2013 I LApp (1st) 123271 SI XTH DIVI SI ON AUGUST 23, 2013

No. 1-12-3271 THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from the

) Circuit Court of Plaintiff-Appellee , ) Cook County
. ) v. ) Nos. YT 688486, ) YT 688487, MATTHEW KI ERTOWI CZ, ) YT 688488 ) Def endant- Appellant. ) Honora ble ) Thomas P. Fec arotta, Jr., ) J udg e Presiding
. J USTI CE GORDON de livered the judgme nt of the cour t, with opinion. J ustices Hall and Re yes conc urre d in the judgme nt and opinion. OP INION ¶ 1 Followinga benc h trial, defe ndant Matthew K iertowicz was c onvicted of dr iving unde r the influenc e of a lcohol (DUI ). In rea chinga guilty verdic t, the trial court f

ound that defe ndant, who fa iled three field sobriety tests, was in ac tual phy sical control of his parked ve hicle whe n police off icer s found him alone and a sleep in the drive r’s seat while the eng ine was r unning. After hear ing f actor s in ag g ravation and mitigation, the trial c ourt sentenc ed def endant to 18 months’ conditional discharg e, to under g o signific ant risk treatment, to attend a victim impact panel, a nd to pay a $1,250 fine . On this direct appe al, def endant doe s not challeng e the tria l court’s f inding that he was driving under the influence , but instead claims that the State fa iled to prove be y ond a re asonable doubt that he had a ctual phy sical control of his vehicle be cause there
was no e vidence that he possessed the ignition key or that he w as locke d alone in the ve hicle. F orNo. 1-12-3271

the followingrea sons, we af firm. ¶ 2 BA CKGROUND ¶ 3 The e vidence at trial established that, on April 1, 2010, Harw ood Heights police offic er Edwar d Smit h (Smith) observed de fenda nt asleep in the dr iver’s se at of his vehicle , which wa s idling at a stop sign with the taillights illuminated and smoke e mitti ngfrom the e x haust pipe. Smit h woke de fenda

nt and re quested he perf

orm three field sobriety

tests, which he f

ailed. Def endant wa s then arr ested a nd charg ed with drivingunder the influence of alc ohol (625 I L CS 5/11-501(a) (2) ( West 2006)), transportation of alcoholic liquor in a motor ve hicle (625 I L CS 5/11-502 (West 2006)), fa ilure to have insurance (625 I L CS 5/ 7-601 (West 2006)), f ailure to
wea r a se atbelt (625 I L CS 5/ 12-603.1 (West 2006)), a nd parkingwher e prohibited (625 I L CS 5/11-1303 (West 2006)). As a result, def

endant’ s driver’ s license wa s suspended for a minimum of 12 months pursuant to section 11-501.1 of the I llinois Vehicle Code. 625 I L CS 5/ 11-501.1 (West 2006). ¶ 4 Prior to trial, defe ndant filed a petition to rescind the statutory suspension of his license, and the tria l court held a

summary suspension hear ing. At the hear ing, Smith, a 12-year police veter an who ha s conducte d betwee n 50 to 75 DUI investiga tions, testified that, on the morning of April 1, 2012, he wa s on patrol in Har wood Heights in a marked police vehicle a nd in uniform. At approximately

6:30 a.m., Smit h observe d a blac k BMW conver tible stopped in the roadwa y about eig ht fee t behind a stop sign a t the intersec tion of Natche z and Sunnsy side Avenue s. Smi th was 100 yards a

way when he first observe d the vehicle , and it was da wn and the lig hting wa s “ver y g ood.” As Smith drove towar d the vehicle , he obser ved that “the rea

r taillights [were ]
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illumi nated a

nd smoke [was] coming from the e x haust pipe,” but the ve hicle did not move for over 30 se conds. Smith, along with his partne r, exit ed the police vehicle a nd approa ched the 1 BMW on foot. Smit h observe d that both rea r windows we re down and that water ha d puddled in the bac k seats, pre sumably due to a r ece nt rainstorm. Def endant wa s asleep in the dr iver’s se at, and the g ear

