COA affirms conviction of man who used lawyer’s identity in jail

Whether someone used another person’s identity for a lawful purpose is an affirmative defense to the crime of identity deception and not a material element of the crime, the Indiana Court of Appeals ruled in a first impression matter.

Harry L. Lacy’s wife was an inmate in the Delaware County jail whose attorney was Mark McKinney. Lacy, in an attempt to have unsupervised private contact with his wife, signed in at the jail as McKinney and claimed to be her attorney. He went through three security doors and sat down in a meeting room with his wife before an officer who knew Lacy was not a lawyer recognized him. McKinney did not give Lacy permission to use his identifying information.

Lacy was charged with and convicted of Level 6 felony identity deception. Lacy objected to the pattern jury instruction on the crime and tendered to other instructions involving “lawful purpose” that the trial court rejected.

Whether the “lawful purpose” language in I.C. 35-45-5-3.5, which defines identity deception, is an affirmative defense or a material element is a first impression issue, Judge Melissa May noted. After looking at the statute, the judges determined that the placement of the “lawful purpose” exception that appears in a clause with age-based exceptions suggests that the Legislature intended it to be an affirmative defense and not a material element of identity deception.

As such, Lacy’s tendered instruction incorrectly stated the law by including an affirmative defense as a material element of the offense. His other tendered jury instruction defined an affirmative defense, but he never testified or offered evidence to support the premise that he used McKinney’s identifying information for a lawful purpose, May wrote.

Lacy also claimed the state committed prosecutorial misconduct by arguing Lacy had the burden to prove an affirmative defense. He never requested an admonition or moved for a mistrial on the matter. Waiver notwithstanding, his argument fails. Nothing in the record demonstrates the prosecutor told the jury Lacy had the burden to prove his innocence or to prove an affirmative defense.

The case is Harry L. Lacy v. State of Indiana, 18A04-1510-CR-1757.