## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Kiertowi cz , 2013 IL App (1st) 123271

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MATTHEW KI ERTOWI CZ, D efe ndant-Appe llant.

District & N o. First District, Six th Division Docke t No. 1-12-3271

Filed August 23, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s DUI conviction was upheld over his contention that the State did not prove beyond a re asonable doubt that he had phy sical control of his car , since the arr esting office r testified that defe ndant was alone in the

car and was sleeping
, t h e rea r windows wer e down, the eng ine was running
, the taillights wer e on, and smoke was coming from the exhaust pipe, and despite t he absenc e of any ref ere nce to the ignition key
, the testimony was sufficie nt to establish that defe ndant had actua l phy sical control of his ca

r.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, Nos. YT-688486, YT688487, YT-688488; the Hon. Thomas P. Fe carotta, J r., Judg e, presiding

.

J udg ment Affir med.Counsel on

Appea l Amanda N. Gra ham an d Ka t i e J

. Kizer, both of L aw Office of Kiz er & Gra ham, and Te rre nce P. L eF evour, both of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Anne L

. Mag ats, Assistant State’s Attorneys, of counsel), for the People.

Panel J USTI CE GORDON delivere d 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 Following a bench trial, defe ndant Matthew Kiertowic z was convicted of driving under the influence of alcoho l (D UI ). In rea ching a guilty verdic t, the trial court found that defe ndant, who failed three field sobriety tests, was in a ctual phy sical control of his parke d vehicle when police office rs found him alone and aslee p in the driver’ s seat while the eng ine was running. After hearing fac tors in ag gravation and mi tigation, the t ri al co urt sentenc ed defe ndant to 18 months’ conditional discharg e, to under go signific ant risk treatment, to attend a victim impact panel, and to pay a $1,250 fine. On this direc t appea l, defe ndant does
not challeng e t h e t ri al court’s finding that he was driving under the influence
, but instead claims that the S tate failed to prove beyond a reasonable doubt that he had actua l phy sical control of his vehicle beca use there was no evidenc e that he possessed the ignition key or that he wa s locked a lone in the vehicle . For the followingrea sons, we af firm.

¶ 2 BA CKGROUND ¶ 3 The evidenc e at trial established that, on April 1, 2010, Har wood Heights police office r Edwar d Smit h (Smith) observed de fenda nt asleep in the driver’ s seat of his ve hicle, which

was idling at a stop sign with the taillights illumi nated and smoke emitting from the exhaust pipe. Smit h wok e d ef

endant and reque sted he perf orm three field sobriety tests, which he failed. Def

endant was then arr ested and charg ed with driving under the influence of alcohol (625 I L CS 5/11-501(a) (2) (West 2006)), transportation of alcoholic liquor in a motor vehicle (62 5 I L CS 5/11-502 (West 2006)), failure to have insurance (625 I L CS 5/7-601 (West 2006)), failure to wea

r a s ea tb el t (6 25 I L CS 5/12-603.1 (West 2006)), and parking wher e prohibited (625 I L CS 5/11-1303 (West 2006)). As a result, defe ndant’s driver’ s license was 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 resc ind the statutory suspension of his lice nse, and the trial court held a summ ary suspension hearing. At the hearing, Smith, a 12-year

-2-police veter an who has conducte d betwee n 50 to 75 DUI investigations, testified that, on the

morning of April 1, 2012, he was on patrol in Har wood Heights in a marke d police vehicle and in uniform. At approxim ately 6:30 a.m., Smith observe d a black BMW conver tible stopped in the roadw ay about eight fee t behind a stop sign at the intersec tion of Natche z and Sun n y side Avenue s. Smit h was 100 yards awa y when he first observe d the vehicle, and it

was dawn and the lighting was “ver y g ood.” As Smith drove toward the vehicle, he observe d that “the rea

