{ "id": 7328971, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERE MAGEE, Defendant-Appellant", "name_abbreviation": "People v. Magee", "decision_date": "2007-06-29", "docket_number": "No. 1\u201405\u20142646", "first_page": "1024", "last_page": "1036", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 1024" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "273 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258757 ], "year": 1995, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0396-01" ] }, { "cite": "155 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810080 ], "year": 1993, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0422-01" ] }, { "cite": "229 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216310 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0733-01" ] }, { "cite": "168 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307259 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "372-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0367-01" ] }, { "cite": "364 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263323 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0304-01" ] }, { "cite": "75 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991562 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "155-56" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0151-01" ] }, { "cite": "166 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198901 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/166/0279-01" ] }, { "cite": "43 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2842353 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/43/0298-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 9, "year": 1969, "pin_cites": [ { "page": "725" }, { "page": "669" }, { "page": "2080" }, { "page": "725" }, { "page": "669" }, { "page": "2080" } ], "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "167 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222762 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "443" }, { "page": "443" }, { "page": "443-44" }, { "page": "446-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0439-01" ] }, { "cite": "354 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3215294 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "883", "parenthetical": "waiver is a limitation on the parties and not on the court" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0868-01" ] }, { "cite": "116 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543208 ], "year": 1987, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0001-01" ] }, { "cite": "334 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521956 ], "year": 2002, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0785-01" ] }, { "cite": "168 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307263 ], "year": 1995, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0107-01" ] }, { "cite": "177 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317111 ], "year": 1997, "pin_cites": [ { "page": "393-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0389-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "209" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "326 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281435 ], "year": 2001, "pin_cites": [ { "page": "635-38", "parenthetical": "finding plain error where the trial court read an \"or\" in between each factor, thereby improperly suggesting that any one factor made the identification reliable" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0629-01" ] }, { "cite": "238 Ill. App. 3d 575", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155493 ], "year": 1992, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0575-01" ] }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "307" }, { "page": "307-08" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 6, "year": 1972, "pin_cites": [ { "page": "199-200" }, { "page": "411" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "194 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096295 ], "year": 2000, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0305-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186-87" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "74 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993996 ], "year": 1978, "pin_cites": [ { "page": "7", "parenthetical": "\"[w]here the record is insufficient or does not demonstrate the alleged error, the reviewing court must refrain from supposition and decide accordingly\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0001-01" ] }, { "cite": "173 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147606 ], "year": 1996, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0167-01" ] }, { "cite": "213 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8449153 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "531" }, { "page": "530-31" }, { "page": "532" }, { "page": "532" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0523-01" ] } ], "analysis": { "cardinality": 1184, "char_count": 29748, "ocr_confidence": 