20 2 1 IL App (1st) 1 90505

- U No. 1 -19-0505 Order f iled May 18 , 20 21 Second 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,
Plaintiff

- Appellee ,

v.
MOHAMED NAKHLEH , Defendant -Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

. No. 03 CR 28447
Honorable David Sterba , Colleen Ann Hyland Judges presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Justices Cobbs and Lavin concurred in the judgment. O RDER
Held : We affirm defendant’s conviction for attempt ed first degree murder where theevidence was sufficient for the trial court to find that the State prove d his guil t beyond a reasonable doubt. We also affirm defendant’s 24

- year sentence, which was not excessive or an abuse of discretion. ¶ 1 Following a 2005 jury trial, d efendant Mohamed Nakhleh was found guilty of attempt ed first degree murder (720 ILCS 5/8

- 4(a) (West 2002) ; 720 ILCS 5/9 -1 (West 2002)) and aggravated battery with a firearm ( 720 ILCS 5/12

- 4.2 (West 2002 ))

. Aft er merging the aggravated battery into the attempted murder count, the court sen tenced defendant to 24 years’ imprisonment. On appeal,No. 1 -19-0505

- 2 - he contends that the State’s evidence was insufficient to prove his guilt beyond a reasonable doubt and, in the alternative, that his sentence was excessive. For the following reasons, we affirm. ¶ 2 In connection with a 2003 shooting, d efendant was charged in a 33 -count indictment , with, as relevant here, one count of attempt ed fi rst degree murder arising from the shooting of Samer Abdallah (count I); a second count of attempt ed murder for shootin g at Mohammad Qader (count
II ); and aggravated battery for shooting Abdallah (count III). Before trial, the remaining counts were nol -pro ssed. ¶ 3 Defendant failed to appear for his 2005 jury trial , and he was tried in absentia. ¶ 4 At trial, Abdallah testified t hat around 12:30 a.m. on November 9 , 2003, he was driving Qader home in Abdal lah’s Lexus. Near the inter section of 9 5 th Street an d Robert s R oad, a red Ford pu lled up next to the Lexus . The person in the Ford’s front pass enger sea t, whom Abdallah identified as defendant , was “ throwing up hand gestures.” Defendant also appeared to be yelling although Abdallah could not hear what he was saying. Qader , who was in the front passenger seat of the Lexus, rolled down his window and said something to the occupants of the Ford . Abdallah “drove up to get away from them” and switched lanes . T he Ford then approached the left side of the Lexus

. ¶ 5 Abdallah recalled that Qader said something and “pulled me down enough to get my attention.” Abdallah looked to his left and saw that defendant was hanging out the window of the Ford and pointing a gun at him. Abdallah ducked and put up his left arm. He he ar d a shot and saw a bullet hol e in his window. He then noticed blood and “two holes ” in his left arm. Abdallah drove

to a police station, while Qader called police. Abdallah was transported by ambulance to a hospital. During his testimony, Abdallah showed the jury entrance and exit wounds in his left arm.No. 1 -19-0505

- 3 - ¶ 6 On November 10, 2003, Abda lla h viewed two lineups at th e police station. The first lineup contained women. He ide ntified a woman in t hat l ineup a s the Ford’s driver. In a second lineup, he identified defendant as the shooter. During his testimony, Abdallah identified p hoto s of his
L exus, incl uding the damaged driver’s side window, as well as photos of the Ford

. ¶ 7 On cross

- examination, Abdall a h ack nowledged that he was talking on his cell pho ne while he was driving. He agreed that the initial inter action where he saw def endant making hand gestures lasted a matter of seconds

. He agreed that he ducked as soon as he saw someone with a gun, and that his opportunity to view the shooter lasted “mere s econds.” ¶ 8 Qader similarly testified that Abdallah was driving him home when he noticed a red Ford pull up next to them with “a few girls in the back seat

. ” Qader saw a woman driving the Ford. He then saw a ma n lean out of the passenger wi ndow, waving his hands a nd shouting. Qader identified People’s Exhibit No. 1 as a photo graph of defendant, the person who was in the Ford’s front passenger seat

. Qader believed defendant was making “gang signs .” Qader rol led d own his window and “told [defendant] that w e weren’t gang members.” ¶ 9 Abd allah then drove the Lexus into a right turn lane. The Ford pull ed up in the center lane, to the left of the Lexus. Qader saw defendant with his “hands almost t o his elbows out of the window” holding a gun with both hand s . The gun was poin ted at Abd al l ah, who was tal k ing on the pho ne. Qader “slid do wn into the seat ,” told Abd allah to duck, and “grabbed [Abdallah’s] shi rt or shoulder and threw him down

