No. 2--06--0503 Filed: 3-10-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of St ep he ns on Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 05--DT--144 ) WAYDE J. LURZ, ) Honorab le ) Michael P. Bald, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ PRESID ING

JUSTICE

BYRNE de livered

the opinion of the c ourt: Following a jury trial, def endan t, Way de J. Lu

rz, appea ls his conv

iction of d

riving w hile under the influe nce of a lcohol (DUI)(625 I

LCS 5/1 1--501( a)(2) (

West 2006)). On

appeal, he raises three issues: (1 ) lack of

probable cause to arrest; (2) insufficient evidence of driving while unde r the influenc e; and (3 ) erroneous jury instructi ons. For

the rea sons that f

ollow, we affirm. BACKGROUND I. Hearing on the Motion to Quash Arrest and Suppress Evidence At the hear ing on the motion to quash arr

est and su ppress evidence, defendant testified that he was walkingwest on Route 20 in Stephenson County around 4 a.m. on September 19, 2005, when
anofficer in a squad car

stopped him. He had been walking for about a n hour at that point. He was searching for help because the vehic le that he

owned wa s "out in

the road." Defense counsel aske dNo. 2--06--0503

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defendant if he had driven any

vehicle on that

night. Defendant

responded, "Not to my

knowledge. I had a designated driv er." Defendant

did not remember exactly whe re he was comin

g from t hat nigh t, only that it was "some bar or someth ing by Ridott Corn ers." Nor did he remember his conversation with theofficer, just that he needed a rideto Lamm Road. Defendant furthe r testified that

no one was with him when the offic er stoppe d him. Defendant

recalle d that the

office r told him

that his ve hicle was sitting along the road. Defens e counsel asked defendant if he had been driving that vehicle and defendant responde d, "Not that I am aware

of. I don't reme

mber." The following exchange then took place: "MR. MATEAS [Defense counsel]: Do you know how the vehicle got

where it was? DEFENDANT: I g

uess it ran out of gas that is what I --you know-- MR. MATEAS: Were you driving it at the time? DEFENDANT: I must have been. I don't r

eally-- THE COURT: I'm sorry

, I didn't hear tha

t answer. DEFENDANT: I don't think I was driving." Defendant

attempted to explain that it was his birt hday the d ay before and that, at a little celebration

for it in the late afternoon he drank beer a nd Jack Daniels. Defendant insisted that he did notdrive or contro l any vehicle tha t night. However, defendant testified furthe r that he had the vehic le's keys and the title in his possession when he was arrested, but that wa s all he sa id he coul d remember.No. 2--06--0503

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Defendant

continued to state that he did not remember being arrested, but he recalled try ing to coop erate with the Breathaly zer test while at the jail. He testified that, when he blew into the mouthpiece, nothing happened and the police kept quizzing him over and over
. Oncross-examination, defendant reiterated that the vehicle was out of fuel and that nobody answered when he c alled to g et a gas can, s o he st arted w alkin g. "And t hen I sta rted d rinki ng. Becau se there

was some

alcoholic beverages in the vehicle in the back." Defendant stated that he was not drinking and driving. Defenda nt stated that he took a

fifth of Ja

ck Danie ls and some

beer and placed t hem in his pock

ets and dr ank while he walke d down the

street. H e stated

that he lo st the Jack Daniels w

hen he fe ll into a ditch. Defendant claimed that the police did not report that he had beers in his pockets. When asked who drove

the vehic le to wher

e the poli ce found

it, defendant responded

that he did not remember. Defendant stated that the offic er took the only key s to the vehicle , which de fendant

believe d were in

his coat p ocket. Onredirect, defendant testified that he did not remember exact ly how

he got to the area where he ran

out of gas, but he knew

that his friend Elisabeth Lipford was driving when they ra

n out of gas. He thought that she went home in her car. Deputy Robert Do

uglas of the St ephen son County sheriff' s office testified that, on September 19, around 4:05 a.m., he recei ved a ca ll des cribi ng a male who was walking or stagg ering along the side of the road

at Route 20 and Bunker Hill Road. Upon his arrival at the scene, D eputy Douglas noted that defendant's ey

es were bloodshot

and glassy

and that he was having trouble walking a nd maintaining his balance. Deputy Douglas testified that defendant told him that his truck had run

out of gas and that

h e was wa

lking to a friend' s house. Whe

n Deputy Dougla s asked hi

m where h

is friend lived, defe ndan t pointed to some orange lights emanating fr om a tire plant on the horizon.No. 2--06--0503