0.805, "pagerank": { "raw": 6.165397603525196e-08, "percentile": 0.38301653880206915 }, "sha256": "fdd4f04576ec14f62ddcd9e25325a5e1361feb012d64a5ac283841514a5987d5", "simhash": "1:fbabb13e754d47ff", "word_count": 4814 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "THEIS, EJ., and KARNEZIS, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERE MAGEE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Tere Magee, was convicted of two counts of armed robbery and two counts of aggravated criminal sexual assault in conjunction with an incident involving two women at a beauty salon and was later sentenced to a total of 50 years\u2019 imprisonment. On appeal, defendant contends that he was denied a fair trial because the trial court impermissibly instructed the jury that the eyewitnesses\u2019 level of certainty and the accuracy of their prior descriptions were relevant factors in assessing the reliability of their identifications. In addition, defendant contends that the trial court improperly increased his sentence after its imposition. Finally, defendant contends that his mittimus must be corrected to accurately reflect the offenses for which he was convicted.\nThe evidence adduced at trial demonstrated that, at approximately 11:30 p.m. on August 4, 2000, the victims, T.J., a hairstylist, and S.D., her customer, were leaving The Hair Exchange beauty salon when an armed man, later identified by both women as defendant, approached and demanded their money. T.J. complied, but defendant instructed the victims, at gunpoint, to reenter the locked salon. Once inside, defendant sexually assaulted both women. When defendant eventually left, he took T.J.\u2019s car keys and her $300, S.D.\u2019s purse and her $53, and both women\u2019s pants and undergarments. The police arrived on the scene soon after and were given defendant\u2019s description. Thereafter, the victims separately identified defendant in a photographic array and a lineup.\nAt trial, T.J. testified that she had locked the front door to the salon and was in the process of locking the external gate leading to the salon\u2019s entryway when defendant first approached and pointed his handgun in her face. It was \u201cbrightly\u201d lit outside at the time because the streetlights were on and light was reflecting from inside the beauty shop. T.J. was looking directly at defendant\u2019s face when he demanded her money. Then, when he forced her and S.D. back inside the shop, defendant told them to lie on the ground. Defendant turned off the \u201cside light\u201d that constantly remained on in the shop; however, T.J. stated that the soda pop machine continued to give off light. Defendant then closed the front window curtains and paced back and forth, approximately 12 to 15 feet away from T.J. She was able to see defendant\u2019s face as he paced. Defendant subsequently told both women to remove their pants and underwear. He sexually assaulted T.J. first as she lay on her back looking at defendant. Defendant then proceeded to where S.D. was lying and also sexually assaulted her. Defendant, however, remained within T.J.\u2019s view. When he finished, defendant demanded car keys. T.J. grabbed the keys closest to her and he left with the money she initially gave him, S.D.\u2019s purse, both women\u2019s pants and underwear. After a few seconds, T. J. stood up and locked the front door of the salon. T.J. subsequently called her mother because she lived nearby and then called the police. She approximated that the entire incident lasted five minutes.\nT. J. described defendant to the jury as a black male, approximately 5 feet 9 inches tall, weighing about 165 pounds, with a medium complexion, hazel or green eyes, a big nose and full lips and having worn black pants, a black sweater and a black skullcap during the offense. T.J. further testified that, when the police arrived, she provided them with a similar description of defendant. T.J. recalled that the police then drove S.D. to the hospital, while she and her mother followed in T.J.\u2019s car. A couple of days later, a detective arrived at T.J.\u2019s house and asked her to view photographs of possible suspects. T.J. immediately recognized defendant as her assailant in one of the photographs. Then, on September 19, 2000, T.J. was asked to view a lineup at a police station, during which she instantly identified defendant. She recalled being absolutely certain that defendant was the offender both times that she identified him.\nOn cross-examination, T. J. recalled that defendant initially ordered her and S.D. to lie facedown on the floor. When they complied, S.D. was close enough to T.J. that the women could touch. T.J. stated that defendant never \u201cgot rid of\u2019 his handgun throughout the incident, but she was not focusing on it so she could not recall exactly where it was at any given time. T.J. testified that the description she gave to the police was as accurate as possible, but could not recall whether she described defendant as having full lips, being 6 feet tall, weighing 145 pounds or his exact eye color. T.J. admitted that she had a hard time approximating weight and height; however, she stated that, during her subsequent identifications, \u201cwhen [she] saw him, [she] knew it was him.