2024 IL App (1st) 221648-U

No. 1-22-1648

Order filed June 27, 2024.

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

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. 2016 CR 60263

)

HEZEKIAH ANTHONY, ) The Honorable

) Joseph M. Claps

Defendant -Appellant. ) Judge Presiding.

______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of th e court.

Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶ 1 Held : The evidence was sufficient to find defendant guilty of first degree murder beyond

a reasonable doubt, where the eyewitnesses provided reliable identification evidence, and this

court affirmed the decision of the trial court. However, because the trial court relied on improper

aggravating factors at sentencing, this court remanded the cause for resentencing.

¶ 2 Followi ng a bench trial, d efendant Hezekiah Anthony was found guilty of first degree

murder and sentenced to 21 years’ imprisonment. On appeal, he challenges the sufficiency of the

evidence to support his conviction beyond a reasonable doubt, contending the State’sNo. 1-22-1648

- 2 - identification evidence w as problematic and no physical evidence tied him to the crime.

Defendant also contends the trial court relied on improper aggravating factors at sentencing and

therefore he is entitled to a new sentencing hearing. We affirm the trial court’s judgment finding

defendant guilty of murder but remand for a new sentencing hearing.

¶ 3 BACKGROUND

¶ 4 Defendant was arrested and initially charged with attempted murder and aggravated

battery in 2014 after he stomped on Dora Nix -Corbin, a 5’ 3”, 130-pound woman in her mid

- to

late 70s, also known as “Momma,” knocking her out of her wheelchair and her glass eye to the

ground. 1 Several people witnessed the offense, which took place July 26, 2014, around the

Central Arms Hotel (520 East 47th Street, near Forrestville Avenue) in Chicago, a four- story

building with some long- term residents. The cause proceeded to a bench trial, after which

defendant was found guilty of aggravated battery to an individual 60 years of age or older and

sentenced to a total of 8 years in pr ison. 2 The trial court found there was insufficient evidence

that “defendant intended to kill,” to sustain the attempted murder charge (count 1).

¶ 5 This court affirm ed defendant’s conviction on appeal, but vacated the aggravated battery

sentences impo sed on counts 3, 4, and 5, pursuant to the one- act, one crime doctrine. People v.

Anthony , 2018 IL App (1st) 160894- U, ¶¶ 1, 28-31. Thus, defendant’s conviction on count 2,

1 The attempted murder charge specifically stated that defendant “without lawful justification,

with intent to kill, did an act, to wit: knocked Dora Nix -Corbin to the ground and stomped on her body,

which constituted a substantial step towards the commissi on of first degree murder.”

2 The record suggests that Nix -Corbin was born on August 8, 1934, making her 79 at the time she

was beaten. Nonetheless, we note that during the aggravated battery trial, the State admitted into evidence

a certified copy of a birth certificate for Nix -Corbin, stating she was born August 8, 1939, which would

then make her age 74. See Anthony , 2018 IL App (1st) 160894- U, ¶ 10.

Defendant was found guilty of counts 2 through 5, charging him with aggravated battery. He was

sentence d on counts 2 and 4 to seven years ’ imprisonment and counts 3 and 5 to 8 years’ imprisonment,

all to run concurrently. On appeal, this court vacated the sentences imposed on counts 3, 4, and 5,

pursuant to the one- act, one crime doctrine. Anthony , 2018 IL App (1st) 160894- U, ¶¶ 28-31.No. 1-22-1648

- 3 - aggravated battery causing great bodily harm to a person 60 years of age or older, was upheld,

and this court ordered the circuit court clerk to correct the mittimus to reflect the accompanying

seven

- year prison term. Id . ¶ 31.

¶ 6 Nix -Corbin subsequently died on May 21, 2016, and defendant was then charged in

November 2016 with the first degree murder of Nix -Corbin, insofar as his actions created a

substantial probability of death or great bodily harm. The State proceeded to trial on that charge,

adducing the following evidence as to defendant’s identity and the cause of Nix -Corbin’s death.

¶ 7 Deborah Norwood testified that on July 26, 2014, around 9:50 p.m., she was working

private security at the Central Arms Hotel and standing outside looking around smoking a

cigarette while a man named Chris spoke to her and flirted. On cross

- exa mination, she added that

another security guard was also participating in the conversation, and there were about three

people down the block in front of the liquor store. However, “Momma” was sitting in her chair

drinking a beer across from the hotel. Norw ood said, “Momma, come on over here where I’m

at,” but Momma responded, “I’m okay.” The area where Momma sat was well

- lit and there was

also a light fixture on the corner of Forrestville.

¶ 8 After a wh ile Chris directed Norwood’s attention back across th e street, where Norwood

saw a blue pickup truck in front of Momma and someone stomping on her. On cross, Norwood

stated that at that point, she could only see a leg and not the face of the attacker. Norwood ran

across the street, crossing paths with “the guy that did it,” and said, “come here motherfucker,”

but a man later identified as defendant continued walking away. On cross, she clarified that

defendant was standing next to Momma and in the process of leaving when Norwood arrived. In

response to the qu estion on cross, “And you didn’t actually see anyone touch her?” Norwood

reiterated that she had seen defendant “stomping her.” Norwood then saw Momma lying on theNo. 1-22-1648

- 4 - ground unconscious and bleeding from her head. There was a little pool of blood on the ground.

Norwood shook Momma in an attempt to revive her and cried “please don’t die on me.” An

ambulance was called. Norwood then flagged down an approaching police vehicle and told

police that defendant had gone around the corner. Norwood described him as wear ing a white tshirt and khakis.

¶ 9 Momma soon revived, and paramedics bandaged her, but she declined hospital treatment.

She was also missing her glass eye. Norwood noted on cross that she helped Momma back to her

room at the hotel. The next morning, Momm a failed to respond to the knock at her door.

Norwood, with the property manager’s help, entered the room to find Momma lying in bed

unconscious, and she was taken to the hospital.

