Lonnie D. Covey v. State of Indiana ( 2012 )


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  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before                         FILED
    any court except for the purpose of                         Oct 24 2012, 8:37 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the                             CLERK
    of the supreme court,
    case.                                                            court of appeals and
    tax court
    ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
    KIMBERLY A. JACKSON                              GREGORY F. ZOELLER
    Indianapolis, Indiana                            Attorney General of Indiana
    CYNTHIA L. PLOUGHE
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    LONNIE D. COVEY,                                 )
    )
    Appellant-Defendant,                      )
    )
    vs.                                )       No. 90A02-1204-CR-284
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE WELLS CIRCUIT COURT
    The Honorable Kenton W. Kiracofe, Judge
    Cause No. 90C01-1003-FC-2
    October 24, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BROWN, Judge
    Lonnie Covey appeals his conviction and sentence for forgery as a class C felony.1
    Covey raises two issues, which we revise and restate as:
    I.        Whether the evidence is sufficient to sustain Covey’s conviction;
    and
    II.       Whether Covey’s sentence is inappropriate in light of the nature of
    the offense and the character of the offender.
    We affirm.
    The relevant facts follow. On December 11, 2009, Covey’s father Robert drove
    Covey to visit Dr. Maria Sumabat for an Oxycontin prescription due to knee pain. Dr.
    Sumabat advised Covey to decrease his dosage of Oxycontin to 10 mg twice a day “since
    he had his surgery already and the pain is not that bad,” and she prepared a prescription
    for sixty 10 mg tablets which constituted a thirty-day supply. Transcript at 37. Robert
    waited in the lobby while Covey was seeing the doctor.
    After leaving the doctor’s office, Robert drove Covey to a nearby drug store to fill
    the prescription. They pulled up to a drive-thru lane and presented Pharmacist Mark
    Toetz with the prescription. Upon examining the prescription, Toetz noticed that the
    prescription was for 20 mg tablets and that “the ink on the milligram amount Oxycotton
    [sic] the 20 milligrams was what appeared to be a different ink color than the rest of the
    prescription.” 
    Id. at 41.
    Toetz called the doctor’s office to clarify which strength the
    doctor had ordered, and afterward he instructed Covey to return to the doctor. Toetz also
    called the police.
    1
    Ind. Code § 35-43-5-2(b)(3) (Supp. 2006).
    2
    Covey returned to the doctor’s office and requested that she write another
    prescription, and the doctor refused, reiterating that her policy was that if a patient loses
    his prescription she would not rewrite it. Covey eventually obtained another Oxycontin
    prescription from a different doctor the same day.
    On March 18, 2010, the State charged Covey with Count I, forgery as a class C
    felony; and Count II, obtaining a controlled substance by fraud or deceit as a class D
    felony. On February 8, 2012, the State filed a motion to dismiss Count II which the court
    granted the same day. On February 9, 2012, the court held a jury trial in which the State
    admitted into evidence the prescription form presented to Toetz. Dr. Sumabat testified
    that the “20” on the prescription was not in her handwriting. 
    Id. at 38.
    The jury found
    Covey guilty as charged. On March 19, 2012, the court held a sentencing hearing and
    sentenced Covey to eight years in the Department of Correction.
    I.
    The first issue is whether the evidence is sufficient to sustain Covey’s conviction
    for forgery as a class C felony. When reviewing claims of insufficiency of the evidence,
    we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 
    656 N.E.2d 816
    , 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
    reasonable inferences therefrom that support the verdict.        
    Id. We will
    affirm the
    conviction if there exists evidence of probative value from which a reasonable trier of
    fact could find the defendant guilty beyond a reasonable doubt. 
    Id. The offense
    of forgery provides in relevant part that “[a] person who, with intent
    to defraud, makes, utters, or possesses a written instrument in such a manner that it
    3
    purports to have been made: . . . (3) with different provisions; . . . commits forgery, a
    Class C felony.” Ind. Code § 35-43-5-2(b)(3). Thus, to convict Covey of forgery, the
    State needed to prove beyond a reasonable doubt that: (1) Covey; (2) with intent to
    defraud; (3) made, uttered, or possessed a written instrument in such a manner that it
    purported to have been made; (4) with different provisions.
    Intent to defraud may be proven by circumstantial evidence which will often
    include the general conduct of the defendant when presenting the instrument for
    acceptance. Miller v. State, 
    693 N.E.2d 602
    , 604 (Ind. Ct. App. 1998) (citing Wendling
    v. State, 
    465 N.E.2d 169
    , 170 (Ind. 1984)). Also, proof of an injury is not required and
    intent may be shown by either “a potential benefit to the maker or potential injury to the
    defrauded party.” Diallo v. State, 
    928 N.E.2d 250
    , 252 (Ind. Ct. App. 2010) (emphasis
    added).