\u201d She could not recall speaking to a detective while at the hospital. T.J. also could not recall what the detective said before she viewed the photographic array.\nS.D. testified consistent with the sequence of events as described by T.J. She stated that, while defendant was sexually assaulting T.J., S.D. was not looking at her or defendant. However, when defendant moved over to S.D., he kneeled over her body with his face approximately 15 to 18 inches away from her own. When defendant left the salon, he took the belongings described by T.J., as well as $53 that S.D. previously had in her pants. S.D. recalled that she was still frightened and crying when the police arrived at the salon. S.D. stated that she would not have reported that she was sexually assaulted because, at the time, she understood the term to be synonymous with rape and she had not been raped. S.D. additionally testified that she identified defendant in a photographic array held at her house a couple of days after the offense. She also identified defendant in a lineup held at a police station sometime later. S.D. recalled identifying defendant quickly, without hesitation, on both occasions.\nOn cross-examination, S.D. stated that she spoke to the police at the salon and told them what had occurred; however, she could not recall providing them with a description of defendant. S.D. recalled that, although defendant turned off the light inside the salon, \u201c[y]ou still could see\u201d because there was \u201csome light from the back.\u201d S.D. testified that she saw defendant holding his handgun while in the salon, but she could not recall exactly where it was while he was sexually assaulting her. She stated that defendant sexually assaulted her for approximately two or three minutes and that the entire incident lasted about 30 minutes.\nOfficer Robert Creeth testified that he arrived at the beauty salon shortly after midnight on August 5, 2000, and spoke to both victims separately. The women told Creeth what had occurred and described the offender. S.D., however, denied being sexually assaulted. Initially, there were a few discrepancies between the women\u2019s descriptions; therefore, Creeth allowed the women to calm down and then requested that they describe defendant as accurately as possible. Creeth was told that the offender was a black male, about 25 years old, approximately 5 feet 9 inches tall, weighing around 155 pounds, with a light complexion, hazel eyes and wearing black pants, a black sweatshirt and a black skullcap. Creeth subsequently released a flash message to other officers with that description. On cross-examination, Creeth admitted that he changed defendant\u2019s description in the original general case report after the victims advised him of some inaccuracies.\nDetective George Gallagher testified that he interviewed T.J. and S.D. while they were at the hospital. T.J. described the offender as a black male, 25 to 30 years old, 5 feet 10 inches tall, weighing 155 to 170 pounds, with light skin, hazel eyes, a slender face, big nose and full lips. S.D. described him as a black male, approximately 5 feet 8 inches tall, weighing 150 pounds, with light skin and hazel eyes.\nDetective Thomas McCadd testified that, on August 7, 2000, he separately administered a photographic array to both T.J. and S.D. at their respective homes. Both victims immediately identified defendant as their assailant.\nDetective Michael McDermott testified that, over the course of the month following the incident, he issued a stop order and attempted to locate and arrest defendant. On September 18, 2000, after receiving information from defendant\u2019s friend, McDermott, a number of additional detectives and officers from the Bellwood police department set up surveillance in the friend\u2019s home. McDermott eventually recognized defendant in the backyard, announced his office, and instructed defendant not to run away. Notwithstanding, defendant attempted to flee through adjacent backyards, but McDermott caught him within approximately five minutes and arrested him. The following day, McDermott conducted two separate lineups for each victim, during which both women positively identified defendant.\nThe defense rested without presenting any additional evidence.\nThe jury ultimately found defendant guilty of two counts of armed robbery and four counts of aggravated criminal sexual assault. The trial court denied defendant\u2019s subsequent motion for a new trial.