. ” Qader heard a shot and saw blood on Abd a llah’s clot hing. Qader then ca lled 911. ¶ 10 Later that night , Qader spoke to Detective M ark Zvokel and described the Ford . Qader told Zvokel that the Ford was d riven by a white woman and that the shooter was a white male with aNo. 1 -19-0505

- 4 - “ little dark complexion

. ” A short time l ater , Zvokel drove Qader to a location on LaGrange Road

. As they pulled up , Qad er saw five fem ales leaning on a guardrail and a m ale talking to a p olice officer. Qader identified one of the women as the dri v er of the Ford and identified defendant. Qader also identified People’s Exhibit 11 as the gun that was used in the shooting. ¶ 11 On cross

- examination , Qader acknowledged that his seat was partially reclined when he first noticed the Ford

. He ducked when he saw a gun and did not see the shooter pull th e trigger. Qader a greed tha t when police brought him to LaGrange Road, he identified the “only male at the
scene” as the gunman. ¶ 12 Can dace Johnson testified that on evening of November 8, 2003, she went to her friend Cathy Weber’s house with two other friends

. Later that eve ning, Johnson called a man named Louie , who was defendant’s brother. Johnson and Louie made plans for Johnson and her friends

to go to Louie’s house . Louie sent defendant and another friend, Amanda Hagadus, to pick up Johnson and her friends. Defendant and Hagadus picked up Johnson and her friends in Hagadus’ vehicle, a red car, and the group returned to Louie’s house. Later that evening, defendant showed Johnson a gun, which Johnson identified as People’s Exhibit 11. ¶ 13 Around 12:30 a.m., Hagadus began to drive Johnson and her friends back from Louie’s house

. D efendant was in the front passenger seat. Near the intersection of 95 th Street and Rober ts
R oad, a Lexus with t w o men approached Hagadus’ car from behind. Defendant “didn’t take liking to that car” and b egan making hand gestures

. Defendant told Hagadus to roll down her window, and she did. The Lexus rolled down its window, and the men in the Lexus said something. ¶ 14 A short time later, the Lexus “came up behind [the Ford] rather fast ” before passing. Defe ndant told Hagadus to drive up next to the Lexus. Defendant took out his gun, “told us in theNo. 1 -19-0505

- 5 - back seat to get down ” and leaned out the window with the gun. He fired a shot, and Johnson saw a hole in the Lexus’ driver’s side window. D efendant then told Hagadus to pull into a parking lot. When she did , defendant found the shell from the shot and gave it to Hagadus , who “ cleaned it off and g ave it back to him and he thre w it.” ¶ 15 Hagadus resumed driving. On LaGrange Road, a police car approached the Ford from behind and turned its lights on. Defendant told Hagadus “to not stop yet.” Defendant wiped the gun with his shirt and threw the gun out of the window. After Hagadus stopped the car, the police ordered everyone out . Jo hnson later told police where defendant had disposed of the gun. ¶ 16 O fficer Michael Pawlowski of the Village of Hodgkins Police Department testified that he was on patrol when he received a radio message of a shooting involving a red Ford Tempo, with three to five women and a male occupant. Shortly ther eafter , he saw a ve h icle matching that description and activated his eme rgency lights. The Ford did not immediately pull over but eventually stoppe d. ¶ 17 Pawlowski ordered the occupants to exit the vehicle. The driver of the vehicle was a woman, whom he iden tified as the person in People’s Exhibit 12. The passenger was a ma n , whom he identified as the person in People’s Exhibit 1. ¶ 18 Pawlo ws ki inspect ed t he Ford and saw a live round of ammunition on the floor. After speaking with one of the occupants, he searched the area and found a firearm on the side of the road, between 50 and 100 yards from the Ford . He ident ified the firearm as People’s Exhi bit 11.
P awlo w ski did not see anyone toss anything from the Ford before it stopped.No. 1 -19-0505

- 6 - ¶ 19 Investigator Michael Raab of the Cook County Sheriff’s Police testified that he collected a gunshot r e sid u e kit from defe ndant. He also recovered a deformed copper jacket lead proje ctile from the dashboard of the Lexus. ¶ 20 Detective Mark Zvokel testified that shortly before 1 a.m. on November 9, 2003, he responded to a radio dispatch and s poke to Abdallah and Qader

. A short time later, Zvokel took Qader to a location about two miles away to view individuals that ha d been stopped by a nother police officer. Qader identified defendant as the person who shot Abdallah and identified Hagadus as the driver of the Ford Tempo. ¶ 21 On November 10, 2003, Zvokel conducted two physical lineups, which were viewed by Abdallah. T he first lineup included Hagadus and five other women . Zvokel testified that Abdallah identified one of the individuals in that lineup, although Zvokel did not specify which person Abdallah identified. The second lineup inclu ded def endant with five other m en who shared similar physical characteristics

