No. 1-21-0808 Opinion filed July 20, 2022 Third Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CR 1000201 ) SANTANA GRAYER, ) Honorable ) Vincent Gaughan, Defendant-Appellant. ) Judge Presiding.

JUSTICE BURKE delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Presiding Justice Gordon dissented, with opinion.

OPINION

¶1 Following a bench trial, defendant Santana Grayer was found guilty of attempted vehicular

hijacking, then sentenced to five years’ imprisonment. The evidence introduced at trial showed

that defendant was the passenger in Lyft rideshare vehicle driven by the victim, Arnold Ong.

Defendant was intoxicated and believed that Ong was driving in the wrong direction. From the

back seat of the vehicle, defendant grabbed Ong’s shirt sleeve and threatened to kill him. Ong

parked the vehicle at a gas station, took the keys to the vehicle, and called police. No. 1-21-0808

¶2 On appeal, defendant contends that the court erred in finding him guilty of attempted

vehicular hijacking where the State failed to present sufficient evidence to show that he had the

intent to commit vehicular hijacking or that his actions constituted a substantial step toward the

commission of that offense. Defendant maintains that his actions demonstrate that he was simply

a highly intoxicated person who wanted to go home rather than represent a serious attempt to hijack

Ong’s vehicle. In the alternative, defendant contends that his sentence is excessive in light of the

nonserious nature of the offense where no one was hurt and in light of the substantial mitigating

evidence presented. For the reasons that follow, we affirm the judgment of the circuit court.

¶3 I. BACKGROUND

¶4 A. Trial Proceedings

¶5 At trial, Ong testified that, in September 2020, he was driving for Lyft when he received a

pickup request from a Lyft account-holder named Phyllis. When he arrived at the designated

location, he saw a large group of people. Ong spoke to Phyllis who told him that defendant would

be the passenger for the requested ride. Ong could tell that defendant was intoxicated. Defendant

got into the back seat of Ong’s vehicle, and Ong started to drive toward the designated location.

Several minutes into the drive, defendant told Ong that he was driving the wrong direction. Ong

testified that he was following the GPS directions in the Lyft application. The destination for the

ride was inputted when the ride was requested. Ong did not know who put the destination

information into the Lyft application. Ong told defendant that he was going in the right direction

because he was following the GPS in the Lyft application.

¶6 Defendant then became angry and told Ong that he wanted to drive the vehicle himself.

Ong told defendant that he could not drive the vehicle. Defendant asked to drive the car himself

“multiple times” in a loud voice. Defendant then “got mad,” grabbed Ong’s shirt at his right

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shoulder, and threatened to kill him. While grabbing Ong’s shoulder with his left hand, defendant

reached his right hand toward his waist. Ong thought defendant was trying to “grab something”

from his waist. Ong believed defendant was attempting to get a “deadly weapon” from his

waistband, such as a knife or a gun. Defendant repeatedly told Ong that he was going to kill him

while holding onto his shirt sleeve.

¶7 Ong testified that he was scared and realized his “life was at stake.” Ong drove the vehicle

to a gas station. Ong got out of the vehicle and took his car keys and his cellphone with him.

Defendant also got out of the vehicle and started “chasing” Ong around the vehicle. Ong

acknowledged that defendant was moving slowly while following him around the vehicle, but Ong

testified that he believed defendant could not run fast because he was intoxicated. Ong did not lock

his vehicle after he got out because his keyless entry remote was not working. Ong testified that

he could have used his keys to lock the vehicle, but he was in a hurry and did not have time to do

so.

¶8 Ong was able to get away from defendant and went into the convenience store at the gas

station. The people in the convenience store called the police for Ong. Ong did not tell the people

in the convenience store that he believed defendant had a gun but did tell them that defendant

threatened to kill him. While waiting for police, Ong wanted to check on his vehicle so he took a

step outside of the convenience store to look at it. He saw defendant standing near the vehicle

holding Ong’s house keys, which Ong had left in the vehicle’s cup holder. Defendant was waiving

the keys toward Ong. Ong saw defendant get into the driver’s seat of the vehicle with the house

keys.

