Lisenko v. State
| Decision Date | 15 October 1976 |
| Docket Number | No. 1076S346,1076S346 |
| Citation | 355 N.E.2d 841,265 Ind. 488 |
| Parties | John R. LISENKO and Walter Anthony Stepien, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Edward Olczak, South Bend, for appellants.
Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.
The Appellants, John R. Lisendo and Walter Anthony Stepien, were convicted on December 5, 1974, of entering to commit a felony. Ind.Code. § 35--13--4--5 (Burns 1975). Each Appellant was sentenced to imprisonment 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 trial court is affirmed.
The evidence at trial revealed that at 3:59 a.m. on November 24, 1973, the Appellants entered the premises of the Indiana Carton Company in South Bend, Indiana. The building was equipped with a silent alarm maintained by American District Telegraph ('ADT'), which was set off when the Appellants entered. South Bend Police Officers Ronald Marciniak and Gerald Jankowski arrived at the scene at 4:05 a.m. The officers discovered that a door to the building had been pried open. Officer Jankowski entered the building with his police dog. 'Approximately ten, fifteen, twenty feet from the door,' he confronted 'two suspects with their hands up stating they 'gave up." Two pry bars were then discovered on the floor 'two or three feet' inside the door.
Kenneth H. Petty, president of the Indiana Carton Company testified that the company building was closed every night at about midnight and that before the premises could be secured it was necessary 'to get a clearing signal from ADT, making sure all doors are closed.' He testified further that the Appellants had previously worked for him and that they had not received permission to enter the building.
The Appellants present three contentions in this appeal: that the information by which they were charged did not charge the commission of a criminal offense; that the jury's verdict was not supported by sufficient evidence; and that the verdict was contrary to law. The second and third issues both attack the sufficiency of the evidence and will be considered together.
These contentions draw our attention to the statute under which the Appellants were charged, Ind.Code § 35--13--4--5 (Burns 1975):
'Entering to commit a felony.--Whoever enters any dwelling house, or other place of human habitation, business house, outhouse, shop, office, storehouse, warehouse, mill, distillery, pottery, factory, barn, stable, schoolhouse, church, meeting house, or any building used for religious worship, booth, tent, inclosed ginseng garden, boat, warf-boat, or other watercraft, car, factory, freight house, station house, depot, railroad car, interurban or streetcar, or any other erection or inclosure, 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.'
Under this statute and the information by which the Appellants were charged, the State was required to establish two elements: (1) entry into a business house; and (2) intent to commit the felony of theft therein.
The Appellants' sufficiency arguments assert that the evidence in this case failed to establish the second element, intent. We do not agree. The evidence at trial established that entry to the building in question was effected by prying open a locked steel door at about 4:00 a.m. No employees of the business were present in the building. The Appellants offered no explanation for their presence. In the absence of evidence that this forced entry was made with some lawful intent, we think that the intent to commit a felony may be reasonably inferred from the time, force, and manner in which the entry here was made. In addition, the Appellants' statement to...
To continue reading
Request your trial
-
Joy v. State
...the information by a timely filed motion to dismiss. Brown v. State, (1982) Ind., 442 N.E.2d 1109, 1114; Lisenko v. State, (1976) 265 Ind. 488, 492, 355 N.E.2d 841, 843; Howard v. State, (1982) Ind.App., 431 N.E.2d 868, 870; Pettigrew v. State, (1975) 165 Ind.App. 390, 392, 332 N.E.2d 795, ......
-
Fox v. State
...residence. inference of suspicious or wrongful activity. See Carter v. State (1976), 265 Ind. 535, 356 N.E.2d 220; Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841; Sleck v. State (1977), Ind.App., 369 N.E.2d 963. The defendants had gone to a stranger's house, uninvited, in the dark ea......
-
Hahn v. State
...stated: "Occasionally, this Court has upheld a verdict finding intent to steal from simple breaking and entering. Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841; Carter v. State (1976), 265 Ind. 535, 356 N.E.2d 220. More often, we have required that some fact in evidence point toward......
-
Vaughan v. State
...Anderson v. State, (1981) Ind., 426 N.E.2d 674; Carter v. State, (1976) Ind., 265 Ind. 535, 356 N.E.2d 220; Lisenko v. State, (1976) Ind., 265 Ind. 488, 355 N.E.2d 841; Keirns v. State, (1980) Ind.App., 403 N.E.2d 361; Davis v. State, (1980) Ind.App., 398 N.E.2d 704; Perdue v. State, (1979)......