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

### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT Yvette M. LaPlante Keating & LaPlante, LLP Evansville, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Todd Dayon Covington JR., A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff March 25, 2015 Court of Appeals Case No. 82A01-1407-CR-292 Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink, Magistrate Case No. 82C01-1403-FA-279



### Friedlander, Judge.Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 2 of 10 [1] Todd Covington, Jr., appeals his conv ictions for class A felony Attempted Murder, 1 class A felony Robbery, 2 and class B felony Criminal Confinement. 3 He presents the following re stated 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 amo unt to fundamental error? 3. Did the admission of testimon y relating to an anonymous tip amount to fundamental error? [2] We affirm.

[3] The victim in this case, Demetrius Finger s, worked as a barber and often kept cash on his person. Laniko Payne was on e of his clients. Throughout the day on March 7, 2014, Payne came into the ba rber shop for a haircut. Each time Fingers was busy with anot her 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 th e time the offense was comm itted classified attempted murder as a class A felony. Ind. Code Ann. § 35-41-5-1(a) (W est, Westlaw 2013). This statute has since been revised and in its current form reclas sifies 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 Tec hnical 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 3 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 Payn e 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 Pa yne. There were two other men inside. The one sitting next to Fin gers was never identified. Th e other, later identified as Covington, was in th e front passenger seat.

[5] Once Fingers was inside the truck, Pa yne locked the doors and the other two men pointed handguns at Fingers. Payne also had his weapon drawn. Covington immediately reached into Fi ngers’s pocket and removed $300 to $400 in cash. Payne then demanded dr ugs, but Fingers denied having any. Payne referenced the nearby street on wh ich Fingers lived. Fingers agreed to take them to a house on th at street for drugs. Fingers believed there would be men there to help him.

[6] Payne parked across the street from th e 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 Finger s 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 hi s house, but when th ere was no answer, he fell off the porch to the ground. Wi thin minutes, responding officers found him in critical condition. Believing Fin gers was near death, one of the officersCourt of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 4 of 10 turned on his body camera and record ed Fingers as emergency personnel attended to him. During this time, Fin gers 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-threaten ing. He spent three days in the ICU and a week at the hospital.

[9] The day after the shooting, police deve loped 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 th e 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 anon ymous tip that individuals named Todd, Trey, and Poosie were involved in the shoo ting. As a result, police turned their attention to Covington and Maurice Nichol son, 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 hosp ital 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 broughtCourt of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 5 of 10 a new photo array, which included an updated picture of Covington that had been taken the previous day. Fin gers identified Covington’s picture.

[12] The State charged Covingto n, on March 12, with a ttempted 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 cour t 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 habitu al offender enhancement. At a hearing on June 20, the court first dete rmined 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 review ed for an abuse of discretion. Blount v. State , 22 N.E.3d 559 (Ind. 2014). Accordingly, we will reverse only where the decisi on is clearly agai nst the logic and effect of the facts and circumstances or it is a misinterpretation of the law. Id

.
[15] When evidence is erroneousl y 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 guil t such that there is little likelihood the challenged evidence cont ributed to the verdict”. Id . at 564.Court of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 6 of 10 1.

[16] Covington initially challen ges the admission of the vi deo from the responding officer’s body camera. He claims, as he did below, that the evidence is cumulative and its probative value is su bstantially outweighed by its tendency to inflame and impassion the jury agai nst him. He reli es upon Indiana Evidence Rule 403, which provides th at a trial court may exclude relevant evidence if the probative value of the ev idence is “substanti ally outweighed by a danger of ... unfair prejudice, confusin g the issues, mislead ing the jury, undue delay, or needlessly presenti ng cumulative evidence.”

[17] The video in this case is of Fingers ly ing on the ground a fter being found by the responding officers. It shows his muffl ed and limited interactions with the officers and emergency personnel workin g on him. His gu nshot wounds are not visible, nor does the video depict any particularly gruesome images. Moreover, during the thirteen-minute vide o, Fingers appears to be in a semiconscious state and, though in pain, his demeanor is calm considering the circumstances.

[18] With respect to unfair prejudice, we conc lude 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 margin ally so. The video provided the best evidence of victim’s condition, his capa city to respond to police questioning, and the setting of the crime scene. In fact, the defense made much of the victim’s failure to provid e identifying information to the police immediatelyCourt of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 7 of 10 after the shooting. 4 The video, however, establishe s that the lack of information provided at the scene was li kely due to the victim’s gr ave physical condition at the scene.

[19] Because any potential for unfair prej udice does not outweigh the video’s probative value, the trial court did no t 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 sugges tive and should not have been admitted. Although Covington challenged this ev idence in a pretrial motion to suppress, he did not object to its admission at tria l. Therefore, he claims admission of th is evidence amounted to fundamental error.

[21] “Fundamental error is an extremely narr ow exception to the waiver rule where the defendant faces the heav y burden of showing that the alleged errors are so prejudicial to the defendan t’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 desc ription, 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 8 of 10 756 (Ind. 2002)). It is “a daunting st andard 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 th at the trial court “erred in not sua sponte raising the issue” because the all eged error constitutes a clear ly 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 rele vant 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, carele ssly, or strategically fail to preserve an error.” Id

. at 668.

[23] Covington has made no showing of erro r, let alone fundamental error. “A photographic array is impermissibly su ggestive if it raises a substantial likelihood of misidentific ation 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 fact ors 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 witnes s’s prior description of the criminal; andCourt of Appeals of Indiana | Memorandum Decision 82A01-1407-CR-292 | March 25, 2015 Page 9 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 possi bility 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 Coving ton in the two arrays are strikingly different. Further, Array 2 was shown to Fingers after he had independently identified Covington whil e watching the local news, in which a picture of Covington 6 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 clothi ng, hair styles, skin tone, and facial features. The photographs were not sugges tive, and there is no indication in the record that the procedures employed by Detective Si des when show ing Fingers Array 2 were suggestive in any manner. Finally, we observe that Fingers testified at trial and identi fied Covington with 100% ce rtainty, an identification that Covington does not challenge on appeal. Under the circumstances, Covington has failed to es tablish fundamental error.
3.

5 Covington concedes that Fingers had ample opportunity to view his attackers an d was likely paying close attention.
6 Covington’s claim that the picture shown in the news st ory 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 10 of 10 [25] Covington’s final evidentiary claim is al so 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 involv ed in the shooting.

[26] It is clear that Detective Sides’s brief re ference to the tip was for the purpose of establishing his course of investigatio n 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 admi tted to prove the truth of the matter are not hearsay and do no t run afoul of the hearsay rule”). Further, even if it was hearsay, admiss ion 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 id entification of Covington. Accordingly, Covington cannot establish fundamental error in this regard.

[27] Judgment affirmed.

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