was shifted in pa

rk. Smith i dentified de fenda nt in court. ¶ 5 Smit h testified that, af ter he knocked on the window, def endant woke up and opene d the driver’ s side door. Smith i nquired a s to what defe ndant was doingthere and he r eplied that he
was wa iting for

a fr iend. Smith obs erve d that defe ndant’s spee ch wa s slurred, his eyes we re bloodshot and g lassy , and his breath smelled of alcohol. Smith inquired of def endant if he had been dr inking that e veningand def endant r esponded that he had c onsumed two bee rs. Smith observe d a g lass container next t o defe ndant that appe are d to contain bee r. Smith asked defe ndant if the be er w as his, and def endant r esponded that it belonge d to a frie nd. Ba sed on these obser

vations, Smi th reque sted defe ndant to exithis vehicle a nd perf orm three field sobriety tests. Smi th determined that defe ndant fa iled all three tests and place d him under ar rest. Def endant r efuse d a B reathaly zer test. ¶ 6 After

Smit h’s testimony , the trial cour t denied the State’ s motion for a direc ted finding
. The State then introduc ed into evidenc e a vide otape f rom the police ve hicle’s da shboard c amer a, which re corde d defe ndant’s fie ld sobriety tests. For the purposes of the hear ing, the parties stipulated that the videotape was a true a nd acc urate depiction of the tra ffic stop. The trial court

The a ppellate r ecor d does not reve al the name of the other police off

icer , nor did he 1 testify at trial. 3No. 1-12-3271

then admitted the videotape into evidence without objection and it was played bef ore the court. The 11-minute videota

pe did not rec ord the e ntire enc ounter a nd beg an sometime af

ter de fenda

nt exit ed his vehicle to perfor m the field sobriety

tests. The videotape starts with a depic tion of defe ndant’s vehic le on the side of N atche z Avenue, stopped seve ral fe et behind the stop sig n at the intersec tion with S unny side Avenue . The ve hicle’s lights are of f and the re is no visible exhaust emitt ing f

rom the tail pipe. The da shboard c amer a is then shifted slig htly to the rig ht,
reve alingtwo other ve hicles par ked behind de fenda

nt’s vehicle. T he re mainder of the video depicts def

endant pe rfor

ming the thr ee f

ield sobriety

tests. ¶ 7 The State re sted and the tria l court denie d defe ndant’s petition, findingthat rea sonable g rounds exist ed for

the initial inquiry

that subsequently

led to the discover

y that defe ndant was under the influence of alc ohol. ¶ 8 Followingthe hea ring , defe ndant filed a

motion in limine that soug ht to bar the State fr om introducingevidenc e per

taining to de fenda

nt’s statements made pr ior to the time the dashboar d
came ra be g an re cordingthe incident; howeve r, the a ppellate r ecor d does not ref lect the dispositi on of the motion. Defe ndant also filed a motion to quash the arre st, claiming: (1) that his
arr est was illeg al bec ause Smith did not observe him violate any local, state, or

fede ral law ; (2) that he wa s leg ally

parke d in his vehicle at the time of his a rre st; (3) that Smit h lacke d probable
cause for r equiring

defe ndant to perf

orm the field sobrie ty

tests; (4) that he pa ssed all three sobriety tests; and (5) that a ll the evidence obtained fr om his arre st should be suppressed. The motion to quash was denied. ¶ 9 At trial, Smit h testified that he ha d rec eived DU Itrainingat the police a cade my and
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throug h a fie ld-trainingprog ram, a nd had made betwee n 50 to 75 DUI arr ests in his 13 y ear s as a Har wood Heights police offic er. O n April 1, 2012, Smit h was pa trolling the a

rea near the intersec tion of Natche z and Sunny side Avenue s in Harwood H eights. At approxim ately 6 a.m. that morning , he obser

