People v. Oakley

JUSTICE RATHJE,

dissenting:

I respectfully dissent. Contrary to the majority’s view, People v. Reid, 179 Ill. 2d 297 (1997), and People v. Moulton, 282 Ill. App. 3d 102 (1996), support defendant’s contention that his conviction on home invasion should be reversed for failure to establish one of the offense’s elements.

Before this court, the State posits that Reid and Moulton are different from this case because in those cases the marriages were not dissolved while in this case the marriage had been dissolved. However, Moulton stated that “[t]he marriage between the defendant and the victim *** had been dissolved on March 7, 1995,” about four months prior to the purported home invasion in that case. Moulton, 282 Ill. App. 3d at 103. Moreover, there is nothing in Reid that shows that the defendant and the victim in that case had ever been married.

Admittedly, there is a.factual distinction between this case and Moulton that is worth noting. In Moulton, the divorce decree granted the wife exclusive possession of the marital residence only for a period of about two years, after which the marital residence was to be sold and the proceeds divided evenly between the parties. Moulton, 282 Ill. App. 3d at 103. In this case, the divorce decree granted Johnson permanent exclusive possession of and all the equity in the marital residence and gave Johnson responsibility for the debts related to the marital residence.

Despite this distinction, I believe that this court should follow Reid and Moulton. I am convinced that the courts in Reid and Moulton correctly determined that the legislature did not intend the home invasion statute to apply to domestic disputes. Even if the parties are divorced and one of the parties has the right to exclusive possession of the property in question, the home invasion statute would not apply as long as there is an indication of joint ownership of the property, such as the name of both parties on the title to the property.

Defendant’s claim to ownership of the former marital residence in this case may be seen as diminished in view of the terms of the divorce decree. Nonetheless, it is undisputed that defendant was listed as a joint tenant of the property and his name was still on the mortgage for the property on September 20, 1996.

This court should hold that defendant’s conviction of home invasion was improper because, as in Reid and Moulton, defendant did not enter the dwelling place of another when he entered his former marital residence on September 20, 1996. Defendant’s entry into the dwelling place was therefore outside the scope of the home invasion statute.