¶9 The State then submitted into evidence a surveillance video of the incident from the gas

station’s security system. The surveillance video shows Ong driving the vehicle into the gas station

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near a pump. Ong then exits the vehicle, and defendant exits too. Ong walks toward the front of

the vehicle but turns around when defendant also begins walking toward the front of the vehicle.

Ong briefly opens the front, driver’s side door, but closes it as defendant approaches. Ong then

starts walking around the back of the vehicle while defendant follows. Ong then circles the vehicle

again while defendant follows.

¶ 10 When defendant reaches the front driver’s side, he opens the door and looks at Ong over

the top of the vehicle. Defendant remains standing near the open door while Ong goes inside the

convenience store. After Ong enters the store, defendant walks around the vehicle and leans against

the rear passenger side door. Ong later comes out of the convenience store and stands near the

entrance next to two men, one of whom is speaking on a phone. Ong and the two men then go back

inside the convenience store when defendant approaches them.

¶ 11 Another segment of the video shows defendant standing near the open, front driver’s side

door holding Ong’s house keys. Defendant is shaking the keys toward the convenience store.

¶ 12 Defendant then gets inside the vehicle with Ong’s house keys in his hand. Defendant can

be seen reaching toward the ignition of the vehicle with the keys in his hand and making a turning

motion as though attempting to start the vehicle. Defendant repeats this motion several times.

Defendant then reclines the driver’s seat and lies back until police arrive and force him to exit the

vehicle.

¶ 13 The police arrived on the scene and took defendant into custody. Ong did not tell the

responding officers that he believed defendant had a gun but did tell them that defendant threatened

to kill him.

¶ 14 Sergeant Nicholas Cortesi testified that he responded to the call from the gas station. When

he arrived, he saw defendant sitting in the driver’s seat of Ong’s vehicle. Sergeant Cortesi

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persuaded defendant to exit the vehicle and then placed him under arrest. Sergeant Cortesi testified

that Ong did not tell him that he believed defendant had a gun. The parties stipulated that the

footage from Sergeant Cortesi’s body-worn camera would show that Ong did not make any

statements to the officers that he thought defendant had a weapon on his waistband.

¶ 15 The State rested, and the court denied defendant’s motion for a directed verdict. Defense

counsel indicated that defendant did not wish to testify. The court asked defendant if that was

correct and defendant responded: “Yeah, I guess. I can’t remember the case.” Defendant

subsequently rested without presenting any evidence.

¶ 16 Following closing argument, the court reviewed the evidence presented. The court noted

that there was evidence of “some intoxication” but that the evidence showed that defendant was

aware of his environment, knew different directions, and “knew to his way of thinking” that Ong

was driving in the wrong direction. The court therefore found that defendant was “not intoxicated

as a legal defense.” The court found credible Ong’s testimony that defendant grabbed Ong’s shirt

sleeve and that defendant reached toward his waistband with his other hand. The court observed

that the surveillance video depicted a “slow motion” chase around the vehicle where defendant

actually changed directions in his pursuit of Ong. The court found that the video also showed that

once defendant sat in the driver’s seat of the vehicle with Ong’s house keys, he repeatedly made a

motion toward “where the ignition would be as if to start the car.” The court therefore found

defendant guilty of attempted vehicular hijacking.

¶ 17 Following the court’s ruling, defendant filed motions to set aside the finding of guilty and

for a new trial, which the trial court denied after a hearing.

¶ 18 B. Postjudgment Motions

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¶ 19 Defendant subsequently filed a pro se “motion for appointment of new counsel based upon

ineffective assistance of trial counsel or in the alternative grant a new trial.” In the motion,

defendant alleged that he reviewed the arresting officer’s body-worn camera recording with his

attorney. Defendant contended that this recording contained “exculpatory or exonerating

evidence.” This evidence included Ong stating that defendant did not hit him and that Ong did not

want to press criminal charges against defendant. Defendant alleged that the video showed the

arresting officer coerce and intimidate Ong into pressing charges. Defendant alleged that defense

counsel was aware of this evidence but failed to present it at trial.

