MEMORANDUM DECISION

ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Dec 21 2015, 6:00 am

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                                  ATTORNEYS FOR APPELLEE
Bruce W. Graham                                         Gregory F. Zoeller
Graham Law Firm, PC                                     Attorney General of Indiana
Lafayette, Indiana                                      Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Lacy,                                           December 21, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A05-1412-CR-590
        v.                                              Appeal from the
                                                        Tippecanoe Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1310-FB-28



Kirsch, Judge.




Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015
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[1]   Eric D. Lacy appealed his convictions after a jury trial for auto theft as a Class

      D felony, illegal drug lab as a Class C felony, possession of a syringe as a Class

      D felony, possession of paraphernalia as a Class A misdemeanor, conspiracy to

      commit burglary as a Class B felony, conspiracy to commit theft as a Class D

      felony, burglary as a Class C felony, two counts of theft, each as a Class D

      felony, and his adjudication as a habitual offender. Lacy petitions for rehearing

      following our memorandum decision in Lacy v. State, No. 79A05-1412-CR-590

      (Ind. Ct. App. Oct. 21, 2015), where we affirmed his convictions in part and

      reversed his conviction for possession of a syringe. We reaffirm our holding,

      but grant rehearing for the limited purpose of making two corrections to our

      earlier opinion.


[2]   First, Lacy asserts that he was not convicted of Class B felony possession of

      methamphetamine and Class C felony possession of a schedule IV controlled

      substance as was stated in our memorandum decision because these offenses

      had been dismissed by the State prior to his jury trial. Lacy is correct in his

      contention as, on October 6, 2014, the trial court granted the State’s motion to

      dismiss these two counts. We, therefore, correct our opinion to reflect that

      Lacy was not convicted of either Class B felony possession of

      methamphetamine or Class C felony possession of a schedule IV controlled

      substance.


[3]   Second, Lacy contends that this court erred in stating that he signed a written

      consent to search form at the time the police sought his consent to search the

      apartment, and therefore, his consent was not validly obtained. Although Lacy
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015
                                                                                                  Page 2 of 4
      is correct that the record does not reflect that he signed the consent form, we

      disagree that this changes our determination that his consent was validly

      obtained. “The voluntariness of the consent to search is to be determined by

      considering the totality of the circumstances[, and] [a] consent to search is valid

      except where it is procured by fraud, duress, fear, intimidation, or where it is

      merely a submission to the supremacy of the law.” Bulthuis v. State, 17 N.E.3d

      378, 383 (Ind. Ct. App. 2014), trans. denied.


[4]   Here, after Lacy exited the apartment, he was provided with a written consent

      to search form, which was read to him by one of the officers. The form advised

      Lacy that he had a Constitutional right: (1) not to have a search conducted of

      the premises and vehicles under his control; (2) to refuse to consent to such a

      search; (3) to have an attorney appointed for him if he could not afford one; and

      (4) to consult with an attorney before deciding whether to consent to the search.

      State’s Ex. 28. After being read the consent form, Lacy verbally consented to a

      search of the apartment. Tr. at 261-62. At that time, there were several officers

      present in uniform and at least one detective in plain clothes, and the officers

      were not deceptive as to their identity or the purpose of the search. The reading

      of the consent form and Lacy’s verbal consent to search occurred on the front

      porch of the apartment in the early afternoon, and when the officers spoke to

      Lacy, they did not make any express or implied claim of authority to search

      without Lacy’s consent. Nothing in the record suggested that Lacy was unable

      to understand the consent form, and the trial court was aware that Lacy had

      multiple prior encounters with law enforcement as he was facing allegations of

      Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015
                                                                                                  Page 3 of 4
      being a habitual offender. Therefore, although we correct our previous opinion

      to the extent that it stated that Lacy signed a written consent to search form, we

      still conclude that, based on the totality of the circumstances, the trial court did

      not abuse its discretion in determining that Lacy voluntarily consented to the

      search of the apartment.


[5]   Affirmed on rehearing.


      Najam, J., and Barnes, J., concur.




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015
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