\nDuring defendant\u2019s sentencing hearing, the trial court considered arguments in mitigation and aggravation. In aggravation, the State presented certified copies of three prior convictions, testimony from two women whom defendant robbed at gunpoint at beauty salons in July and August 2000, and the instant victims\u2019 impact statements. The trial court initially entered convictions for counts I, II, IX, XIX, XXII and XXIII, and sentenced defendant to a total of 42 years\u2019 imprisonment: a concurrent 10-year prison term for the armed robbery counts, I and II, to run consecutive to the remaining counts, and four consecutive 8-year prison terms for the aggravated criminal sexual assault counts, IX, XIX, XXII and XXIII.\nAfter admonishing defendant of his appellate rights, defense counsel asked the court whether any of the counts merged. The trial court responded in the affirmative and merged count XIX into count IX with an accompanying consecutive sentence of 16 years\u2019 imprisonment and merged count XXIII into count XXII also with an accompanying consecutive 16-year prison term. Defense counsel then advised the trial court regarding defendant\u2019s days of credit for time already served, after which a conversation was held off the record. When it returned on the record, the court modified defendant\u2019s armed robbeiy sentence, such that counts I and II were corrected to reflect a concurrent 18-year prison term, to run consecutive to counts IX and XXII, for a total of 50 years\u2019 imprisonment. The trial court denied defendant\u2019s subsequent motion to reconsider his sentence, in which he argued, inter alia, that his sentence was excessive in light of his background and participation in the offense, and also denied defendant\u2019s supplemental motion for a new trial. This timely appeal followed.\nAs an initial matter, we address the State\u2019s motion to strike portions of defendant\u2019s brief, which we took under advisement with this case. The State argues that defendant erroneously relies on scientific evidence not presented at trial to support his attack on the reliability of the victims\u2019 identification. Defendant concedes that the scientific evidence was not considered at trial; however, he responds that this court may consider the articles discussed pursuant to In re Commitment of Simons, 213 Ill. 2d 523 (2004), where the supreme court determined that a \u201creviewing court may consider not only the trial court record, but also, where appropriate, sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions.\u201d In re Commitment of Simons, 213 Ill. 2d at 531. We disagree.\nDefendant\u2019s broad application of the In re Commitment of Simons language is both misleading and inaccurate. The issue before the supreme court in In re Commitment of Simons was whether a reviewing court should conduct de novo review of a lower court\u2019s Frye analysis, and, in so doing, rely upon materials outside the trial record. In re Commitment of Simons, 213 Ill. 2d at 530-31. The supreme court concluded that de novo review was appropriate in that context because \u201cthe trial court is not asked to determine the validity of a particular scientific technique,\u201d but instead must determine whether a general consensus existed in the scientific community regarding the reliability of the particular technique at issue. In re Commitment of Simons, 213 Ill. 2d at 532. In that pursuit, relying on materials outside the trial record is not problematic because issues of witness credibility and hearsay do not exist. In re Commitment of Simons, 213 Ill. 2d at 532, citing People v. Miller, 173 Ill. 2d 167, 205 (1996).\nThe case at bar is completely distinguishable. Primarily, no Frye analysis was conducted at trial. More important still, defendant does not merely rely on the scientific evidence to demonstrate a general acceptance for a particular technique; rather, he submits the articles for their substance and ultimate findings. Therefore, there is an existing concern regarding hearsay, in that the author cannot be observed or cross-examined. Consequently, we grant the State\u2019s motion to strike those portions of defendant\u2019s appellate brief which discuss psychological studies not presented at trial and that do not appear in the record on appeal. See People v. Edwards, 74 Ill. 2d 1, 7 (1978) (\u201c[w]here the record is insufficient or does not demonstrate th\u00e9 alleged error, the reviewing court must refrain from supposition and decide accordingly\u201d).\nWe now turn to those issues presented on appeal. Defendant first contends that he was denied a fair trial because the jury incorrectly relied upon the level of the witnesses\u2019 certainty and the accuracy of their prior descriptions in determining whether their identifications were reliable. The State responds that defendant has waived this issue for purposes of appeal. In the alternative, the State argues that the victims reliably identified defendant.\nTo preserve an issue for appellate review, a defendant must object at trial and include the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). Defendant concedes that he failed to preserve this issue; however, he contends that review remains proper pursuant to the plain error doctrine. Despite forfeiture, a reviewing court may consider an error under the plain error rule when the trial evidence was closely balanced or when the error is \u201cso substantial that it affected the fundamental fairness of the proceeding, and remedying the error is necessary to preserve the integrity of the judicial process.