¶ 10 Norwood stated on cross that she had seen defendant in the building be fore, and she did

not recall testifying in 2015 to the contrary. She also made an in -court identification of defendant

as the offender. Norwood acknowledged that a detective showed her a photo array in August

2014, some days after the offense, but she was unable to identify anyone pictured. It was noted

on cross that these same detectives asked Norwood if she had seen the offender’s face, to which

she replied she had only seen “the person from the back.” On cross, she confirmed this

statement, adding “but he turned around.”

¶ 11 The State al so adduced evidence from Elbert Smith, who testified that on the day in

question, he was a third -floor resident at Central Arms Hotel with a window viewing the corner

of 47th street and Forrestville Avenue. Around 9:50 p. m., he heard a loud voice from his room,

prompting him to look out his window. On cross, Smith clarified that he was taking a nap, but

the loud noises woke him up, and while he at first denied that his eyes were blurry on waking, he

later acknowledged they were blurry, and he had a rag in his hand to wipe them. He then sawNo. 1-22-1648

- 5 - defendant cross the street and stand by the pickup truck, about five feet from Forrestville

Avenue. Defendant looked at Momma, who was also behind the truck, and said, “hey, hey bitch,

wh ere my $10 at bitch,” then proceeded to punch her with a closed fist. He held onto the truck

and stomped on her head. Defendant walked away, going to Forrestville, and he turned the

corner. Smith then exited the building, and approached two security guards by Momma, who was

bleeding with a gash on her head. Consistent with Norwood’s testimony, Smith reported that

Momma said she was fine and they walked Momma to her room, but the next morning she was

taken to the hospital. Smith visited her there that day, but she was unable to talk.

¶ 12 On cross, Smith stated that he saw defendant’s face and testified on direct that in fact he

had seen defendant many times around the hotel. He identified defendant in court as the

offender. On cross, Smith acknowledged he spoke with police officers at the station on August

5, 2014, and he “could have told” police that he didn’t see “Momma being stumped,” but he did

not remember. He insisted at trial, however, that he saw Momma “getting stumped.”

¶ 13 Chicago polic e lieuten ant Ronald Kimble testified that he was working as a sergeant

between 9 p.m. and 10 p.m. on the evening in question. He was driving in an unmarked police

vehicle westbound on 47th Street, near Forrestville, when three or four people on the north side

of th e street frantically waved him down, and he stopped his vehicle. Lieutenant Kimble saw an

elderly woman lying on the ground between the sidewalk and the curb with injuries to her head,

blood on her face, and an eye injury of some sort. There was also blood on the ground, and she

was not moving at all. Those present pointed to a man walking away from them (on the same

side of the street as Lieutenant Kimble) and said that he had just beaten and stomped on the

woman. While still in his vehicle, Lieutenant Kim ble followed the man, who turned the corner

and walked very slowly as if “he hadn’t done anything.” Within a block, Lieutenant KimbleNo. 1-22-1648

- 6 - stopped and detained the man, whom Lieutenant Kimble identified in court as defendant. Once

defendant was detained, Lieute nant Kimble returned to the scene, and by then other officers had

arrived. Nix -Corbin also was by that point awake and moving but incoherent and “kind of

combative.”

¶ 14 On cross, Lieutenant Kimble stated that defendant did not possess any weapons when

detained. Defendant was wearing a light pale

- colored shirt, but he could not remember the pants’

color, and Lieutenant Kimble did not see any blood on defendant.

¶ 15 Dr. Matthew Brandon Maas, a neurologist at Northwestern Hospital, testified next that he

was a treating physician for the victim Nix -Corbin and had reviewed her medical records. Nix

Corbin arrived at the hospital on July 27, 2014, unresponsive and comatose, and a team of

physicians, including a neurologist, neurosurgeon, trauma specialist s, and emergency medicine

specialists, examined Nix -Corbin. A brain scan revealed that she had a substantial area of

bleeding on the left side of her brain between the brain tissue and the skull, commonly called a

subdural hemorrhage. Consequently, surgeons performed a decompressive hemicraniectomy,

wherein they sawed off a large piece of Nix -Corbin’s skull, removed it, and then opened up some

layers between that and the brain and suctioned out the blood clot, thus permitting room for her

swelling brain.

¶ 16 Dr. Maas testif ied that the blood clot seemed to have developed in the last day or two,

which corresponded with the factual history reported of the assault on Nix -Corbin. In explaining

how Nix -Corbin could decline medical treatment and walk to her apar tment following the

assault, but then be unconscious the next morning, Dr. Maas noted that the injury and symptoms

of a subdural hemorrhage can take time to manifest themselves and it was “commonly observed

that people with subdural hemorrhages don’t perce ive any symptoms when they first develop.”No. 1-22-1648

- 7 - Had Nix -Corbin not received emergency medical attention, it would be unlikely she would

survive another day. Dr. Maas eventually helped remove Nix -Corbin from the ventilators,

placing a tracheostomy to allow Nix -Corbin to breathe on her own and a feeding tube for longterm nutrition. Nix -Corbin, who remained in a coma, was then discharged to a long- term care

facility on August 9, 2014.

¶ 17 On cross, Dr. Maas stated that on her admission to the hospital, Nix -Corbin’s toxicology

screen detected barbiturates and cocaine, consistent with a reported history of IV drug abuse. Dr.

Maas, however, did not note that this was an active matter in her care. He testified on redirect

that drug abuse does not cause subdural hemat omas. As set forth, Nix -Corbin died about two

years later, on May 21, 2016.

¶ 18 Dr. Benjamin Soriano, a Cook County assistant medical examiner and expert in forensic

pathology, testified that he subsequently performed an autopsy on Nix -Corbin. The autopsy

revealed Nix -Corbin suffered from head trauma with complications of pneumonia ur inary tract

infections, and sepsis. Based on the autopsy and review of Nix -Corbin’s medical history, Dr.