. Zvokel testified that Abdallah identified defendant in the second lineup. ¶ 22 The parties sti pulated that an emergenc y room doctor wou l d te s ti f y that Abdallah was treated for a gunshot that entered and exited his left arm. The parties also stip ulated that Lieutenant Michael Tardy of the Hickory Hills Po li ce Departmen t would testify that Officer Pawlo wski lead him to a gun approximately 40 yar ds from a red Ford. Tardy recovered a semiautomatic handgun with an unfired cart ridge in the cham b er and an unfired car tridge in the magazine. The parties further stipulated that a fore nsic scie ntist with the Illinois State Police examined the firearm and cartridges but did not fin d latent finger print impression s suitable for comparison. A nother forensic scientist determined that the recovered fired bullet was fired from the same handgun.No. 1 -19-0505

- 7 - ¶ 23 Scott Rochowicz, a n expert in gunshot residue analysis, testified that he analyzed the gunshot residue kit collected from defendant. He concluded that defendant discharged a firearm, contacted a n item with gunshot residue, or was in close proximity to a firearm when it was discharged. ¶ 24 Assistant State’s Attorney Michael Deno testified that he was present in court on November 5, 2004 , whe n defendant was advised that he could be tried in absentia if he failed to appear in

court. However, defendant failed to appear at three subsequent cour t dates

. ¶ 25 T he jury found defendant guilty of attempt ed first degree murder of Abdallah (count I) and aggravated battery with a firearm to Abdallah (count III ). Defendant was found not guilty of attempt ed first degree murder of Qader (count II ). ¶ 26 Defense counsel filed a motion for a new trial , which was denied. ¶ 27 Defendant’s presentence invest igative (PSI) report reflected that he was born in December 1979. His criminal history included: a 1999 conviction for possess io n of a firearm; a May 2000

conv iction for crim inal d a mage to property; a 2001 conviction for “aggra vated d ischarge firearm occupied building” for w hi ch he was s entenced to five years’ impr is onment; a 2001 conviction for “possession of a weapon in penal institute” ; a 2001 conv iction for “Aggra vated unla wfu l use weapon/vehicle” for which he was sentenced to two years’ imprisonment; and a 2003 conv iction for c riminal tre sp ass to land. ¶ 28 The trial court merged the aggravated battery with a firearm offense (count III ) int o the attempt ed first degree murder conviction (count I) and proceeded to sentencing on that count. Defendant did not appear at the September 1, 2005 sentencing hearing. T he Stat e not ed that defendant was el igible fo r six to 30 years’ imprisonment and argu ed that aggravating factorsNo. 1 -19-0505

- 8 - warranted mu ch more than the six

- year minimum term

. The State urged that defendant’s criminal background showed “escalating violence ” and asked the court to “send[] a message” that a person “cannot thumb [his] nose at the system and not show up to court and thi nk it ’s all goin g to go away.” In mitigation, defense counsel argued that defendant was a young man who was capable of rehabilitation if given a chance t o become a productive member of society

. Defense co unsel did not seek a minimum six

- year term but sugges te d that a sen tence “in the eight to ten years range ” would be appropriate

. ¶ 29 In imposing sentence, the court remarked: “The Court has considered all of the statutory factors in aggravation and mitigation as well as the nature and circumstances of the offense. * * * The Court finds that the Defendant is a dangerous man from which society needs to be protected. His history is one of guns and violence and he represents a grave threat to the community and h e has earned a substantial prison sentence in this case and in this Court’s judgment, a sentence of 24 years Illinois Department of Corrections is a just sentence and I will so impose it.”
The court further determined that, upon apprehension, defendant wou ld receive 340 days credit for time already served. ¶ 30 The sentence was entered on September 1, 2005. Defendant’s counsel filed a notice of appeal from his conviction and sentence on September 19, 2005 (the 2005 NOA)

. Notably, the
2005 NOA was n ever transmitted from the circuit court to our appellate court.No. 1 -19-0505

- 9 - ¶ 31 A n arrest warrant for defendant was issued on September 21, 2005. Th e record reflects that defendant was arrested in Israel in May 2014 , where he was detained for several years before he

was extrad ited and returned to Illinois. ¶ 32 In September 2018, t he circuit court conducted further proceedings in this case. 1 At a hearing on September 13, 2018, defendant’s private counsel appeared before the court. At that time, the trial court summarized the history of the case , noting the July 2005 trial and guilty verdict and further stating: “Judge Sterba, on September 1st, 2005, held a sentencing hearing in the defendant’s absence and imposed sentence of 24 years * * *. An outstanding warrant was in place for the Defendant’s arrest since 2005 in the amount of no bail. That warrant has obviously been executed, and bond will stand on the warrant in the amount of no bail. I know that the sentencing hearing occurred some time ago, so I would like to get a copy of the transcript of that hearing.” The court also noted that defendant had another open case for violation of a bail bond (case 05 CR 15467). 2 ¶ 33 Defense counsel requested a continuance and told the trial court : “I do anticipate some motions relative to the time that [defendant] served in an Isreali [sic] prison aw aiting extr adition back to Illin ois , as well as dis cussing with the State what their pos ition on the VOBB, the ’05 ca se , would be.” The court continued the matter, stating that it woul d review the 2005 sentencing hearing, and would “set it down for any motions and also to address the imposition of the

