Appeal from the Circuit Court of Kane County. No. 02-CF-649. Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice O'malley
Defendant, Jose A. Delacruz, appeals his conviction of home invasion (720 ILCS 5/12--11(a)(2) (West 2002)) following a jury trial in the circuit court of Kane County. Defendant challenges the sufficiency of the evidence; specifically, defendant contends that the evidence admitted during the trial sufficiently demonstrated that he still resided in the dwelling so as to nullify the statutory element that required a defendant to enter the dwelling of another. Defendant also contends that there was insufficient evidence that he caused an injury to the victim, E.M., to support his home invasion conviction. We reverse.
The following is a summary of the pertinent evidence presented at trial. E.M. testified that she lived in the rear apartment of a two-flat building in Aurora. Her apartment consisted of a kitchen and a bathroom located to the left of the main entrance, a living room in the middle, and a bedroom at the back of the apartment. E.M.'s friend, Maria Arallano, owned the building and lived in the front apartment. Both E.M. and Arallano worked at 95 Cleaners, and Arallano, who owned a car, would drive E.M. to work.
E.M. testified that she met defendant at a party in July or August 2001. They became boyfriend and girlfriend, and defendant moved in with E.M. in August 2001. The two had a sexual relationship. At some point in the fall of 2001, E.M. traveled to Mexico. When she did so, she gave defendant a key to the apartment. While E.M. was in Mexico, defendant moved his bedroom set into the apartment. E.M. testified that she had not given defendant permission to do so. E.M. testified that she slept in the bed with defendant, and the bedroom set still remained in her apartment at the time of trial.
E.M. testified that, on January 29, 2002, defendant returned her key. Defendant told her he had another key to the apartment but did not explain to her how he got the other key. E.M. also testified that, when she asked defendant to leave and tried to end their relationship, she never received the other key from defendant, who explained to her that he either had thrown it away or had lost it.
E.M. testified that defendant lived with her in her apartment from August 2001 to March 4, 2002, when she ended their relationship. E.M. had been trying to get defendant to move out for about two months, but it was not until March 4, 2002, that defendant finally moved his clothes out of E.M.'s apartment. She had not wanted the relationship to continue, but he had threatened her. While E.M. testified that defendant no longer lived with her on March 21, 2002, she did not know if he lived somewhere else. E.M. also testified that, on March 4, 2002, after she told him that she did not want to see him any longer, he was still living with her. E.M. had the following colloquy with the prosecutor:
"[Prosecutor] Q: And on March 21st of 2002, was the defendant still living with you at that time?
[E.M.] A: Yes. I couldn't get him out of there."
E.M. described the events of the incident. On March 21, 2002, E.M. went to work at about 8 a.m. and returned to her apartment between 5 and 5:30 p.m., having been driven home by Arallano. According to E.M., defendant was waiting outside of her apartment and had opened the door, which E.M. had locked when she left that morning. E.M. testified that she had not planned to meet defendant that evening and did not want him in her apartment. She was frightened upon noticing that her door was open and decided to go into Arallano's apartment.
When defendant saw her, he grabbed her under her arms and picked her up before she could get into Arallano's apartment. Arallano, who was observing this, was holding her child and could not assist E.M. E.M. kicked her legs and pulled at defendant's hands in an unsuccessful attempt to escape. As she was being carried into her apartment, she began to scream and grabbed onto the door jamb, but was unable to hold on.
Once they were in the apartment, defendant, who was wearing white gloves, threw E.M. onto the bed and locked the bedroom door. E.M. screamed, but defendant told her not to do that and not to move, "because in less than 10 minutes, he could do something." Defendant then showed E.M. a number of pieces of packing tape cut into six-inch segments, a rope that he stretched out, and men's ties that E.M. had not seen before. Defendant told E.M. to turn around and said that he had more things he could use on her in less than 10 minutes. E.M. testified that she did not see any other things, but was afraid that defendant might have a weapon. E.M. testified that defendant did not hit or scratch her.
E.M. testified that defendant prevented her from moving by sitting on top of her while she was on the bed. Defendant then ripped E.M.'s sweatshirt and removed all of her clothing. (On cross-examination, E.M. admitted that she had told police that her blouse and bra had been removed after the assault.) After removing her clothing, defendant removed his pants and gloves. E.M. pushed at defendant, but defendant held her hands and even got her hands behind her back, preventing E.M. from moving at all. Then, defendant "obligated" E.M. to have sexual relations. He opened her legs and when she closed them, he opened them again. Defendant then placed his penis in E.M.'s vagina. E.M. did not scream because he had threatened her. After a brief time, defendant finished and moved back on top of E.M.
E.M. denied that she had told defendant that she wanted to have sex with him. Instead, E.M. repeatedly asked defendant to leave her alone, asked him to tell her what he wanted from her, and asked why he was doing this. Defendant told her that he was moving to California and that she had to go along with him or he would force her to go, using the tools he had in the apartment. E.M. denied that they had an argument about their relationship.
After defendant had finished and was back on top of her, E.M. heard her friends knocking on the apartment door and calling for her. Defendant covered her mouth with his hands and told her not to talk or move. A short time later, the police came to the door. E.M. testified that defendant started to hide the things he had in the bedroom and told her to go out and explain to the police that ...