Soriano opined that within a reasonable degree of medical and scientific certainty Nix -Corbin’s

cause of death was a complication of a “closed head injury due to assault” and the manner of

death was a homicide. Following this evidence, the State rested. The trial court denied

defendant’s motion for a directed finding.

¶ 19 Defendant proceed ed on a theory of misidentification, presenting the following evidence

in his defense. Christopher Williams testified that between 9 p.m. and 10 p.m. on the day in

question, he was standing outside the hotel talking to a female security guard, Norwood, and they

were drinking alcohol. It was dark, and there was no one else in their immediate vicinity.

Williams then noticed an old lady lying on the ground across the street. Williams directed theNo. 1-22-1648

- 8 - security guard’s attention to the woman on the ground. Williams, however, did not see anyone

near the woman and did not see any one strike the woman. Williams had seen defendant at the

liquor store, located in a diagonal direction across the street from the hotel, but he did not know

defendant and had no prior relationship with him. Williams made an in -court identification of

defen dant and testified he did not see defendant strike the woman on the ground. Williams

acknowledged he was convicted of unlawful use of a weapon by a felon in 2019.

¶ 20 On cross, Williams testified that he first spoke with the security guard for some 10 or 20

minutes and then went to the liquor store, where he saw defendant, but he was unsure what time

or what defendant wore. There was no one else just standing there that night. Following his

outing to the liquor store, Williams returned to drink alcohol with the security guard. About 10

minutes later, Williams noticed the woman on the ground close to Forrestville Avenue. Williams

crossed the street with the security guard, and stood there while the security guard tended to the

woman. Then he walked away. Williams did not recall the security guard stating that a man was

stomping on the woman.

¶ 21 Officer Rober to Ornelas testified next that he was a correctional officer at the Cook

County jail, working in the male clothing property room and inventorying an d itemizing detainee

civilian clothing. Officer Ornelas testified that the clothing receipt, generated in the regular

course of business during the inventory process and retained by the department, revealed that

defendant was wearing a white shirt, gray pa nts, and red shoes with multicolored shoelaces when

he was processed on July 27, 2014. The defense then rested.

¶ 22 Following evidence and argument, the court found the defense witnesses incredible.

Accordingly, the court found the State had proved defendant guilty of the first degree murder of

Nix -Corbin beyond a reasonable doubt and denied defendant’s motion for a new trial. In doingNo. 1-22-1648

- 9 - so, the court noted, “the fact that a witness may be impeached on some issue doesn’t by itself

negate the testimony. It ne ver has and never will. It is the weight that the trier of fact gives to that

inconsistency that counts.”

¶ 23 The cause proceeded to sentencing, where the State argued in aggravation that defendant

had prior felony convictions, including the aggravated ba ttery conviction in this case that

preceded the murder charge. The State argued defendant should be punished appropriately given

that the crime involved extreme violence. The defense argued in mitigation that defendant was

physically, emotionally, and sexu ally abused during his childhood. He had been honorably

discharged from the military and suffered from posttraumatic stress disorder and manic

depression, in addition to having shattered kneecaps due to gunshot wounds in both legs. He had

obtained his GED, had worked as a freelance barber, and had a good relationship with his six

children, four of them minors. The defense maintained the 2014 conviction for aggravated

battery stemming from the same facts “should merge with the charges in this case,” because

aggravated battery “would have merged into the more serious charge” if both charges had issued

at the same time. The defense asked for the minimum sentence.

¶ 24 The court stated :

“I have considered the PSI and factors in aggravation and mitigation. I have considered

the Defense’s argument for a sentence close to the minimum *** I have considered all that and

your military service and the breadth and width of your prior record, the most serious of which is

the conviction for the agg battery charge of the same incident. I have considered all that.”

The court then sentenced defendant to 21 years’ imprisonment with credit for time served on the

aggravated battery conviction, precisely 2,959 days (or a little over 8 years) from defendant’s

arrest in 2014. This appeal followed.No. 1-22-1648

- 10 - ¶ 25 ANALYSIS

¶ 26 Sufficiency of the Evidence

¶ 27 Defendant now challenges the sufficiency of the evidence to sustain his conviction. When

considering such a challenge, we must determine 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. Walls , 2022 IL App (1st) 200167, ¶ 17. Under

this standard, it’s for the trier of fact to fairly resolve any conflicts in testimony, to weigh the

evidence, and to draw reasonable inf erences from basic facts to ultimate facts. People v.

Siguenza- Brito , 235 Ill. 2d 213, 224 (2009). As a reviewing court, we will not substitute our

judgment for that of the trier of fact on issues involving the weight of the evidence or witness

credibility

. Id

. at 224-25. A conviction will not be set aside on appeal unless the evidence is so

unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the

defendant’s guilt. People v. Wright , 2017 IL 119561, ¶ 70.

¶ 28 To prove defen da nt guilty of first degree murder, as charged, the State was required to

establish that defendant knew that his actions of stomping on Nix -Corbin created a strong

probability of death or great bodily harm. 720 ILCS 5/9- 1(a)(2) (West 2014). On appeal,

defe ndant does not contest that Nix -Corbin died from her head injuries two years after the

stomping, but rather challenges his identity as the offender, contending the witness

identifications were unreliable.

¶ 29 We first observe that defendant raised a sim ilar challenge on appeal from his aggravated

battery conviction, which arose from the same factual matrix as the present case. 3 He also

claimed, as he does now, that no physical evidence tied him to the offense. Notably, both

3 Defendant, for his part, now concedes that defendant ’ s “ conviction for murder in this case is

based on the same physical act

— beating Nix -Corbin — [.] ”No. 1-22-1648

- 11 - Norwood and Smith testified in defendant’s 2015 bench trial, in addition to another hotel

resident, as to the beating that rendered Nix -Corbin permanently “unresponsive and intubated” in

a long- term care facility. Anthony , 2018 IL App (1st) 160894- U, ¶ 11. Based on that testimony,

this court found the State had proved defendant guilty beyond a reasonable doubt of punching

and then stomping on Nix -Corbin, thus causing great bodily harm to a person 60 years of age or

older. Id

., ¶ 20. Under the doctrine of collateral estoppel, when an is sue of ultimate fact has once

been determined by a valid and final judgment, that issue cannot again be litigated between the

same parties in any future lawsuit. 4 Ashe v. Swenson , 397 U.S. 436, 443 (1970); see also People

v. Tenner , 206 Ill. 2d 381, 396 (2002) (noting, collateral estoppel bars the litigation of an issue

that was decided in a prior case). 5 The State nonetheless did not raise collateral estoppel on the

identity issue in the court below, nor does it argue estoppel at present, thus forfeiting the matter.

