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People v. Busse

Court of Appeals of Illinois, First District, Second Division

December 27, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
HARLEY BUSSE, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 12 CR 15237 The Honorable Michael B. McHale, Judge, presiding.

          Justice Neville concurred in the judgment and opinion. Justice Mason dissented, with opinion.

          OPINION

          HYMAN, PRESIDING JUSTICE

         ¶ 1 Harley Busse pilfered $44 in quarters from a vending machine on the University of Illinois at Chicago campus. For this, he was convicted of burglary committed in a school and sentenced to 12 years in the state penitentiary. He now claims that his sentence was excessive.

         ¶ 2 Busse has committed a number of similar crimes over the years, but not one of them has been either violent or serious. The trial court's discretion to sentence him was limited by his status as a Class X offender. It goes without saying that judges at all levels must follow the law and hold in check their natural sympathies. There are circumstances, however, when applying mandatory sentencing produces an anomalous and absurd result in a particular case.

         ¶ 3 This is one of those rare cases. Here, the 12-year Class X sentence imposes a punishment grossly disproportionate to the offense. As appellate court judges, we have to explain our decisions, and in this case, simply saying the sentencing judge followed the law, which he did, provides thin justification for the sentence-even fully acknowledging Busse's past crimes and incarcerations.

         ¶ 4 A paltry crime for a paltry sum does not warrant the unpaltry sentence of 12 years. We hold that the trial court did abuse its discretion in sentencing Busse, and we impose a six-year sentence.

         ¶ 5 BACKGROUND

         ¶ 6 Busse's conviction arose from an incident that took place on July 31, 2012, inside the science and engineering building at the University of Illinois at Chicago (UIC). Before trial, the trial court granted the State's motion to introduce evidence of three prior crimes to show Busse's modus operandi. These crimes were burglaries and a theft that involved coin-operated machines.

         ¶ 7 At trial, UIC police department Sergeant Jason Huertas testified that while patrolling at about 1:48 p.m. on July 31, 2012, he saw Busse leaving a UIC campus building at 845 West Taylor Street. Sergeant Huertas recognized Busse because he had previously given Busse at least two criminal trespass warnings. Sergeant Huertas continued driving, and Busse continued walking eastbound on Taylor Street. Sergeant Huertas stopped at the corner of Taylor and Halsted Streets, got out of his car, and approached Busse on UIC property. Busse had a black briefcase and wore a beige shirt and beige, khaki-style pants. Huertas testified that Busse had no valid reason to be on campus so he arrested him for criminal trespass and called UIC officer Scott Ruckrich to assist.

         ¶ 8 Officer Ruckrich searched Busse and found, concealed by Busse's T-shirt, two pieces of a wire clothes hanger about six to eight inches long with a curved end, fastened to Busse's inner shirt tag. Officer Ruckrich also found loose quarters inside the briefcase. Sergeant Huertas told Ruckrich to investigate whether UIC vending machines had been broken into.

         ¶ 9 Huertas examined a still-image photograph taken from a surveillance video of the vending machine area, which shows a computer room and an individual in the hallway. He testified that the individual in the photograph was wearing beige-colored pants and a beige- or white-colored shirt and was carrying something in his left hand. He further testified that he saw Busse wearing those same clothes on July 31, 2012, and based on the clothing, he was able to tell that the individual in the image was Busse. On cross-examination, Huertas testified that the face of the individual in the photograph was not visible and it was difficult to identify the ethnicity as well as the height of the individual.

         ¶ 10 Mark Voirol, a vending technician, testified that he had been repairing and inspecting vending machines for 33 years. To determine whether a machine had been broken into, he would look for pry marks and if the door had been left open. He testified that a new way that people were stealing coins was by using a coat hanger or metal rod to "fish" change out of the coin changers. On July 31, 2012, he went with police to the UIC building at 950 South Halsted Street and examined the vending machines, including a coffee machine, two snack machines, a food machine, a cold food machine, and a change machine.

         ¶ 11 In the coffee machine, Voirol noticed that that the nickel and dime tubes were full and the quarter tube was empty. This was "pretty odd" because his company kept change in all of the machines, so if the quarter tube was empty then all of the other tubes would be as well. In the snack machine, he noticed that the nickels and dimes were full but that there were only five or six quarters left. Of these quarters, three were on the bottom upright on their edge, and a couple quarters were lying flat on top. He testified that this was "highly unusual, " that the only way for that to happen was for the coins to be pushed from underneath, and a coat hanger was the most popular item used to push the coins up. When he opened the snack machine and saw the three quarters standing up and the others lying on top, "it pretty much told me that as they were fishing them out, they got stuck and they quit."

         ¶ 12 On cross examination, Voirol testified that he did not see any pry marks on the machines, the doors were closed, and there did not appear to be anything wrong with the machines. He further testified that he did not know how much change was in the machine before 12:30 p.m. on the day of the incident, that he inspected the machines between 4:30 p.m. and 5:30 ...


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