set this crime apart from that
[sic] which are generally associated with this criminal act. (Br. of the
Appellant at 16.)
Bocko is correct that a trial court may not use a material element
of the offense as an aggravating circumstance, Lemos v. State, 746 N.E.2d 972,
975 (Ind. 2001). However, we decline to hold that possession of an
additional different drug, i.e., heroin, and the act of attempting to hide evidence
are to be considered material elements of any of the crimes with which
Bocko was charged. Application of this aggravator was not an abuse of
Bocko asserts the need for corrective rehabilitative treatment best provided by a penal
facility was an improper aggravator, as the court provided no reason why such
treatment was appropriate. For this aggravator to support an enhanced sentence, the
court must give a specific and individualized reason why the defendant is in
need of correctional treatment that can best be provided by a period of
incarceration in excess of the presumptive sentence. Ajabu, 722 N.E.2d at 343.
In fact, the court did state a reason for applying this aggravator:
Im basing that on the continued pattern of activity occurring following the arrest
in these charges and while he was released on bond . . .
he has learned nothing from his arrest on this offense and would possess
an even larger quantity of cocaine in an offense occurring shortly before trial
on this matter. (Tr. at 102.) In Johnson v. State, 725
N.E.2d 864, 868 (Ind. 2000) our supreme court found this aggravator properly applied
where the trial court noted the defendant had previously, and unsuccessfully, been placed
on juvenile probation and adult probation, had been to prison, and was on
parole when he committed the crime. This aggravator was properly applied to
Bocko argues the trial court should have found as mitigating circumstances his heart
condition, the hardship his incarceration would cause to his family, and the lack
of a significant criminal history. Bocko acknowledges that the trial court is
not obliged to accept a defendants contentions as to what constitutes a mitigating
circumstance, but still asserts that it was clear error to refuse to acknowledge
their presence in this case. (Br. of the Appellee at 17.)
In fact, the trial court did acknowledge the presence of Bockos medical condition,
the lack of significant criminal history, and the hardship to Bockos family.
The court was presented with lengthy testimony and numerous exhibits concerning Bockos proffered
mitigators. The court explicitly stated that it found Bockos criminal history to
be neither an aggravating nor a mitigating circumstance. (Tr. at 100.)
It explicitly stated it did not find the hardship to Bockos family to
be a mitigating circumstance. Id. at 103. Rather, it found Bockos
continuing involvement in these types of offenses, id. at 103-04, to be a
hardship for his family. Finally, the court explicitly stated Bockos medical condition
was not a mitigating factor because he is continuing to engage in criminal
activity[.] Id. at 104. The trial court did not abuse its
discretion in declining to find those circumstances to be mitigating.
5. Manifestly Unreasonable Sentence
Bocko was sentenced to the maximum term on all counts. The sentences
were to run concurrently, so Bockos total sentence was eight years, the maximum
sentence for the possession of cocaine charge.
Sentencing decisions rest within the sound discretion of the trial court, and this
court will reverse only upon a manifest abuse of that discretion. Catt
v. State, 749 N.E.2d 633, 641 (Ind. Ct. App. 2001), rehg denied, trans.
denied 761 N.E.2d 422 (Ind. 2001). If the sentence is authorized by
statute, it will not be revised or set aside unless it is manifestly
unreasonable in light of the nature of the offense and the character of
the offender. Id. We must refrain from merely substituting our opinions
for those of the trial court. Id.
Bocko correctly notes that a maximum sentence permitted by law should be reserved
for the very worst offenders, (Br. of the Appellant at 18), citing Buchanan
v. State, 699 N.E.2d 655, 657 (Ind. 1999).
See footnote Bocko points out that
he was 58 years old when he was sentenced, he had recently been
hospitalized for a heart condition, his prior criminal record consisted of one misdemeanor,
and he was convicted of possessing 4.67 grams of cocaine.
In determining whether a defendant is among the very worst offenders we concentrate
less on comparing the defendants case to others and more on focusing on
the nature and extent of the offense for which the defendant is being
sentenced and what it reveals about his character. Otherwise, one could always
envision a way in which the instant case could be worse . .
. and the maximum sentence would never be justified.
Brown v. State,
760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. In light
of the evidence before the trial court, including evidence of Bockos continued criminal
activity subsequent to the charges for which he was being sentenced, we cannot
say the imposition of the maximum but concurrent sentences was manifestly unreasonable.
We vacate Bockos conviction of reckless possession of paraphernalia and affirm Bockos convictions
of and sentences for possession of cocaine and possession of marijuana.
BROOK, C.J., and BARNES, J., concur.
We heard oral argument on May 10, 2002, at Goshen High School
in Goshen, Indiana. We gratefully acknowledge the schools hospitality and we commend
counsel for their capable advocacy.
Footnote: The prohibition against reckless possession of drug paraphernalia appears to be unique
Footnote: Shortly before trial, the State received the test results on the contents
of the three bags. It was not until then that they were
aware that one of the bags contained heroin. The trial court denied
the States motion for leave to amend the information to add a new
count for possession of heroin.
Footnote: That rule provides that relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.
Footnote: One motion was made after the prosecutor stated Theres no evidence presented
to you to show you that theres any medical condition of why [Bockos
co-defendant] should have syringes. You havent heard one iota of testimony about
Id. at 734. That comment referred only to Bockos co-defendant.
Bocko does not explain how he could have been prejudiced by the
remark, except to refer to the repeated and deliberate references to failure of
the defendant to disprove her [sic] case[.] Id. at 14. We
decline to hold that the trial court abused its discretion in denying Bockos
mistrial motion that was premised on a statement concerning only Bockos co-defendant.
We share Bockos concern about the prosecutors course of conduct in this
case. While, as explained below, we do not reverse, we remind the
prosecutor that it is improper to suggest that a defendant shoulders the burden
of proof in a criminal case.
Dobbins v. State, 721 N.E.2d 867,
874 (Ind. 1999). In Dobbins, the prosecutor made one remark during argument
that Dobbins argued effectively shifted the burden of proof onto [him]. Id.
Our supreme court determined that [g]iven the brevity of the prosecutor's statement,
coupled with the trial court's admonishment and its preliminary and final instructions, the
remarks, even if improper, did not have a probable persuasive effect on the
jury. Id. Similarly, in Chubb v. State, 640 N.E.2d 44, 49
(Ind. 1994), the court found that a single remark to the same effect
was de minimus and overcome by the instructions.
Here, by contrast, Bockos prosecutor made multiple remarks during the course
of closing argument, which remarks all suggested Bocko had an obligation to prove
his case. Had these remarks not been directly responsive to statements made
in closing argument by Bockos counsel, they might well have amounted to reversible
We note that Bocko received the maximum sentence for his conviction of
possession of cocaine, but that his additional sentences for possession of marijuana and
reckless possession of paraphernalia were to run concurrently with the cocaine charge.
Bocko therefore did not receive a maximum sentence permitted by law to the
extent the sentences did not run consecutively.