See People v. Lucas

, 231 Ill. 2d 169, 175 (2008) (noting, the doctrine of forfeit ure applies to the

State, as well). We therefore proceed to the merits.

¶ 30 D efendant now specifically contends that Norwood and Smith had a limited opportunity

to view defendant. He maintains neither could see defendant from across the street on that dark

night. In addition, he alleges their testimony was unclear, inconsistent and impeached in

significant regards.

4 The party seeking to invoke collateral estoppel must show that (1) the issue sought to be

precluded was raised and litigated in a previous proceeding, (2) the determination of the issue was a

critical and necessary part of the final judgment in a prior trial, and (3) the issue is the same one decided

in the previous trial

. People v. Jones

, 207 Ill. 2d 122, 139 (2003).

5 Although the analyses remain the same, this case could possibly be described as “direct

estoppel .” U.S. v. Bailin , 977 F. 2d 270, 276 (1992); see also People v. Wharton

, 334 Ill. App. 3d 1066,

1078 (2002) (noting, retrial is not collateral if it is a continuation of the first trial). “Direct estoppel

prevents a party from relitigating a fact which was already determined against it in ‘a decision that finally

disposes of a part of a claim on the merits but does not preclude all further action on the remainder of the

claim; issues common to both parts of the claim are precluded, even though new issues remain to be

decided.’ ” Id

.No. 1-22-1648

- 12 - ¶ 31 However, it remains the case that a single positive identification by a witness who had

ample opportunity for observation is sufficient to support a conviction. People v. Davila , 2022 IL

App (1st) 190882, ¶ 36. A trier of fact assesses the reliability of identification testimony in light

of all the facts and circumstances under Neil v. Biggers , 409 U.S. 188 (1972), including (1) the

witness’s opportunity to view the offender at the time of the offense, (2) the witness’s degree of

attention at the tim e of the offense, (3) the accuracy of any previous description of the offender

by the witness, (4) the degree of certainty shown by the witness in identifying the defendant, and

(5) the length of time between the offense and the identification. Id . ¶ 37; People v. Guerrero

,

2020 IL App (1st) 172156, ¶ 32. The “ Biggers factors” continue to be the gold standard for

assessing evidence where a defendant’s identity is at issue. See People v. Macklin , 2019 IL App

(1st) 161165, ¶¶ 22-23. No single factor is dispos itive, and the identification’s reliability is based

on the totality of the circumstances. People v. Simmons , 2016 IL App (1st) 131300, ¶ 89. Each

case must be judged on its own facts against the touchstone of the reasonable doubt

standard. People v. Lerma , 2021 IL App (1st) 181480, ¶ 91.

¶ 32 Here, after car efully reviewing the evidence under that standard in a light most favorable

to the State, we cannot say Norwood and Smith’s combined testimony identifying defendant as

the offender was so unreasonable, improbable, or unsatisfactory that there remains a reasonable

doubt as to defendant’s guilt. First, both Norwood and Smith had ample opportunity to view the

offender at the time of the offense on July 26, 2014, around 9:50 p.m. Norwood testified that she

was working as private security and essentially taking a smoke break outside the hotel, standing

there along with a man named Chris and another security guard while Nix -Corbin sat alone, only

across the street in her wheel chair, drinking a beer. A group congregated at the liquor store just

down the street. Norwood asked Nix -Corbin to join them, but she remained there in the well

- litNo. 1-22-1648

- 13 - area. There was also lighting at the corner of Forrestville, not far from where Nix -Corbin sat.

Norwood then saw the leg of the attacker stomping upon Nix -Corbin behind a blue pickup truck.

Norwood ran across the street, crossing paths with defendant and told him to come here, but he

kept walking around the corner. On cross, she clarified that defendant was standing next to Nix

Corbin and in the process of leaving when Norwood arrived. Norwood then saw Nix -Corbin

lying on the ground unconscious and bleeding from her head.

¶ 33 Smith, having an elevated viewpoint, testified that a loud noise prompted him to look out

the window. He saw defendant cross the street, stand by a pickup truck (about five feet from

Forrestville), near Nix -Corbin

, and say, “hey, hey bitch, where my $10 at bitch.” Smith testified

that defendant proceeded to punch Nix -Corbin with a closed fist, then held onto the truck and

stomped on her head. Defendant walked away, going to Forrestville, and he turned the corner.

Smith then exited the building, and approached two security guards by Nix -Corbin

, who was

ble eding with a gash on her head.

¶ 34 Moreover, Norwood and Smith’s testimony was consistent in significant regards as to the

time of the offense, where it took place (across the street from the hotel and near Forrestville),

the presence of the pickup truck, defendant’s manner of stomping on Nix -Corbin

, and his

apparently casual manner of walking away from the scene after having caused deathly blows to

Nix -Corbin ’s head. Smith noted the presence of two security guards after the stomping, while

Norwood noted she had been standing outside the hotel with another security guard prior to the

offense. Moreover, Lieutenant Kimble testified that he was stopped by three or four people,

consistent with the fact that Norwood, another security guard, and later Smith, were outside,

attending to Nix -Corbin. Lieutenant Kimble also confirmed Nix -Corbin ’s head injuries, and that

those present pointed to defendant, who was walking away and turned the corner as LieutenantNo. 1-22-1648

- 14 - Kimble followed him. Based on the foregoing, the identification witnesses had ample

opportunity to view defendant as the offender, and they were in a position to view him.

