Lisenko v. State, No. 3--575A78

Docket NºNo. 3--575A78
Citation345 N.E.2d 869
Case DateApril 20, 1976
CourtCourt of Appeals of Indiana

Page 869

345 N.E.2d 869
John R. LISENKO and Walter Anthony Stepien, Defendants-Appellants,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 3--575A78.
Court of Appeals of Indiana, Third District.
April 20, 1976.
Rehearing Denied June 2, 1976.
Opinion Superseded, see 355 N.E.2d 841.

Edward Olczak, South Bend, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

On November 27, 1973, defendants-appellants John R. Lisenko and Walter Anthony Stepien were charged by separate informations with the offense of entering to commit a felony as defined in IC 1971, 35--13--4--5 (Burns Code Ed.), which provides, in pertinent part, as follows:

'Whoever enters any * * * business house, * * * with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'

Following trial to the court, Lisenko and Stepien were found guilty as charged, sentenced to the custody of the Indiana Department of Corrections for a period of not less than one nor more than five years, and ordered to satisfy costs. Thereafter, their respective amended motions to correct errors were overruled and these appeals were perfected.

An examination of the evidence most favorable to appellee State discloses that shortly after 4:00 A.M. on the morning of November 24, 1973, a police radio call directed Officers Ronald Marciniak and Gerald L. Jankowski of the South Bend Police Department to a building housing the Indiana Carton Company located at 2620 West Sample Street in the City of South Bend, Indiana. This call was broadcast in response to an alert from the building's alarm system. Upon their arrival, the officers discovered that a steel door located near the southwest corner of the building had been pried open. Officer Marciniak testified, under direct examination by the State, that the door 'was bent and paint was scratched, bent up around the locking area of the knob.' Thereafter,

Page 871

Officer Jankowski, accompanied by a police dog, entered the building and '(a) pproximately ten, fifteen, twenty feet from the door,' confronted 'two suspects with their hands up stating they 'gave up." At trial, the 'two suspects' were identified as appellants Lisenko and Stepien. Following the apprehension of appellants, two pry bars were discovered on the floor 'two or three feet' inside of the door.

Kenneth H. Petty, the President of Indiana Carton Company, testified, under direct examination by the State, that the building in question was equipped with a silent alarm system which was maintained by 'American District Telegraph' and that 'all the outer doors, all the outer entrances and so forth are tied into an alarm system.' Petty further testified, under re-direct examination, that prior to the alleged break-in the door through which entry was made had been '(i)n workable condition', and that it was 'closed every night about the same time,...

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3 practice notes
  • Clayton v. State, No. 2--476A165
    • United States
    • September 22, 1976
    ...inferences which may be drawn therefrom. Siblisk v. State (1975) Ind., 336 N.E.2d 650; Lisenko v. State (3d Dist. 1976), Ind.App., 345 N.E.2d 869. It was, however, incumbent upon the State at trial to present sufficient evidence to establish all elements of the crime beyond a reasonable dou......
  • Lisenko v. State, No. 1076S346
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1976
    ...for one to five years. The convictions were subsequently reversed by the Court of Appeals. Lisenko v. State, (1976) Ind.App., 345 N.E.2d 869. The State has filed a petition for transfer in this case. We grant that petition and vacate the decision of the court below. The judgment of the tria......
  • Castaneda v. State, No. 2-576A187
    • United States
    • Indiana Court of Appeals of Indiana
    • February 21, 1978
    ...to an issue closely akin to this issue, but not at all the same issue. That Supreme Court opinion supersedes a Court of Appeals opinion (345 N.E.2d 869, 872) which had held that "the evidence presented does not support any inference that appellants intended to commit theft upon entering the......
3 cases
  • Clayton v. State, No. 2--476A165
    • United States
    • September 22, 1976
    ...inferences which may be drawn therefrom. Siblisk v. State (1975) Ind., 336 N.E.2d 650; Lisenko v. State (3d Dist. 1976), Ind.App., 345 N.E.2d 869. It was, however, incumbent upon the State at trial to present sufficient evidence to establish all elements of the crime beyond a reasonable dou......
  • Lisenko v. State, No. 1076S346
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1976
    ...for one to five years. The convictions were subsequently reversed by the Court of Appeals. Lisenko v. State, (1976) Ind.App., 345 N.E.2d 869. The State has filed a petition for transfer in this case. We grant that petition and vacate the decision of the court below. The judgment of the tria......
  • Castaneda v. State, No. 2-576A187
    • United States
    • Indiana Court of Appeals of Indiana
    • February 21, 1978
    ...to an issue closely akin to this issue, but not at all the same issue. That Supreme Court opinion supersedes a Court of Appeals opinion (345 N.E.2d 869, 872) which had held that "the evidence presented does not support any inference that appellants intended to commit theft upon entering the......

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