Bocko v. State

• Decision Date: 11 June 2002
• Docket Number: No. 58A01-0109-CR-346.,58A01-0109-CR-346.
• Parties: Joseph BOCKO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

769 N.E.2d 658

Joseph BOCKO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-0109-CR-346.

Court of Appeals of Indiana.

June 11, 2002.

Ross G. Thomas, Dillon Law Office, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATTINGLY-MAY, Judge.

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:

1.) whether there was sufficient evidence to support Bocko's conviction of reckless possession of paraphernalia;

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 Bocko's failure to call certain witnesses;

4.) whether the trial court properly considered aggravating and mitigating circumstances in sentencing Bocko; and

5.) whether Bocko's sentence was manifestly unreasonable.

We affirm in part and reverse in part.¹

FACTS AND PROCEDURAL HISTORY

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 the floor.

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), reh'g 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.²

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 Bocko's pocket. It cannot. A trier of fact may reasonably infer that a defendant knows the contents of his own pockets. Collins v. State, 549 N.E.2d 89, 95 (Ind.Ct.App.1990),reh'g 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 Bocko's pocket. (Br. of Appellee at 5.) Deliberately carrying the straw, the State asserts, demonstrates Bocko's 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 defendant's 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 State's 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 one's pocket will be used to ingest cocaine, and 4) Bocko used the straw for that purpose. There is insufficient evidence that Bocko's possession of the straw was "reckless." Thus, we reverse that conviction.

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 Bocko's objection, even though he was not being tried for possessing heroin.³

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),reh'g denied. Because the heroin evidence served to complete the story of Bocko's crime, we cannot say the trial court abused its discretion in admitting it.

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 403.⁴ 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...