1 Although Judge David Sterba presided over the 2005 trial and sentencing, the 2018 -19 court proceedings described herein were presided over by Judge Colleen Ann Hyland. 2 The State ultimately nol- prossed the violation of bail bond in that case

.No. 1 -19-0505

- 10 - sentence.” On October 30, 2018, defense counsel and the State jointly requested a continuance to November 19, 2018, with the State indicating its expectation that “both matters will be taken care of that day.” ¶ 34 At the November 19, 2018 hearing, def ense counsel info rmed the trial court that defendant and the State had reached an agreement to credit defendant for additional time served, reflectin g the period “ h e was overseas being held by the Is rael i authorities.” The par ties agreed to adjust defendant’s sentencing credit to a total of 1933 days, consisting of the 340 days served in Cook County ( previously reflected in the 2005 sentencing order) , as well as another 1593 days ’ cr edit for time that defendant was d etained overseas . ¶ 35 After t he trial court confirmed that both parties agreed to the same calculation , the court addressed defen dant as follows: “I have received a copy of the sentencing hearing that was held in your absence pursuant to the trial in absentia statute. * * *. And upon completion of that hearing, the C ourt did imp ose a sentence. So today I am here

— Now that yo u have been arrested on the w arrant * * * I am her e to impose that sen tence

. And I do want you to understand, sir, that was the sentence of the Court after that hearing, that on the count of attempt first degree murder, you are sentenced to 24 years in the Illinois Department of Corrections. There was a credit that you were entitled to based upon the time spent in custody originally in the Cook County Department of Corrections that totaled 340 days credit.No. 1 -19-0505

- 11 - Your attorney and the State’s Attorney have calculated the time that you were held in custody in Israel * * *. That total time was 1593 days. So, the total combined time you will be granted credit for [is] 1,933 days credit.” At that point, the court informed defendant of his right to move to reconsider the sentence within 30 days

. ¶ 36 O n November 19, 2018, the trial court entered a corresponding written order which impo s ed a 24

- year sentence upon count I but reflected the revised credit for 1933 days of time served. On December 18, 2018, defendant filed a written motion to reduce his sentence. The trial court denied that motion on January 8, 2019, finding that the 24- year sentence imposed in absentia in 2005 was “fair and just.” ¶ 37 On January 22, 2019, defendant filed a second notice of appeal (the 2019 NOA) , which indicated that he sought to challenge the 2005 conviction and his sentence. The 2019 NOA lists the date of the judgment appeal ed from as “7 -28-05/1-18- 19”, referencing the 2005 date of conviction and the January 2019 date that his motion to reconsider sentence was denied

. ¶ 38 Defendant filed his opening brief on October 29, 2019. The State filed its response on May 20, 2020, and defendant filed a reply on May 29, 2020. The parties’ initial briefs did not reference the 2005 NOA or its potential impact on appellate jurisdiction. On our own moti on, we issued an order on January 11, 2021, directing the parties to submit supplemental briefs on the following issues: (1) “ whether the 2005 NOA deprived the circuit court of jurisdiction to enter subsequent orders in this case, including the November 2018 sentencing order and the January 2019 denial of defendant’s motion to reduce sentence” and (2) “in light of the 2005 NOA, whether our court hasNo. 1 -19-0505

- 12 - jurisdiction to reach the merits of the issues brief ed in this appeal.” Defendant and the State submitted supplemental briefing on those questions. ¶ 39 In this appeal, defendant first contends that the State failed to prove his guilt beyond a reasonable doubt. Alternatively, he argues that his 24

- year sentence was excessive when it was imposed in 2005

. Notably, he does not raise any challenge to the November 2018 sentencing order adjusting his sentencing credit or the January 2019 denial of his motion to reduce sentence. ¶ 40 As a threshold matter, w e recognize our independent duty to consider our own jurisdiction. People v. Lewis , 234 Ill. 2d 32, 36

- 37 (2009); People v. Smith , 228 Ill. 2d 95, 103 (2008). Given the unique procedural history of this case