¶ 35 As to the second factor, this also weighs in the State’s favor. While Norwood’s attention

was at first focused on those around her, she was attuned enough to know Nix -Corbin was siting

across the street, and as stated, had just spoken to her prior to the offense. The State’s evidence

demonstrates that once Norwood realized Nix -Corbin was being stomped upon, she focused

directly on the scene unfolding before h er and the offender. Likewise, while Smith had just

awoken from a nap, his testimony demonstrated his focus was on the scene of the offense.

¶ 36 Defendant attempts to cast doubt on Smith’s attention, noting that Smith at first denied

that his eyes were b lurry on waking to the loud noise and looking out the window, but he then

acknowledged they were blurry, and he had a rag in his hand to wipe them. Yet, viewing the

evidence in the light most reasonable to the State, Smith still testified that he looked ac ross the

street and saw defendant. Defendant’s complaint goes to the weight of the evidence and

credibility of the witness, which is exclusively within the fact finder’s realm. See Siguenza- Brito

,

235 Ill. 2d at 224.

¶ 37 As to the thir d factor, the accuracy of any previous description of the offender by the

witness, this factor weighs in favor of the State. Although neither Norwood nor Smith provided a

detailed description of defendant’s race, sex, age, height, weight, hair color, or hair style at this

tri al, they did not need to. Lieutenant Kimble showed immediately on the scene, and those

present were able to point to defendant as he walked away. Lieutenant Kimble then followed

defendant around the corner, arresting him. In that sense, the identification of defendant was

more akin to a show-up. See People v. Lippert

, 89 Ill. 2d 171, 188 (1982) (noting, “prompt

show-ups near the scene of the crime as acceptable police procedure designed to aid police inNo. 1-22-1648

- 15 - determining whether to continue or to end the search for the culprits”). There is no evidence that

there were multiple possible offenders within the vicinity of Nix -Corbin or that Norwood pointed

to anyone else other than defendant. See People v. Smith , 215 Ill. App. 3d 1029, 1036 (1991)

(finding the fact that the victim never identified another person as her attacker, although the

victim had the opportunity, strengthened reliability). Likewise, there is no evidence that

Lieutenant Kimble was following anyone other than defendant.

¶ 38 Regardless, a general d escription by a witness does not necessarily render the witness ’ s

identification unreliable, and a witness need not distinguish a suspect’s individual and separate

features. Macklin , 2019 IL App (1st) 161165, ¶ 28. Here, the evidence suggests that defendant

was detained and arrested on the scene July 26, 2014, although his clothing was not inventoried

until the next day. 6 The inventory receipt, according to defendant’s own witness, shows he was

wearing a white t- shirt and gray pants, which is consi stent with Norwood’s general description of

defendant wearing a white t- shirt and khakis the night of the offense.

¶ 39 As to the fourt h Biggers factor, the degree of certainty shown by the witness in

identifying the defendant, defendant acknowledges that both Norwood and Smith identified

defendant in court as the offender. Defendant asks this court to disregard this factor because he

claims expert research shows low correlations between a witness’s confidence and the accuracy

of their identification. Defe ndant did not present this evidence at trial. And, he fails to cite any

authority that courts must disregard the fourth Biggers factor in light of that research, thus

6 The impounded record underlying defendant’s direct appeal in Anthony, 2018 IL App (1st)

160894-U (No. 14 CR 60065), contains an arrest report for the aggravated battery of Nix -Corbin

reflecting that defendant was arrested on September 30, 2014. The police noted defendant was observed

“busting out the windows of a taxi cab” and a subsequent name check revealed two investigative alerts

with probable cause for arrest. The parties do not make clear the exact date defendant was initially

detained and arrested fo r the aggravated battery of Nix -Corbin in July 2014 or why he was apparently

subsequently released until September 2014.No. 1-22-1648

- 16 - forfeiting the matter. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); Simmons , 2016 IL App (1st)

131300, ¶ 96 (rejecting a similar argument).

¶ 40 Defendant also argues the trial identifications resulted from defendant “evidently wearing

jail clothes .” In support, he notes that for her in -court identification

, Norwood described

defendant’s brown khaki shirt. The record does not establish what defendant wore at trial, and

defendant did not submit an offer of proof on the matter or raise any objection, resulting in

forfeiture. See People v. Sebby , 2017 IL 119445, ¶ 48; People v. Andrews , 146 Ill. 2d 413, 421

(1992) (noting, the purpose of an offer of proof is to disclose the nature of the offered evidence).

Also, [i]t is axiomatic that it is improper to draw an inference in favor of a defendant based on

material missing from the record.” M acklin , 2019 IL App (1st) 161165, ¶ 27. In addition, he

omits that Smith (apparently an elderly witness) took some time to identify defendant in co urt,

which contradicts his contention that he was only identified based on his jail outfit. Moreover,

Smith t estified that in fact he had seen defendant many times around the hotel. The

persuasiveness of identification testimony continues to be strengthened by the witness’s prior

acquaintance with the accused. Davila , 2022 IL App (1st) 190882, ¶ 38.

¶ 41 As to the fin al Biggers factor, the length of time between the offense and the

identification, we would again note that defendant was immediately identified on the scene by

those present, per Lieutenant Kimble, and thereafter detained. This weighs in the S tate’s favor. In

addition, both Norwood and Smith testified at defendant’s June 2015 trial for aggravated battery,

which defendant now concedes arises from the same beating of Nix -Corbin, and Norwood

identified defendant in court as the offender. See Anthony , 2018 IL App (1st) 160894- U, ¶ 8.

Norwood and Smith identified defendant again as the offender during the present murder trial.

Although defendant established on cross that Norwood did not identify defendant from a photoNo. 1-22-1648

- 17 - array shown to her by a detective, defendant failed to establish at trial that his photograph was

actually contained in that photo array. Even assuming it was, this does not significantly detract

from the positive identification evidence set forth above. We thus reject defendant’s conten tion

that over seven years passed before Norwood and Smith identified defendant. The record belies

this disingenuous argument.

