Eric D. Lacy v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION

ON REHEARING Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 21 2015, 6:00 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Graham Law Firm, PC Attorney General of Indiana Lafayette, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric D. Lacy, December 21, 2015 Appellant-Defendant, Court of Appeals Case No. 79A05-1412-CR-590 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1310-FB-28

Kirsch, Judge.

Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015 Page 1 of 4 [1] Eric D. Lacy appealed his convictions after a jury trial for auto theft as a Class

D felony, illegal drug lab as a Class C felony, possession of a syringe as a Class

D felony, possession of paraphernalia as a Class A misdemeanor, conspiracy to

commit burglary as a Class B felony, conspiracy to commit theft as a Class D

felony, burglary as a Class C felony, two counts of theft, each as a Class D

felony, and his adjudication as a habitual offender. Lacy petitions for rehearing

following our memorandum decision in Lacy v. State, No. 79A05-1412-CR-590

(Ind. Ct. App. Oct. 21, 2015), where we affirmed his convictions in part and

reversed his conviction for possession of a syringe. We reaffirm our holding,

but grant rehearing for the limited purpose of making two corrections to our

earlier opinion.

[2] First, Lacy asserts that he was not convicted of Class B felony possession of

methamphetamine and Class C felony possession of a schedule IV controlled

substance as was stated in our memorandum decision because these offenses

had been dismissed by the State prior to his jury trial. Lacy is correct in his

contention as, on October 6, 2014, the trial court granted the State’s motion to

dismiss these two counts. We, therefore, correct our opinion to reflect that

Lacy was not convicted of either Class B felony possession of

methamphetamine or Class C felony possession of a schedule IV controlled

substance.

[3] Second, Lacy contends that this court erred in stating that he signed a written

consent to search form at the time the police sought his consent to search the

apartment, and therefore, his consent was not validly obtained. Although Lacy Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015 Page 2 of 4 is correct that the record does not reflect that he signed the consent form, we

disagree that this changes our determination that his consent was validly

obtained. “The voluntariness of the consent to search is to be determined by

considering the totality of the circumstances[, and] [a] consent to search is valid

except where it is procured by fraud, duress, fear, intimidation, or where it is

merely a submission to the supremacy of the law.” Bulthuis v. State, 17 N.E.3d

378, 383 (Ind. Ct. App. 2014), trans. denied.

[4] Here, after Lacy exited the apartment, he was provided with a written consent

to search form, which was read to him by one of the officers. The form advised

Lacy that he had a Constitutional right: (1) not to have a search conducted of

the premises and vehicles under his control; (2) to refuse to consent to such a

search; (3) to have an attorney appointed for him if he could not afford one; and

(4) to consult with an attorney before deciding whether to consent to the search.

State’s Ex. 28. After being read the consent form, Lacy verbally consented to a

search of the apartment. Tr. at 261-62. At that time, there were several officers

present in uniform and at least one detective in plain clothes, and the officers

were not deceptive as to their identity or the purpose of the search. The reading

of the consent form and Lacy’s verbal consent to search occurred on the front

porch of the apartment in the early afternoon, and when the officers spoke to

Lacy, they did not make any express or implied claim of authority to search

without Lacy’s consent. Nothing in the record suggested that Lacy was unable

to understand the consent form, and the trial court was aware that Lacy had

multiple prior encounters with law enforcement as he was facing allegations of

Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015 Page 3 of 4 being a habitual offender. Therefore, although we correct our previous opinion

to the extent that it stated that Lacy signed a written consent to search form, we

still conclude that, based on the totality of the circumstances, the trial court did

not abuse its discretion in determining that Lacy voluntarily consented to the

search of the apartment.

[5] Affirmed on rehearing.

Najam, J., and Barnes, J., concur.

Court of Appeals of Indiana |Memorandum Decision on Rehearing 79A05-1412-CR-590 | December 21, 2015 Page 4 of 4