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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: JULIE ANN SLAUGHTER Marion County Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
KEITH MCCOY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

Feb 08 2010, 10:26 am

CLERK

No. 49A02-0907-CR-700

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Teresa Hall, Judge Pro-Tempore Cause No. 49G17-0902-FD-27663

February 8, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Keith McCoy appeals his conviction and sentence for possession of marijuana as a class A misdemeanor.1 McCoy raises three issues, which we revise and restate as: I. II. Whether the evidence is sufficient to sustain McCoy's conviction; Whether the trial court violated McCoy's right to fundamental due process when it relied upon its own background knowledge in assessing McCoy's credibility; and Whether McCoy's sentence is inappropriate in light of the nature of the offense and the character of the offender.

III.

We affirm. The facts most favorable to the conviction follow. During the early morning hours of February 24, 2009, Indianapolis Metropolitan Police Officer James Carver and another officer were dispatched to an apartment in Marion County regarding a domestic disturbance. When Officer Carver arrived at the scene, he could smell marijuana

"coming from the door." Transcript at 18. Officer Carver knocked on the door, and McCoy answered the door. Officer Carver told McCoy why they were there and

observed marijuana on the coffee table. Officer Carver also smelled more marijuana coming from the apartment. McCoy stepped back and allowed the police to enter the apartment. Officer Carver stepped into the apartment and noticed a "heavy odor" of marijuana and that a part of the smell "went with" McCoy. Id. at 21-22. McCoy was "extremely agitated."

1

Ind. Code

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