Harry L. Lacy v. State of Indiana, 2016 Ind. App. LEXIS 294

Lacy visiting his wife Cassandra Collins in Delaware County Jail signed in as ‘Mark McKinney’ and claimed to be Collins’ lawyer using McKinney’s business card.
He passed through three security doors and met Collins in a private room before a jail officer realized Lacy was not a lawyer.
McKinney was not at the jail and did not authorize Lacy to use his identifying information.
The State charged Lacy with Level 6 felony identity deception; the court gave the pattern jury instruction and Lacy tendered two other instructions.
The jury found Lacy guilty as charged; the trial court rejected the tendered instructions.
Lacy appealed alleging instructional error and prosecutorial misconduct related to the burden of proving an affirmative defense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the tendered instruction on lawful purpose was error	Lacy argued the pattern instruction omitted unlawful-use element and wanted lawful-purpose language added.	Lacy maintained the lawful-purpose language is a material element of identity deception.	No; lawful purpose is an affirmative defense, not a material element.
Whether the trial court abused its discretion in denying the instructed tender	Lacy contends the court should have given his proposed instruction replacing element five with lawful-use language.	State argues the proposed instruction misstated law by making an affirmative defense a material element.	No; court did not abuse discretion; proposed instruction was improper.
Whether the second tendered instruction on lawful purpose was properly rejected	Lacy asserted a correct statement of law about lawful purpose should have been given.	State notes the instruction defined an affirmative defense, which Lacy did not prove at trial.	No; instruction was not supported by the record and would constitute error.
Whether prosecutorial conduct amounted to misconduct	Lacy claimed the prosecutor misstated who bears the burden by discussing affirmative defenses.	State contends there was no misstatement; arguments outside the jury’s view clarified the law.	Waived for not preserving admonitions, but no reversible misconduct found.

Hayes v. State, 15 N.E.3d 82 (Ind. Ct. App. 2014) (instruction review for abuse of discretion welfare)
Simmons v. State, 999 N.E.2d 1005 (Ind. Ct. App. 2013) (instructions as a whole must be considered)
Gravens v. State, 836 N.E.2d 490 (Ind. Ct. App. 2005) (pattern instructions favored for clarity)
Cochrane v. Lovett, 337 N.E.2d 565 (Ind. Ct. App. 1975) (pattern instructions’ authority noted)
Stanley v. State, 252 Ind. 37, 245 N.E.2d 149 (1969) (statutory exceptions may be affirmative defenses)
Day v. State, 251 Ind. 399, 241 N.E.2d 357 (1968) (possession crimes and exceptions context)
Neese v. State, 994 N.E.2d 336 (Ind. Ct. App. 2013) (statutory exceptions as affirmative defenses)
Wilson v. State, 4 N.E.3d 670 (Ind. Ct. App. 2014) (lack of knowledge as affirmative defense context)
Deaton v. State, 999 N.E.2d 452 (Ind. Ct. App. 2013) (prosecutor’s accurate statement of law not misconduct)