ved a bla ck B MW st opped eight fee t from the stop sign w ith its taillights illumi nated. It took Sm ith 30 seconds to drive 100 yards towa rds the B MW, which did not m ove duringthat time. Smi th drove up be hind the BMW and wa ited another five sec onds for it to move, which it did not. ¶ 10 Smit h testified that he obse rved “ someone in the drive r’s seat, the only occupa nt of the vehicle in the dr iver’s se at not moving.” The ve hicle wa s runningwith its t aillights illuminated and smoke e mitti ngfrom the e x haust pipe. Smith ex ited his vehicle a nd, acc ompanied by

another office r, appr oache d the B MW on foot. Defenda nt was aslee p in the driver’ s seat with his head leane d back a

nd eyes closed. Smith identified defe ndant in court. B efor e waking de fenda nt, Smit h chec ked to make sur e the g ear shift was in park. A fter Smith knocked on the ve hicle’s window, def

endant a woke a nd Smit h beg an a c onversation with him . Def endant ha d an odor of liquor on his breath, slurre d his speech, a nd had g lassy , bloodshot ey es. Smith observed that defe ndant had a

clea r g lass halfwa

y filled with a y ellow-c olored liquid, and whe n he aske d defe ndant what the be vera g e wa s, defe ndant re sponded that it was bee r. ¶ 11 At that point, the trial court stopped Smith’s testimony , and the tria l was continued. Duringthe next procee ding, the parties stipulated that the r emainder of Smith’s testim ony

would be the same as his testimony from the pr ior hea

ringon defe ndant’s motion to rescind. The State then introduce d into evidence the same da shboard video that the trial court view ed in the
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previous hea

ring . Both pa

rties stipulated that the video wa s a fa ir and a ccur ate de piction of the investigation and arr est of def endant. The video was a dmitted into evidence a nd the trial cour

t viewed the rec ordingin its entirety
. ¶ 12 The State re sted, and de fenda nt moved for a

direc ted finding , claiming : (1) that Smith’s testimony was not cr edible bec ause he testified that the tra ffic stop took plac e on April 8, 2012, when de fenda

nt was in fac t arre sted on April 1, 2012; and (2) that the State fa iled to prove defe ndant had a ctual phy sical control of his vehicle be cause Smit h never mentioned the ig nition key in his testim ony

and the da shboard video did not show the ve hicle’s lig hts on or smoke emitting fr om the tail pipe. The State re sponded that it had met its burden of pr oof bec ause Smith testified that def

endant wa s alone in the drive r’s sea t of his vehicle, whic h had its taillights illumi nated a

nd exhaust smoke emitti ngfrom the tail pipe. De fenda nt replied that Smith could not have obse rved that beca use the video showe d that there was a nother ve hicle par

ked behind defe ndant’s vehic le. ¶ 13 Followingarguments, both parties re sted, and the tria l court denie d defe ndant’s motion to quash, findingthat the police ha d probable cause to arre st him. The parties then wa ived furthe r arguments, and the trial c ourt found def endant guilty

of drivingunder the influence of liquor and parkingwher e prohibited, but found de fenda nt not guilty

of transpor

ting e thyl alcohol, driving without insurance, a

nd not wearing a

seatbe lt. I n findingdefe ndant guilty of drivingunder the influence , the trial cour

t found that there was no doubt that he w as under the influenc e and that the evidenc e, notably

Smit h’s testimony , established that def endant ha d actua l phy sical control of his vehicle.
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¶ 14 At the next procee ding, de fenda nt filed a posttrial motion for a “New T rial, Judgment of Acquittal, and/or Arre st of J udg ment,” ar guing tha t his guilty

findingshould be vac ated be cause : (1) Smith never obse rved de fenda nt’s vehicle in motion, and the f inding wa s contrar

y to case law on phy sical control; (2) Smit h never mentioned the ig nition key in his testim ony ; (3) the dashboar d video showed that the vehicle’ s lights wer e off and that ther e wa s no smoke emitting from the tail pipe; and ( 4) the videota pe showe d that Smit h did not have an unobstruc ted view of 2 the bac k of def

