The 7th District Court of Appeals has overturned a man’s breaking-and-entering conviction despite the fact that police caught him trespassing inside a dark former department store in Struthers about 1:30 a.m. Dec. 11, 2011, with store merchandise in his bag.
The three-judge appeals panel unanimously nullified the conviction because it said the prosecution didn’t meet its burden of proving that John Tesyk, 52, of Parkcliff Avenue, Struthers, “acted with force, stealth or deception.”
Tesyk was convicted in a November 2012 jury trial before Judge Maureen A. Sweeney of Mahoning County Common Pleas Court.
During the yearlong appeal, the 7th District Court stayed the 10-month prison term Judge Sweeney imposed on Tesyk.
Tesyk, who wore dark clothes, “was clearly trespassing, but there was no evidence that he was acting secretly or slyly to remain in the building,” the appeals panel ruled.
The Bridge Street building is the former Nick’s Department Store, which was vacant and being remodeled.
Four Struthers police officers, including Capt. Patrick Bundy, went to the building Dec. 11, 2011, after a witness reported Tesyk had entered the building.
The officers, who entered the building, reported that the building’s door was “slightly ajar,” but did not appear to have been forced open.
Capt. Bundy testified during the trial that he called Tesyk by name several times, the last time identifying himself as a police officer, and Tesyk then emerged from another room in the building.
The captain also testified that Tesyk acknowledged being the owner of a bag on the floor, which contained four shirts and three pairs of pants with Nick’s labels on them, but the captain said Tesyk did not try to hide or run from police.
Police arrested Tesyk, who later was indicted by the county grand jury on the fifth-degree felony breaking-and-entering charge.
This month’s appeals court decision was written by Judge Gene Donofrio, with Judges Joseph J. Vukovich and Cheryl L. Waite concurring.
During the appeal, Tesyk was represented by Atty. John Falgiani Jr. of Warren, and the prosecution was represented by Ralph Rivera, an assistant county prosecutor.