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When Deputy

Dougla s asked de fendant for his lic ense , de fendant fumbled in his wallet for a few seconds even thou

gh Depu ty Dougla s could cl early

see his dr iver's license in the fro nt of the w allet. Deputy Douglas further testified that he noted a stro ng odor of alcoholic beverage c oming from defendant's facial are a. Deputy Douglas asked defendant at that point whether he had bee n drinking, and defendant responded

that he had "had a couple." When Deputy Douglas asked for specifics, defendant said, "a few." Defendant told him that he had had beer before he drove

the truck. Deputy D ouglas asked him if he d rove h is truck to the place where it ran out of ga s and defendant responded, "y es." Defendant also told Deputy Douglas that he was alone. Deputy Douglas testified that he drove defendant back to the truck to insure that it was not
a hazard on the roadway . The truck was located a half mile east of Ridott Corners, which is at Rock City Road and R

oute 20. Deputy Douglas observed that it had no registration and asked defendant whether he had insurance. Defendant told him that he did. After pulling several pieces of pa per out of his wallet and i nspec ting them, defendant told Deputy Douglas that he did not have insurance. Deputy Dougla s stated that defe

ndant adm

itted that the key s to the tru

ck were in his pock

et. Becau se defendant seemed to have trouble maintaining his balance, his speech wa s slurred and difficult to understand, and he admitted that he had been drinking, D eputy Doug las aske d de fendant to perform field s obriety tests. De fendant

told him tha

t he had tw

isted his ankle wh il e walki ng, so Deputy

Dougla s omitted th e tests tha t would ha

ve been affec ted by

defenda nt's ank le in ju ry. Deputy Douglas testified that defendant performed poorly on the two tests he perfo rm ed. At this poi nt, based on his training and experience, Deputy Douglas believed that defendant wasNo. 2--06--0503

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under the influence of alcohol and placed defe ndant under arres t for DUI. Deputy Douglas then handcuf fed def endant a nd transp orted him t

o the Stephenson Coun

ty ja il. Uponarrival at the Breathaly zer roomat the jail, Deputy Douglas issued defendant a citation for DUI and re ad him a wa

rning to motorists. Deputy

Dougla s believe d that def endant pu rposely failed the Breathaly

zer test. Defendant allegedly did not blow into the machine as instructed. During cross-examination, defense counsel asked Deputy Douglas if he had asked defendant when he consumed the alcohol , a s he could have done so 8 or 20 hours before he dr ove his truck. Deputy Douglas responded: "That would not be corr ect. I f it had been twenty

hours or eight hours before there wo ul d not have been the strong odor of alcoholic be verage coming from him any longer." Indeny ing the motion to qua sh and sup press, the trial court noted that defendant had blocks of testimony where he

stated that he did not remember what he did that night. The trial court found it interesting that defendant would have the only key s to the ve

hicle tha t night. Additionall

y, i t did notmake sense to the court "to think that someone else would have been operating that

vehicle on that nig ht. That pe

rson woul d have le ft the ke ys i n the car or taken them with

them." Regar

dless, given defendant's admissions that he had been drinking before he drove and that he was a lone, and the additional evidence of the strong odor of alcohol and bloodshot eyes, the trial c ourt found that Deputy Douglas had probable cause to arrest defe ndant for DUI. II . Trial Deputy Douglas testifie d as he did at the he aring on defend

ant's mo tion to quash arrest and suppress evidence. Around

4 a.m. on September 19, 2005, he drove his car to the are a identif

ied in the police dispatch and saw defendant walking on the side

of the ro ad on Route

20 near B unker Hi llNo. 2--06--0503

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inStephenson County . After he exited his squad ca r and def endant c ame nea

r th e c ar, Dep

uty Douglas asked de fendant what was

going on, wher

e he was going , and wha

t h e was doin g. Defendant

responde d that hisvehicle had run out of gas and that he wa s walking to his frie nd's hou se for assistance. Defendant pointed to some lights down the road an d told Dep uty Dougla s that his friend lived there. Deputy Douglas recognized that the lights wer e in the parking lot of the Ke ll ySpringf ield Tire Company. Deputy Douglas asked defendant if hi s frien d worked at the pla

nt, because those were the lights to the plant. Def endant replied that his friend lived there. Deputy Douglas noticed that

defendant's ey

es were bloodshot and glassy , that his speech was somewhat slurred, and that he appeared to have trouble maintaining his balance. Deputy Douglas also noticed the smell of an alcoholic beverage coming from defendant's fa cial area. He then asked defendant for identification. Defendant pulled a wallet from his pocket and Deputy Douglas noticed defend ant's driver's license in plain sight, although def endant fumbled

through his wallet

before he finally located it. Defendant told Deputy Douglas that he had had a few be ers that night and that he had been drinking before he dr ove. Defendant further stated that he wa s alone. Deputy Douglas asked defendant if he would l ike a rid e to his fr

iend's h ouse but f

irst explained to defendant that he would need to check on defendant's truck

to make sure that it was not
a traffic hazard. Deputy

Douglas could smell the strong odor of alcohol emanating

from def endant. Deputy Douglas drove down the road and found defendant' s truck approximately a half mile ea st of Rock City Road. Deputy Douglas noticed that the truck had no re gistration and asked defendant about insurance. Def

enda nt pulled several slips of paper from his wallet and said he did not have insurance. De pu ty D ou gl as as ke d d ef en da nt ab ou t k eys to the tr uc k. De fe nd an t h ad se ve ra l k eysNo. 2--06--0503