endant’ s vehicle a

nd could not have obse rved the taillights illumi nated a nd smoke emitting fr om the exhaust pipe. Defe ndant ar gued ea ch of the se points at the hea ringon his motion, and the State responde d that Smit h’s testimony sufficie ntly

established that def

endant had ac tual phy sical control of his vehicle. Af

ter a rguments, the trial cour

t denied def

endant’ s motion, finding that Smith’s testim ony alone wa s sufficient to convic t. The trial cour t noted that “the police office r does not have to see the de fenda nt drive the ve hicle phy sically ; clear ly he wa s drivingor additionally

he wa s in actual phy sical control of the vehicle .” ¶ 15 The trial c ourt then held a sentenc ing he aring , and af ter c onsideringfac tors in ag g ravation and mitigation, sentence d defe ndant to 18 months’ conditional discharg e, orde red sig nificant risk treatment, and for de fenda nt to attend a victim impact pane l, and levied a $1,250 fine. De fenda

nt appea ls his conviction. ¶ 16 ANALYSI S ¶ 17 On appe al, def

endant c laims that the State failed to prove him guilty beyond a re asonable
Def endant did not ra ise this argument on appea l. Howeve r, we note that, re g ardle ss of 2 whether Offic er Smith had an obstruc ted view at the time he first obser ved the ve hicle, he subsequently

approa ched the vehicle on f oot and inspecte d it at a close distanc e. 7No. 1-12-3271

doubt beca

use the e vidence at trial did not establish that he had a ctual phy sical control of his vehicle. D efe ndant ar gues that the State fa iled to meet its burden bec ause the re w as no evide nce that he possessed the ignition key or that that he w as locke d alone in his vehicle . In response , the State argues Smith’s testim ony was suff icient to support a convic tion because he testified that the vehicle’ s taillights wer e illuminated and smoke wa s emitting fr om the exhaust pipe, and that defe ndant was a lone in the vehicle
. ¶ 18 When a def

endant c halleng es the suff iciency of the e vidence , the standar d of re view is “ ‘whether , afte r viewingthe evidenc e in the lig ht most favorable to the [S tate], any rational trier of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt.’ ” [Emphasis om itted.] People v . Cunningham , 212 I ll. 2d 274, 278 (2004) (quoting Jack son v. Virginia , 443 U.S. 307, 319 (1979)). “ Under this standard, the re viewingcourt doe s not retry the defe ndant, and the tr ier of f act r emains re sponsible for makingdeter minations reg ardingthe
cre dibilit y

of witnesses, the w eig ht to be g iven their testimony , and the r easona ble infer ence s to be dra wn from the e vidence .” People v . Ross , 229 I ll. 2d 255, 272 (2008). “[A] reviewingcourt will not reverse a cr iminal conviction unless the evidenc e is so unrea sonable, improbable or unsatisfac tory

as to cre ate a

rea sonable doubt of the de fenda nt’s guilt.” People v . Rowell , 229 I ll. 2d 82, 98 (2008); People v . McG ee , 398 I ll. App. 3d 789, 793 (2010). ¶ 19 In a benc h trial, the trial judg e has the responsibility to determine the cre dibilit y of witnesses, to weig h evidenc e and dr aw r easona ble infer ence s theref

rom, and to re solve any conflicts in the evide nce. People v . Spann , 332 I ll. App. 3d 425, 445 (2002) (c iting People v

. Slim , 127 I ll. 2d 302, 307 (1989)). A r eviewingcourt must g ive the State the be nefit of a ll
8No. 1-12-3271

rea sonable infe renc es. People v . W heele r , 226 I ll. 2d 92, 116-17 (2007) (c iting Cunningham , 212 I ll. 2d at 280). The e vidence of a sing le witness is sufficient to convic t if the witness is found to be cr edible. People v . Smith , 185 I ll. 2d 532, 541 (1999). Testimony may be found insuff

