MEMORANDUM DECISION
                                                                   Mar 25 2015, 9:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before 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
Yvette M. LaPlante                                       Gregory F. Zoeller
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Todd Dayon Covington JR.,                                March 25, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1407-CR-292
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
                                                         The Honorable Kelli E. Fink,
State of Indiana,                                        Magistrate
Appellee-Plaintiff                                       Case No. 82C01-1403-FA-279




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015      Page 1 of 10
[1]   Todd Covington, Jr., appeals his convictions for class A felony Attempted

      Murder,1 class A felony Robbery,2 and class B felony Criminal Confinement.3

      He presents the following restated issues for review:

               1.       Did the trial court abuse its discretion by admitting a video of
                        the victim taken immediately after the shooting?
               2.       Did the admission of the photo array in which the victim
                        identified Covington amount to fundamental error?
               3.       Did the admission of testimony relating to an anonymous tip
                        amount to fundamental error?
[2]   We affirm.


[3]   The victim in this case, Demetrius Fingers, worked as a barber and often kept

      cash on his person. Laniko Payne was one of his clients. Throughout the day

      on March 7, 2014, Payne came into the barber shop for a haircut. Each time

      Fingers was busy with another client. On his last evening visit, Payne was

      accompanied by Covington, whom Fingers did not know.




      1
        The version of the attempt statute in effect at the time the offense was committed classified attempted
      murder as a class A felony. Ind. Code Ann. § 35-41-5-1(a) (West, Westlaw 2013). This statute has since been
      revised and in its current form reclassifies this as a Level 1 felony. See I.C. § 35-41-5-1(a) (West, Westlaw
      current with all 2014 Public Laws of the Second Regular Session and Second Regular Technical Session of
      the 118th General Assembly). The former version is applicable in this case because the offense was
      committed before July 1, 2014. See id.
      2
        Ind. Code Ann. § 35-42-5-1 (West, Westlaw 2013). Under the revised statute, the offense has been
      reclassified as a Level 2 felony. See I.C. § 35-42-5-1 (West, Westlaw current with all 2014 Public Laws of the
      Second Regular Session and Second Regular Technical Session of the 118th General Assembly).
      3
       I.C. § 35-42-3-3 (West, Westlaw 2013). Under the revised statute, the offense has been reclassified as a
      Level 3 felony. See I.C. § 35-42-3-3 (West, Westlaw current with all 2014 Public Laws of the Second Regular
      Session and Second Regular Technical Session of the 118th General Assembly).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015              Page 2 of 10
[4]   Fingers left after 7:00 p.m. to run some errands and came back to the empty

      shop about an hour later to see if Payne had returned for a haircut. Payne was

      waiting in his Black Expedition, and he asked Fingers to get in the truck.

      Fingers got into the back seat behind Payne. There were two other men inside.

      The one sitting next to Fingers was never identified. The other, later identified

      as Covington, was in the front passenger seat.

[5]   Once Fingers was inside the truck, Payne locked the doors and the other two

      men pointed handguns at Fingers. Payne also had his weapon drawn.

      Covington immediately reached into Fingers’s pocket and removed $300 to

      $400 in cash. Payne then demanded drugs, but Fingers denied having any.

      Payne referenced the nearby street on which Fingers lived. Fingers agreed to

      take them to a house on that street for drugs. Fingers believed there would be

      men there to help him.

[6]   Payne parked across the street from the residence and remained in the truck

      while the other two escorted Fingers at gunpoint to the door. No one

      answered. The group turned to walk away, and Fingers decided to run. He

      was immediately shot multiple times from behind and fell to the ground. Payne

      quickly pulled the truck up and instructed the other two men to get inside.

      Before Fingers heard the truck pull away, someone fired two shots at his head.

[7]   Fingers managed to get up and run to his house, but when there was no answer,

      he fell off the porch to the ground. Within minutes, responding officers found

      him in critical condition. Believing Fingers was near death, one of the officers


      Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 3 of 10
       turned on his body camera and recorded Fingers as emergency personnel

       attended to him. During this time, Fingers was unable to identify his attackers.

[8]    At the hospital, Fingers was treated for the seven gunshot wounds he sustained,

       more than one of which was life-threatening. He spent three days in the ICU

       and a week at the hospital.