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inhis pocket

and Deputy Doug

las tried several of them. Because of the multitude of keys, he

could not find one that wor

ked in the truck, so he final ly g ave the k

ey s back to d

efenda nt. Deputy Douglas asked defendant to perform

field sobriety tests. Def

endant told him that he had twisted his ankle along the side of the road, and Deputy Douglas told him that they would not do any tests that involved using his ankle. Deputy Douglas believed that defendant did not perform the test s well and , based o n his train ing and experien ce, he b elieved

that def endant w as under

th e influenc e of alc ohol. Deputy Douglas further opined

that defendant had driven the truck while under the influe nce of alcohol. He reiterated his testimony that defendant had told him that he was driving and that he
was alone. A cco rding to Deputy Douglas, at no time did defendant allege that someone else was driving the truck. Although his report did not indicate it, Deputy Douglas stated that the passenger seat of the truck was covered with papers and a sweatshirt, which would make it uncomfortable for someone to sit on. Deputy Pam ela Wilson, a certif ied Bre athaly

zer oper ator with the Stephe

nson County sheri ff's department, testified that she asked defendant 10 times to take a Breathaly zer test and that each time defendant failed to give a yes or no answe

r. After a bout five minutes, defendant agreed to take the

test. Dep

uty Wilson state d that def

endant' s breath

did not register and opined that defendant di d n ot br ea th e s tr on gl y en ou gh in to th e m ac hi ne . D ep ut y W ilson also n oted that defendant complained repeatedly

about being arrested for DUI whe n he was not driving. When asked whether

he gave the name of "some one else who might have been driving," Deputy Wilson replied "no."No. 2--06--0503

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Elisabet h Lipf ord testif ied for the defen se that she resided on a far m on East Lamm Road in Freep ort, Illinois. Lipford de scribed her relationship with defendant as a frie ndship and

said that she had known defendant for 10 y ears. She explained that the farm had two residential structur es; she lived in one and defendant lived in the other. OnSeptember 19, 200 5, betw een 3:15 a nd 3:30 a. m., Li

pford wa s in her ho me with defenda nt, while her children were sleeping . Lipford and defendant had just finished cleaning after
a party the y had g iven at the farm. They were getting rea

dy to go to Auror

a, Illinois, to help her mother do s ome work a nd move from her house. Lipford a nd defendant left in defendant's truck, with Lipford driving. L

ipford had gone to Aurora on numerous occasions. Lipford' s mother stayed behind, watching Lipfor

d's children. As Lipford

was driving, the truck sputtered a few times and ra n out of gas. The truck stopped at Route 20 near Rock City Road. L ipford and defendant

argued. L ipford stated that defendant was intoxicatedand belli geren t. Lipf ord testif ied that she became angr

y, t hrew the key s at defe

ndant, and told him that she was taking off and that he should get the g as and deal with it. Lipford then walke d away fromthe truc k and wen

t to her fr iend Jill Bu

rlinga me's hou se, which is located east of where the truck ran ou t of gas . Lipfor d's friend was not at her house, and Lipford walked home to the

farm. Lipford stated that she never observed defendant drive the truck. Oncross-examination, the prosecutor asked L ipford if, after defendant had

been arrested for DUI, she spoke

to any one from the sher iff's d epartme nt or the St

ate's A ttorney 's offi c e to inform them that she had been the person driving the truck that nig ht. Other than

the person at the impound lot, Lipford responded, she had not told anyone until the trial that she had be en the person who had driven th e truck t

hat nigh t.No. 2--06--0503

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Lipford stated tha

t driving to her mother's hous e at 3:30 in the morning was not an
em er ge nc y. Lipford stated, "I like to do it

when [the kids] are sleeping, and if someone is there watchingthem, I can do the drive a nd then get back *** when they a re up." Lipford did not

recall any pape rs or othe

r things of that na

ture insid e the tru ck. Nor d

id she re call def

endant ha vin g t o move anything

to sit down. Following closing

argume nt, the jur y r eturned a guilty verdict
. Thereaf

ter, the trial court sentenced defendant to a ter

m of 30 days in jail and is sued a fi ne and c osts. Def

endant ti mely appeals
. ANA LYSIS I. Pr obable Ca use Defend ant's first argument on appeal is that Deputy Douglas lacked

probable cause to arrest him and that the trial court erred in deny ing the motion to quash ar rest and supp ress evidence. Alth ough defendant admits that he was under the influence o f alcohol , he asse rts that D eputy Douglas never observed or had any evidence that

defendant had driven

a motor vehicle while under the influe nce of a lcohol. Ona motion to q

uash arr est and su ppress e vidence , it

is the defenda

nt's bur den to pre sent a prima facie

case that the police lacked probable ca use to arrest. People v. Brexton , 343 Ill. App. 3d 322, 326 (2003). Once the defendant hasdone so," the State has the bu

rden of going for

ward wit h evidence to counte

r the def endant' s prima facie

case." People v. Gipson , 203 Ill. 2d 298, 307 (2003). When reviewing a trial court's de cision regarding a motion to q

uash arr est and su ppress evidence,
we must accord great defer ence to the trial court's factual findings and credibility assessments and will reverse those find i ngs only if they are against the manifest weig ht of the evidence. People v.No. 2--06--0503

