OPINION
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 *663 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,
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 (8) enhancing the effect of a controlled substance; commits. reckless possession of paraphernalia, a Class A misdemeanor. Ind.Code § 35-48-4-8.8(e) 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 gubstantial deviatioh 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 § 85-48-4-8.3(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,
It is true, as indicated above, that when a conviction is based on cireumstan-tial 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 Stealhouse,
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,
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
*665
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,
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 erimes, 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 408.
4
In short, if the evidence bears on some issue other than criminal propensity and clears the balancing hurdle of Rule 408, it is admissible. Roop v. State,
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 convietion 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,
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,
Bocko chose not to present a case in chief, and he made his mistrial motions during the rebuttal portion of the State's closing argument. 5 The first motion came *666 after the prosecutor noted that Bocko had not presented witnesses to challenge the testimony of the State's forensic chemist: "Now, they didn't come here with any expert witnesses to say that what [the chemist] had was a bunch of bunk ...'We didn't have any expert witness on that." (Tr. at 730-781.) 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, she'd be here." Id. at 783. 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 18.)
The State does not explicitly argue the remarks were proper; 6 rather, it characterizes the remarks as "response to the Defendant's arguments concerning the same matters." (Br. of Appellee at 9.) In closing argument, Bocko's counsel did discuss at length the State's 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 didn't hear from Eleanor, did we? Eleanor's not a witness in this case ... She's the closest with the best angle, probably the only person that could see what they say supposedly happened. She didn't come in to tell you that that's what she saw. They didn't bring her in to talk to you." (Tr. at 695-96.)
Bocko's counsel also referred to the testimony by the State's forensic chemist: "He tested something with a sereen. I don't know what it was, I don't know whose case it came from, I don't know which officer submitted it, but he tested something with a sereen." (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 didn't say he tested it before and after it's [sic] use. So you don't know if that 4.67 grams is accurate." Id. at 724.
To the extent the State's remarks did respond to Bocko's statements in closing argument, they were permissible. In Carter v. State,
4. Aggravating and Mitigating Circumstances
Sentencing lies within the discretion of the trial court. Thacker v. State,
Bocko asserts the trial court found improper aggravating cireumstances and failed to recognize and weigh mitigating cireumstances. The trial court found three aggravating circumstances: 1) the risk Bocko would commit another crime; 2) the nature and cireumstances of the crime; and 3) Bocko's need of rehabilitative treatment best provided by commitment to a penal facility. It found no mitigating factors.
The trial court's 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,
The "nature and cireumstances 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. *668 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 cireumstance, Lemos v. State,
Bocko asserts the need for corrective rehabilitative treatment best provided by a penal facility was an improper aggra-vator, 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,
In fact, the court did state a reason for applying this aggravator: "I'm 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,
Bocko argues the trial court should have found as mitigating cireum-stances 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 defendant's contentions as to what constitutes a mitigating cireumstance, 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 Bocko's medical condition, the lack of significant criminal history, and the hardship to Bocko's family. The court was presented with lengthy testimony and numerous exhibits concerning Bocko's proffered mitigators. The court explicitly stated that it found Bocko's criminal history to be neither an aggravating nor a mitigating cireumstance. (Tr. at 100.) It explicitly stated it did not find the hardship to Bocko's family to be a mitigating circumstance. [Id. at 1083. Rather, it found Bocko's "continuing involvement in these types of offenses," id. at 103-04, to be a hardship for his family. Finally, the court explicitly stated Bocko's 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 cireumstances to be mitigating.
5. Mamifestly Unreasonable Sentence
Bocko was sentenced to the maximum term on all counts. The sentences were to run concurrently, so Bocko's total sentence was eight years, the maximum *669 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,
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,
In determining whether a defendant is among the "very worst offenders" we concentrate less on comparing the defendant's 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,
CONCLUSION
We vacate Bocko's conviction of reckless possession of paraphernalia and affirm Bocko's convictions of and sentences for possession of cocaine and possession of marijuana. '
Notes
. We heard oral argument on May 10, 2002, at Goshen High School in Goshen, Indiana. We gratefully acknowledge the school's hospitality and we commend counsel for their capable advocacy.
. The prohibition against "reckless" possession of drug paraphernalia appears to be unique to Indiana.
. 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 State's motion for leave to amend the information to add a new count for possession of heroin.
. That rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
. One motion was made after the prosecutor stated ''There's no evidence presented to you to show you that there's any medical condition of why [Bocko's co-defendant] should have syringes. You haven't heard one iota of testimony about it." Id. at 734. That comment referred only to Bocko's 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 Bocko's mistrial motion that was premised on *666 a statement concerning only Bocko's co-defendant.
. We share Bocko's concern about the prosecutor's 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,
Here, by contrast, Bocko's 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 Bocko's counsel, they might well have amounted to reversible error.
. 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.