¶ 20 Defendant also alleged misconduct by the State, contending that the State used perjured

testimony and allowed Ong to present false testimony at trial. This contention also concerned

statements from the arresting officer’s body-worn camera recording, which defendant asserted

showed that the officers pressured Ong into pressing charges against defendant. Defendant alleged

that the State improperly covered up this evidence.

¶ 21 The State filed a response to defendant’s pro se motion, maintaining that it did not cover

up any evidence as defendant suggested and did not present false or misleading testimony. The

State also attached to its motion a transcript from a portion of the body-worn camera recording. In

the transcript, Ong tells the officers that he was giving defendant a ride when defendant told him

to take him home. Ong told defendant that he was taking him home, but defendant said that he was

not. Defendant asked to take the wheel, but Ong told him he could not. Defendant grabbed Ong’s

shirt sleeve and threatened to kill him. The officers asked Ong if defendant had a weapon, but Ong

said he was not sure. Ong told the officers that defendant grabbed him but did not put him in a

“head lock.”

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¶ 22 When the officers asked Ong if he wanted to press charges, Ong said that he did not. The

officers asked him why he did not want to press charges, and Ong replied that he just wanted to

continue working. The officers told Ong that this was a violent crime and asked if he believed this

was the last time defendant would do something like this. The officer told Ong, “Okay sir, it’s like

this; if you don’t wanna do anything then we just let him go. And him—he can do it again. And

he can do it again to you.” The officer told Ong that it was a “priority” to get justice for Ong and

the community. The officer told Ong that if he had not sought help in the gas station and if the

officers had not arrived, defendant could have hurt him and stolen his vehicle. Ong then agreed to

cooperate with the police and “press charges.”

¶ 23 In denying defendant’s motion with regard to the allegations against the State, the court

found that the recoding from the body-worn camera spoke for itself. The court found that Ong was

initially reluctant to press charges and reluctant to come to court, but he voluntarily complied with

the subpoena the State sent him and voluntarily testified at trial. The court found there was no

evidence that the State forced him to testify.

¶ 24 The court then addressed defendant’s allegations against defense counsel in a Krankel

hearing. See People v. Krankel,

(1984). At the hearing, defense counsel stated that

she watched the body-worn camera recordings with defendant on more than one occasion before

trial. She explained to him that merely because Ong was initially hesitant to press charges did not

stop defendant from being charged because the State ultimately decides whether to bring charges.

Defense counsel explained that she developed a trial strategy with defendant and they discussed

that strategy together. Defense counsel stated that she considered using the body-worn camera

footage in impeachment but did not need to do so when the State stipulated that Ong never told

the responding officers that he thought defendant had a weapon on his waistband. Defense counsel

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stated that part of why she did not seek to introduce the video was because it depicted “a man who

just had his car taken from him, who felt that he needed to go to a gas station to protect himself.”

¶ 25 The court asked defendant if he had anything further to say in support of his ineffective

assistance claim. Defendant began to explain that he was too drunk and did not even remember

getting in Ong’s vehicle, but the court cut him off. The court found that nothing defendant was

saying was relevant to his claim of ineffective assistance. The court then found that there was no

basis for his allegations.

¶ 26 C. Sentencing

¶ 27 The court proceeded to sentencing. The State presented defendant’s background, which

included a 2002 aggravated battery with great bodily harm for which defendant was sentenced to

eight years’ imprisonment. Defendant also had a 1999 conviction for possession of a controlled

substance and 1997 conviction for aggravated battery to a police officer. The assistant state’s

attorney (ASA) recounted the facts of the case and noted that defendant represented that he was

too drunk to remember the incident. The ASA stated that this appeared to show contrition and the

State was prepared to recommend the lowest sentence possible. “However, since then, the

defendant has done nothing but blame everyone except himself. He blames the victim. He blames

the State. He blames his own attorney.” The ASA stated that defendant had not shown contrition

or remorse and had not shown that he was willing to comport himself with the rules and

expectations of society. The ASA therefore asked for a sentence in the “top range.”