r taillights [were] illumi nated and smoke [was] coming from the exhaust pipe,” but the vehicle did not move for over 30 seconds. Smith, along with his partne r, exit ed the 1 police vehicle and approa ched the BMW on foot. Smith observe d that both rea r windows

wer e down and that water had pudd l ed i n t h e back seats, presumably due to a rec ent rainstorm. Def

endant was aslee p in the driver’ s seat, and the g ear was shifted in park. Smit h identified def

endant in cour

t. ¶ 5 Smit h testified that, afte r he knocked on the window, defe ndant woke up and opened the driver’ s side door. Smit h inquired as to what defe ndant was doing there and he replied that he was waiting for a friend. Smith observe d that defe ndant’s speech was slurred, his eyes

wer e bloodshot and g lassy , and his brea th smelled of alcohol. Smith inquired of def endant if he had been drinking that evening and defe ndant responde d that he had consumed two beer s. Smit h obs erve d a g lass container next to defe ndant that appea red to contain beer

. Smit h asked defe ndant if the beer was his, and d ef en d an t re sponded that it belong ed to a friend. Ba sed on these observations, Smith reque sted defe ndant to exit his v eh i cl e an d perf orm three field sobriety tests. Smith deter mined that defe ndant failed all three tests and place d him under ar

rest. De fenda

nt refuse d a B reathaly

zer test. ¶ 6 After Smit h’s testimony
, the trial court denied the State’s motion for a direc ted finding

. The St ate then introduced into evidenc e a videotape from the police vehicle’ s dashboar d

came ra, which rec orded defe ndant’s field sobriety tests. For the purposes of the hearing, the parties stipulated that the videotape was a true and acc urate depiction of the traff ic stop. The trial court then admitted the videotape into evidenc e without objection and it was p l ay ed befor e the court. The 11-minute videotape d i d not rec ord the entire encounte r and beg an sometime afte r defe ndant exit ed his vehicle to perf orm the field sobriety tests. The videotape
starts with a depiction of defe ndant’s vehicle on the side of Natche z Avenue
, stopped sever al fee t behind the stop sign at the intersec tion with Sunny side Avenue

. The vehicle’ s lights are off and there is no visible exhaust emitting from the tail pipe. The dashboar d came ra is then shifted slightly to the right, reve aling two other vehicles parke d behind defe ndant’s vehicle. The re mainder of

the video depic ts defenda nt perfor ming the thr ee f

ield sobriety

tests. ¶ 7 The State rested a nd the trial cour

t denied def

endant’ s petition, finding that re asonable grounds exis ted for the initial inquiry that subsequently

led to the discovery that defe ndant was unde r the influenc e of a lcohol. ¶ 8 Following th e h earing
, defe ndant filed a motion in limine that sought to bar the State from int roducing evidenc e pertai ning to defe ndant’s st atements made prior to the t ime the

T he app el la te re cor d doe s not re veal the name of the oth er pol ic e off ic er , nor did he te st if

y 1
attr ia l.

-3-dashboar d came ra beg an rec ording the incident; howeve r, the appell ate rec ord does not

ref lect the dispositi on of the motion. Def endant also filed a motion to quash the arr est, claiming : (1) that his arr est was illega l beca use Smith did not observe him violate any local, state, or fede ral law; (2) that he was leg ally parke d in his vehicle at the time of his arr est; (3) that Smit h lacke d probable cause for requiring defe ndant to perf orm the field sobriety tests; (4) that he passed all three sobriety tests; and (5) that all the evidenc e obtained from his arr est should be suppresse d. The motion to quash was de nied. ¶ 9 At t ri al
, S mith testified that he had rec eived DUI training at the police aca dem y an d through a field-tra ining program, and had made betwee n 50 to 75 DUI arr ests in his 13 year s

