                                                                         FILED
                                                                    Aug 16 2016, 8:26 am

                                                                         CLERK
      OPINION                                                        Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jill A. Gonzalez                                           Gregory F. Zoeller
      Public Defender’s Office                                   Attorney General of Indiana
      Muncie, Indiana
                                                                 Brian Reitz
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Harry L. Lacy,                                             August 16, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A04-1510-CR-1757
                 v.                                              Appeal from the Delaware Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Thomas A.
      Appellee-Plaintiff.                                        Cannon, Jr., Judge
                                                                 Trial Court Cause No.
                                                                 18C05-1502-F6-52



      May, Judge.


[1]   Harry L. Lacy appeals his conviction of Level 6 felony identity deception 1

      arguing the trial court abused its discretion by declining to give his tendered



      1
          Ind. Code § 35-43-5-3.5 (2014).


      Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016               Page 1 of 11
      jury instructions. He also claims the prosecutor committed misconduct by

      arguing Lacy had the burden to prove an affirmative defense. We affirm.


                            Facts and Procedural History
[2]   On January 31, 2015, Lacy entered the Delaware County Jail to visit his wife,

      Cassandra Collins, who was an inmate. Collins’ lawyer was Mark McKinney.

      Lawyers have unsupervised private contact with clients who are inmates at the

      jail, while visiting family and friends are required to be separated from inmates

      by glass and speak to them through a phone.


[3]   Lacy signed in as “Mark McKinney” and claimed to be Collins’ lawyer. (Tr. at

      75.) Identifying himself as McKinney, he said he needed to see his client and

      gave the corrections officer a business card that read “Mark McKinney,

      Attorney at law.” (Id. at 74.) Lacy went through three security doors and sat

      down in a meeting room with Collins before an officer who knew Lacy was not

      a lawyer, recognized him. Lacy continued to insist he was Collins’ lawyer as he

      was escorted out of the jail. McKinney was not at the jail on January 31, and

      he did not give Lacy permission to use his identifying information.


[4]   The State charged Lacy with Level 6 felony identity deception. The trial court

      gave the pattern jury instruction outlining the offense over Lacy’s objection.

      Lacy tendered two other instructions that the trial court rejected. A jury found

      Lacy guilty as charged.




      Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 2 of 11
                                 Discussion and Decision
                                               Jury Instructions

[5]   Instructing a jury is left to the sound discretion of the trial court and is reviewed

      only for an abuse of discretion. Hayes v. State, 15 N.E.3d 82, 84 (Ind. Ct. App.

      2014), trans. denied. On review of a decision not to give a proposed jury

      instruction, we consider whether the instruction (1) correctly states the law, (2)

      is supported by the evidence, and (3) is covered in substance by other

      instructions that are given. Simmons v. State, 999 N.E.2d 1005, 1011 (Ind. Ct.

      App. 2013), reh’g denied, trans. denied. We consider jury instructions as a whole

      and in reference to each other and do not reverse unless the instructions as a

      whole mislead the jury as to the law in the case. Id.


[6]   The preferred practice is to use the pattern jury instructions. Gravens v. State,

      836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (quoting Cochrane v. Lovett, 337

      N.E.2d 565, 570 n.6 (Ind. Ct. App. 1975)) (noting the pattern instructions “have

      apparent approval of the Indiana Supreme Court as evidenced by the preferred

      treatment given such instructions in Indiana Rule of Trial Procedure 51(E)”),

      trans. denied. The pattern instruction for identity deception provides:


              A person who knowingly or intentionally obtains, possesses,
              transfers or uses the identifying information of another person
              without the other person’s consent and with intent to assume the
              identity of another person commits identity deception, a Level 6
              felony.




      Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 3 of 11
              Before you may convict Harry L. Lacy of Count 1, Identity
              Deception, a Level 6 felony, the State must have proven each of
              the following beyond a reasonable doubt:


                   1. Harry L. Lacy;


                   2. Knowingly or intentionally;


                   3. Obtained, possessed, transferred or used the identifying
                      information of Mark McKinney;


                   4. Without Mark McKinney’s consent;


                   5. With the intent to assume the identity of Mark McKinney,
                      another person.


      (Tr. at 127-28.) Lacy argues that the pattern jury instruction omits a material

      element required to be proven by the State, i.e., that he “used the identifying

      information of Mark McKinney for an unlawful purpose.” (App. at 69.)


[7]   To remedy that omission, Lacy tendered an instruction that replaced pattern

      instruction element five with the above language, which is from the identity

      deception statute. The trial court rejected the instruction because the “lawful

      purpose” language in the identity deception statute is an affirmative defense and

      not a material element of the crime. (Id. at 121-122.) We agree.


