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. 

ATTORNEY FOR APPELLANT

Yvette M. LaPlante 

Keating & LaPlante, LLP 

Evansville, Indiana 

ATTORNEYS FOR APPELLEE

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., 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-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 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). 
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[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 
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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 5 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. 
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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 semiconscious 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 
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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. 
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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 
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(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. 
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[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.