¶ 28 In mitigation, defense counsel represented that defendant was a “family man.” Defendant

had lived with his brother and his own children “at different points in time.” Defense counsel

detailed defendant’s relationship with his four children and stated that he also had a good

relationship with the mothers of his children. Counsel represented that defendant had worked as a

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carpenter for 20 years. Defense counsel stated that defendant was willing to participate in an

alcohol treatment program and argued that probation was appropriate in this case.

¶ 29 In allocution, defendant stated that he wished he could apologize to Ong for the situation

that he caused that day.

¶ 30 In sentencing defendant, the court stated that it was considering a much higher sentence

before defendant made his statement in allocution. The court was impressed that defendant

accepted responsibility and that he wanted to apologize to Ong. The court initially found that an

appropriate sentence in this case was 5½ years’ imprisonment. However, after explaining to

defendant his right to an appeal, the court decided to reduce defendant’s sentence to five years’

imprisonment because of his courtesy and respect in front of the court. The court subsequently

denied defendant’s motion to reconsider the sentence. This appeal follows.

¶ 31 II. ANALYSIS

¶ 32 On appeal, defendant contends that the court erred in finding him guilty of attempted

vehicular hijacking where the evidence presented failed to establish that he had the requisite intent

to commit vehicular hijacking or that he took a substantial step toward the commission of that

offense. Defendant asserts that the evidence shows that he did not intend to hijack Ong’s vehicle,

but was merely intoxicated and wanted to go home. In the alternative, defendant contends that his

sentence is excessive in light of the nonserious nature of the offense where no one was harmed,

and in light of the mitigating evidence presented.

¶ 33 A. Sufficiency of the Evidence

¶ 34 We will first address defendant’s contention that the evidence presented was insufficient

to prove him guilty of the offense of attempted vehicular hijacking beyond a reasonable doubt.

Where a defendant challenges the sufficiency of the evidence to sustain his conviction, the

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reviewing court must consider whether, after viewing the evidence in a light most favorable to the

State, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. People v. Cunningham,

(2004). This standard recognizes

the responsibility of the trier of fact to determine the credibility of the witnesses and the weight to

be given their testimony, to resolve any conflicts and inconsistencies in the evidence, and to draw

reasonable inferences therefrom. People v. Sutherland,

(2006). A reviewing

court must allow all reasonable inferences from the record in favor of the State and will not

overturn the decision of the trier of fact unless the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Beauchamp,

(2011); People v. Smith,

(1999).

¶ 35 Here, the trial court found defendant guilty of attempted vehicular hijacking. A defendant

commits the offense of vehicular hijacking where he “knowingly takes a motor vehicle from the

person or the immediate presence of another by the use of force or by threatening the imminent

use of force.” 720 ILCS 5/18-3(a) (West 2020). A defendant commits the offense of attempt when

“with intent to commit a specific offense, he or she does any act that constitutes a substantial step

toward the commission of that offense.”

§ 8-4(a).

¶ 36 1. Specific Intent

¶ 37 Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt

because the evidence presented does not show that he had the specific intent to commit vehicular

hijacking. Defendant maintains that his actions of grabbing Ong’s shirt sleeve were not indicative

of attempt and his threats to kill Ong were “mere drunken hyperbole.” Defendant asserts that the

evidence presented did not show that defendant actually intended to take Ong’s vehicle but rather

portrayed an intoxicated individual who wanted to go home. Defendant acknowledges that

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voluntary intoxication is not an affirmative defense but contends that it is relevant to specific intent

offenses such as attempt.

¶ 38 Defendant essentially contends that he was so intoxicated that he was unable to form the

specific intent necessary to commit the offense of attempted vehicular hijacking. As defendant

points out, this court has found that a defendant’s voluntary intoxication may be relevant where

“ ‘voluntary intoxication is so extreme as to suspend entirely the power of reasoning,’ [such that]

a defendant is incapable of forming a specific intent or malice.” People v. Slabon,

(quoting People v. Cunningham,

(1970)). As such, a

person’s state of involuntary intoxication may be relevant to the commission of specific intent

crimes, which “ ‘require proof of an additional special mental element.’ ”

(quoting People v.

Robinson,

(2008)).

