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01/18/89 the People of the State of v. Phillip G. Mortenson

January 18, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILLIP G. MORTENSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 1134, 178 Ill. App. 3d 871, 128 Ill. Dec. 46 1989.IL.41

Appeal from the Circuit Court of Du Page County; the Hon. Ronald B. Mehling, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The defendant, Phillip G. Mortenson, was convicted of criminal trespass to land (Ill. Rev. Stat. 1987, ch. 38, par. 21-3) and was fined $25 and placed on court supervision. He appeals, contending: (1) that the complaint charging the offense was fatally defective as it failed to allege that the defendant was wrongfully upon the land of another or that he was on the land of another without agreement or arrangement at the time of the trespass; and (2) that because the defendant was on the land of another by virtue of a license, he was exempt from prosecution under the criminal trespass to land statute until such time as said license was revoked.

We determine that the defendant's contentions are without merit and affirm.

On July 11, 1987, the defendant, accompanied by two friends, paid $1.50 for a ticket to the Tivoli Theatre, a movie house located in Downers Grove, Illinois. During a premovie commercial, the defendant cheered and shouted, attracting the attention of the theatre manager, Greg Porcaro, who asked the defendant to be quiet. Defendant was uncooperative, and Porcaro directed him to go to the lobby to discuss the matter. The defendant refused, and Porcaro told him to leave or he would call the police; defendant again refused. Ultimately, Porcaro called the police, who arrested defendant in the lobby of the theatre.

The criminal complaint signed by Porcaro alleged the following, as relevant to this appeal:

"[At] or about the hour of 9:29 P.M. on or about the 11th day of July 1987 . . . Phillip G. Mortenson hereinafter called the defendant committed the offense of CRIMINAL TRESPASS TO LAND in violation of section 21 -- 3(a) . . . to wit; that the said defendant knowingly remained upon the land of Greg G. Porcaro, located at 936 Warren Ave., Downers Grove, Illinois, Du Page County, after receiving notice from the Manager of the Tivoli Theatre, 936 Warren Ave., Downers Grove, (Greg G. Porcaro), to depart."

At a bench trial defendant presented his own testimony and that of his two friends; the State's sole witness was Greg Porcaro. All the witnesses testified that Porcaro told defendant to leave and that defendant refused to do so. The trial court found the defendant guilty of criminal trespass to land and, for reasons not made clear, ordered Porcaro to refund the admission price of the movie to the defendant and his friends. This appeal ensued.

Defendant contends that the complaint is insufficient on its face for failure to allege that he was wrongfully upon the land of another or, as an apparent alternative argument, for failure to allege that defendant was upon the land "without agreement or arrangement with the owner or his agent." Additionally, defendant contends that because he was in the theatre as an admission-paying patron holding a ticket, he was on the land by virtue of a license and thus could not be charged with criminal trespass until such time as the license was revoked. These issues were not raised by defendant in the trial court, either by pretrial or post-trial motion and, with regard to the defendant's license theory, we determine that this contention is waived (People v. Arnett (1985), 139 Ill. App. 3d 342, 344, 487 N.E.2d 747, 748),and it will not be considered further.

The defendant's challenge to the sufficiency of the criminal complaint will be considered, and the State correctly notes that when the sufficiency of a criminal complaint is attacked for the first time on appeal, a reviewing court will find it to be sufficient if it apprises the accused of the offense charged with sufficient specificity to prepare his defense and it prevents double jeopardy. (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437; People v. Burke (1987), 164 Ill. App. 3d 468, 474, 517 N.E.2d 1191.) The criminal trespass to land statute provides in pertinent part:

"(a) Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after ...


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