Harry L. Lacy, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Delaware Circuit Court Trial Court Cause No.
18C05-1502-F6-52 Honorable Thomas A. Cannon, Jr., Judge
Attorney for Appellant Jill A. Gonzalez Public Defender's
Office Muncie, Indiana
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana Brian Reitz Deputy Attorney General Indianapolis,
Harry L. Lacy appeals his conviction of Level 6 felony
identity deceptionarguing the trial
court abused its discretion by declining to give his tendered
jury instructions. He also claims the prosecutor committed
misconduct by arguing Lacy had the burden to prove an
affirmative defense. We affirm.
and Procedural History
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
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.
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.
Discussion and Decision
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
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.
Before you may convict Harry L. Lacy of Count 1, Identity
Deception, a Level 6 felony, the State must have proven each
of the ...