¶ 39 Before addressing the merits of defendant’s contention, we must first examine this court’s

holding in Slabon, which defendant relies on in support of his contention that his state of voluntary

intoxication was relevant to his intent in this case. In finding that a defendant’s voluntary

intoxication may be relevant in the commission of specific intent crimes, the Slabon court relied

on this court’s decision in Cunningham,

. Significantly, Cunningham

was decided in 1970. At the time Cunningham was decided, the intoxicated or drugged condition

statute of the Criminal Code of 1961 provided that an intoxicated or drugged person was

“criminally responsible for conduct unless such condition either: (a) Negatives the

existence of a mental state which is an element of the offense; or (b) Is involuntarily

produced and deprives him of substantial capacity either to appreciate the criminality of

his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1963, ch.

38, ¶ 6-3.

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See People v. Rutigliano,

(reviewing the legislative history of the

Illinois intoxicated or drugged condition statute).

The statute was amended in 1988 to provide that an intoxicated person was:

“criminally responsible for conduct unless such condition either:

(a) Is so extreme as to suspend the power of reason and render him

incapable of forming a specific intent which is an element of the offense; or

(b) Is involuntarily produced and deprives him of substantial capacity either

to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law.” 720 ILCS 5/6-3 (West 2000).

The statute was amended again in 2002 to its current form to provide that an intoxicated or drugged

person “is criminally responsible for conduct unless such condition is involuntarily produced and

deprives him of substantial capacity either to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law.” (Emphasis added.) 720 ILCS 5/6-3 (West 2020).

As such, since the 2002 amendment, Illinois courts have recognized that “voluntary intoxication

cannot be asserted as an affirmative defense to negate the element of intent.” People v. Himber,

(citing People v. Jackson,

(2006)

(“Effective January 1, 2002, Illinois no longer recognized voluntary intoxication as an excuse for

criminal conduct.”), and People v. Rodgers,

, 433 n.1 (2002) (“Illinois no

longer recognizes voluntary intoxication as an excuse for criminal conduct”)).

¶ 40 Defendant maintains that Slabon correctly states the law on voluntary intoxication,

explaining that although it is no longer an affirmative defense, it may still be “relevant in a criminal

proceeding.” Slabon,

. Defendant contends that this interpretation

is supported by the legislative history of section 6-3, which shows that the legislature intended

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only to remove voluntary intoxication as a statutory affirmative defense but did not intend to

preclude a defendant from introducing evidence of his intoxication to negate the appropriate

mental state. Defendant contends, consistent with Slabon, evidence of a defendant’s voluntary

intoxication may be relevant “ ‘where voluntary intoxication is so extreme as to suspend entirely

the power of reasoning,’ [such that] a defendant is incapable of forming a specific intent or malice.”

(quoting Cunningham,

).

¶ 41 Defendant maintains that he is not attempting to use his state of voluntary intoxication as

an affirmative defense but contends that his intoxication may be relevant in the commission of

specific intent crimes, such as the attempted vehicular hijacking offense in the case at bar. As

noted, however, the precedent defendant relies on in support of that contention is this court’s ruling

in Slabon, which in turn relied on this court’s ruling in Cunningham. Cunningham was decided in

1970, before the 1988 and 2002 amendments to the Illinois intoxicated or drugged condition

statute. Indeed, the cited portion of Cunningham that Slabon relies on explicitly states: “Voluntary

intoxication is an affirmative defense if it negatives the existence of a mental state which is an

element of the offense.” Cunningham,

-09 (citing Ill. Rev. Stat. 1963, ch.

38, ¶ 6-3(a)). This is clearly at contrast with the law as it stands today following the two

amendments to section 6-3 after Cunningham was decided. The Slabon court’s reliance on

Cunningham for the proposition that a defendant’s voluntary intoxication may be relevant where

it is so extreme as to “suspend entirely the power of reasoning,” such that a defendant is incapable

of forming a specific intent or malice, is therefore misplaced. Accordingly, we find that Slabon

misstates the law on voluntary intoxication as it stands today. Simply put, section 6-3 now provides

that voluntary intoxication is not an excuse for criminal conduct. Jackson,

.