¶ 42 Defendant still main tains the identification evidence was insufficient to support his

conviction. He specifically challenges Smith’s opportunity to view, and in support points to

defense counsel’s cross of Smith at trial. During cross, the defense noted that Smith had

previously testified in 2015 that he could not see defendant’s face, and he omitted telling police

officers abo ut the truck. Yet, in the same breath at defendant’s murder trial, Smith also stated

definitively that “I’d seen Momma getting stumped,” and that he did not recall what he told

officers after the offense. He further stated he looked right out the window an d saw the attack.

It’s for the trier of fact to resolve discrepancies in testimony, and the trier of fact is free to accept

or reject as much or as little of a witness’s testimony as it pleases. People v. Peoples , 2015 IL

App (1st) 121717, ¶ 67. Also, it’s sufficient if all of the evidence taken together satisfies the trier

of fact beyond a reasonable doubt of the defendant’s guilt. Id .; cf

. In re O.F. , 2020 IL App (1st)

190662, ¶¶ 34-48 (finding identification unreliable where a single witness viewed the defendant

for moments in “unfa vorable conditions,” including vantage point, lighting, and with admitted

inattention, and also failed to give an accurate prior description). That was and is the case here.

¶ 43 Defendant similarly notes that, on cross, Norwo od stated that she had seen defendant in

the building before, which defendant contended contrasted with her 2015 testimony. At that time,

Norwood stated she had never seen defendant before. While defense counsel elicited this

discrepancy on cross, Norwood also stated she did not recall being asked that question in 2015 orNo. 1-22-1648

- 18 - giving that answer. Defendant has not cited the 2015 transcript on which his question was based.

His point is thus unsupported. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (requiring the

argument to contain pages of the record relied on). In any event, we reject this argument for the

reasons already stated above. Defendant’s challenge to the sufficiency of the evidence must fail.

¶ 44 Sentencing

¶ 45 Defendant next challenges his sentence. A trial court’s sentencing decisions are entitled

to great deference and weight. People v. Fern

, 189 Ill. 2d 48, 53 (1999); People v. Cox

, 377 Ill.

App. 3d 690, 709 (2007). A sentence within the statutory guidelines is presumptively correct,

and a trial court’s sentencing decision will not be disturbed, absent an abuse of discretion. People

v. Knox , 2014 IL App (1st) 120349, ¶ 46; Cox

, 377 Ill. App. 3d at 709.

¶ 46 Here, the trial cou rt found defendant guilty of first degree murder, which carries a

sentence of 20 to 60 years. 720 ILCS 5/9- 1(a)(2) (West 2014); 730 ILCS 5/5-4.5-20 (West 2014

& West 2022). The court then sentenced defendant to 21 years in prison, one year above the

minimum. Defendant now contends the trial court relied on an improper factor in fashioning his

sentence, as well as void convictions, and therefore he is entitled to a new sentencing hearing.

The State contends the sentencing hearing shows otherwise.

¶ 47 A tria l cour t is prohibited from consider ing incompetent evidence or improper

aggravating factors at sentencing, and a sentence based on an improper factor in aggravation

constitutes an abuse of discretion. People v. Cross , 2019 IL App (1st) 162108, ¶ 190; People v.

Minter , 2015 IL App (1st) 120958, ¶ 147. Yet, the question of whether a trial co urt considered

an improper factor in imposing a sentence is a question of law, which we review de novo

. People

v. Streator , 2023 IL App (1st) 220640, ¶ 73. A sentence base d on an improper aggravating factor

will not be affirmed unless the reviewing court can determine from the record that the weightNo. 1-22-1648

- 19 - accorded the factor was so insignificant that it did not lead to a greater sentence. People v.

Heider , 231 Ill. 2d 1, 21 (2008 ). The defendant bears the burden of affirmatively showing the

error. People v. Burnette , 325 Ill. App. 3d 792, 809 (2001).

¶ 48 Here, the presentence investigation report showed that defendant had three convictions

for aggravated unlawful use of a weapon (AUUW) from 2003 and 2004, for which defendant

was previously sentenced to 2 years in the department of corrections. Defendant maintains, and

the State concedes, that these convictions are void pursuant to In re N.G. , 2018 IL 121939, as

they were based on a facially unconstitutional law. See also People v. Alexander , 2019 IL App

(3d) 170168, ¶ 25. Nonetheless, at the sentencing hear ing in this case, the State noted in

aggravation the violent nature of the offense and defendant’s criminal history, including a “gun

charge from 2004” (although the State said it would not rely on that “too heavily”). In an effort

to downplay the violence involved in the present case, the defense observed that the State had

not charged defendant with an “intent to kill,” and no weapon was used in the murder of Nix

Corbin. The defense argued defendant had little in his background, observing, in response to the

State’s argument, that the three “agg UUW convictions *** were all concurrent, two years

IDOC.”

¶ 49 As set fort h, the court, in issuing the 21- year sentence, stated:

“I have considered the PSI and factors in aggravation and mitigation. I have consid ered

the Defense’s argument for a sentence close to the minimum *** I have considered all that and

your military service and the breadth and width of your prior record, the most serious of which is

the conviction for the agg battery charge of the same inci dent. I have considered all that.”

¶ 50 The State does not now dispute that it’s improper for the court to base its sentencing

decision on a void conviction but maintains “there’s nothing in the record to intimate the courtNo. 1-22-1648

- 20 - considered defendant’s past gun convictions.” This argument is belied by the record, which

demonstrates the court considered the PSI and also defendant’s prior criminal record, undeniably

encompassing the void convictions, and the State also essentially asked the court to consider the

vo id convictions in sentencing defendant. See 730 ILCS 5/5-5-3.2(a)(3) (West 2022) (noting,

criminal history may be considered in aggravation); 730 ILCS 5/5-4- 1(West 2022) (a court must

consider the defendant’s PSI at sentencing). This requires remand for re sentencing. See Cross

,

2019 IL App (1st) 162108, ¶ 202; Alexander , 2019 IL App (3d) 170168, ¶¶ 22, 29 (noting, an

“AUUW conviction cannot be used for any purpose, including to increase his punishment for a

new offense”). Based on the record, we cannot say the weight accorded the void convictions was

so insignificant that it did not lead to a greater sentence. See Heider , 231 Ill. 2d at 21; cf

. People

v. Bridges , 2020 IL App (1st) 170129, ¶ 39 (declining remand, where the record clearly

established that the defendant’s AUUW conviction did not affect the trial court’s sentencing

decision).

