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07/16/96 PEOPLE STATE ILLINOIS v. RICHARD MOULTON

July 16, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
RICHARD MOULTON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois, No. 95-CF-72. Honorable James B. Stewart, Judge, Presiding.

Released for Publication August 29, 1996.

Present - Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice, Justice Slater delivered the opinion of the court: McCUSKEY and Michela, J.j., concur.

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

Defendant Richard Moulton was charged with home invasion (720 ILCS 5/12-11 (West 1994)), aggravated battery (720 ILCS 5/12-4(a) (West 1994)) and attempted criminal sexual assault (720 ILCS 5/8-4; 5/12-13(a)(1) (West 1994)). Defendant's motion to dismiss the home invasion charge was granted on the basis that it failed to state an offense. See 725 ILCS 5/114-1(a)(8) (West 1994). The State appeals, contending that the charge was improperly dismissed. We affirm.

Section 12-11 of the Criminal Code of 1961 (the Code) states in part:

"Home Invasion. a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling until he or she knows or has reason to know that one or more persons is present and

***

(2) Intentionally causes any injury to any person or persons within such dwelling place." (Emphasis added.) 720 ILCS 5/12-11 (West 1994).

In this case, the information charged that on July 30, 1995, the defendant:

"not a peace officer acting in the line of duty, knowingly, and without authority, entered the dwelling of Deborah Moulton, *** having reason to know Deborah Moulton to be present within that dwelling and intentionally caused injury to Deborah Moulton in that he struck her in the face with his fist, and did then and there, thereby, commit the offense of HOME INVASION in violation of Chapter 720, Section 5/12-11 of the Illinois Compiled Statutes ***."

The marriage between the defendant and the victim, Deborah Moulton, had been dissolved on March 7, 1995. Under the terms of a marital settlement agreement, Deborah was granted exclusive possession of the marital residence until March of 1997, at which time it was to be sold and the proceeds divided evenly between the parties. However, the defendant and Deborah retained joint legal title to the residence. On March 30, 1995, a plenary order of protection was entered prohibiting the defendant from entering or remaining in the marital residence. That order was in effect on the date of the alleged offenses.

In dismissing the home invasion charge, the trial court ruled that a joint owner of a dwelling place could not be charged with home invasion. The court principally relied upon this court's decision in People v. Wyant, 171 Ill. App. 3d 306, 525 N.E.2d 591, 121 Ill. Dec. 533 (1988), which affirmed the dismissal of a charge of criminal trespass to land brought against a joint tenant who trespassed on marital property after exclusive possession had been granted to the complainant.

On appeal, the State contends that dismissal was improper because the information stated an offense, notwithstanding the fact that the dwelling referred to in the charging instrument may have been owned by the defendant. The State argues that the purpose of a motion to dismiss is to test the sufficiency of the allegations in the charging instrument, not the sufficiency of the evidence, and the merits of a case are not to be decided "within the vacuum of a motion to dismiss." Alternatively, ...


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