Vacendak v. State, 1080S386

• Court: Supreme Court of Indiana
• Citation: 431 N.E.2d 100
• Docket Number: No. 1080S386,1080S386
• Parties: Donald Lee VACENDAK, Appellant, v. STATE of Indiana, Appellee.
• Decision Date: 16 February 1982

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431 N.E.2d 100 Donald Lee VACENDAK, Appellant,
v.
STATE of Indiana, Appellee. No. 1080S386. Supreme Court of Indiana. Feb. 16, 1982.

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Arlington J. Foley, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Vacendak was found guilty by a jury of the crime of Class B Burglary and sentenced to a term of fifteen (15) years on May 5, 1980. He raises issues for our review concerning the denial of motions, the admission of evidence, the appearance of an accomplice witness, the denial of bail and sentencing.

The evidence showed that the Hammond police were alerted to a possible burglary in progress at Val's Pharmacy at 6520 Calumet Avenue, Hammond, Lake County, Indiana, at the hour of 1:00 a. m., on August 11, 1979. When police arrived they found that four concrete blocks had been broken out of the rear of the building creating a hole into the interior of the building. A sledge hammer and pick were found near the hole. Several police units came to the scene. Sergeant Bruce Perisho looked in the window of the Pharmacy and saw the appellant, Donald Lee Vacendak, and another individual walking around the aisles inside the store. He saw the butt of a revolver in the waistband of Vacendak's trousers. Perisho saw the revolver fall out of Vacendak's trousers onto the floor as he scrambled away. This officer knew Vacendak and recognized him. Perisho later observed Lt. Miskus pick up a gun lying on the floor

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inside the Pharmacy. Lt. Miskus turned the gun over to Sgt. Perisho. Officer Lyn West, Jr., was assigned to the canine unit of the Hammond police. He and a fellow officer took patrol dogs into Val's Pharmacy and located two male subjects lying in the crawl space between the ceiling and the roof of the building. One of the subjects was appellant Vacendak and the other was Matthew Spicker, a juvenile, 16 years of age. A large box of drugs and syringes was found sitting out in the aisle of the store.

Appellant testified in his own behalf and stated that he, Spicker, and one Stephen Dembowski, committed the burglary in order to obtain drugs. Defendant claimed he had an addiction or strong psychological dependence upon drugs and that he had consumed alcohol and drugs prior to the burglary that day. He further testified that the gun belonged to Matt Spicker and that Spicker was the one who had possession of it. He further testified that he did not know that Matt Spicker had the gun until just prior to the break-in.

I.

Appellant claims it was error for the court to overrule his motion for judgment on the evidence at the end of the State's case in chief and his Motion at the conclusion of all of the evidence because of the failure of the State to prove that the Pharmacy in this case was "of another person, that the entry was unauthorized and that the weapon used was deadly or that defendant possessed it."

Appellant waived any alleged error in the denial of his motion for judgment on the evidence at the close of the State's case when, after such denial, he presented evidence on his own behalf. Dodson v. State, (1978) 269 Ind. 380, 381 N.E.2d 90; Downs v. State, (1977) 267 Ind. 342, 369 N.E.2d 1079, 1081. In addition, here there was also sufficient evidence for the court to properly deny said motion. The test of sufficiency at this point is whether there is substantial evidence of probative value for the jury to determine guilt beyond a reasonable doubt. Faught v. State, (1979) Ind., 390 N.E.2d 1011; Harris v. State, (1981) Ind.App., 416 N.E.2d 902, 905. We have repeatedly held that in reviewing sufficiency arguments we consider only that evidence which is most favorable to the State together with all the reasonable and logical inferences to be drawn from the evidence. We do not reweigh the evidence or determine credibility of witnesses. McCollum v. State, (1980) Ind., 413 N.E.2d 912, 913; Charlton v. State, (1980) Ind., 408 N.E.2d 1248, 1249.

Appellant based his motion, at least in part, on the fact that Val Grimberg, the owner of the Pharmacy, did not appear as a witness. However, Val Grimberg's brother, George Grimberg, did appear, and testified that Val Grimberg was the owner of the burglarized premises. In addition to the inferences that could be drawn from the facts presented demonstrating the method of entry into the premises, both Matthew Spicker and appellant testified that they entered the premises for the purpose of obtaining items of drugs and further testified that they had no authority or permission from Val Grimberg to enter upon the premises.

There was evidence that the appellant and Spicker went to appellant's home and obtained a hammer, a pick, and a gun, with the express purpose of using these items in the burglary. The gun was a .44 calibre Smith and Wesson revolver. Matthew Spicker testified that the afternoon before the robbery he and Appellant had practiced using the pistol and had shot it at least one hundred times on the shores of Lake Michigan. Officer Perisho testified that he saw the weapon on Vacendak's person when he first spotted appellant inside the store and that the weapon fell to where the police retrieved it in Perisho's presence. Furthermore, even if Spicker were the one who had possession of the pistol at the time of entry, the evidence would be sufficient to show Appellant committed Class B Burglary. When confederates combine to commit an offense, each is responsible for the acts committed in furtherance of their common design. Hogan v. State, (1980) Ind., 409

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N.E.2d 588, 590; Barnes v. State, (1978) 269 Ind. 76, 378 N.E.2d 839.

Ind.Code § 35-41-1-2 (Burns 1979) defines the term "deadly weapon" used in Ind.Code § 35-43-2-1 (Burns 1979) as "(1) a loaded or unloaded firearm...." Officer Perisho testified that the revolver was loaded with six live rounds when he took possession of it in the store and Spicker testified it was in firing condition.

There was sufficient evidence presented to the jury for it to find beyond a reasonable doubt that the defendant committed the crime of Burglary Class B as charged and the trial court properly overruled motions for judgment on the evidence at the close of the State's case in chief and at the close of all the evidence.

II.

Several items of evidence were offered by the State and objected to by Appellant. These items included a photograph of the rear wall of Val's Pharmacy, showing a hole broken in the wall, the gun found by police on the premises, a pick and sledge hammer, shells taken from the gun and one shell taken from the person of Appellant. Appellant's objections to these items of evidence was based on the fact that they were presented before the corpus delicti had been proved, or, in other words, before there was sufficient evidence to prove that the crime charged had actually been committed by someone. His objections were based in part on the arguments made in Issue I, supra, that there was a lack of proof of ownership of the invaded premises and lack of authority to enter it. In view of our finding on those issues, his argument fails here. Furthermore, Appellant misapplies the corpus delicti rule. At one time the preferred method of presenting evidence in Indiana was that the State was required to prove the corpus delicti before evidence could be admitted of the admission of extra-judicial confessions or admission of guilt by the defendant. Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712, 715. In Collison v. State, (1975) 165 Ind.App. 596, 333 N.E.2d 787, 789, the Court of Appeals stated:

"Generally the corpus delicti consists of independent evidence of each of the elements of the crime. Cambron, supra. The order of proof of the independent evidence is within the sound discretion of the trial judge and no abuse will occur where the nature of the case, the evidence, or convenience requires a deviation from the usual order. Thomas v. State, (1975), (262) Ind. (590), 321 N.E.2d 194; Ballard (v. State, 262 Ind. 482, 318 N.E.2d 798), supra."

In 1978, this Court held in McDaniel v. State, 268 Ind. 380, 375 N.E.2d 228, that the State was not required to prove the corpus delicti by independent evidence prior to the introduction of a confession so long as the State, at some point, adduced the necessary proof to establish a corpus delicti. Order of evidence is a matter to be determined in the sound discretion of the trial judge....