[9]    The day after the shooting, police developed a tip regarding Payne and created

       a photo array. Detective Michael Sides was able to show the array to Fingers

       on March 9, while he was still in the ICU but off the ventilator. Though

       extremely weak, Fingers was able to identify Payne by pointing to his

       photograph in the array.

[10]   On March 10, police received an anonymous tip that individuals named Todd,

       Trey, and Poosie were involved in the shooting. As a result, police turned their

       attention to Covington and Maurice Nicholson, Jr. That same day, Detective

       Sides presented Fingers with two photo arrays. Fingers did not identify anyone

       in the array containing Nicholson’s picture. Although he made no

       identification on the other array, Fingers did note that one of the pictures (the

       one next to Covington’s) looked similar to one of his attackers but was not

       actually one of them.

[11]   While watching the news the following morning in his hospital room, Fingers

       saw an unrelated news story with Covington’s picture. He immediately

       informed his mother, who was in the room with him, that the man on the news

       was one of his attackers. His mother called Detective Sides, who then brought

       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 4 of 10
       a new photo array, which included an updated picture of Covington that had

       been taken the previous day. Fingers identified Covington’s picture.

[12]   The State charged Covington, on March 12, with attempted murder, robbery,

       and confinement, later adding a habitual offender allegation. Covington filed a

       motion to suppress the photo array in which he was identified. Following a

       hearing, the trial court denied the motion.

[13]   Covington was tried by jury on May 21 and 22 and found guilty as charged. He

       waived his right to trial by jury on the habitual offender enhancement. At a

       hearing on June 20, the court first determined that Covington was a habitual

       offender. The court then sentenced him to an aggregate term of seventy-five

       years in prison. Covington now appeals, claiming several items of evidence

       were improperly admitted.

[14]   A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of

       discretion. Blount v. State, 22 N.E.3d 559 (Ind. 2014). Accordingly, we will

       reverse only where the decision is clearly against the logic and effect of the facts

       and circumstances or it is a misinterpretation of the law. Id.


[15]   When evidence is erroneously admitted, reversal is not required unless the error

       prejudiced the defendant’s substantial rights. Id. We assess the probable

       impact the evidence had upon the jury in light of all other evidence that was

       properly admitted. Id. The error will be found harmless if the conviction is

       “supported by independent evidence of guilt such that there is little likelihood

       the challenged evidence contributed to the verdict”. Id. at 564.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 5 of 10
                                                         1.

[16]   Covington initially challenges the admission of the video from the responding

       officer’s body camera. He claims, as he did below, that the evidence is

       cumulative and its probative value is substantially outweighed by its tendency

       to inflame and impassion the jury against him. He relies upon Indiana

       Evidence Rule 403, which provides that a trial court may exclude relevant

       evidence if the probative value of the evidence is “substantially outweighed by a

       danger of … unfair prejudice, confusing the issues, misleading the jury, undue

       delay, or needlessly presenting cumulative evidence.”


[17]   The video in this case is of Fingers lying on the ground after being found by the

       responding officers. It shows his muffled and limited interactions with the

       officers and emergency personnel working on him. His gunshot wounds are

       not visible, nor does the video depict any particularly gruesome images.

       Moreover, during the thirteen-minute video, Fingers appears to be in a semi-

       conscious state and, though in pain, his demeanor is calm considering the

       circumstances.

[18]   With respect to unfair prejudice, we conclude that the tendency of the video to

       inflame the jury was not great. Further, to the extent it was cumulative of other

       testimony and evidence, it was only marginally so. The video provided the best

       evidence of victim’s condition, his capacity to respond to police questioning,

       and the setting of the crime scene. In fact, the defense made much of the

       victim’s failure to provide identifying information to the police immediately


       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 6 of 10
       after the shooting.4 The video, however, establishes that the lack of information

       provided at the scene was likely due to the victim’s grave physical condition at

       the scene.


[19]   Because any potential for unfair prejudice does not outweigh the video’s

       probative value, the trial court did not abuse its discretion by admitting the

       video into evidence over Covington’s objection.

                                                              2.