    Covey argues that “[a]ssuming, arguendo, the prescription was altered, the record
    contains no direct evidence establishing Covey altered the prescription,” and that
    although “intent to defraud may be proven by circumstantial evidence, the State also
    failed to offer sufficient circumstantial evidence proving Covey’s guilt beyond a
    reasonable doubt.” Appellant’s Brief at 8-9. Covey highlights testimony by Pharmacist
    Toetz when he testified that “doctors frequently make mistakes when making
    prescriptions,” as well as Dr. Sumabat’s testimony that she denied Covey a new
    prescription due to her policy regarding “refusing to replace a prescription” and not
    “because the first was altered.” 
    Id. at 9.
    Covey also argues that the State did not present
    evidence of an “improper drug addiction which might have sparked his intent to defraud.”
    4
    
    Id. The State
    argues that “[t]he evidence here points solely to [Covey] as the one who
    altered the dosage on the prescription,” noting that “only [Covey] had the motive to
    change the prescription so that the prescribed dosage amount was doubled.” Appellee’s
    Brief at 5. The State argues that Covey “was use to taking the larger dosage of 20 mg of
    Oxycontin for his pain” and “[c]utting the dosage in half would have affected only” him.
    
    Id. The State
    also notes that Robert testified that he did nothing to the prescription.
    Here, the evidence and reasonable inferences most favorable to the conviction
    reveal that Covey received a prescription from Dr. Sumabat for sixty 10 mg Oxycontin
    pills which constituted a thirty-day supply and Covey, prior to presenting the prescription
    to the pharmacist, changed the dosage amount to 20 mg pills. Dr. Sumabat testified
    unequivocally that the 20 on the prescription, which Covey presented to Toetz and was
    entered into evidence, was not her handwriting. Covey’s arguments on appeal invite us
    to reweigh the evidence presented at trial, which we cannot do. See 
    Jordan, 656 N.E.2d at 817
    . Based upon our review of the evidence as set forth in the record and above, we
    conclude that sufficient evidence exists from which the jury could find Covey guilty
    beyond a reasonable doubt of forgery as a class C felony. See Williams v. State, 
    892 N.E.2d 666
    , 672 (Ind. Ct. App. 2008) (noting the fact finder did not believe the
    defendant’s testimony, that on appeal we cannot reweigh the evidence, and that the
    defendant failed to rebut the State’s evidence that the defendant intended to defraud when
    she presented a teller with a forged check, and affirming the defendant’s conviction for
    forgery as a class C felony), trans. denied.
    5
    II.
    The next issue is whether Covey’s sentence is inappropriate in light of the nature
    of the offense and the character of the offender. Indiana Appellate Rule 7(B) provides
    that this court “may revise a sentence authorized by statute if, after due consideration of
    the trial court’s decision, [we find] that the sentence is inappropriate in light of the nature
    of the offense and the character of the offender.” Under this rule, the burden is on the
    defendant to persuade the appellate court that his or her sentence is inappropriate.2
    Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006).
    In his brief, Covey argues that “[t]he nature of the offense did not justify such a
    harsh sentence,” noting that he “allegedly committed the offense because he was in pain,”
    that he “previously had been prescribed 20 mg tablets,” and that “this offense . . . did not
    cause substantial harm to innocent third parties.” Appellant’s Brief at 14. Covey argues
    that there is no evidence “suggesting the drugs were not for Covey’s personal
    consumption” and also he “did not obtain the benefit of any forgery” because he never
    received the pills from the prescription.”                
    Id. Covey also
    argues that although he
    “admittedly has a lengthy criminal history,” he has previously “used his time in prison
    2
    We observe that Covey also argues that the trial court abused its discretion in sentencing him in
    failing to identify several mitigating factors that were supported by the record. However, we need not
    address this issue because we elect to exercise our option to review Covey’s sentence under Ind.
    Appellate Rule 7(B). See Windhorst v. State, 
    868 N.E.2d 504
    , 507 (Ind. 2007) (holding that where the
    court on appeal finds that a trial court abused its discretion in sentencing the defendant, the court may
    either remand for resentencing or exercise the appellate court’s authority to review the sentence under
    Ind. Appellate Rule 7(B)), reh’g denied. To the extent that Covey argues that the court failed to consider
    Covey’s poor health and the undue hardship which Covey’s parents would suffer from his incarceration
    as mitigators, though, we observe that a sentencing court is not obligated to find a circumstance to be
    mitigating merely because it is advanced as such by the defendant, nor is it required to explain why it
    chose not to make a finding of mitigation. See Felder v. State, 
    870 N.E.2d 554
    , 558 (Ind. Ct. App. 2007).
