                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Jul 12 2012, 8:53 am
court except for the purpose of
establishing the defense of res judicata,
                                                                   CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CRAIG PERSINGER                                  GREGORY F. ZOELLER
Marion, Indiana                                  Attorney General of Indiana

                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT L. JACKSON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 27A02-1112-CR-1122
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE GRANT CIRCUIT COURT
                          The Honorable Mark E. Spitzer, Judge
                             Cause No. 27C01-0901-FB-28



                                       July 12, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Robert L. Jackson appeals his conviction for possession of

cocaine within 1,000 feet of a family housing complex,1 a class B felony.2 Specifically,

Jackson asks us to reconsider our decision in Covey v. State, 929 N.E.2d 813, 818 (Ind.

Ct. App. 2010), wherein we refused to apply the fundamental error doctrine when Covey

did not ask for a jury instruction regarding the statutory defense found at Indiana Code

section 35-48-4-16 and his counsel did not argue the defense during closing argument.

We decline Jackson’s request and affirm the judgment of the trial court.

                                              FACTS

          In July 2008, Marion police officers had a warrant for Jackson’s arrest. On July

31, the drug task force received information that Jackson was at his girlfriend’s

apartment.        At approximately 9:00 p.m. that evening, Detective Mark Stefanatos

conducted surveillance of the apartment. He and Detective Ross Allen then approached

the rear door and saw Jackson sitting on the floor inside the apartment. Detective

Stefanatos knocked on the door, held up his badge, and told Jackson that the officers had

a warrant for his arrest. Jackson looked at the officers, took off running, and jumped out

a second-story window. The officers entered the apartment and found a digital scale and

cocaine two to three feet from where Jackson had been sitting. Jackson was subsequently

convicted of possession of cocaine within 1,000 feet of a family housing complex as a

class B felony. He now appeals this conviction.

1
    Ind. Code § 35-48-1-6(c).
2
  Jackson was also convicted of resisting law enforcement as a class A misdemeanor but does not appeal
that conviction.
                                                  2
                             DISCUSSION AND DECISION

       Indiana Code section 35-48-4-6(a) provides that a person who possesses cocaine

commits a class D felony. However, Indiana Code section 35-48-1-6(c) provides that the

offense is a class B felony if the person possesses the cocaine within 1,000 feet of a

family housing complex. Indiana Code section 35-48-4-16 provides that it is a defense to

possession of cocaine that the person was “briefly” in or within 1,000 feet of the family

housing complex and no person under eighteen years of age at least three years junior to

the defendant was within 1,000 feet of the family housing complex. This defense is not

an affirmative defense, but rather mitigating factors that reduce culpability. Covey, 929

N.E.2d at 818. Therefore, the defendant does not have the burden of proof but only the

burden of placing the issue in question where the State’s evidence has not done so. Id.

Once at issue, the State must rebut the defense by proving beyond a reasonable doubt

either that the defendant was within 1,000 feet of the family housing project more than

“briefly,” or persons under the age of eighteen at least three years junior to the defendant

were within 1,000 feet of the family housing project because both factors are required to

effectuate the mitigation. Id.

       In the Covey case, Covey failed to place these mitigating factors at issue.

Specifically, he failed to tender a jury instruction on the statutory mitigating factors and

failed to object to the absence of such an instruction. He also failed to argue the defense



                                             3
in closing argument. We therefore concluded that the State was not required to rebut the

factors with proof beyond a reasonable doubt because the issue was waived. Id. at 819.

       In an effort to avoid waiver, Covey argued that the trial court’s failure to instruct

the jury on the statutory mitigating factors constituted fundamental error because it

resulted in the deprivation of his right to argue to the jury and to have the jury find that he

was guilty of lesser felonies. We noted that the fundamental error doctrine is extremely

narrow and applies only when the error constitutes a blatant violation of basic principles,

the harm or the potential for harm is substantial, and the resulting error denies the

defendant fundamental due process. Id. We declined to apply this doctrine where Covey

was essentially asking us to shift the burden to place the mitigating factors at issue upon

the trial court by requiring the trial court to instruct on those mitigating factors where the

defendant had neither argued they applied nor requested such an instruction. Id.

       Here, Jackson concedes that he did not raise the statutory defense. Specifically, he

did not ask for a jury instruction regarding the defense, and his counsel did not argue the

defense in closing argument. He therefore acknowledges that he has waived the issue.

He asks us to reconsider our holding in Covey “so as not to totally shut the door on a

fundamental error analysis in this case.” Appellant’s Br. p. 9. We decline his request and

again refuse to require the trial court to instruct the jury on a defense when the defendant

has made no such request.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.

                                              4