\u201d People v. Hall, 194 Ill. 2d 305, 335 (2000); see 134 Ill. 2d R. 615(a).\nApplication of the plain error rule assumes, however, that an error occurred in the trial court. We conclude that the trial court did not err in instructing the jury to consider the level of the witnesses\u2019 certainty and the accuracy of their prior descriptions in determining whether their identifications were reliable. We are not persuaded by defendant\u2019s argument that these two factors used in assessing witness identifications are grossly misleading where courts have consistently relied upon those and the other factors first announced by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), in- making reliability determinations. See People v. Slim, 127 Ill. 2d 302 (1989); People v. Harris, 238 Ill. App. 3d 575, 578 (1992). Moreover, defendant concedes that the jury was properly instructed to consider all of the Neil factors. Cf. People v. Gonzalez, 326 Ill. App. 3d 629, 635-38 (2001) (finding plain error where the trial court read an \u201cor\u201d in between each factor, thereby improperly suggesting that any one factor made the identification reliable). Consequently, we find no plain error.\nWaiver aside, we find that defendant\u2019s conviction was sufficiently supported by the victims\u2019 positive identifications. Although defendant did not explicitly challenge the sufficiency of the evidence presented at trial, he attacked the reliability of the victims\u2019 testimony and therefore we review whether the evidence supported his convictions.\nWhen reviewing the sufficiency of the evidence, it is necessary to determine \u201cwhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime heyond a reasonable doubt.\u201d (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is not the function of the reviewing court to retry the defendant or substitute its judgment for that of the trier of fact. People v. Evans, 209 Ill. 2d 194, 209 (2004). Rather, the trier of fact assesses the credibility of the witnesses, determines the appropriate weight of the testimony and resolves conflicts or inconsistencies in the evidence. Evans, 209 Ill. 2d at 211. In order to overturn the trial court\u2019s judgment, the evidence must be \u201cso unsatisfactory, improbable or implausible\u201d to raise a reasonable doubt as to the defendant\u2019s guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).\nThe lack of physical evidence in this case does not render the jury\u2019s finding unsatisfactory, improbable or implausible, where two eyewitnesses positively identified defendant as the perpetrator of the crimes. Identification by a single witness is sufficient to support a conviction if the defendant is viewed under circumstances permitting a positive identification. Slim, 217 Ill. 2d at 307. An identification, however, will not be deemed sufficient if it is vague or doubtful. Slim, 217 Ill. 2d at 307. In Neil, the Supreme Court announced factors to be considered when evaluating the reliability of identification testimony: (1) the witness\u2019s opportunity to view the defendant during the offense; (2) the witness\u2019s degree of attention at the time of offense; (3) the accuracy of the witness\u2019s prior description of the defendant; (4) the witness\u2019s level of certainty at the subsequent identification; and (5) the length of time between the crime and the identification. Neil, 409 U.S. at 199-200, 34 L. Ed. 2d at 411, 93 S. Ct. at 382; see Slim, 127 Ill. 2d at 307-08.\nIn the instant case, review of the record demonstrates that both eyewitnesses provided reliable identifications of defendant. T.J. and S.D. had ample time to view defendant while being robbed and sexually assaulted at gunpoint. T.J. testified that she was face to face with defendant when he first approached her outside under the streetlights. In addition, both women stated that, although defendant had turned off a light inside the beauty salon, there was enough light to view defendant\u2019s face while he was inches from them during their respective sexual assaults. T. J. and S.D. were extremely attentive during the offenses, focusing on defendant\u2019s features and the fact that his handgun remained ever present. The degree of attention led the victims to provide detailed descriptions of defendant, such as approximations of his height and weight, the color of his eyes and complexion, facial features and what he was wearing. Although these descriptions varied slightly, the supreme court has determined that \u201c[t]he presence of discrepancies or omissions in a witness\u2019 description of the accused do not in and of themselves generate a reasonable doubt as long as a positive identification has been made.