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Sorenson , 196 Ill. 2d 425, 431 (2001). However, a reviewing c ourt will review de novo the ultima te question of whether a

motion to quash and

suppress should be granted on a given se t of facts. People v. Luedemann , 222 Ill. 2d 530, 542-43 (2006). Even though Deputy

Douglas never observed defe ndant driving while intoxicated, we find that the facts known to Deputy Douglas at the time he ar

rested d efenda nt gave rise to pr obable cause to support th e arre st. Probab le cause exists w hen the f acts k nown to the officer at the time of the arrest are sufficient to lead a reasona bly cautious person to believe that the person arrested ha s committed a crime. People v. Sims , 192 Ill. 2d 592, 614 (2000). The existe nce of pr obable c ause to arrest depends upon the totality of the circumstances at the time of the arrest. Sims , 192 Ill. 2d at 615. I n this cas e, not only

was def endant un der the i nfluenc e of alc ohol at the time of the

arrest, buthe admitted to Deputy Douglas that he drove his vehicle to the point where it ran out of gas, that he was alone, and

that he had the keys to the vehicle. B ased on Deputy D ouglas's observations and defend ant's admissions, a reasonably c autious person would have been led to believe that defendant had drive n the vehi cle while

under the influenc e of alc ohol. Defendant

asserts that the only piec e of evidence that the trial court relied on in justifying a finding of proba

ble caus e was de fendant's admis sion that h e drove h is vehicle to the poin

t where i t
ran out o f ga s. Defe ndant believes that this statement was unreliable because it was not clea r whether defendant was intoxicated or under the influence of a lcohol when he was driving, how much time transpired between his drinking and driving, or whether defendan

t drank after

the vehic le already had run out of gas. We note firs t that, in f

inding pr obable c ause, the

trial court d id no t rely on d efenda nt's statement that he drank b efor e he drov e his vehi cle. Rather, the t rial cou rt relie d on Deput

yNo. 2--06--0503

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Dougla s's testimony that

there would not have been the strong odor of alcoholic beverage c oming fromdefendant any

lon ger if he had ingested alcohol 8 or 20 hours before he drove his truck. Furt her, in finding that defendant and not someone else drove the tr uck, the trial court foun d i t interesting that def

endant had the only ke

ys to the vehicle that nig ht and it surmised that, given defend ant's inebriated

state, if someone else had operated the vehic le that nig

ht, that pe rson woul d have either left the k ey s in th e vehicle or taken them with her. I n light of the evidence presented, including defendant's admissions, we ag ree that probable cause existed. Defendant

relie s on t his co urt's decisionin People v. Boomer , 325 Ill. App. 3d 206 (2001). In Boomer , an officer dispatched to an accide nt scene found the defendant ly ing in a ditch approxima

tely 15 feet fromhis motorcycle. Boomer , 325 Ill. App. 3d at 207-08. The defe ndant smelled of a lcohol, and he admitted to having consumed alcohol before dr iving his motorcycle
. Boomer , 325 I ll. App. 3d at 208. On appeal, this court affirmed the trial court's determination that the officer lacked probable ca use to arrest the defendant based on those circumstances. Boomer , 325 Ill. App. 3d at 209-11. Inholding t

hat the f acts there did not give rise to probable cause to ar rest, we distinguished the Boomer

case fr om People v. Brodeur , 189 Ill. App. 3d 936 (1989), and People v. Wingren , 167 Ill. App. 3d 31 3 (1988), in which probable cause to arrest d id exist, on the gro

und that th e defen

dants inthose cases exhibited

bloodshot ey es and slu

rred spe ech in ad

dition to em

itting an odor of a lcohol. Nothing about the defendant's demeanor, a ppearance, or behavior in Boomer sugge sted in

to xication. Boomer , 325 Ill. App. 3d at 210. I n Boomer , all that was known about the defendant's accident was that he app arently

lost control of his motorcycle . The arresting officer spoke with a witness who observed "sparking," and there

was no evidence that the defendant was driving in an erratic manner.No. 2--06--0503

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We further noted that, by

its very nature, a motorcyc le is vulne rable toany number of

road hazards that a vehicl e with fou

r wheels could saf ely negotiate. Boomer , 325 Ill. App. 3d at 210. Thus, there
was no evidence of intoxication an d no evidence that t he acci dent w as caus ed by the d efenda nt's alleged intoxication. Like in Boomer , def

endan t here a dmit ted to havin g consu med al cohol before drivi ng. However, this case contains additional indicia of intoxication that were not present in Boomer , like bloodshot eyes, slurred spe ech, and loss of balance. Defendant

also r elies on the trial testimony of Deputy Wilson to support his assertion that he recanted his admission and told the police that someone else was driving tha t evening. Defendant asserts that Deputy Wilson testified that defendan t complained repeatedly

that Deputy Douglas should not have a

rrested him since he was not

dri ving and that some one else was serv ing as a designated driver that night. Our examination of the re cord shows otherwise. The testimony reveals that the pr osecutor asked Deputy Wilson whether, dur ing the course of the Breathaly