— including two notices of appeal filed in 2005 and 2019— we discuss the basis f or our jurisdictional conclusions . Specifically, we find that (1) we have jurisdiction to reach the merits of defendant’s challenges to his conviction and the sentence imposed in 2005; (2) the trial court retained jurisdiction to adjust defendant’s sentencing credit in
2018 , but (3) the trial court did not have jurisdiction to consider defen d ant’s subsequent motion to reduce sentence , rendering void its January 2019 order on that motion

. ¶ 41 We first conclude that the 2005 NOA provides jurisdiction to reach def endant’s challenges to the underlying conviction and original imposition of his sentence. “For the appellate court to have jurisdiction in a criminal case, a notice of appeal must be filed either 30 days from the entry of final judgment, or, if a timely mo tion is filed challenging a judgment, within 30 days of the entry of an order disposing of such motion.” People v. Salem , 2016 IL 118693, ¶ 25 ; s ee Ill. S. Ct. R. 606(b) (eff. July 1, 2017) (“Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry ofNo. 1 -19-0505

- 13 - the order disposing of the motion.”)

. The final judgment in a criminal case is the entry of sentence. Salem , 2016 IL 118693, ¶ 12

. Here, the 2005 NOA was timely, as it was filed within 30 days of the imposition of sentence on Sep tember 1, 200 5. Based on the 2005 NOA, we have jurisdiction

to review defendant’s challenges to his 2005 conviction and sentence. See Ill. S. Ct. R . 606(a) (“No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional.”); Peopl e v. Abdullah , 2019 IL 123492, ¶ 21 (“A timely filed notice of appeal is the only jurisdictional step required to confer jurisdiction upon the appellate court.”). 3 ¶ 42 Our jurisdictional analysis does not end there, given the additional proceedings in the circuit court after defendant’s return to Illinois . N otwithstanding the pendency of the 2005 NOA , the trial court entered separate orders in 2018 and 2019 adjusting defendant’s sentencing credit for time in detention overseas, and then denying his subsequent motion to reduce sentence. Only the first of these orders was permissible. Generally , “ ‘[w]hen the notice of appeal is filed, the appellate court’s jurisdiction attaches instanter , and the cause is beyond the jurisdiction of the tri al court.’ ” Abdullah , 2019 IL 123492, ¶ 21 (quoting People v. Bounds , 182 Ill. 2d 1, 3 (1998)). One exception to this rule is that “even after it has otherwise lost jurisdiction, the trial court retains jurisdiction to amend a mittimus to reflect addition al sentencing credit

. ” People v. O’Neil , 367 Ill. App. 3d 439, 440 (2006); see also Ill. S. Ct. R. 472(a) (eff. May 17, 2019) (stating that the circuit court retains

3 We note that, although defendant was tried and sentenced in absentia pursuant to section 115- 4.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115

- 4.1 (West 2004)), that did not preclude the 2005 NOA from conferring jurisdiction. See People v. Par tee , 125 Ill. 2d 24, 33 (1988) (“Nothing in our rules suggests that a section 115

- 4.1 conviction and sentence is nonfinal, or that the appellate court lacks jurisdiction to hear an appeal from it. Indeed, the rules specifically provide that ‘no step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional.’ [Citation.]”)

.No. 1 -19-0505

- 14 - jurisdiction to correct errors in the calculation of sentencing credit “at any time following judgment
* * *, including during the pendency of an appeal”). Thus, notwithstanding the pendency of the
2005 NOA , the circuit court retained jurisdiction to enter the 2018 order granting defendant additional sentencing credit based on his time spent in custody overseas. ¶ 43 On the other hand, the trial court lacked jurisdiction to rule upon defendant’s December
2018 motion to reduce his sentence, given the pendency of the timely 2005 NOA

. 4 In turn, the 2019 orde r denying th e motion to reduce sentence was void. People v. Flowers , 208 Ill. 2d 291,
306- 07 (2003) ( “A ruling made by the circuit court in the absence of subject matter jurisdiction is void. [Citation.] ”). Our supreme court instructs that, under these circumstances, this co urt should vacate the void order and dismiss any appeal therefrom. Id . at 307 (“Because the circuit court had no jurisdiction to entertain that [untimely] motion, the appellate court should simply have vacated the circuit court’s judgment and dismissed Flo wers’ appeal.”) Accordingly, we vacate the January 8, 2019 order denying defendant’s motion to reduce sentence and dismiss the corresponding 2019
NOA. ¶ 44 However, that conclusion does not affect our ability to reach the merits of the appea l. T he timely 2005 NOA independently affords jurisdiction to reach the merits of defendant’s challenges

4 Even without the 2005 NOA, the trial court would otherwise lack jurisdiction to reduce the 2005 sentence more than a decade later

. It is well

- settled that “once cases are heard and determined, ‘[t]he jurisdiction of trial courts to reconsider and modify their judgments is not indefinite.’ ” People ex rel. Alvarez v. Skryd , 24 1 Ill. 2d 34, 40 (2011) (quoting People v. Flowers , 208 Ill. 2d 291, 303 (1983)). Rather, the circuit court generally loses jurisdiction to modify a sentence 30 days after the sentence is imposed