[8]   Whether the “lawful purpose” language in Ind. Code § 35-43-5-3.5, which

      defines identity deception, is an affirmative defense or a material element is an

      issue of first impression. That statute, in pertinent part, provides:

      Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 4 of 11
              (a) Except as provided in subsection (c), a person who knowingly
                  or intentionally obtains, possesses, transfers, or uses the
                  identifying information of another person, including the
                  identifying information of a person who is deceased:


                   (1) Without the other person’s consent; and
                   (2) With intent to:
                       (A) Harm or defraud another person;
                       (B) Assume another person’s identity; or
                       (C) Profess to be another person;
                       commits identity deception, a Level 6 felony.
                                                       *****
              (c) The conduct prohibited in subsections (a) and (b) does not
                   apply to . . . (3) [a]ny person who uses the identifying
                   information for a lawful purpose.


      Ind. Code. § 35-43-5-3.5 (2014).


[9]   In determining whether a statutory exception is a material element of the

      offense or an affirmative defense, we consider the location of the exception

      relative to the definition of the principal offense. Lyles v. State, 970 N.E.2d 140,

      143 n.3 (Ind. 2012). If the exception is closely connected with the clause

      creating the offense, it is a material element and must be proven by the State

      every time the crime is charged. Id. However, if the exception is positioned in

      a subsequent clause or statute, the exception is an affirmative defense that must

      be raised by the defendant. Id. Defendants have the initial burden to establish

      an affirmative defense by a preponderance of the evidence. Adkins v. State, 887

      N.E.2d 934, 938 (Ind. 2008). However, the State bears the ultimate burden of
      Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 5 of 11
       negating beyond a reasonable doubt any defense sufficiently raised by the

       defendant. Wilson v. State, 4 N.E.3d 670, 676 (Ind. Ct. App. 2014), trans. denied.


[10]   Identity deception is defined in subsection (a) of the controlling statute. See Ind.

       Code § 35-43-5-3.5(a). There is no “unlawful purpose” requirement in that

       subsection. Rather, the “lawful purpose” exception appears in subsection (c).

       See Ind. Code § 35-43-5-3.5(c)(3). That subsequent clause also creates two age-

       based exceptions to the definition of identity deception in subsection (a). See

       Ind. Code § 35-43-5-3.5(c). The “lawful purpose” exception appearing in a

       subsequent clause with age-based exceptions suggests the legislature intended it

       to be an affirmative defense and not a material element of identity deception. 2

       See, e.g., Wilson, 4 N.E.3d at 676-77 (lack of knowledge of victim’s age

       considered an affirmative defense in sexual misconduct with a minor statute

       because there is no knowledge requirement in the clause creating the offense

       and the knowledge exception appears in a clause subsequent thereto), trans.

       denied.


[11]   Our determination that the “lawful purpose” language is an affirmative defense

       is also consistent with our Indiana Supreme Court’s interpretation of similar

       language in the past regarding conduct that may or may not be unlawful.




       2
         The “lawful purpose” exception can be an affirmative defense even though the legislature did not explicitly
       denominate it as such. See Neese v. State, 994 N.E.2d 336, 340 (Ind. Ct. App. 2013) (statutory exception to
       check deception appearing in a clause subsequent to definition of principal offense is properly considered an
       affirmative defense despite not being specifically designated as such in the statute).

       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016                       Page 6 of 11
               The same general question has been raised many times in
               criminal prosecutions where the alleged crime is the doing of a
               thing or the possessing of a thing which under certain
               circumstances may be lawful, but which is alleged in the
               particular case to be unlawful. . . . When an offense is created by
               statute and the same or other statutes make exceptions thereto it
               is not necessary for the state to negate the exceptions by stating
               and proving that the defendant does not come within the same.
               It is, therefore, not incumbent upon the state in a prosecution for
               the unlawful possession of narcotics to prove all possible
               exceptions or to by affirmative evidence negate every conceivable
               hypothesis by which the appellant might have gained his
               possession lawfully.


       Stanley v. State, 252 Ind. 37, 41, 245 N.E.2d 149, 151 (1969) (citing Day v. State,

       251 Ind. 399, 402, 241 N.E.2d 357, 359 (1968)). The State is not required to

       negate every conceivable hypothesis for how Lacy may have used McKinney’s

       identifying information lawfully.


[12]   Because the “lawful purpose” exception is an affirmative defense and not a

       material element of identity deception, Lacy’s tendered instruction incorrectly

       stated the law by including an affirmative defense as a material element of the

       offense. As such, the trial court did not abuse its discretion by rejecting this

       tendered instruction. See Nichols v. State, 542 N.E.2d 572, 575 (Ind. Ct. App.

       1989) (tendered instructions that contain incorrect statements of the law are

       properly refused).


[13]   Lacy’s other proposed instruction was offered to supplement the trial court’s

       instruction and stated only the “lawful purpose” affirmative defense contained

       in subsection (c)(3) of the identity deception statute. That instruction provided:
       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 7 of 11
       “The conduct prohibited by the crime of identity deception does not apply to

       any person who uses the identifying information for a lawful purpose.” (App.

       at 68.) Although a correct statement of law, the trial court properly rejected this

       instruction on another basis.