icient to convict only

wher e the r ecor d evidenc e compe ls the conclusion that no re asonable person c ould
acc ept it beyond a re asonable doubt. Cunningham , 212 I ll. 2d at 280. ¶ 20 Circumstantial evidenc e that prove s the eleme nts of the cr ime char g ed beyond a
rea sonable doubt is sufficie nt to sustain a criminal conviction. People v . Hall , 194 I ll. 2d 305, 330 (2000). “ Circumstantial evidenc e is ‘proof of fa cts and c ircumstance s from which the trier of fac t may infer othe r conne cted f

acts whic h rea sonably

and usually

follow ac cording

to common experience .’ ” People v . McPe ak, 399 I ll. App. 3d 799, 801 (2010) (quoting People v . Stokes , 95 I ll. App. 3d 62, 68 (1981)). When a ssessing c ircumstantial evidenc e, “the trier of fac t is not require d to disreg ard infe renc es which f low normally

from the e vidence and to sea rch out a ll possible expl anations consistent with innocenc e and r aise them to a le vel of re asonable doubt.” Hall , 194 I ll. 2d at 332 (citing People v . McD onald , 168 I ll. 2d 420, 447 (1995)). ¶ 21 Section 11–501(a) (2) of the I llinois Vehicle Code states: “(a ) A pe rson shall not drive or be in ac tual phy sical control of any vehicle w ithin [ the State of I llinois ] whil e: *** (2) unde r the influence of alc ohol.” 625 I L CS 5/ 11-501(a )(2) (West 2006). “A pe rson nee d not drive to be in actua l phy sical control of a vehic le, nor is the per son’s intent to put the car in motion rele vant to the deter mination of actua l phy sical control.” City of Naperville v. W atson , 175 I ll. 2d 399, 402 (1997). The issue of ac tual phy sical control is dete rmined on a c ase- by -ca se basis, g iving consideration to factors such a s whether defe ndant: (1) possesse d the key to the ignition; (2) ha d
9No. 1-12-3271

the phy sical ca

pability of oper atingthe vehicle ; (3) wa s positioned in the driver’s se at; and (4)
was a lone in the vehicle with the doors locked. People v . Slinkard , 362 I ll. App. 3d 855, 859 (2005). The se fa ctors mer ely provide a guideline to deter

mine whether

defe ndant had a ctual phy sical control of

the vehicle ; the list i s neither e x haustive, nor is the a bsence of one individual fac tor controlling
. Slinkard , 362 I ll. App. 3d at 859. I llinois courts have found individuals discovere d sleepingin vehicles to be in a ctual phy sical control. W atson , 175 I ll. 2d at 402. ¶ 22 In the ca se at ba

r, Smith’s testim ony

was suff icient to prove be y ond a re asonable doubt that defe ndant had a ctual phy sical control of his vehicle. Smith testified that he observe d the vehicle stoppe d in the road se vera l fee t behind a stop sign, a nd that the taillights we re illuminated and smoke wa s emitting fr om the tail pipe. Smit h noted that it was dawn and the lig hting wa s “ver y g ood,” and tha

t he observe d the stationary vehicle f or 30 sec onds while he a

pproac hed it from a distanc e of 100 yards. Smith then inspected the ve hicle on foot a nd observe d defe ndant sleepingalone in the dr iver’s se at. Smith’s testi mony establishes that def

endant ha d actua l phy sical control of

his vehicle be cause he wa s positioned in the driver’s se at with the eng ine was running , and thus had the phy sical ca pability to drive his vehicle. Slinkard , 362 I ll. App. 3d at 859. ¶ 23 Def

endant c laims that the State did not meet its burden of proof beca use Smith never mentioned the ig nition key in his testim ony , nor wa s the key mentioned in the ar

rest and inventory repor ts. Neither the ke y

nor the reports wer e admitted into evidenc e at tria l. Defe ndant argues that, since the State did not show the location of the ig nition key , it failed to prove that he was phy sically

capa ble of star

ting the e ng ine and dr iving his vehic le. Howe ver, while Smit h did

10No. 1-12-3271

not expl icitly

mention the ignition key in his testim ony , he did state that he observe d the vehicle’ s taillights illumi nated a nd that exhaust smoke was emanating f rom the tail pipe. The trial court dr ew the r easona ble infer ence from Smith’s observations that the vehic le’s eng ine was runningand thus the key

