charge that runs so here we have the defendant walking from the open driver's door of the car of the truck to the rear of the truck the engine is running the lights are on the keys are in the  how did he in that position not have the capability or the potential to operate this vehicle i think he did in detroit in whether he had the capability  whether he had the intention it is not relevant but if you look at right what the factors are in a towering actual visible to determine actual physical control you know if it's very key specific right and one thing i was enough evidence to find that he was a person actual physical controllable so are you saying because there was another person there a passenger there the defendant was not in a position to be in physical control of this vehicle no i am not saying that a that mr cox thrown the d a call that i mean the court's pacifically made a finding that there was no proof presented or ownership of the call the state never argued anything about those statements below they did not introduce  driver's side is now in appeal we say all in the state's theory is also that he made these statements and then he came to consider that to my client didn't get a chance to rebut that he didn't get a chance to rebut that theory and that that's that's a violation of due process statements i'm in a video you have to identify the speakers on the video the person has to testify as to that interaction between the person and then it's admissible there was none of that here and rely on polls parts of the video for very good reason no foundation was laid for it the court specifically found that there was no proof of ownership when this even tried to argue that it was the defendant's vehicle hopeful objected during closing arguments and the courts had yet you're correct there is no proof of ownership of the vehicle and the state itself that that's that's correct the state conceded that there was no proof of ownership they never try to use those statements his car and the keys in his pocket sold during that same video so how is your not a whole bishop for the exchange with respect to what he says as opposed to what he does same person because it mission of th say that the court actually did make a comment that during that portion of the video he had his difficulty discerning what was side so there's that how can there be any liability if he had just difficulty discerning what was said during the proper and the part of the video that was properly admitted how can we now on appeal say without any indication the record that the court considered these things and all that this the flag and excluding other from controlling it and again i as a set although you don't have to be behind the driver's seat for actual physical control at least the i kind of find it is being in the vehicle so you have cases like i where the have equally can exert control do you have beyond reasonable doubt that one of them actually serving contrib one of them is charged and the other one isn't yes the charge is probable cause to charge someone that doesn't prove beyond a their case there was a car crash the defendant was found slumped behind the driver side of the wheel within two minutes of the crash someone saw past your leave the car depending argued that he was not in actual physical control that they couldn't prove that he was an actual physical control and in their case you know and then when the police arrived at the scene shortly thereafter the defendant was still behind by recycle slumped behind the driver's side will and even in that case where the court ultimately found that there was actual physical control the court said we agree that this case i didn't says something were perpetration on the part of the state's attorney's office and that more could have been done to link the pilot to the car questions might have been tendered to the witnesses which would have accident i don't know and here we're we have the cursing not that you know he has a moral certainty that it was my client but just it it was potentially more possible that it was my client that is not  it's not the only issue no your honor i mean when in every case if that's the issue of why you know you don't have to necessarily prove driving but you have to prove actual physical control but in every case there is more than just the state failed to prove that he was the driver and we're all in we have to stay here and defend it outside of what you call outside of the driver's side of running car there is no case without any other evidence that he's the owner of the car or some in the passenger side of the vehicle defendant was seen actually one of the officer take leave deputy prowar testified that individuals were exiting vehicles which implies that mr the deputy for our side decided get out of the driver's seat and at the very beyond a reasonable doubt and just defendant expressly argues that no evidence was presented among the arguments that the defendant makes in their reviews that are just presented the defendant was the owner of the truck the state is allowed to respond to that violations charges against the defendant and the trial court was differentiating that ownership aspect from the actual physical control which is a different analysis which does not necessarily require ownership so i  challenging that evidence on appeal as this court is well aware of has recognized this morning and seeking a finance the state can advocate and raise any argument in support of the judgment as long as the factual basis for that determination is in the record on appeal to support the kind of conviction that is not equal to writing in theory ownership of a vehicle is not a new theory of actual physical control if ownership of a vehicle was a theory of actual physical control  this troll ownership is not even necessary to actual physical control so by arguing that the state that the record also contains evidence of ownership or not changing out the theory we're not presenting a new theory we are simply marshalling all the evidence as we can to support the judgement of the trial court cases that relied on davis privilege and it's those cases was that the  know i'd also like to point out that actual physical control as the trial were found also includes the capability of exercising control i believe the trucker made a comment like he it really didn't need to present that evidence even if this court let's not to consider any of defendant's admissions to the ownership the state presented overwhelming evidence that defendant was an actual physical control inference where the passenger was equally available to the defense to the defense as a witness so you know knowing her should be drawn on inferences are not evidence this court is not you know and it is not for this