Covey v. State Of Ind., 30A01-0906-CR-311.
| Decision Date | 24 June 2010 |
| Docket Number | No. 30A01-0906-CR-311.,30A01-0906-CR-311. |
| Parties | Douglas COVEY, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
929 N.E.2d 813
Douglas COVEY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 30A01-0906-CR-311.
Court of Appeals of Indiana.
June 24, 2010.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney
Appellant-Defendant, Douglas L. Covey (Covey), appeals his convictions for Count I, dealing in methamphetamine, as a Class A felony, Ind.Code § 35-48-4-1.1, Count II, possession of methamphetamine, as a Class B felony, I.C. § 35-48-4-6.1, Count III, possession of methamphetamine, as a Class B felony, I.C. § 35-48-4-6.1, Count IV possession of marijuana, as a Class A misdemeanor, I.C. § 35-48-4-11, and Count V, possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3.
We affirm.
Covey raises four issues on appeal, which we restate as:
(1) Whether the State presented sufficient evidence to prove beyond a reasonable doubt that Covey was in or within 1,000 feet of a family housing complex when he dealt methamphetamine;
(2) Whether the State disproved mitigating factors which could reduce the Class of felony for his convictions for dealing and possession of methamphetamine;
(3) Whether the trial court committed fundamental error by not instructing the jury on mitigating factors which could reduce the Class of felony for his convictions for dealing and possession of methamphetamine; and
(4) Whether the trial court committed reversible error by admitting the seized methamphetamine as evidence.
On July 18, 2008, Lori Crosby (Crosby), a confidential informant working for the Hancock County Sheriff's Department, arranged to purchase methamphetamine from Covey. Covey agreed to meet Crosby at her apartment to make the sale. Crosby contacted Detective Tim Cicenas (Detective Cicenas) of the Hancock County Sheriff's Department and told him about the arrangements. Prior to the arranged sale, Detective Cicenas went with Detective Sergeant Brian Ellison (Detective Ellison) to set up audio and video recording devices in Crosby's apartment. They searched Crosby's apartment and gave her $100 cash that was traceable. After the Detectives had left, Covey came to Crosby's apartment and sold her one gram of methamphetamine for $60. Only the audio equipment captured the drug deal because the video equipment malfunctioned.
The Detectives and Crosby agreed that she would arrange for a second drug buy. On July 21, 2008, Crosby exchanged text messages with Covey, but they were unable to meet that day. The following day, Crosby text messaged Covey, and he responded that he would come to her apartment in twenty minutes. Crosby immediately contacted Detectives Cicenas and Ellison, who went to her apartment complex. Covey arrived at Crosby's apartment before the Detectives; however, Crosby did not answer when he came to her door, and Covey left. The Detectives saw him leaving on a motorcycle. Crosby text messaged Covey, told him that she had been in the shower and asked him to come back.
Covey returned and entered the building where Crosby's apartment was located. The Detectives went around to the backside of Crosby's apartment building in attempt to view Covey's actions. Covey went to the back door of the common area
The Detectives went in Crosby's apartment building, and spoke with Crosby who confirmed that Covey had not entered her apartment or made contact with her. The Detectives began searching the common area, and while they were doing so, Crosby noticed a small metal tin stuck behind a flower arrangement just outside of her apartment door. An evidence technician was called to the scene, seized the tin, and took it to the Greenfield Police Department's evidence processing room. Among other things, the tin contained two baggies of methamphetamine.
On July 24, 2008, the State filed an Information charging Covey with: Count I, dealing methamphetamine, as a Class A felony, I.C. § 35-48-4-1.1; Count II, possession of methamphetamine, as a Class B felony, I.C. § 35-48-4-6.1; Count III, possession of methamphetamine, as a Class B felony, I.C. § 35-48-4-6.1; Count IV, possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3; Count V, possession of marijuana, as a Class A misdemeanor, I.C. § 35-48-4-11; and Count VI, possession of marijuana, as a Class D felony, I.C. § 35-48-4-11. On April 29, 2009, the trial court began a three day jury trial. During trial, Covey objected to the admission of the methamphetamine arguing that the manner in which the evidence had been kept created a possibility of tampering. The trial court admitted the methamphetamine as evidence over Covey's objection. Prior to the close of the trial, the State dismissed Count VI, possession of marijuana as a Class D felony. After deliberating, the jury returned a verdict of guilty on all remaining charges, and the trial court entered its judgment of conviction thereon.
Covey now appeals. Additional facts will be provided as necessary.
Covey contends that the State did not provide sufficient evidence to prove beyond a reasonable doubt that the place where he dealt or possessed methamphetamine was a “family housing complex.” (Appellant's Br. p. 7). Therefore, Covey contends that his convictions for dealing methamphetamine and possession of methamphetamine should not have been elevated to higher felony levels because those acts occurred at a “family housing complex.”
Our standard of review with regard to sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or judge the credibility of the witnesses. We...
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