as a Har wood Heights police of

fice r. On April 1, 2012, Smith was patrolling the are a near the intersec tion of Natche z and Sunny side Avenue s in Har wood Heights. At approximately 6 a.m. t hat morning
, he observed a black BMW stopped eight fee t from the stop sign with i t s taillights illumi nated. It took Smith 30 seconds to drive 100 yards towar d t h e BM W
, which did not move during that time. Smith drove up behind the BMW and waited another five sec onds for it to move, which it did not. ¶ 10 Smit h testified that he observe d “someone in the driver’ s seat, the only occupa nt of the vehicle in the driver’ s seat not moving.” The v ehicle was running with its taillights illumi nated and smoke emitting from the exhaust pipe. Smith exit ed his vehicle and,

acc ompanied by another office r, approa ched the BMW on foot. Def endant was aslee p in the driver’ s seat with his head leane d back and eyes closed. Smith identified defe ndant in court. Be fore waking defe ndant, Smith chec ked to make sure the g ear shift was in park. After Smit h knock ed on the vehicle’ s window, defe ndant awoke and Smith beg an a conver sation with him. Def endant had an odor of liquor on his breath, slurred hi s s p ee ch
, and had g lassy
, bloodshot eyes. Smit h observe d that defe ndant had a clea r g lass halfwa

y filled with a yellowcolore d liquid, and when he asked defe ndant what the beve rag e was, defe ndant responded that it was bee r. ¶ 11 At t h at p o i n t , the trial court stopped Smith’s testimony
, and the trial was c ontin u ed

. During the nex t proce eding
, the parties stipulated that the remainder of Smith’s t es timony would be the same as his testimony from the prior hearing on defe ndant’s motion to resc ind. The State then introduced into evidenc e the same dashboar d video that the trial court viewed in the previous hearing. Both parties stipulated that the video was a fai r and acc urate depiction of the investigation and arr est of defe ndant. The video was admitted into evidenc e and the tria l court viewe d the re cordingin its entirety

. ¶ 12 The State rested, and defe ndant moved for a direc ted finding
, claiming : (1) that Smit h’s
t es t i m o n y was not cre dible beca use he testified that the traff ic stop took place on April 8
, 2012, when de fenda

nt was in fac t a

rre sted on April 1, 2012; a nd (2) that the State f

ailed to prove de fenda

nt had ac tual phy sical control of his vehicle beca

use Smith never mentioned the ignition key

in his testim ony

and the da shboard video did not show the vehicle’ s lights

on or smoke emitting from the tail pipe. The State res p onded that it had met its burden of proof beca

us e S m i t h testified that defe ndant was alone in the driver’ s seat of his vehicle, which had its taillights illumi nated and exhaust smoke emitting from the tail pipe. Def endant rep l i ed t h at Smit h could not have observe d that beca use the video showed that there was another vehicle pa

rked be hind defe ndant’s vehic le.

-4-¶ 13 Following arg uments, both parties rested, and the trial court denied defe ndant’s motion to quash, finding that the pol ice had probable cause to arr est him. The pa rties then wa ived further arguments, and the trial court found defe ndant guilty of driving under the influence of liquor and parking wher e prohibited, but found defe ndant not guilty of transporting ethyl alcohol, driving without insurance
, and not wea ring a seatbelt. I n fi n d i n g defe ndant guilty of driving under the influence
, the trial court found that there was no doubt that he was under the influence and that the evidenc e, notably Smith’s t estimony
, established that defe ndant had ac tual phy sical control of his vehicle. ¶ 14 At the next proce eding
, defe ndant filed a posttrial motion for a “Ne w Trial, J udg ment of Acquittal, and/or Arre st of J udg ment,” ar gu i n g t hat his guilty finding should be vacated beca use: (1) Smit h never o b s erve d defe ndant’s vehicle in motion, and the finding was contra ry to case law on phy sical control; (2) Smith never mentioned the ignition key in his testimony ; (3) the da shboard video show ed that the ve hicle’s lights w ere off a nd that there