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¶ 42 Nonetheless, we find that the evidence presented did not demonstrate that defendant’s

intoxication was “so extreme” as to suspend entirely his power of reasoning. Although Ong

testified that he believed defendant was intoxicated, as the trial court recognized, defendant’s

conduct demonstrated that he was not so intoxicated that he was incapable of forming specific

intent. For instance, defendant appeared to have a grasp on directions, knowing which direction

Ong was driving and believing that it was not in the direction of his home. Defendant’s intent can

also be seen on the video surveillance recording where defendant, perhaps believing he was in the

possession of Ong’s car keys, appeared to shake Ong’s house keys toward him in a taunting

manner. Defendant then got into the driver’s seat and appeared to attempt to put Ong’s house keys

into the vehicle’s ignition and start the vehicle. The surveillance video also shows that while

defendant was chasing Ong around his vehicle, defendant appeared to speed up in his pursuit and

never took his eyes off of Ong. These actions do not suggest that defendant’s intoxication was so

extreme such that his ability to reason was suspended such that he was unable to form specific

intent. Accordingly, we cannot say that the evidence presented was insufficient to support the trial

court’s determination that defendant had the specific intent to commit the offense of attempted

vehicular hijacking.

¶ 43 2. Substantial Step

¶ 44 Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt

because the evidence presented does not show that he took a substantial step toward the

commission of vehicular hijacking. What constitutes a substantial step is determined by the unique

facts and circumstances of each case. People v. Perkins,

(2011). A

substantial step should put the accused in a “dangerous proximity to success.” (Internal quotation

marks omitted.) People v. Hawkins,

(2000). Illinois courts have relied

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on the Model Penal Code for guidance in determining whether a defendant has taken a substantial

step toward commission of a crime. See People v. Terrell,

(1984). Under

the Model Penal Code, an attempt has occurred when a person, acting with the required intent,

“ ‘purposely does or omits to do anything that, under the circumstances as he believes them to be,

is an act or omission constituting a substantial step in a course of conduct planned to culminate in

his commission of the crime.’ ” Perkins,

(quoting Model Penal Code

§ 5.01(1)(c) (1985)).

¶ 45 Defendant asserts that his act of pulling on Ong’s shirt sleeve and threatening to kill him

was not a substantial step toward the commission of vehicular hijacking because it did not put him

in “dangerous proximity” to successfully hijacking the vehicle. However, under the standards of

the Model Penal Code, defendant’s actions of telling Ong he wanted to drive the vehicle, grabbing

Ong’s shirt, and threatening to kill him were acts purposely done in a course of conduct planned

to culminate in his commission of a crime.

¶ 46 Defendant contends that his actions did not demonstrate an attempt to take control of the

vehicle. This contention is flatly contradicted by the evidence presented. Although defendant was

not able to take control of the vehicle at the time he grabbed Ong’s shirt sleeve and threatened to

kill him, he did attempt to take control of the vehicle when he had the opportunity to do so. After

Ong left the vehicle and went inside the convenience store at the gas station, defendant entered the

driver’s seat of the vehicle and attempted to use Ong’s house keys to start the vehicle. Defendant

contests this characterization of his actions, asserting that the video shows him reaching toward

the center console of the vehicle but not necessarily toward the vehicle’s ignition. The trial court

found, however, that the video showed that once defendant sat in the driver’s seat of the vehicle

with Ong’s house keys, he repeatedly made a motion toward “where the ignition would be as if to

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start the car.” As noted, we defer to the trial court to resolve any conflicts and inconsistencies in

the evidence and to draw reasonable inferences therefrom. Sutherland,

. We agree

with the court’s characterization of defendant’s conduct where the video unmistakably shows him

attempting to start Ong’s vehicle with the house keys several times. The video clearly shows the

keys in defendant’s hand and his forearm and wrist can be seen making a twisting gesture

consistent with attempting to start a vehicle. 1

¶ 47 Moreover, if it was not defendant’s intention to take control of the vehicle, defendant could

simply have left the scene when Ong parked the vehicle at a gas station or he could have stayed

sitting in the back seat. Instead, defendant decided to chase Ong around the vehicle, take possession

of Ong’s house keys, get into the driver’s seat of the vehicle, and seemingly attempt to start the

vehicle with Ong’s house keys. We therefore find that the evidence presented was sufficient to

prove beyond a reasonable doubt that defendant had the requisite intent to commit the offense of

vehicular hijacking and took a substantial step toward the commission of that offense.