was in the ig nition, or the court could have conc luded that the key was the new ty

pe that only

needs to be in the vehicle f or the ve hicle to start. Spann , 332 I ll. App. 3d at 445. ¶ 24 In addition, the dashboar d video showed that the vehicle w as no long er r unning a fter defe ndant exited the vehicle. This g ives rise to the re asonable infere nce that defe ndant turned of f the vehicle befor e exiting, and thus provides f urther pr oof that def

endant wa s in possession of the ignition key . Since we g ive the State the be nefit of a ll reasona ble infer ence s, we c annot say that Smit h’s testimony

was insuffic ient to sustain defenda nt’s conviction. W

heele r , 226 I ll. 2d at 116- 17. ¶ 25 Def

endant a rgues that, in deter

mining ac tual phy sical control, the tr ial court’s f ocus should be on the location of the ig nition key . In support, defe ndant cites People v . Long , 351 I ll. App. 3d 821, 825 (2004), which re cog nized that the ty pical ca se in which c ourts have uphe ld the conviction of a

sleepingdriver ha s involved a def endant who le ft the key

in the ignition. Long , howeve r, is distinguishable f rom the ca se at ba

r bec ause, in that c ase, the defe ndant was a rre sted for a DUI when police found him asleep in his vehic le lying a cross the f ront seat, with the ignition key

on the floor be neath the ste eringcolumn. Long , 351 I ll. App. 3d at 822. The trial court grante d the def

endant’ s motion t o quash his arr est, and the a ppellate c ourt reve rsed, f

inding that he had a ctual phy sical control of his vehicle. Long , 351 I ll. App. 3d at 822. Whil e the

11No. 1-12-3271

appellate court noted the importance of the location of the ig nition key in its analy sis, it di d so beca use the de fenda

nt’s vehicle w as not running when the police discovere d him. Long , 351 I ll. App. 3d at 822. In the instant case , though the re w as no explicit t estimony conce rningthe location of the ig nition key , Smit h testified that the vehic le’s taillights we re illuminated and smoke was e mitti ngfrom the tail pipe, whic h supports a re asonable infere nce that the key was in the ig nition. Moreover, posse ssion of the ig nition key is just one of numerous fa ctors that the tria l court may consider when dete rmining a ctual phy sical control, a nd the fa ctors ar e we ighe d on a
case -by -ca se basis. Slinkard , 362 I ll. App. 3d at 859. Reg ardle ss of whethe r Smith t estified to the exact location of the ig nition key , he indicate d that defe ndant was in the dr iver’s se at with the eng ine running , which esta blished that he had a ctual phy sical control ove r his vehicle. Slinkard , 362 I ll. App. 3d at 859. ¶ 26 Fur

thermore , defe ndant claims that the da shboard video show ed that the ve hicle wa s not running , and that Smith never testified that anyone turne d the ignition off. Def endant c ites People v . Kladis , 2011 I L 110920, ¶ 29, in support of his argument that video evidenc e is more compellingthan testimonial evidence , and that the da shboard video c ontradicte d Smit h’s testimony that the eng ine appe are d to be running
. Kladis , howeve r, is distinguishable be cause , in that case , the def

endant r equeste d that the State produc e a vide o rec ordingof her DUI traff ic stop, but itsubsequently

destroyed the video. Kladis , 2011 I L 110920, ¶ 1. On a

ppeal, our supreme c ourt found that the State ha d committed a discover y violation because “the r outine video re cordingof traf

fic stops has now be come a n integ ral pa

rt of those e ncounter s.” Kladis , 2011 I L110920, ¶ 29. While the Kladis court found that video rec ording s of traf fic stops are
12No. 1-12-3271

discovera ble ( Kladis , 2011 I L110920, ¶ 29), its findingdoes not relate to the re levant issue in this case c oncer

