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.
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[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
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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
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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.
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