¶ 48 B. Excessive Sentence

¶ 49 Defendant next contends that his sentence is excessive in light of the nonserious nature of

the offense and the mitigating evidence presented. Defendant contends that this was not the

“typical” attempted vehicular hijacking case in that it was not premeditated or planned and no one

was injured. Defendant contends that there was also minimal evidence of force where defendant

only pulled on Ong’s shirt sleeve.

1 We also observe that, although this evidence was not introduced at trial, in the portion of the body-worn camera recording introduced by the State, when the officers were asking Ong if he wanted to press charges, a bystander said to Ong, “He was trying to take your car.” Ong replied: “Yeah, he was try—I saw it—I saw (inaudible). He was trying to—to start it.” Ong then made a gesture as though turning keys in a vehicle ignition.

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¶ 50 A reviewing court will not alter a defendant’s sentence absent an abuse of discretion by the

trial court. People v. Alexander,

(2010). A trial court abuses its discretion in

determining a sentence where the sentence is greatly at variance with the spirit and purpose of the

law or if it is manifestly disproportionate to the nature of the offense.

The trial court is afforded

such deference because it is in a better position than the reviewing court to weigh the relevant

sentencing factors such as “ ‘defendant’s credibility, demeanor, general moral character, mentality,

social environment, habits, and age.’ ” People v. Stevens,

(2001)

(quoting People v. Streit,

(1991)). In the absence of evidence to the contrary, we

presume that the sentencing court considered all mitigating evidence presented. People v. Gordon,

, ¶ 51.

¶ 51 Here, defendant was found guilty of attempted vehicular hijacking. The applicable

sentencing range for that offense is three to seven years imprisonment. 730 ILCS 5/5-4.5-35(a)

(West 2020); see also 720 ILCS 5/18-3(b) (West 2020); 720 ILCS 5/8-4(c)(3) (West 2020). Here,

the court sentenced defendant to a five-year term of imprisonment. The sentence imposed therefore

fell within the statutorily prescribed range and is presumably valid. People v. Wilson,

(citing People v. Busse,

).

¶ 52 Defendant contends, however, that the trial court abused its discretion in determining his

sentence because the court failed to adequately consider the mitigating factors presented and did

not account for the nonserious nature of the offense.

¶ 53 Despite defendant’s contentions about the nonserious nature of the offense, Ong’s

testimony paints a different picture. First, it is undisputed that defendant threatened to kill Ong

multiple times while holding onto his shirt sleeve. Ong also believed that defendant had a deadly

weapon. Ong testified that he was scared and believed his “life was at stake.” Furthermore, after

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Ong pulled over at the gas station, defendant got out of the vehicle and chased Ong before Ong

fled into the convenience store. Although Ong acknowledged that defendant could not move very

quickly in his intoxicated state, Ong still testified that he was scared and feared for his life. Indeed,

the video shows that while following Ong around the vehicle, defendant appeared to speed up at

points and never took his eyes off of Ong. Defendant’s contention that this was not a serious

offense are therefore not well taken.

¶ 54 Defendant nonetheless contends that the trial court did not adequately consider the

mitigating factors presented, such as defendant’s family life and his work history. Defendant also

points out that he was willing to participate in substance abuse treatment and took responsibility

for his actions. Defendant maintains that he was entitled to a lower sentence based on these factors.

¶ 55 The record shows, however, that during the sentencing hearing, defense counsel identified

the same mitigating factors defendant brings to our attention on appeal, including defendant’s

family life and his work history. It is not our function to independently reweigh these factors and

substitute our judgment for that of the trial court. Alexander,

. Although the

trial court did not specifically identify which factors it considered in determining defendant’s

sentence, we observe that a trial court is not required to specify on the record the reasons for the

sentence imposed (People v. Sauseda,

), nor is it required to recite

and assign value to each factor presented at the sentencing hearing (People v. Baker,

(1993)). Rather, we presume that the trial court properly considered all mitigating

factors and rehabilitative potential before it, and the burden is on defendant to affirmatively show

the contrary. People v. Brazziel,

(2010). Defendant here has failed to do

so.