ning the sufficie ncy

of the e vidence . As noted, the testimony of a sing le witness is sufficient to convict if the witness is credible. Smith , 185 I ll. 2d at 541. Furthe rmore, circ umstantial evidence that proves the e lements of the c rime cha rg ed beyond a re asonable doubt is also sufficient to sustain a c riminal conviction. Hall , 194 I ll. 2d at 330. Here , Smit h testified that he obser

ved def endant a sleep in the ve hicle, which ha d its taill ights illuminated and e x haust smoke emanating f

rom the tail pipe. The tr ial court found Smith to be a cr edible witness and it drew rea sonable infe renc es fr om his testim ony . Spann , 332 I ll. App. 3d at 445. We cannot say that video evidenc e that the ve hicle wa s later shut off compels the c onclusion that no rea sonable person c ould acc ept the suff iciency of Smith’s testim ony . Cunningham , 212 I ll. 2d at 280. ¶ 27 This case is simi lar to People v . Robinson , 368 I ll. App. 3d 963, 983 (2006). In Robinson , a police of

fice r discover ed the de fenda nt unconscious in the driver ’s seat, with the vehicle pa rked and the e ng ine running
. Robinson , 368 I ll. App. 3d at 983-84. At trial, the de fenda nt was convicted of

a DUI despite no mention of the ignition key in the office r' s testimony
. Robinson , 368 I ll. App. 3d at 965-70. On a ppeal, we found that the off icer ’s testimony

that he obser

ved the defe ndant slumped over in the dr iver’s se at of the r unning ve hicle wa s sufficient to prove actua l phy sical control be y ond a re asonable doubt. Robinson , 368 I ll. App. 3d at 983-84. He re, a police office r similarly

testified that he discove red de fenda nt unconscious in the driver ’s seat of a parke d vehicle that had its eng ine running , but did not mention t he location of the ig nition key
. As such, this case demands a simil ar r esult. Reg ardle ss of Off icer Smit h’s fa ilure to mention the ignition key

in his testim ony , the evidenc e wa s sufficient to prove that defe ndant had a ctual
13No. 1-12-3271

phy sical control of

his vehicle be cause Smit h’s testimony that the vehicle was running supported
a re asonable infere nce that defe ndant was c apable of drivinghis vehicle. Robinson , 368 I ll. App. 3d at 983-84. ¶ 28 Def

endant a lso claims that the State failed to e stablish actual phy sical control be cause it did not show evidence that defe ndant was the sole occ upant of a locked ve hicle. De fenda

nt argues that, thoug h Smit h expli citly testified that def

endant wa s alone in the ve hicle, he did not say whether the doors we re loc ked, and his testimony that the bac k windows wer e down supports the infer ence that the doors we re unloc ked. Rec ent ca se law, how ever , indicates that c ourts tend to ignor e this fac tor. See People v . Scapes , 247 I ll. App. 3d 848, 850 (1993) (listing f actor without applying it to fa cts); Slinkard , 362 I ll. App. 3d at 859-60 (same); Robinson , 368 I ll. App. 3d at 983 (ne ver me ntioning fa ctor); People v . Eye n , 291 I ll. App. 3d 38, 45 (1997) (same). In People v . Davis , 205 I ll. App. 3d 431, 433 (1990), we g ave this fa ctor sig nificant we ight be cause the police of

fice r testified that he observe d the def endant a sleep in a sleeping ba gon the bac kseat of his vehicle, which was not running . On appe al, we f ound that the evidenc e esta blished that no one but the def

endant ha d actua l phy sical control of the vehicle beca

use he w as alone and locke d inside and wa s rea dily

able to turn on the ve hicle and dr ive. Davis , 205 I ll. App. 3d at 436. Her e, the issue of a ctual phy sical control is eve n strong er be cause Smit h testified that, not only was defe ndant in the driver ’s seat, but the eng ine was r unning a s well. As such, the e vidence was sufficie nt to prove beyond a re asonable doubt that defe ndant had a ctual phy sical control of his vehicle.

14No. 1-12-3271

¶ 29 CONCLUSI ON ¶ 30 For

the fore g oing r easons, we aff irm defe ndant’s convic tion and sentenc e. ¶ 31 Affir

med.

15