Castaneda v. State

372 N.E.2d 1191, 175 Ind. App. 519, 1978 Ind. App. LEXIS 816

• Court: Indiana Court of Appeals
• Decided: February 21, 1978
• Docket: 2-576A187
• Status: Published

Opinions

WHITE, J. —

Michael A. Castaneda was tried by the court and found guilty of second degree burglary. The information filed against him reads in pertinent part as follows:

“* * * did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of GOODWILL INDUSTRIES OF CENTRAL INDIANA INC., then and there situated at 3228 E. 10th St., City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to-wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said GOODWILL INDUSTRIES OF CENTRAL INDIANA INC., and to deprive said GOODWILL INDUSTRIES OF CENTRAL INDIANA INC. of the use and benefit of said property, then and there being * * *.”

Castaneda concedes that the evidence proves he broke and entered the Goodwill store. He contends, however, that the evidence is insufficient to sustain a finding that he intended to steal property belonging to Goodwill, an essential element of the particular crime here charged. On this contention, we reverse.

The testimony of one of the apprehending police officers is that he and a fellow officer investigated “a second-degree burglary occurring at [a Goodwill store located at] 3228 East Tenth Street”, Indianapolis, on July 2, 1975. The Goodwill store and a coin shop, both of which front on East Tenth Street, are in the same building. The coin shop occupies the southeast corner of the building and Goodwill’s store is the shape of an L to the north and west of the shop. There is no door or window between the shop and the store. The only door and window of the coin shop are on its south side, on Tenth Street.

When the officers arrived they found a broken window on the west side of the Goodwill store near the rear and heard a pounding inside the store. Looking through the front window they saw two men coming from the east to the west side of the store. The men, one of whom was Casteneda, were apprehended as they left by a rear door. Inside the Goodwill store the officers found a hole approximately two feet in diameter in the north wall of the coin shop (a south wall of Goodwill). Near the hole the officers found a duffel bag, a small sledge hammer, a chisel and other small hand tools which the testifying officer “supposed” (without objection) belonged to the intruders. There was no evidence that these objects belonged to Goodwill and no evidence that any Goodwill property was disturbed. Nor was there any express testimony im dicating whether the incident occurred in the daytime or the nighttime, nor was there any direct evidence that the doors were closed before Castaneda and accomplice entered. However, the testimony that the window was broken is sufficient to support an inference that entry was made by breaking it. The only issue in this case is whether there is evidence sufficient to sustain the implied finding that Castaneda entered with intent to exert unauthorized control over Goodwill’s personal property, which was the felonious intent charged.

Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841, 842-843, speaks 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 does not support any inference that appellants intended to commit theft upon entering the building”. That holding was based on the fact that “[tjhere is no evidence that any property inside of the building was missing or disturbed in any manner”. The Court of Appeals therefore reversed. Judge Garrard concurred because he felt bound to do so by Indiana Supreme Court precedent, including Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795. He also wrote a concurring opinion in which he expressed agreement with Justice Arterburn’s dissent in Crawford and opined that “[i]n the absence of evidence that the entry was made with some other intent, the intent to commit a felony may reasonably be inferred from the time and manner in which the entry was made.”

When the Supreme Court granted Lisenko’s petition to transfer Justice Arterburn wrote the majority opinion which overruled Crawford v. State, supra, and held that “[i]n 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.” (355 N.E.2d at 842, our emphasis.)

We have no hesitancy in applying that rule to the case at bar and when we do it leads us to the conclusion that the trier of fact below had ample reason to infer from the evidence before him that Castaneda and his companion broke and entered Goodwill’s store with intent to commit a felony, but not to commit the felony alleged, i.e., not the intent to steal Goodwill’s property. There is no absence here, as there was in Lisenko, of evidence of an intent other than the intent charged. The State’s uncontroverted evidence of what Castaneda and friend did after they entered supports only one reasonable inference of felonious intent: Intent to burglarize the coin shop. They were too busily and noisily engaged in the task of digging their way into the coin shop for theft of Goodwill’s merchandise to have been their objective when they entered Goodwill’s store. Such an inference is unreasonable. The evidence as to the structural relationship of the coin shop and the store makes obvious their reason for trying to break into the coin shop through the store. The coin shop had no door or window except on Tenth Street which we and the trial court judicially know is a well traveled vehicular artery. Fortunately for the coin shop proprietor their secluded digging spot in the “L” of the Goodwill store was not as isolated from public notice (auditory if not visual) as they apparently had supposed. Had Castaneda been charged with breaking and entering Goodwill’s store with intent therein to feloniously and burglariously break and enter into the adjacent coin shop with intent to commit theft therein, the evidence would have proved that charge. But Castaneda has never been in jeopardy of that charge.

The judgment is reversed and the cause is remanded with direction to acquit and discharge the defendant as to the crime of which he was convicted in this cause.

Reversed and remanded with directions.

Lowdermilk, J., participating by designation, concurs.

Sullivan, P.J., dissents with opinion.