    We also note that the court at sentencing observed that it was “sympathetic to the fact that [Covey’s]
    parents are elderly [and] that [he] care[s] for them.” Sentencing Transcript at 31.
    6
    productively by earning both an Associate’s degree and a Bachelor’s degree from Ball
    State University” and also “the presentence investigation report places Covey only in the
    ‘MODERATE risk category to reoffend.’” 
    Id. at 14-15.
    Covey requests that we “impose
    a lesser sentence with all or part to be served on home detention.” 
    Id. at 16.
    The State
    highlights Covey’s number of prior convictions, the nature of those offenses, the “near
    constancy” of such convictions, and also that he “has violated probation and parole in the
    past and was still on parole for two felonies when the present forgery was committed.”
    Appellee’s Brief at 10-11.
    Our review of the nature of the offense reveals that Covey altered the Oxycontin
    dosage amount prescribed by a doctor from 10 to 20 mg and attempted to fill the
    prescription at a nearby Walgreens drug store. Our review of the character of the
    offender reveals that Covey has an extensive criminal history. As a juvenile, in 1973, at
    the age of eleven, Covey was arrested for theft and was reprimanded and released. In
    1976, he was convicted of breaking and entering and was placed on probation for six
    months. In 1979, he was arrested for glue sniffing and was reprimanded and released. In
    1980, Covey was convicted of conversion and was sentenced to six months probation.
    Later that same year, Covey was convicted of theft as an adult and was sentenced
    to serve one year at the Indiana State Farm with ninety days suspended. In 1981, he was
    sentenced to five years with three years suspended for burglary as a class C felony. In
    1987, Covey pled guilty to possession of marijuana as a class A misdemeanor and was
    sentenced to one year in the Huntington County Jail with all but six days suspended and
    was ordered to complete counseling. In 1989, Covey pled guilty to operating without
    7
    financial responsibility and was ordered to surrender his driver’s license. In 1991, he
    pled guilty to failure to prove financial responsibility as a class C misdemeanor. That
    same year, Covey pled guilty to dealing in marijuana as a class D felony and was
    sentenced to serve one and one-half years. Also in 1991, Covey pled guilty to public
    intoxication as a class B misdemeanor and was sentenced to 180 days to be served
    consecutively to the sentence for the dealing in marijuana conviction, and charges of
    possession of marijuana, criminal mischief, and possession of paraphernalia were in
    return dismissed. In 1992, he pled guilty to attempted theft and was sentenced to one and
    one-half years to be served consecutively to the sentence for the dealing in marijuana and
    public intoxication convictions, and in return a charge of criminal mischief was
    dismissed.
    In 2000, Covey pled guilty to theft as a class D felony and was sentenced to one-
    and-one-half years suspended to home detention and probation. In November 2001, he
    admitted to violating his probation and was sentenced to an additional thirty days of
    home detention. On July 30, 2002, Covey was charged with theft as a class D felony and
    possession of a Schedule I, II, III, or IV controlled substance as a class D felony. As a
    result, another probation violation report was filed on his previous theft charge which he
    admitted, and he was ordered to serve ninety days in the Wells County Jail. Covey pled
    guilty to the 2002 theft charge and was sentenced to three years suspended to probation,
    and the possession charge was dismissed. After committing the 2002 theft but prior to
    pleading guilty, on August 28, 2002, Covey was charged with causing death when
    operating a motor vehicle while intoxicated as a class C felony, causing serious bodily
    8
    injury when operating a motor vehicle while intoxicated, and being an habitual substance
    offender.3 He was sentenced to an aggregate term of sixteen years in the Department of
    Correction and was released to parole on March 18, 2008. Covey was still on parole
    from these convictions at the time he committed the instant offense. Finally, Covey also
    had a number of charges which were dismissed.
    Thus, our review of the record reveals that Covey has demonstrated a serious
    disrespect for the law. In particular, we note that he has been given multiple chances at
    serving sentences on home detention only to violate his probation. Accordingly, and
    after due consideration, we conclude that Covey has not sustained his burden of
    establishing that his sentence of eight years is inappropriate in light of the nature of the
    offense and his character.
    For the foregoing reasons, we affirm Covey’s conviction and sentence for forgery
    as a class C felony.
    Affirmed.
    FRIEDLANDER, J., and PYLE, J., concur.
    3
    At sentencing, Covey indicated to the court that the incident involved his driving a vehicle while
    using Oxycontin pursuant to a prescription.
    9