Perkins v. State, 2--675A158

• Decision Date: 16 November 1976
• Docket Number: No. 2--675A158,2--675A158
• Citation: 171 Ind.App. 288,356 N.E.2d 1202
• Parties: Charles Jerome PERKINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1202

356 N.E.2d 1202

171 Ind.App. 288

Charles Jerome PERKINS, Appellant, v. STATE of Indiana, Appellee.

No. 2--675A158.

Court of Appeals of Indiana, Second District.

Nov. 16, 1976.

David L. Martenet, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Perkins appeals from his conviction for the crime of entering with intent to commit a felony. Ind.Ann.Stat. 35--13--4--5 (Burns Code Ed.1975).

Perkins contends that the evidence failed to prove that his entry was unauthorized and somewhat alternatively that the evidence does not disclose that he had a felonious intent at the time he made entry into the premises.

Taken most favorably to the State, the facts disclose the following: approximately three weeks prior to the occurrence in issue, Victoria McGlauchlen (Vickie), at that time a part-time employee of Rose Park Press, Inc., (Rose Park), a printing company, persuaded her brother, John McGlauchlen, (John), also an employee of Rose Park, to meet with Perkins, with whom she was living. At this initial meeting, Perkins and John, a printing press operator for Rose Park, discussed various ways to make money, including the possibility of printing checks. John indicated his ability to do so but refused. Later, Perkins mentioned to Vickie that he was in need of money and that he had a general plan which involved checks to which John might have access by reason of his employment. Thereafter on June 7, 1974 John visited Vickie's apartment at which time Perkins discussed at some length alternative ideas for obtaining checks. After a few hours of discussion, it was decided that all present in the apartment--John, Vickie, their sister Candy, Vickie's child, and Perkins would go to Rose Park 'to look and see if we could do it.'

They arrived at Rose Park late in the evening after the normal business hours and gained entrance by using John's key. Many of the Rose Park employees had such access keys. Once inside and after John explained the purposes and methods of most of the printing machinery to Perkins, Perkins drew John's attention to some preprinted blank checks bearing the name Producers Marketing Association, Inc. John thereupon explained that these pre-printed checks had been incorrectly printed, and the process by which the errors would be corrected. Then at Perkins' request John corrected twelve (12) of the flawed checks. Perkins placed these checks in an envelope which he slipped into his pocket. The group then left the building.

Perkins first asserts that the State failed to prove that the entry was unauthorized and trespassory. This assertion presupposes that I.C. 35--13--4--5, supra, requires such proof and, as a corollary, that consent by an owner or lawful possessor to the entry precludes conviction of the charge. In this regard, Perkins contends that John was authorized to enter the business premises and that therefore Perkins' accompanying entry was not trespassory and not unlawful even if he had an evil intent.

Perkins seeks legal support in Tinsley v. State (3d Dist. 1975) Ind.App., 330 N.E.2d 399, wherein the court stated:

'Although the evidence herein contains no direct showing of a lack of authorization of Tinsley's entry into the business-place, the absence of such authorization could have been inferred by the trier of fact from the circumstances surrounding such entry.' 330 N.E.2d at 401.

See also Turley v. State (1st Dist. 1972) 153 Ind.App. 156, 286 N.E.2d 223.

We do not construe this language to require that the State prove the absence of authorization, particularly since the Tinsley court held specifically that the statute 'requires only proof of an entry accompanied by felonious intent.' 330 N.E.2d at 401. In that case, the issue concerned the absence of intent, and it was held that such intent was properly inferable from the fact of an unauthorized entry and other implicating circumstances. See also Lisenko v. State (1976) Ind., 355 N.E.2d 841; Thomas v. State (1970) 255 Ind. 131, 263 N.E.2d 158; Tuggle v. State (1969) 253 Ind. 279, 252 N.E.2d 796; Davis v. State (1968) 251 Ind. 133, 239 N.E.2d 601; Wynn v. State (3d Dist. 1974) Ind.App., 319 N.E.2d 885; Cabell v. State (1st Dist. 1974) Ind.App., 312 N.E.2d 142. Compare Faulkner v. State (1973) 260 Ind. 82, 292 N.E.2d 594.

Here, the felonious intent was independently established. The nature of the entry was, therefore, not essential to the...