[14]   This tendered instruction defined an affirmative defense. Lacy bears the initial

       burden to establish that affirmative defense by a preponderance of the

       evidence. 3 See Adkins, 887 N.E.2d at 938 (defendants have initial burden to

       establish affirmative defense). If he did not adequately raise the defense at trial,

       then he was not entitled to the instruction. See Simmons, 999 N.E.2d at 1011

       (tendered instructions must be supported by the evidence).


[15]   Lacy never testified or offered evidence to support the premise that he used

       McKinney’s identifying information for a lawful purpose. Nor does any

       evidence presented by the State at trial suggest Lacy used the information for a

       lawful purpose. Thus, the trial court did not abuse its discretion by declining to

       give this tendered instruction because it was not supported by the record. See

       Clemens v. State, 610 N.E.2d 236, 241 (Ind. 1993) (tendered instruction on

       affirmative defense of accident properly refused where appellant never testified,




       3
         In his brief, Lacy does not assert he met his initial burden to support giving the affirmative defense
       instruction. Nor does he provide the legal standard by which we determine whether that burden was met.
       Lacy therefore waived this issue on appeal because he did not make a cogent argument supported by legal
       authority. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (failure to present cogent
       argument waives that issue for appellate review). Despite the waiver, to the extent we can, we choose to
       address this issue on the merits.

       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016                     Page 8 of 11
       offered no evidence in his defense, and all medical evidence concluded death

       was no accident), reh’g denied.


                                            Prosecutorial Misconduct

[16]   Lacy asserts the State committed prosecutorial misconduct by arguing Lacy had

       the burden to prove an affirmative defense. 4 In reviewing a claim of

       prosecutorial misconduct we determine whether misconduct occurred, and, if

       so, whether the misconduct placed the defendant in a position of grave peril to

       which he or she would not have been subjected otherwise. Jerden v. State, 37

       N.E.3d 494, 498 (Ind. Ct. App. 2015). The gravity of peril is measured by the

       probable persuasive effect of the misconduct on the jury’s decision rather than

       the degree of impropriety of the conduct. Id. To preserve a claim of

       prosecutorial misconduct, the defendant must request the jury be admonished

       at the time the alleged misconduct occurs, and if further relief is needed, move

       for a mistrial. Id. Failure to do so results in waiver. Id. Where a prosecutorial

       misconduct claim has been waived for failure to preserve, the defendant must

       establish not only the grounds for misconduct but also that the misconduct

       resulted in fundamental error, an extremely narrow exception. Id.




       4
         Lacy also waived the misconduct issue on appeal because he did not make a cogent argument supported by
       legal authority. See Hollowell, 707 N.E.2d at 1025 (failure to present cogent argument waives that issue for
       appellate review). Lacy mentions misconduct in the final paragraph of his Argument, but does not explain
       the standard by which we determine whether misconduct occurred. Nevertheless, to the extent we can, we
       address his assertion on the merits.

       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016                      Page 9 of 11
[17]   Lacy did not request an admonition or move for mistrial, so he has waived his

       prosecutorial misconduct argument on review. Waiver notwithstanding, Lacy’s

       argument fails. Lacy claims: “When the prosecutor tells the jury that the

       defendant has to prove his innocence, he is going farther than just misstating

       the law . . . [It] is prosecutorial misconduct.” (Appellant’s Br. at 11.) This

       assertion finds no support in the record. Nothing in the record demonstrates

       the prosecutor told the jury Lacy had the burden to prove his innocence or to

       prove an affirmative defense. All discussion of affirmative defenses occurred

       outside the presence of the jury.


[18]   Lacy seems to argue that because the prosecutor did not include the “lawful

       purpose” language as an element of identity deception, he was essentially

       telling the jury Lacy had the burden to prove his innocence on that element and

       that was misconduct. This argument fails for the same reason his instructional-

       error claim fails -- the “lawful purpose” language is not a material element of

       the offense, and as such, the prosecutor had no duty to prove it. We cannot say

       the prosecutor committed misconduct by correctly stating the law. See Deaton v.

       State, 999 N.E.2d 452, 456 (Ind. Ct. App. 2013) (holding prosecutor’s correct

       statement of law during closing argument that victim’s uncorroborated

       testimony was sufficient to support a conviction was not misconduct), trans.

       denied.




       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 10 of 11
                                                Conclusion
[19]   Because Lacy’s tendered instructions either incorrectly stated the law or were

       not supported by the record, the trial court did not abuse its discretion by

       declining them, and the prosecutor did not commit misconduct by discussing

       the elements as outlined in the court’s instructions. Accordingly, we affirm.


[20]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A04-1510-CR-1757 | August 16, 2016   Page 11 of 11