\u201d Slim, 127 Ill. 2d at 309. Moreover, both T.J. and S.D. positively identified defendant in separately administered photographic arrays within days of the offense and again identified him in distinct lineups performed approximately six weeks later. Each identification was individually made without hesitation. Accordingly, we conclude that the evidence sufficiently supported the jury\u2019s finding.\nDefendant next contends that the trial court violated the sentencing statute by improperly increasing his sentence after it was already imposed. The State responds that defendant has waived review of this issue. In the alternative, the State argues that the trial court properly modified defendant\u2019s sentence during the sentencing hearing, \u201calmost immediately\u201d after the initial pronouncement.\nDefendant concedes that he failed to properly preserve this issue by not raising it in the trial court. See People v. Reed, 177 Ill. 2d 389, 393-94 (1997), citing Enoch, 122 Ill. 2d at 186-87. However, relying on People v. Arna, 168 Ill. 2d 107, 113 (1995), defendant argues that his sentence is void and therefore can be challenged at any time. We find that defendant\u2019s reliance on Arna is misplaced because a sentence is deemed void when the defendant receives a lesser sentence than required by statute (see People v. Young, 334 Ill. App. 3d 785, 789 (2002), citing People v. Wade, 116 Ill. 2d 1, 6 (1987)), and there is no such argument advanced in the instant case. Notwithstanding, we choose to address the merits of defendant\u2019s claim. See People v. Thomas, 354 Ill. App. 3d 868, 883 (2004) (waiver is a limitation on the parties and not on the court).\nAt issue is whether the trial court improperly increased defendant\u2019s sentence \u201conce it [was] imposed.\u201d See 730 ILCS 5/5 \u2014 8\u20141(c) (West 2000). Section 5 \u2014 8\u20141(c) of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 8\u20141(c) (West 2000)) provides:\n\u201cA motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. A defendant\u2019s challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence. However, the court may not increase a sentence once it is imposed.\u201d\nThe legislature did not define \u201cimpose\u201d within the statute; however, it is well settled that, when interpreting a statute, we must ascertain and give effect to the intent of the legislature by giving terms their plain meaning. People v. Kilpatrick, 167 Ill. 2d 439, 443 (1995). Moreover, our interpretation must consider \u201cthe reasons for the provision, the harms to be remedied, and the goals to be achieved.\u201d Kilpatrick, 167 Ill. 2d at 443. The supreme court has concluded that the reasoning applied in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), equally applies to the language of section 5 \u2014 8\u20141(c). Kilpatrick, 167 Ill. 2d at 443-44; see People v. Baze, 43 Ill. 2d 298 (1969); see also People v. Rivera, 166 Ill. 2d 279 (1995). In Pearce, the Supreme Court concluded that imposing a more severe sentence following retrial violates a defendant\u2019s due process rights because it essentially penalizes the defendant for exercising his right to challenge his conviction and sentence. Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080. Accordingly, the purpose of the Pearce rule is to prevent a court from vindictively resentencing a defendant, deterring him from exercising his rights. Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.\nOur research has not revealed any cases directly on point in this jurisdiction. In People ex rel. Carey v. Rosin, 75 Ill. 2d 151 (1979), the circuit court had modified a sentence more than 30 days after the sentence was originally pronounced and entered into the record, and the supreme court considered whether a stay of a sentence\u2019s execution tolled the period of its modification pursuant to section 5 \u2014 8\u20141(c). Rosin, 75 Ill. 2d at 155-56. After reviewing the Code, the supreme court determined that the imposition of a sentence was never synonymously referred to as the execution of a sentence, as argued by the defendant; therefore, the court held that the imposition date, for purposes of the statute, was the date the defendant was sentenced. Rosin, 75 Ill. 2d at 157. Most recently, in People v. Rodriguez, 364 Ill. App. 3d 304 (2006), the Second District referenced the lack of defined timing for the term \u201cimpose\u201d in a footnote:\n\u201cSection 5 \u2014 8\u20141(c) does not supply a definition of \u2018impose,\u2019 which raises interesting questions. For instance, if a trial court orally pronounces a sentence of 10 months but, in the same breath, corrects itself and articulates a sentence of 10 years, has the trial court increased an already imposed sentence?\u201d Rodriguez, 354 Ill. App. 3d at 319 n.3.\nThe Rodriguez court, however, did not address the question because its was unnecessary for the disposition of that appeal. Rodriguez, 354 Ill. App. 3d at 319 n.3.