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Whether Indiana Identity Fraud is for "Unlawful Purpose" is Affirmative Defense, Not Element of Offense

by Mark Wilson

The Indiana Court of Appeals held that whether a person falsely uses another person's identity is "for an unlawful purpose" is an affirmative defense rather than an element of the offense.

Cassandra Collins was detained in Indiana's Delaware County Jail, facing pending criminal charges. She was represented by attorney Mark McKinney.

On January 31, 2015, Collins's husband, Harry L. Lacy signed into the Jail as Mark McKinney. He gave a guard a business card that read "Mark McKinney, Attorney at Law," claimed to be Collins's lawyer, and said he needed to see his client.

Lacy made it through three security doors and into a meeting room with Collins before he was recognized by a guard who knew he was not a lawyer. Nevertheless, Lacy continued to claim he was Collins's lawyer as he was escorted from the jail. McKinney was not at the jail that day and he did not give Lacy permission to use his identity.

Indiana charged Lacy with Level 6 felony identity deception. The court gave the pattern jury instruction outlining the elements of the offense.

Lacy objected, arguing that the 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." Lacy then requested that the court instruct the jury that "for an unlawful purpose" was a requisite element of identity deception.

The trial court denied Lacy's request, finding that the "lawful purpose" language is an affirmative defense rather than a material element of the crime. A jury then found Lacy guilty.

The Indiana Court of Appeals affirmed, finding that the "lawful purpose" language is an affirmative defense that Lacy was required to prove by a preponderance of the evidence.

"Lacy never testified or offered evidence to support the premise that he used McKinney's identifying information for a lawful purpose," the Court found. "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: Lacy v. State, No. 18A04-1510-CR-1757 (Ind. Ct. App., August 16, 2016)

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Related legal case

Lacy v. State, No. 18A04-1510-CR-1757



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