zer exam, defendant made any statements to her that he was not driving the vehicle, and she responded "y

es," that he kept asking her how he cou ld be a rrest ed for " DUI when h e wasn't driving." The prosecutor asked her whether, othe r than by say

ing he di d not drive, defendant suggested tha t someoneels e was driving or whether he g ave her a name or a phone number of
someone else who might

have been driv ing, and Wil son respond ed, "no." It is clear that defe ndant never stated that there had been another driver; rather, he seemed c onfused by the fa ct that he had been walking rather than driving at the time of his DUI arrest. I n any eve nt, this conversation took place after

defenda nt had bee

n arres ted, and D eputy

Dougla s was not in

volved. T

hus, this c laim is not relevant to the finding of probable cause.No. 2--06--0503

-13- II . Beyond a

Reasonable Doubt Defendant

next contends that the evidence was insuffici ent t o pr ove hi m gu il ty of DUI. Defendant

argue s that the corpus delicti of the offense was not proved by the State. As stated, defendant admits on appeal that Deputy D ouglas had probable cau se to believe that he was intoxicatedwhen the officer found him on the side of the road. However, defenda nt contends that the State failed to prove the driving element of the offe nse wi th evi dence independent of or corroborating defendant' s initial statement that he was driving the truck. Section 11--501(a)(2) of the I llinois Vehicle Code (625 IL CS 5/11--501 (a)(2) (West 2006)) provides : "A person shall not drive or be in actual phy sical control of any vehicle within this State whil e:
***

(2) under the influence of alcohol." The offense includes two elements: (1) a defendant must be driving a ve hicle; and (2) the defendant must be under the influence of alcohol. Commonly

refer red to as the corpus delicti of the of fense, t he State m

ust prove both elements inorder to get a conviction. People v. Flores , 41 Ill. App. 3d 96, 100 (1976); People v. Toler , 32 Ill
. App. 3d 79 3, 798-99 (1975); People v. Williams , 3 Ill . App. 3d 1 036, 1039 ( 1972); People v. Jefferson , 1 Ill. App. 3d 484 , 486 (1971). T he corpus delicti canno t be pr oved b y the defen dant's confession

alone. People v. Lambert , 104 I ll. 2d 375, 3 78 (1984) ; People v. Willingham , 89 Ill. 2d 352, 360 ( 1982); Peoplev. Lueder , 3 Ill. 2d 487, 488 (1954). There must be some indepe ndent or corroborating

evidence outside the conf ession tha t tends to e stablish

that a crime occurred. I f suchNo. 2--06--0503

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evidence tends to pr

ove that t he offe nse occurred and corroborates the defendant's confession, it may be consider

ed, tog ether wi

th the con fession, to establi shthe corpus delicti of the offense. Lambert , 104 Ill. 2d at 379. As noted by the supreme court in Willingham : "The corrob oratio n requirement stems from an attempt to assure the truthfulness of the confession

and recognizes that the reliability of a conf ession 'may

be suspect if it is extracted from one who is under the pressur e of a pol ice inve stigation--whos e words may re flect the strain and confusion attending his predicament rather than a clear reflection of his past.' [Citat ions.]" Willingham , 89 Ill. 2d at 359. We must addres s defen dant's conte ntio n wit hin t he fami liar p aramet ers for attac king a convictionfor insufficiency of the evide nce. When

reviewi ng a ch alleng e to the sufficiency of the evidence, this court considers whether, viewing the evidence in the light most favorable to the State,

" ' any rational trier of

fact co uld have f ound the e ssential e lements of the crime bey ond a rea sonable doubt.' " (Emphasis in original.) People v. Collins , 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virgini a , 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); see also People v. Smith , 185 I ll. 2d 532, 5 41 (1999) . The Unit ed States Supreme C o urt has sta

ted that "the critical inquiry on review of the sufficiency of the evidence to s upport a c rim inal conviction must be not simply to determine whether the jury was properly

instructed, but to determine whether the record evidence could reasonably support a finding of

guilt beyond a

reasonable do ubt." Jackson , 443 U.S. at 318, 61 L. Ed. 2d at 573, 99 S. Ct. at 278 8-89. This standard of review applies "regardless of whether the evidence is direct or circumstantial [citation], and regardle ss of whether the defendant receives a bench or jury trial [ citation] ." People v. Cooper , 194 Ill. 2d 419, 431 (2000). We will notNo. 2--06--0503

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retry a defen dant w hen co nsid ering a sufficiency of the evidence challenge. Smith , 185 Ill. 2d at 541.

