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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: MICHAEL E. CAUDILL Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana

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

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

Dec 27 2010, 9:54 am

CLERK

No. 49A02-1002-CR-179

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Peggy Hart, Master Commissioner Cause No. 49G20-0907-FB-65104

December 27, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Kenneth McCreary appeals his conviction of and sentence for Class B felony dealing in cocaine1 and raises the following issues: 1. 2. Did the trial court err in denying McCrearys motion for mistrial? Did the trial court abuse its discretion in admitting a photo array the confidential informant used to identify McCreary as the person who sold cocaine? 3. Was McCrearys sentence inappropriate based on the nature of the offense and his character? We affirm. FACTS AND PROCEDURAL HISTORY On July 15, 2009, a confidential informant (CI) bought cocaine from McCreary at McCrearys home in Indianapolis. The CI wore an audio/visual recording device and recorded the transaction. McCreary was arrested shortly thereafter, and charged with Class B felony dealing in cocaine. On January 20, 2010, after a jury trial, McCreary was convicted as charged and sentenced to six years, with four years incarcerated, one year in community corrections, and one year suspended to probation. DISCUSSION AND DECISION 1. Denial of Motion for Mistrial

A mistrial is an "extreme remedy" warranted only when no other curative measure can remedy the "perilous situation." Kirby v. State, 774 N.E.2d 523, 533 (Ind. Ct. App. 2002).

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Ind. Code

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