[20]   Covington’s next evidentiary claim is that the photo array in which he was

       identified was unduly suggestive and should not have been admitted. Although

       Covington challenged this evidence in a pretrial motion to suppress, he did not

       object to its admission at trial. Therefore, he claims admission of this evidence

       amounted to fundamental error.

[21]   “Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748,




       4
        In her opening statement, defense counsel acknowledged that identity was the only issue in the case and
       argued:
              After Demetrius was shot he told three separate officers, the two responding officers and
              Detective Sides, he had no idea who shot him, he couldn’t identify them, he didn’t know who
              they were before, he didn’t offer any sort of description, and you’ll actually see that in the body
              cam videos.
       Transcript at 10.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015                 Page 7 of 10
       756 (Ind. 2002)). It is “a daunting standard that applies ‘only in egregious

       circumstances.’” Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014) (quoting

       Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)). To establish fundamental

       error, the appellant must show that the trial court “erred in not sua sponte raising

       the issue” because the alleged error constitutes a clearly blatant violation of

       basic and elementary principles of due process and presents an undeniable and

       substantial potential for harm. Ryan v. State, 9 N.E.3d at 668.


[22]   On review, our task is to look at the alleged error in the context of all that

       happened below and all relevant information given to the jury to determine

       whether the error had such an undeniable and substantial effect on the jury’s

       decision that a fair trial was impossible. Ryan v. State, 9 N.E.3d 663.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.

       at 668.

[23]   Covington has made no showing of error, let alone fundamental error. “A

       photographic array is impermissibly suggestive if it raises a substantial

       likelihood of misidentification given the totality of the circumstances.” Harris v.

       State, 716 N.E.2d 406, 410 (Ind. 1999). In evaluating the likelihood of a

       misidentification, the court considers factors such as (1) the opportunity of the

       witness to view the criminal at the time of the crime; (2) the witness’s degree of

       attention; (3) the accuracy of the witness’s prior description of the criminal; and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 8 of 10
       (4) the level of certainty demonstrated by the witness. Harris v. State, 716

       N.E.2d 406.

[24]   The fact that Fingers could not identify Covington in the array shown to him on

       March 10 (Array 1) did not foreclose the possibility of a reliable identification of

       Covington in the array on March 11 (Array 2).5 Although taken only about a

       month apart, the photographs of Covington in the two arrays are strikingly

       different. Further, Array 2 was shown to Fingers after he had independently

       identified Covington while watching the local news, in which a picture of

       Covington6 was displayed with respect to an unrelated crime. Fingers

       identified, with certainty, Covington’s picture in Array 2, which contained

       photographs of six men with similar clothing, hair styles, skin tone, and facial

       features. The photographs were not suggestive, and there is no indication in the

       record that the procedures employed by Detective Sides when showing Fingers

       Array 2 were suggestive in any manner. Finally, we observe that Fingers

       testified at trial and identified Covington with 100% certainty, an identification

       that Covington does not challenge on appeal. Under the circumstances,

       Covington has failed to establish fundamental error.

                                                           3.




       5
        Covington concedes that Fingers had ample opportunity to view his attackers and was likely paying close
       attention.
       6
        Covington’s claim that the picture shown in the news story was the same or similar to the one used in Array
       2 is not supported by the record.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015            Page 9 of 10
[25]   Covington’s final evidentiary claim is also framed as fundamental error. He

       argues that Detective Sides should not have been allowed to provide hearsay

       testimony regarding an anonymous tip providing the names Todd, Trey, and

       Poosie as being involved in the shooting.

[26]   It is clear that Detective Sides’s brief reference to the tip was for the purpose of

       establishing his course of investigation and, in particular, how he came to

       include Covington’s picture in Array 1. See Vaughn v. State, 13 N.E.3d 873, 879

       (Ind. Ct. App. 2014), trans. denied (“[s]tatements not admitted to prove the truth

       of the matter are not hearsay and do not run afoul of the hearsay rule”).

       Further, even if it was hearsay, admission of this evidence was harmless. The

       evidentiary value of the tip was weak and had no probable impact on the jury in

       light of the victim’s own identification of Covington. Accordingly, Covington

       cannot establish fundamental error in this regard.

[27]   Judgment affirmed.


       Kirsch, J., concurs. Crone, J., concurs in result.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015   Page 10 of 10