The trier of

fact is best equipped to judge thecredibility of witnesses, and due consideration must be give n to the fa ct that it was the jury that saw

and heard the witnesses. Smith , 185 Ill. 2d at 541-42. Accord

ingly , a jury

's findi ngs concerning

credibi lity

are ent itled to g reat we ight. Smith , 185 Ill. 2d at 542. That a jur y a ccepte d the veracity

of certain testimony doe s not guarantee
reasona bleness, however. A conviction will be reversed w here the evi dence is so unreasonable, improbable, or unsati sfactor y th at it justifies a reasonabledoubt of the defendant's guilt. Smith , 185 Ill. 2d at 542. Defendant

contends that, because neither Deputy Douglas nor any

other witness, aside from his own, ever saw him in or even near the truck, the driving element has not been proved. I

t is well established

that observation of

a defenda nt in the a ct of driv ing is not an indispe

nsable pr erequis ite for a conviction. People v. Foster , 138 Ill. App. 3d 44 (1985). The driving element may

be proved by circumstantial evide

nce alone. In City of Marquette He ights v. Clarkson , 64 Ill. App. 3d 162 (1978), the defenda ntwas not found in the driver's seat of

the car, although headmitted on two occasions to being the driver. At trial, he denied his admissions. However, the testimony of an ey ewitness who had se en him clim

b from the driver's seat to the backsea t of the car was held sufficient to corroborate his earlier, more credible admissions and prove that the defendant was in fa ct the driver of the car. I n People v. Garnier , 20 Ill. App. 2d 492 (1959), the only evidence that the defendant had driven the car whil e intoxicat

ed was th at he wa s found se ated in th e car, w hich was illega lly parked
some 40 blocks from the place where he had been drinking a short time before. Although there wasNo. 2--06--0503

-16-

no direct evidence of his having driven the c ar, the appellate court found the inferenc e that he had driven the car sufficiently strong to prove him guilty beyond a re asonable doubt. In People v. Mundorf

, 97 Ill
. App. 2d 130 (1968), and People v. Schulewi tz , 87 Ill. App. 2d 331 (1967), the defendants were found alone and asleep or passed out

behind the steering wheels of their respec tive cars that wer

e stopped in the middl e of the highway . In Mundorf , the defendant

and his wife testified that the wife had driven the car to the shoulder of the road and that there she had abandoned

him. The trial judge found it difficult to believe that the defendant's wife drove the c ar, parked it on the shoulder of the tollway, lef t the car and her husband about 2 a.m., and then set out to walk home , in high-heeled shoes, via the tollwa

y, a distance of one or two miles. Even if she were angry with her husband, the appellate court found, it did not seem reasonable that she would leave the car and her husband

asleep i n it and sta

rt to walk home at that hour of the night. Mundorf , 97 Ill. App. 2d at

135. The court in Schulewi tz found it reasonable to assume that, when a car is found stopped in the middle la

ne of a busy thoroug

hfare and a person is found asleep or unc onscious behind the wheel, sitting in the driver's seat, with no one else pr esent, that person drove the vehic le to its present location. Schulewi tz , 87 Ill. App. 2d at 337. Si mi la rl y, in Peoplev. Toler , 32 I ll. App. 3d 793 (1975), a law enforcement offic er, Officer Milam, contradicted the defendant's ver sion of events, a nd the cou

rt held the evidenc e suffic ient to prove that the defendant

was driving the car

while intoxicated. Although the officer did not see the defendant driving the car, he did see the car being driven on a public highway . Furthermore, no one other than the defendant was found in or near the car, and no one was seen enter ing or leaving

the
car. Althoug

h another office r, Offic er Ward, te stified that the defendant had told him that he had been parked a long the road for three ho urs, the t esti mony of Offi cer Milam was that the car wasNo. 2--06--0503

-17-

driven and parked there less than two minutes before he r eached t he car. The jur

y could have believed or refused to believe Officer Milam's statement. It was for the jury to weig

h the evidence and determine the credibility of the witnesses. The court felt that "the evidence of the defend ant's drivi ng, although circumstantial, was sufficient to excludeevery r ea sonable hypothesis of [the] defendant's in nocence." Toler , 32 Ill. App. 3d at 800. Also, in People v. Jendrzejak , 98 Ill. App. 2d 313 (196 8), the tr ial court did

not err in rejecting the defe ndant' s testimony

, which c ontradicted his earlier admission of driving thevehicle inquestion. In Jendrzejak , the def endant contended tha t the State failed to meet its burden of proving beyond a re asonable doubt the corpus delicti
. He argued that, since both he and his wife testified that he had

not drive n the car on the nig

ht in question and the only evidenc e that he did drive the car wa s his state

ment t o the investigating officer, the evidenc e did not support the conviction. Jendrzejak , 98 Ill. App. 2d at 317. The appellate court found that thetestimony of the defenda nt and his wife must

first be c onsidere d in light of their i nterest i n the outc ome of the case, and it noted that the trial judge made an express finding that he did not believe either

of them. The appellate court further noted t hat th eir te stim ony was con tradi cted b y the offi cer's t estim ony of the defend ant's admission, which the defendant did not deny having made. Furt

h er, it wa s inhere

ntly improbab le that a husband, whose

wife had just driven his car into a ditch and left him there with the car around 2 a.m., would not have mentioned the incident to an inve stigatin

g offic er, eith er at the

scene or in the lengthy

conversations that

ensued a t the polic e station. Under th ese cir cumstanc es, the a

ppellate court found tha t "it was not error for the trial judge to disbelieve and totally disregard the testimony of [the] defendant and his wife." Jendrzejak , 98 Ill. App. 2d at 317-18.No. 2--06--0503