. Id. “A motion [to modify a sentence] not filed within that 30

- day period is not timely.” 730 ILCS 5/5 -4.5-50(d) (West 2018).No. 1 -19-0505

- 15 - to his conviction and the sentence imposed in 2005, and thus we proceed to address those contentions. ¶ 45 Turning to the merits, w e first address defendant’s claim that the State failed to prove his
g uilt beyond a rea sona ble doubt. The standard of review is well

- settled : “When reviewing a challenge to the sufficiency of the evidence, this court considers whether, viewing the evidence in the light most favorable to the Sta te, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) People v. Wheeler , 226 Ill. 2d 92, 114 (2007). ¶ 46 Because the “trier of fact is best equ ipped to judge t he cre dibility of witnesses,” “a jury’s findings concerning credibility are entitled to great weight.” Id. at 114 -15. “The reviewing court will not retry the defendant or substitute its judgment for that of the trier of fact on questions
in volving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses. [Citation.]” People v. Corral , 2019 IL App (1st) 171501, ¶ 71. “ Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the defendant’s guilt will a conviction be set aside. [Citation.]” Id. ¶ 72. ¶ 47 In this case, defendant does not specify whether he challenges the finding s of guilt for the offense of attempted murder, aggravated battery, or both. H owever, defendant was only sentenced on the offense of attempted murder (count I), and thus our juri sdiction only extends to t hat conviction . See People v. Relerford , 2017 IL 121094, ¶ 71 (reco gnizing that appellate jurisdiction extends only to final judgm ents, and there is no final judgment in a criminal case unless sentence has been imposed )

.No. 1 -19-0505

- 16 - ¶ 48 Notably, defendant also does not specify any particular element of t he offense for which the evidence was lacking. Rather, he suggests that the testimony of Abdallah, Qader, and Johnson identifying him as the shooter was unreliable or lacked credibility. He otherwise asserts that there was a lack of physical evidence. ¶ 49 After viewing the evidence in the light most favorable to the State, we find that a rational trier o f fact could have concluded that defendant was guilty beyond a reasonable doubt. The record shows that three witnesses, including Johnson, who was riding in the same car as defendant, identified him as the shooter

. Johnson described how after the shooting defendant wiped the gun with his shirt and disposed of it. The gun was recovered by police , and the parties stipulated that the bullet recovered from the Lexus was fired from the gun. A n expert witness analyzed the gunshot residue kit collected from defendant and concluded that defendant discharged a firearm, contacted an item with gunshot residue, or was in close proximity to a firearm when it was discharged. This evidence is not so improbable or unsat isfactory as to create reasonable doubt of the defendant’s guilt. ¶ 50 D ef endant nevertheless suggests that Abdallah’s account of th e incident, in cluding his ident ification of him , was unreliable

. He argues that Abdallah’s testimony indicated the “entire interaction ” between the cars was brief and that the total opportunit y for him to iden tify the shooter was “a matter of seconds.” D efendant further claims that A b dallah was talking on his cell phone during the entire incident. ¶ 51 We do not find these concerns persuasive. A single witness’s identification is sufficient to sustain a conviction “ if the witness viewed the accused under circumstances permitting a positive identification. ” People v. Joiner , 2018 IL App (1st) 150343, ¶ 47. Al though not cited by defendant,No. 1 -19-0505

- 17 - it is well

- settled that i n assessing identification testimony, this court considers the following five factors set forth in Neil v. Biggers , 409 U.S. 188 (1972): (1) the witness’s opportunity to view the defendant during the offense; (2) the witness’s degree of attention at the time of the offense; (3) the accuracy of the witness’s prior description of the defendant; (4) the witness’s level of certainty at the subsequent identification; and (5) the length of time between the crime and the iden tification. People v. Slim , 127 Ill. 2d 302, 307–08 (1989) . None of these factors, standing alone, conclusively establishes the reliability of identification testimony; rather, the trier of fact is to take all of the factors into consideration. Biggers , 409 U.S. at 199 –200. Further, “ [e] yewitness testimony is insufficient only if the record compels the conclusion that no reasonable person could accept the testimony beyond a reasonable doubt.” People v. Charles , 2018 IL App (1st) 153625, ¶ 25. ¶ 52 V iewing the evidence in the light most favorable to the Stat e, a rational trier of fact could find A bdallah’s identification reliable