\nConsidering the plain meaning of the statute, its purpose as described in Pearce, and the facts of the case at bar, we find that the trial court did not impermissibly increase defendant\u2019s sentence after its imposition. Review of the record demonstrates that the trial court initially modified defendant\u2019s aggravated criminal sexual assault sentences immediately after admonishing him of his appellate rights, following defense counsel\u2019s inquiry whether any of the four counts merged. The court agreed, merged two of the counts and modified the sentence accordingly. The trial court was subsequently apprised of defendant\u2019s presentence detention credit and then stated that the matter was concluded; however, prior to dismissing defendant, a conversation took place off the record. Upon returning on the record, the court amended defendant\u2019s armed robbery sentence and then remanded him into custody. We do not find that defendant\u2019s sentence was \u201cimposed\u201d until the sentencing proceedings completely concluded and defendant was dismissed from the courtroom. Our interpretation of \u201cimpose\u201d and application to the instant facts do not compromise the protection offered by the statute as described by the Pearce rule. Moreover, any other interpretation of the case at bar would be unreasonable and a waste of judicial resources, where the court modified defendant\u2019s sentence during the continuous sentencing hearing within, at most, minutes of its initial pronouncement.\nWe find those cases cited by defendant, Kilpatrick and People v. Jones, 168 Ill. 2d 367 (1995), distinguishable from the case at bar. In Kilpatrick, the supreme court determined that the trial court violated section 5 \u2014 8\u20141(c) of the Code when it vacated the defendant\u2019s consecutive sentences of 9 and 6 years\u2019 imprisonment on a motion to reconsider and imposed a single term of 15 years\u2019 imprisonment because, although the overall number of years remained the same, the court impermissibly increased one of the counts after its initial imposition. Kilpatrick, 167 Ill. 2d at 446-47. Similarly, in Jones, the supreme court held that the trial court violated section 5 \u2014 8\u20141(c) of the Code when, upon reconsideration, the trial court vacated an improper consecutive sentence and imposed a longer sentence on a single count. Jones, 168 Ill. 2d at 372-73. In both cases, the trial court increased the defendants\u2019 sentences upon reconsideration, unlike in the case at bar where the trial court modified defendant\u2019s sentence within his sentencing hearing. Our case is more similar to People v. Graham, 229 Ill. App. 3d 733 (1992), where the Fourth District determined that section 5 \u2014 8\u20141(c) of the Code was not violated by the lower court\u2019s alteration of the defendant\u2019s sentence prior to the conclusion of the sentencing hearing after he demonstrated an unwillingness to comply with the terms of the court\u2019s original probation sentence. Graham, 229 Ill. App. 3d at 736. Accordingly, we find that the trial court did not violate section 5 \u2014 8\u20141(c) of the Code.\nDefendant finally contends, and the State concedes, that his mittimus must be corrected to accurately reflect the offenses for which he was convicted. Defendant\u2019s mittimus reflects that he was convicted of three counts of aggravated sexual assault, on counts VI, IX and XXI. However, defendant was merely convicted of counts IX and XXII, where count XIX merged into count IX and count XXIII merged into count XXII. Where the report of the proceedings and the common law record conflict, the court\u2019s oral order controls. See People v. Peeples, 155 Ill. 2d 422, 496 (1993). Remand is unnecessary to correct defendant\u2019s mittimus because, under Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), this court has authority to order the clerk to make the necessary correction. People v. McCray, 273 Ill. App. 3d 396, 403 (1995). We, therefore, instruct the circuit clerk to correct the mit-timus to reflect convictions for counts IX and XXII, one to each victim, under section 12 \u2014 14(a)(4) of the Criminal Code of 1961 (720 ILCS 5/12 \u2014 14(a)(4) (West 2000)).\nAccordingly, we affirm defendant\u2019s convictions and sentence. We further instruct the clerk of the circuit court to correct defendant\u2019s mittimus as instructed.\nAffirmed; mittimus corrected.\nTHEIS, EJ., and KARNEZIS, J., concur.\nThe Frye analysis (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)), or general acceptance test, controls whether scientific evidence is admissible at trial. In re Commitment of Simons, 213 Ill. 2d at 529.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Michael J. Pelletier and Therese Bissell, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manny Magence, and Annette Gonzalez Thornton, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERE MAGEE, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201405\u20142646\nOpinion filed June 29, 2007.\nMichael J. Pelletier and Therese Bissell, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manny Magence, and Annette Gonzalez Thornton, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1024-01", "first_page_order": 1042, "last_page_order": 1054 }