-18-

The defendant argued

that, even

if the defense testimony

was disregarded, the corpus delicti
was not estab lished si

nc e t he on ly evidence that he drove the car wa s the officer's testimony concerning

the defendant's admission. The court held "that the evidence corroborating a confession
or admission need only consist of fac ts or circumstances tending to confirm and st rengthen it." Jendrzejak , 98 Ill. App. 2d at 318. The court stated:

"Withoutregard to the evidence of de fendant's statement, the facts and circ umstances inevidence tended to prove--although, le t us say, not bey

ond a reasonable doubt--that defendant drove the car. The car had recently been driven into the ditch and the owner was present
. Ina

civil case, where the quantum of proof is the preponde rance of the evidence,
a motor veh

icle is pr esumed to have be en drive

n by its owner . [Citations. ] This presumption is found ed in l arge par t on t he high probability that the underly ing inference is co rrect. By
an al og y, the facts and c ircumsta nces pre sented by

the case on appea

l are suf ficientl y persuasive to support the inference that defendant was the dr iver of the car. Thus, the re is evidence which ten

ds to strengthen and confirm the admissio n." Jendrzejak , 98 Ill. App. 2d at 318-19. The court furth er found

the infe rence t hat the de fendant

had drive

n the car sufficie ntly strong t o establish guilt beyond a

reasonable doubt. Jendrzejak , 98 Ill. App. 2d at 319. Inlight of the case law, we turn to Lipford's testimony

that defendant did not drive the truck
on the night in question and defendant's statement to Deputy Douglas. It is clear

that the jury

found Deputy Dougla s's test

im on y and observa

tions regarding defenda

nt to be credible and discredited defend ant's witness, Lipford. Her testimony must be considered in light of her interest in the case, as defendant's friend. Moreove r, Lipford's testimony

, that she was traveling to her mother' s homeNo. 2--06--0503

-19-

at 3:30 in the morning to help her move and then

left an inebriated friend alone with the key s to the truck, was inhe

rently unbeliev able. Th e jury

could have be li eved o r refus ed to b eliev e Lipford 's statements. It was for the jury to weigh and determine the credibility of the witnesses. Defendant

asserts that there was no independent or corroborating evidence pr esented at trial that could support defendant's initial admission that he was the driver of the truck. He cites Foster to support his assertion. We disagree with defendant's a ssertion and find Foster distingu ishable from the instant case. In Foster , the d ef

endant was observed in the passenger seat of a car that was found off the highway with its rear

w heels suspended over a culvert. The defe ndant twice told an officer at the
scene that h e was the driver of the car. While at the police station, the def endant recanted hi s admission. At a bench trial, the State presented the testimony of two officers who were at the scene and the results of a breath test. Based on the location of the car and

the defendant's admission, the lo wer court concluded that the defendant was the drive r of the car. Foster , 138 Ill. App. 3d at 46
. This conviction was reversed. Foster , 138 Ill. App. 3d at 46-47. Th e Appella

te Court, Third Dist

rict, noted that the defendant's admission and later recantation, without more, established only that the defenda n t's contradictory

statements were equivocal at best. Foster , 13 8 Ill . Ap p. 3 d at 46- 47. In addition, the court specifically pointed to the fact that the trial judge believed that the location of the car, the defendant's admission, and the later arrest were sufficient

to establish the corpus delicti of the offense. As the appellate court noted, these fa cts did not relate to the defendan t's in itial admission of driving. The undisputed facts were that the de fendant was on the passenger side of the
car. Furthermore, no evidence of vehic le ownership was presented at trial. Foster , 138 Ill. App. 3d at 46-47.No. 2--06--0503

-20-

We find the present case dissimilar to Foster . Here, defendant was foundapproximately onehalf mile from where his truck ran out of gas, wa lking al ong Route

20 in an ine

briated state at 4 a.m. His eyes we

re bloodshot, his speec

h slurre d, and he

stagg ered as

he walke d. He adm

itted to De

puty Douglas that he drank before he drove the truc k and that he was alone. Even after defenda nt had walked a half mile along Route 20 and af ter bein g drive

n back to t

he truck , he fail ed the fi eld sobriety tests. He may

have pur posely averte d the Br

eathaly zer test a t the jail. Defendant admitted that the key s to the tru

ck were in his pocket, a ltho ugh he w ould not i denti fy which o ne of a l arge number of keys wa s the key that oper ated hi s truck. No one else was present at or near the ar ea where the truck was located. The incident occurre d in a rura l area v ery

early inthe morning. At the time Deputy Douglas saw the truck , the pa ssenger seat was covere d by a number of papers and folders , a sweatshirt, and

other ite ms, making it uncomfortable for any one to sit on. Lipford, whose testimony the jury disreg arded, d

id not rec all any

papers or a swea

tshirt in th e truck t

hat nigh t. Moreover, defendant never cla imed after he was arrested that someone e lse was driving the truck. Rather, he appe ared tobe asking how he co

