2022 IL App (1st) 210808

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,

Plaintiff-Appellee, 

 v. 

SANTANA GRAYER, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 20 CR 1000201 

Honorable 

Vincent Gaughan, 

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. 
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¶ 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, 102 Ill. 2d 181 (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 51⁄2 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, 212 Ill. 2d 274, 278 (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, 223 Ill. 2d 187, 242 (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, 241 Ill. 

2d 1, 8 (2011); People v. Smith, 185 Ill. 2d 532, 542 (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.” Id. § 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, 2018 IL App 

(1st) 150149, ¶ 33 (quoting People v. Cunningham, 123 Ill. App. 2d 190, 209 (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.’ ” Id. (quoting People v. 

Robinson, 379 Ill. App. 3d 679, 684 (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, 123 Ill. App. 2d at 208-09. 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, 2020 IL App (1st) 171729, ¶ 69 (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, 

2020 IL App (1st) 162182, ¶ 55 (citing People v. Jackson, 362 Ill. App. 3d 1196, 1201 (2006) 

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

criminal conduct.”), and People v. Rodgers, 335 Ill. App. 3d 429, 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, 2018 IL App (1st) 150149, ¶ 33. 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.” 

Id. (quoting Cunningham, 123 Ill. App. 2d at 209). 

¶ 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, 123 Ill. App. 2d at 208-09 (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, 362 Ill. App. 3d at 1201.
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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, 408 Ill. App. 3d 752, 758 (2011). A 

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

marks omitted.) People v. Hawkins, 311 Ill. App. 3d 418, 423-24 (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, 99 Ill. 2d 427, 435-36 (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, 408 Ill. App. 3d at 758 (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, 223 Ill. 2d at 242. 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, 239 Ill. 2d 205, 212 (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. Id. 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, 324 Ill. App. 3d 1084, 1093-94 (2001) 

(quoting People v. Streit, 142 Ill. 2d 13, 19 (1991)). In the absence of evidence to the contrary, we 

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

2016 IL App (1st) 134004, ¶ 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, 2017 IL App 

(3d) 150165, ¶ 14 (citing People v. Busse, 2016 IL App (1st) 142941, ¶ 27). 

¶ 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, 239 Ill. 2d at 214-15. 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, 2016 IL App (1st) 140134, ¶ 22), nor is it required to recite 

and assign value to each factor presented at the sentencing hearing (People v. Baker, 241 Ill. App. 

3d 495, 499 (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, 406 Ill. App. 3d 412, 434 (2010). Defendant here has failed to do 

so. 
No. 1-21-0808 

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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, 324 Ill. App. 3d at 1093-94 (quoting Streit, 142 Ill. 2d at 19). 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 bloodalcohol level of .244. A person named Phyllis2 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.
No. 1-21-0808 

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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 
No. 1-21-0808 

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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. 
No. 1-21-0808 

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People v. Grayer, 2022 IL App (1st) 210808 

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-CR1000201; the Hon. Vincent M. Gaughan, Judge, presiding. 

Attorneys

for

Appellant:

James E. Chadd, Douglas R. Hoff, Daniel T. Mallon, and Christina 

Law Merriman, of State Appellate Defender’s Office, of Chicago, 

for appellant. 

Attorneys

for

Appellee:

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique 

Abraham, Brian A. Levitsky, and Sharon Kim, Assistant State’s 

Attorneys, of counsel), for the People.