. To the extent d efendant suggests that the encounter was too brief , we note that even identifications made during brief encounters may be found credible . See,

e.g ., People v. Petermon , 2014 IL App ( 1st ) 113536, ¶ 32 (ide ntification testimony credible even when “the entire incident took less than one minute”) (ci ting People v. Parks , 50 Ill . App. 3d 929, 932- 33 (1977) (identification from attack lasting “ five to ten seconds ” sufficient to sustain conviction))). Further, although Abdallah ackn owledged that he was initially on his phone, he did not suggest that he was on the phone during the entire incident. Indeed , he testified that he dropped the phone after Qader touched him , and only then he saw defendant with the gun

. The day after the shooting, Abdallah identified defendant as the shooter from a physical lineup. The jury was entitled to credit Abdallah ’s testimony that he saw defe n dant, and we will not second

- guess that finding.No. 1 -19-0505

- 18 - ¶ 53 Defendant also notes that Abdallah “admitted that he did not remember things about t hat

even ing .” However, even gaps or inconsistences in his narrati ve did not preclude the jury from crediting the bulk of his testimony. “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 ; s ee also Corral , 2019 IL App (1st) 171501, ¶ 85 (“Minor inconsistencies in the testimony between witnesses or within one witness’s testimony may affect the weight of the evidence but do not automatically create a reasonable doubt of guilt”). We further note that, even if the jury had doubt s about Abdallah’s recollec tion , two other witnesses corroborated his testimony. ¶ 54 Defendant’s critici sms of Qader’s testimony are similarly unavailing. Defendant suggests that Qader’s account was not reliable because he acknowl edged that the front passenger seat in the
Lexus was reclined

. He also suggest s that Qader’ s testimony was inconsistent with respect to his description of the gunman. Defendant points out that “when police brought Qader to the location of the red car, Qader identified the only male at the scene.” Nevertheless , it was the jury’s role to

assess what weigh t (if any) should be given to such deta ils in evaluating Qader’s cre dibility

. People v. Johnson , 2015 IL App (1st) 123249, ¶ 21 (“The trier of fact assesses the credibility of witnesses, determines the weight of the testimony and resolves con flicts or inc onsistencies in the evidence.”)

. T he jury was entitled to credit Qader’s testimony , which was detailed, unequivocal , and consistent with other eyewitness accounts

. ¶ 55 With respect to J ohn son, defendant emphasizes her acknowled g ment at trial that she did not want to “get in trouble” after police detained her. He argues that this “ skews ” the reliab ility of her testimon y, but he does not articulat e how it would adversely affect her reliability or truthfulness. In any event, it was the jury’s role to assess what impact, if a ny, this had on the weightNo. 1 -19-0505

- 19 - to be afforded her testimony , and we will not substitute our judgment for that of the trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses. Corral , 2019 IL App (1st) 171501, ¶ 71. ¶ 56 In sum, we reject defendant’s invitation to reweigh the jury’s assessment of credib ility with respect to Ab dallah, Qade r, and Johnson. Desp ite d efendant’s arguments , we cannot say tha t no reasonable jury could accept the testimony beyond a reasonable doubt. See Charles , 2018 IL App ( 1st ) 153625, ¶ 25. To the contrary, the jury could cer tainly credit the testimon y of those three witnesses, all of whom unequ ivocally identified defendant as the shooter and whose testimony was corroborated by the physical evidence presented. ¶ 57 Defendant’s remaining contentions regarding the sufficiency of the evidence are also unavailing. Defen dant notes Officer Pawlowski’s testimony that he did not see an object thrown from th e Ford, the lack of fingerprint evidence , and Rochowicz’s admis sion that gunshot residue could hypothetically have been transferred to defendant’s hands by a source other than a gun

. However, the absence of definitive physical evidence linking defen dant to the gun does not necessarily create a reasonable doubt, especially sinc e “ [a] single eyewitness identification can support a conviction if the witness viewed the accused under circum stances permitting a pos it ive identi fication .” People v. Donahue , 2014 IL App (1st) 120163, ¶ 93. I n this case , there were three such identifications

. In short, the evidence presented and the reasonable inferences therefrom, was sufficient to sustain defendant’s conviction. Co r ral , 2019 IL App (1st) 171501, ¶ ¶ 71-72. ¶ 58 We next consider whether the trial court abused its discretion in sent encing defendant to 24 year s ’ imprisonment for attempt ed first

- degree murder

.No. 1 -19-0505

- 20 - ¶ 59 Under the Illinois Constitution, the trial court must impose a sentence that balances the seriousness of the offense and the defendant’s rehabilitative potential. People v. Knox , 2014 IL App (1st) 120349, ¶ 46

. The court must consider aggravating and mitigating factors including “the nature and circumstances of the crime, the defendant’s conduct in the commission of the crime and the defendant’s personal history , ” including his ag e and criminal history. Id. B ecause the trial court is in the best position to weigh these factors, the s entence imp ose d “ is enti tled to great deference and will not be reversed absent an abuse of discretion