uld be arrested for DUI

when he was not driving the truck at the time of h is arrest. Based on the evidence, a reasonable inference would be tha t defendant drove the truck to the spot whe

re it ran out of ga s. Defendant

argue s that his statemen

t that he h ad been

drinking before he drove is "short on specifics." He asse

rts that it d

oes not sta

te when h e was allegedly drinking, how much he drank, whether he was under the influence of alcoh ol when he was alleg edly driving , how much

time transpired between the drinking and the driving, or whether he was drinking after

he allegedly

drove the truck. Defendant admitted that he was drinking be fore he drove the truck. Deputy Douglas testified that def endant di d

not pass th e field so

briety tests, whi ch were

not give n to him until

DeputyNo. 2--06--0503

-21-

Douglas drove defendant to the truck, after defenda nthad wal ked one -ha lf m il e fr om th e tr uck . In addition, defendant continued to exhibit symptoms of intoxication at the jail around 5 a.m., one hour after he was pi cked up by D eputy Dougla s. De pu ty Wilson observed that defendant exhibited bloodshot eyes, slurre d speech, and a stagge red walk and that the correctional office rs almost had to hold him up as he walked. Furthermore, neither side a dmitted any evidence

of alcohol or

alcohol consumption at the scene wh ere defendan t was found walking or where the truck was located. Alth ough defenda

nt had tes ti fied at the hearing on the motion to quash and suppress that he had consumed

alcohol a fter he left his tr uck, no su

ch evide nce was present ed at tria l. We find d efenda nt's reliance on People v. Miller , 23 Ill. App. 2d 352 (1959), and People v. Williams , 3 Ill. App. 3d 1036 (1972), to be misplaced. In Miller , the defendant testified that he had left the scene of the accident

to have several drinks. Therefore, the court could not conclude that the defendant was intoxicated at the time he was driving. I n Williams , the officer did not see the defendant until an hour and a half after the defenda nt had been driving , and the evidence of the defend ant's intoxication was marginal. Accordingly, we reject defenda nt's ar guments and find that the evidence was sufficient to prove defe ndant guilty bey

ond a reasonable doubt of driving under the influenc e of alc ohol. III. Jury Instruction Defendant

l ast cl aims that the jury was given improper instructions on driving under the influence, which included the possib ilit y that def endan t was e ither drivi ng or "in actual phy sical control" of

the vehicle. He asserts that there was no issue of " actual phy sical control" a nd that this po rt io n o f t he in st ru ct io ns li ke ly c on fu se d t he ju ry. Defens e counsel argued that the jury could be misledinto believing that a person has phy sical control and

is guilty of DUI by merely

riding a s aNo. 2--06--0503

-22-

passenger and directing

the driver. Over objection, the trial court g ave the f

ollowing instructi on to th e j ur y: "A person commits the offense of driving under the influence of alcohol whe n he drives or is in actual ph ysical control of a v ehicle whil e under the in fluence of alco hol." See Illinois Pattern Jury I nstruct ions , Criminal No. 23.13 (3rd ed. 2000) (hereinafter I PI Criminal 3d). "To sustain the charge of driving unde r the influence of alcohol, theState must prove the follow

ing prop ositions: First Proposition: That the defendant drove or was in act ual p hysical control of a vehicle; and Second Proposition: That at the time the defendant drove or was in actual physic al control of a vehicle, the defendant was unde r the influence of alcohol. If you find from y

our consideration of all the evidence that eac h one of these propositions has been proved bey ond a reasonable doubt, y ou should find the defendant guilty. If you find from y

our consideration of all the evidence that any one of the se propositions has not be en prove d bey ond a rea sonable

doubt, you

should find the defendant not guilty." See IPI Criminal 3rd No. 23.14. Th e t ri al co ur t a ls o g av e t he fo ll ow in g d ef in it io n i ns tr uc ti on to th e j ur y:No. 2--06--0503

-23- "The phrase 'actual

physical control'

means that the defendant was in the vehicle and ina position

to exercis e contro l ov er the vehicle by starting the engine and causing the vehicle to m ove." See IPI Criminal 3rd No. 23.43. "The function of jury instructions is to convey to the jury the law that applies to the e vidence presented." People v. Herron , 215 I ll. 2d 167, 187 (2005). "Jury instructions should not be misleading or confusing[citation], b ut their c orrect

ness depe nds upon no t whether

defense counsel
can imagine a proble matic mea ning, bu t whether ordinar y pe rsons ac ting as j urors wo uld fail to understand them." Herron , 215 Ill. 2d at 187-88. The definition instruc tion give n to the jur

y explained th at defe

ndant had to be in the vehic le and able to start the engine and cause it to move to be in actual physica

l control of the ve

hicle. Th is instruction addresses the p os sibility that defendant had bee n a passenger who was left alone and could start the engine and cause the vehic le to move. Therefore, we do not find that the trial court abused its discretion in including the phrase "actua l physical control" in the instructions. Based on th e preced ing, the judg ment of the

circuit court of Stephenson

County is affirmed. Affirmed. McLAREN and CAL

LUM, JJ., concur.