May, J.
Harry L. Lacy appeals his conviction of Level 6 felony identity deception arguing 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.
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.
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Lacy signed in as “Mark McKinney” and claimed to be Collins’ lawyer.
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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.
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The preferred practice is to use the pattern jury instructions. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) … 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.
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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.” …
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. … We agree.
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. …
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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). …
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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).
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Lacy asserts the State committed prosecutorial misconduct by arguing Lacy had the burden to prove an affirmative defense. … ….
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.
Affirmed.
Baker, J., and Brown, J., concur.