¶ 51 The State also argues this was invited error, noting the record is silent as to any previous

attempts defendant took to vacate the convictions and noting defense counse l, himself,

referenced the convictions at sentencing. The State has not cited any authority for its invited

error argument, thus forfeiting the matter. See Ill. S. Ct. R. 341(h)(7), (i) (eff. Oct. 1, 2020)

(requiring the appellee to support contentions wit h citation to the authorities and the record relied

on). Moreover, we question whether the doctrine of invited error can be applied in this instance,

where it’s not clear the extent to which the court considered defendant’s void ab initio

convictions at se ntencing. See N.G. , 2018 IL 121939, ¶¶ 36, 38, 74; People v. Brown , 2023 IL

App (2d) 220334, ¶ 36 (noting that void orders are not subject to invited

- error rule). Indeed, a

facially unconstitutional statute is void ab initio

, as if the law were never passe d; “ [i]t was not, isNo. 1-22-1648

- 21 - not, and could never be a crime.” N.G. , 2018 IL 121939, ¶¶ 36, 50. The State “is precluded from

using past convictions under the facially unconstitutional law in any subsequent proceedings ‘ “

‘to support guilt or enhance punishment for another offense, ’ ” ’ ” and the conviction must be

treated by the courts as if it did not exist. N.G. , 2018 IL 121939, ¶¶ 36, 38, 74.

¶ 52 Next, defendant contends, and the State agrees, that his AUUW convictions must be

vacated. 7 See Cross , 2019 IL App (1st) 162108, ¶ 182 -87 (citing N.G. , 2018 IL 121939, ¶ 42,

and noting, courts have an affirmative duty to invalidate unconstitutional AUUW convictions,

provided the defendant raises the matter in an appropriate pleading before a court with

jurisdiction). In the case at bar, defendant attached to his brief both the mittimuses and

information (charging documents) from his AUUW convictions. We may take judicial notice of

those documents. See People v. Matthews , 2022 IL App (4th) 210752, ¶ 35; Cross , 2019 IL App

(1st) 162108, ¶ 185. In addition, we have his presentence investigation report. Accordingly, we

direct the clerk of the circuit court to vacate each of the three void AUUW convictions in 04 CR

0814501; 03 CR 0712801; 03 CR 0664801. 8

¶ 53 Last, defendant argues the aggravated battery and murder convictions in this case arose

from the same act, the beating of Nix -Corbin. Drawing on one- act, one- crime principles,

7 We note the discrepancy between the heading and the content of the State’s brief on this point.

In the heading, the State writes: “ This appeal is not the vehicle by which defendant’s Aguilar convictions

in three unrelated matters should be vacated.” But, then in the content, the State writes that “the People

agree defendant’s Agular

- era [ sic ] gun convictions should be vacated.” Given our affirmative duty to

invalidate unconstitutional AUUW convictions as cited above, we credit the State’s concession.

8 We note that the charging document for count 1 in the AUUW case of 04 CR 0814501 misstates

the case number as “04CR-8154.” All other counts in the charging documents and the information

correspond with the correct lower court numbers. In addition, the charging documents for 03 CR 0664801

do not bear the case number.No. 1-22-1648

- 22 - defendant argues that his aggravated battery conviction constituted a less serious offense and, as

such, it could not be considered in aggravation. 9 We agree.

¶ 54 Under one- act, one- crime principles, multiple convictions are improper if they are based

on precisely the same physical act. People v. Rodriguez , 169 Ill. 2d 183, 186 (1996). An “ act” is

any overt or outward manifestation that will support a s eparate offense. People v. Crespo

, 203

Ill. 2d 335, 341 (2001). For example, separate blows, although closely related, can constitute

separate acts which could properly support multiple convictions. Id

. at 342. Whether that’s the

case depends on the chargi ng instruments. Id

. Likewise, so long as there are multiple acts, their

interrelationship does not preclude multiple convictions. People v. Coats , 2018 IL 121926, ¶ 16;

see, e.g.

, People v. Marston , 353 Ill. App. 3d 513, 519 (2004) (noting, multiple convictions for

home invasion and aggravated battery were proper despite the common act of beating the victim,

where the defendant’s home entry was a separate act supporting the home invasion). Further, if

exactly the same physical act does form the basis for more than one offense, a defendant may

still be prosecuted for each offense, but only one conviction and sentence may be imposed.

People v. Segara

, 126 Ill. 2d 70, 77 (1988); see, e.g.

, People v. Sapp , 2022 IL App (1st) 200436,

¶ 75 (noting, a defendant cannot be convicted for multiple crimes relating to the use of a firearm

when only one firearm was involved). When multiple convictions are obtained for offenses

9 In his opening brief, and contrary to the State’s contention other wise, defendant argues this

qualifies as second -prong plain error. In his reply brief, defendant maintains he in fact preserved the

matter and mistakenly argued plain error in his opening brief. Normally, “ [p]oints not argued are forfeited

and shall not be raised in the reply brief.” Ill. S. Ct. 341(h)(7) (Oct. 1, 2020). We need not address the

matter of forfeiture because regardless, a sentence based on an improper factor constitutes second -prong

plain error. See People v. Lee

, 213 Ill. 2d 218, 226 (2004) (noting, a one- act, one- crime violation affects

the integrity of the judicial process and, therefore, satisfies the plain error rule); People v. Whitney , 297

Ill. App. 3d 965, 969 (1998), affirming in People v. Whitney

, 188 Ill. 2d 91 (1999). Prejudice res ults

where multiple convictions arise from precisely the same criminal conduct. Coats , 2018 IL 121926, ¶ 11.