. ” Id. “A sentence within statutory limits will not be deemed excessive unless it is greatly at vari ance with the sprit and purpose of the law or manifestly disproportionate to the nature of the offens e.” People v. Busse , 2016 IL App ( 1st ) 142941, ¶ 20. ¶ 60 Attempt ed first

- degree murder is a Class X felony. 720 ILCS 5/8 -4 (c) (West 2004)

. In turn, the applicable sentencing range i s between 6 and 30 years’ imprisonment. 730 ILCS 5/5 -8-1 (a)(1) (West 2004). As d efendant’s 24

- year sentence was within statutory guidelines , i t is “presumed to be proper and will not be disturbed absent an affirmat ive showing that the se ntence is at varian ce with the purpose and sp irit of the law or is manifestly disprop ortionate to the nature of the offense.”
Knox , 2014 IL App (1st) 120349, ¶ 46

. ¶ 61 Defendant cannot make this showing. Defendant suggests that th e trial court’s remarks at his September 1, 2005 sentencing hearing show that it failed to consider mitigating aspects of his history or his reh abilitative p otential , but “fo cused on the nature and circumstances of the offense.” Defend ant’s contentions are not persuasive

. First, simply because the trial court did not discuss mit igating factors does not mea n that t he trial court ignored them. Knox , 2014 IL App (1st) 120349, ¶ 46 (“[B]ec ause a trial co urt nee d not exp licitly analyze e ac h rel evant fa ctor or ar ticulate the bas isNo. 1 -19-0505

- 21 - fo r the sen ten ce imposed, when mitigating evidence is prese nted befo re the t r ia l court, it is presumed that t he cour t considered that evidence” in imposing sentence. ). Further, other than his
age, defendant identifies no mitigating factors or evidence of rehabilitative potential presented to the trial court

. ¶ 62 In any event, it is well

- settled that a defendant’s rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People v. Alexander , 239 Ill. 2d 205, 21 4 (2010). Defendant does not di spute that t he offense was ser ious. Mo r eover, the court , in imposing
sentence, explicitly relied on defen dant’s len gthy criminal history. See People v. Evangelista , 393 Ill. App. 3d 395, 399 (2009) (“criminal history alone” may warrant a sen tence “ sub stantially abo v e the minimum.”)

. We cannot say that the court abused its discretion in finding that these factors warranted a “substantial” senten ce of 24 years ’ imprisonment

. ¶ 63 Finally, there is no merit to defendant’s suggestion that the trial court impermissi bly “relied

on an e lement of an off ense as a fac tor in aggravation

. ” Defendant claims t he trial court’s comments show that it sentenced him “ based on the potential harm of firing a handgun from a

mot or vehicle” and suggests that discharging a firearm from a vehicle was an element of the offense. This argument is unpersuasive for multiple reasons. We first note that there is nothing in the trial court’s comments suggesting that its sentencing determination specifically relied on the particular fact that defendant fired shots from a car. Rather, the trial court simply referenced “the facts that were adduced during the course of this jury trial” and defendant’s criminal history of “guns and viole nce” before remarking that he was a grave threat to the community. See People v.
Bowen , 2015 IL App (1st) 132046, ¶ 52 ( the trial court may properly comment upon the “nature and circumstances of the offense” in explaining its sentencing decision)

.No. 1 -19-0505

- 22 - ¶ 64 Moreov er , in claiming that the court improperly relied on an element of an offense, defendant erroneously relies on the statut e defining aggravated assault

. 720 ILCS 5/12

- 2(c)(3) (West 2018) (specifying that aggravated assault is committed when a person “ [d] isch arges a firearm from a motor vehicle” while committing an assault)

. In this case, d efendant was charged and convicted of aggravated battery with a firearm ; d ischarging a firearm from a motor vehicle

was not an element of that offense

. See 720 ILCS 5/12

- 4.2 (West 2002). Finally , d efenda nt was sentenced upon his conviction for attempt ed murder, not aggravated battery, which independently precludes his doub le enhancement argument . See People v. Phelps , 211 Ill. 2d 1, 11 (2004) (“[A] factor im plicit in the offense for which the defendant has been convicted cannot be use d as an
aggrav ating fac tor in se ntencing for that offense .” (Emphasis added. ) ). Defendant’s challenge to his sentence is thus without merit. ¶ 65 In sum, we vacate as void the trial court’s order of January 8, 2019, denying defendant’s motion to reduce sentence. We otherwise affirm defendant’s conviction and the trial court’s original imposition of defendant’s 24

- year sentence in 2005. ¶ 66 For the foregoing reasons, we vacate the tr ial court order of January 8, 2019, but otherwise affirm the judgment of the circuit court of Cook County. ¶ 67 Vacated in part; a ffirmed in part

.