Lisenko v. State

• Decision Date: 20 April 1976
• Docket Number: No. 3--575A78,3--575A78
• Citation: 345 N.E.2d 869
• Parties: John R. LISENKO and Walter Anthony Stepien, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

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Opinion Superseded, see 355 N.E.2d 841.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 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, around mid-night.' Petty also testified that before securing the premises it was necessary 'to get a clearing signal from ADT, making sure all doors are closed. It won't give us a clearing signal, and if it hadn't been, we couldn't have closed and a man would have been sent out immediately.' Petty also stated that both Lisenko and Stepien were former employees of Indiana Carton Company, that they were not so employed on November 24, 1973, and that they did not have permission to be in the building on the date in question.

The only issue which will be considered on appeal is whether appellants' convictions are supported by sufficient evidence.

It is to be noted that when questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that a reasonable inference of guilt may be drawn therefrom. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons whether they be the jury or, as in the present case, the trial court, could not form inferences with regard to each material element of the offense so as to ascertain a defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), Ind.App., 299 N.E.2d 233.

The separate informations filed against appellants properly charged, in each instance, the offense of entering to commit a felony. Adams v. State (1951), 230 Ind. 53, 101 N.E.2d 424. Under the statute, IC 1971, 35--13--4--5, supra, and informations filed herein, the State was required to establish two elements: 1) entering into a businesshouse; and 2) intent to commit the felony of theft therein.

In this instance, there is ample evidence that appellants entered into a businesshouse occupied by Indiana Carton Company and did so without permission. However, evidence which would support...