We also note, as elucidated later, that defendant misspeaks in arguing the court relied on a

“lesser -included offense.” We take this argument to mean a less serious offense.No. 1-22-1648

- 23 - arising from a single act, a sentence should be imposed on the more serious offense, and the

conviction on the less serious offense should be vacated. Lee , 213 Ill. 2d at, 226-27; Sapp , 2022

IL App (1st) 200436, ¶ 76.

¶ 55 Here, the first degree murder charge specifically stated that defendant, without lawful

justification, beat Nix -Corbin knowing that such an act created a strong probability of death or

great bodily harm to Nix -Corbin, thereby causing the death of Nix -Corbin on May 29, 2016.

Prior to her death, in 2014, the State charged defen dant with aggravated battery in that defendant,

knowingly and without lawful justification, knocked Nix -Corbin to the ground and stomped on

her body, thereby c aus ing great bodily harm to Nix -Corbin, who was 60 years of age or older. 10

See 720 ILCS 5/12-3.0 5(a)(4) (West 2014).

¶ 56 Thus, as charged and proven, the same beating caused both the bodily harm to Nix

Corbin, and ultimately her death, as demonstrated at the murder trial. See Anthony , 2018 IL App

(1st) 160894- U, ¶ 28 (noting, all aggravated batter y counts were “based upon the the same ***

beating of Nix”). Although it could have, the State did not differentiate between the separate

beatings. Rather, these counts charge defendant with the same conduct under different theories of

criminal culpability . Contrary to the State’s argument, the death of Nix -Corbin is not an “overt or

outward manifestation” or “act” but a consequence of an act. Therefore, both the first degree

murder and aggravated battery convictions were based on the same act, notwithstanding the

delay in Nix -Corbin’s death. See People v. Harvey , 211 Ill. 2d 368, 391 (2004) (noting that the

passage of time is “not an overt or outward manifestation” or “act” but an external factor

permitting the State to charge the defendant with a separate offense); People v. Sienkiewicz , 208

Ill. 2d 1, 10 (2003) (finding defendant’s reckless driving conviction and reckless homicide

10 The parties do not rely on the aggravated battery counts vacated on appeal, so they do not factor

into our analysis.No. 1-22-1648

- 24 - charges arose from the same act); People v. Mims , 2014 IL App (1st) 082747- B, ¶ 46 (finding the

defendant’ s conviction for aggravated battery with a firearm violated the one- act, one- crime rule

because it was predicated on the same act as his attempted murder conviction

, which was

shooting the victim with a firearm).

¶ 57 Because defendant was tried for the aggravated battery years prior to the present offense,

he is not asking that we vacate the less serious offense, and indeed we cannot, as we have no

jurisdiction over that matter. See People v. Lyles

, 217 Ill. 2d 210, 217 (2005) (recognizing that

once the period for filing a petition for rehearing has passed, the appellate court lacks jurisdiction

to take any further action). Rather, defendant maintains that because both offenses arose from the

same facts, the aggravated battery should not have been used to increase his sent ence for the

more serious offense of murder. 11 The State does not dispute that it was improper to rely on the

aggravated battery but argues the trial court did not rely on the aggravated battery at sentencing.

As before, we find the State’s argument is belied by the record. Based on the record, we cannot

say the weight accorded the aggravated battery conviction was so insignificant that it did not lead

to a greater sentence. See Heider , 231 Ill. 2d at 21.

¶ 58 The State nonetheless appears to assert, the fact that defendant received presentence

custody credit for time served reflects that the trial court did not consider the aggravated battery

conviction in aggravation at sentencing or result in prejudice. We note the State’s argument as to

presentence custody credit is not well

- taken, as it is unclear, conclusory, and lacks citation to any

legal authority. See Ill. S. Ct. R. 341(h)(7), (i) (eff. Oct. 1, 2020); People v. Chatman , 2016 IL

11 We note that the same act constituted a violation of two distinct statutory provisions, but e ach

offense required proof of an additional element not required to prove the other offense; as such, the two

offenses are not the same for double jeopardy purposes. See People v. Henry , 204 Ill. 2d 267, 290 (2003).

For that same reason, as charged, the aggravated battery was not a lesser included offense of murder in

this case. See Sienkiewicz

, 208 Ill. 2d at 10-11.No. 1-22-1648

- 25 - App ( 1st) 152395, ¶ 45, fn. 19 (noting, a reviewing court is entitled to have issues clearly defined

with relevant authority cited) ; see also People v. Latona , 184 Ill. 2d 260, 270 (1998) (noting that

in -custody credit is not limited to a single sentence, provided that the sentences are concurrent);

730 ILCS 5/5-8-4 (West 2020). The separate matter of sentencing credit is not before us on

appeal, and the State has not established how it impacts the issues at hand. The parties will have

the opportunity on remand to investigate and brief the issue further should they desire

.

¶ 59 Accordingly, on remand, the trial court is prohibited from relying on the aggravated

battery conviction in aggravation at sentencing. Cf

. Burnette , 325 Ill. App. 3d at 809 (noting, the

consideration of a factor which is necessarily implicit in an offense cannot be used as an

aggravating factor in sentencing). We therefore vacate the sentence. However, this does not

preclude the same 21- year sentence from being issued on remand provided it’s based on proper

sentencing factors.

¶ 60 CONCLUSI ON

¶ 61 For the reasons stated, we affirm the judgment of the trial court finding defendant guilty

of first degree murder. We remand the matter for res entencing, and we direct the clerk of the

circuit court to vacate each of the three void AUUW convictions in 04 CR 0814501; 03 CR

0712801; 03 CR 0664801.

¶ 62 Affirmed in part and vacated in part; cause remanded for resentencing with directions.