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¶ 56 Further, the record shows that the court expressly considered defendant’s remorsefulness

in imposing his sentence. After defendant made his statement in allocution in which he expressed

his desire to apologize to Ong, the court stated that it was considering a “much higher sentence”

before defendant accepted responsibility for his actions. Moreover, after initially imposing a

sentence of five and a half years, the court sua sponte reduced defendant’s sentence to five years

based on defendant’s courtesy and demeanor in the court room. The record thus shows that the

court fully considered the nature of the offense, the mitigating factors presented, and “ ‘defendant’s

credibility, demeanor, general moral character, mentality, social environment, habits, and age.’ ”

Stevens,

-94 (quoting Streit,

). We therefore find that the

trial court did not abuse its discretion in determining defendant’s sentence.

¶ 57 III. CONCLUSION

¶ 58 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 59 Affirmed.

¶ 60 PRESIDING JUSTICE GORDON, dissenting:

¶ 61 I must respectfully dissent. The only witness in this case was the driver of the Lyft vehicle

and the arresting police officer, as defendant chose not to testify. In my review of the evidence, I

cannot find that the conduct of the defendant constituted a substantial step toward hijacking the

Lyft vehicle beyond a reasonable doubt. The defendant was intoxicated at the time with a blood-

alcohol level of .244. A person named Phyllis 2 used her Lyft account to hail a Lyft vehicle to take

him home. He thought the direction the driver was going was wrong, and as a result, he told the

driver that he wanted to drive the vehicle to his residence, not steal the vehicle. When he

2 Phyllis’s last name is not found in the record.

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wrongfully grabbed the driver’s shirt and threatened him, the driver drove into a gas station and

called the police. The driver expressed to the arresting police officer that he did not desire to bring

charges; he only wanted defendant to be removed from his vehicle, but the police helped change

his mind at the gas station. The initial expression of the driver illustrates that the driver never

thought that the defendant’s conduct was a step toward hijacking the vehicle or that defendant

intended to hijack his vehicle. When the defendant stood in front of the vehicle at the gas station

holding the driver’s house keys and then entered the driver’s seat, he was “playing with” the driver

as some intoxicated people do when they are under the influence of liquor. The majority writes

that in the video “[d]efendant can be seen reaching toward the ignition of the vehicle with the keys

in his hand and making a turning motion as though attempting to start the vehicle.” Supra ¶ 12.

However, once defendant went into the driver’s side of the vehicle, the video does not show what

defendant is doing in the vehicle. That statement is false. There never was any real evidence that

the defendant intended to take the vehicle from the driver. The drunken threat and the momentary

grabbing of the driver’s shirt was caused by the defendant’s intoxication and his belief that the

driver was not taking the defendant to his residence and was going the wrong way. Any reasonable

person believing that a driver of a common carrier is not taking them to where they are supposed

to would be terrified and disturbed, especially when that person is under the influence of liquor.

In the case at bar, the defendant may have been guilty of assault and battery but not the attempted

hijacking of a motor vehicle. This defendant had no criminal record. In aggravation, the State

submitted defendant’s lack of contrition and defendant’s prior convictions for aggravated battery

with great bodily harm, for aggravated battery to a police officer, and for possession of a controlled

substance. In mitigation, defendant has been a carpenter who provided for four children and is

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willing to participate in a substance abuse program. Yet the defendant received a five-year sentence

in the IDOC.

¶ 62 For the foregoing reasons, I must respectfully dissent.

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People v. Grayer,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-CR- 1000201; the Hon. Vincent M. Gaughan, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Daniel T. Mallon, and Christina for Law Merriman, of State Appellate Defender’s Office, of Chicago, Appellant: for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian A. Levitsky, and Sharon Kim, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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