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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: HAROLD E. AMSTUTZ Lafayette, Indiana

FILED
Mar 17 2009, 9:02 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TONY LEE MODESITT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 79A02-0807-CR-631

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-0709-FC-64

March 17, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Tony L. Modesitt appeals his conviction and sentence, following a jury trial, for class D felony possession of marijuana1 and for being an habitual substance offender.2 We affirm. ISSUES 1. Whether the trial court erred when it admitted the marijuana into evidence. 2. Whether Modesitts sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). FACTS On September 25, 2007, Lafayette business owner Jerry Kalal called the police to report suspected drug dealing in the one thousand block of Main Street, an area known for drug-related activity. Officer Richard Welcher of the Lafayette Police Department was dispatched to investigate. At the scene, Kalal told Officer Welcher that two of the men -- one dressed in a dark blue shirt or jacket and dark blue jeans -- had met with a third man. After the men shook hands, the man in blue clothing immediately reached into his pocket, and Kalal "thought hed just saw [sic] a drug deal." (Tr. 3-5). The men were still within view when Officer Welcher arrived. Officer Welcher drove his fullymarked squad car toward the men, parked, and approached on foot. He was soon joined by fellow LPD Officer Calhoon.

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