was no smoke emitting from the tail pipe ; a nd (4) the videotape showed that Smith did not have an unobstructed view of the back of defe ndant’s vehicle and could not have observe d 2 the taillights illumi nated and smoke emitting from the exhaust pipe. Def endant argued eac h of these points at the hearing on his motion, and the State responde d that Smith’s testimony sufficie ntly established that defe ndant had actua l phy sical contr o l of his vehicle. After arguments, the trial court de nied def endant’ s motion, finding that Smith’s testi mony alone was suff icient to convict. The trial c ourt noted that “the police off icer does not have to see the def endant drive the vehicle phy sically ; clearly he wa s driving or

additionally

he wa s in
actua l phy sical control of the vehicle .” ¶ 15 T he trial court then held a sentenc ing hearing, an d af t er co n s i d er i n g fa ct o rs i n ag gravation and mitigation, sentenc ed defe ndant to 18 months’ conditional d i s charg e, order ed signific ant risk treatment, and for defe ndant to attend a victim impact panel, and levied a $1,250 f

ine. Def endant a ppeals his conviction.

¶ 16 ANALYSI S ¶ 17 On appea l, defe ndant claims that the State failed to prove him guilty beyond a re asonable doubt beca

use the evidenc e at trial did not establish that he had actua l phy sical control of his vehicle. Def

endant argues that t h e S t at e failed to meet its burden beca use there was no evidenc e that he possessed the ignition key or that he was l ocked alone in his vehicle. In response , the State argues Smit h’s testimony was sufficie nt to support a conviction beca use he testi fied that the vehicle’s t aillights were ill umin at ed and sm oke was emitting from the exhaust pipe, and that defe ndant was a lone in the vehicle

. ¶ 18 When a defendant challeng es the suff iciency of the e vidence , the standar d of re view is “ ‘whe ther, afte r viewing the evidenc e in the light most favor able to the [S tate], any rational
t ri er o f fac t could have found the essential elements of the crime beyond a rea son ab l e

Def end ant did not ra is e thi s ar gum ent on app eal

. However, we not e tha t, re gardl ess of 2 whet her Off

ic er Sm it h had an obs truct ed view at the ti m e he fi rs t obs erved the vehicl e, he sub sequen tl y appro ach ed t he vehi cl e onfo ot andin spe ct ed i t a t acl ose di st anc e.

-5-doubt.’ ” (Emphasis omitted.) People v. Cunningham
, 212 I ll. 2d 274, 278 (2004) (quoting

Jack son v. Virgi nia , 4 4 3 U. S

. 3 07, 319 (1979))

. “Unde r this standard, the revie wing court does not retry the defe ndant
, an d t h e trier of fac t rema ins responsible for making deter minations reg arding the cre dibility of witnesses, the weight to be g iven their testimony
, and the rea sonable i n fe re n ce s t o be drawn from the evidenc e.” People v. Ross
, 229 I ll. 2d 255, 272 (2008). “[A] revie wing court will not reve rse a criminal conviction unless the evidenc e is so unrea sonable, improbable or unsatisfac tory as to cre ate a rea sonable doubt of the defe ndant’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 bench trial, the trial judge has the responsibility to determ i n e t h e cr ed i b i lity of witnesses, to weigh evidenc e and draw rea sonable infere nces there from, and to resolve any conflicts in the evide nce. People v

. Spann
, 332 I ll. App. 3d 425, 445 (2002) ( citing People

v. Slim
, 127 I ll. 2d 302, 307 (1989))

. A revie wing court must g ive the State the benef it of all

rea sonable infere nces. People v. W heele r , 226 I ll. 2d 92, 116-17 (2007) (citing Cunningham
, 212 I ll. 2d at 280). The evidenc e of a single witness is sufficie nt to convict if the witness is found to be cre dible. People v. Smith
, 185 I ll. 2d 532, 541 (1999). Testimony may be found insufficient to convic t o n l y wher e the rec ord evidenc e compels the conclusion that no

rea sonable person could acc ept it beyond a rea sonable doubt. Cunningham
, 212 I ll. 2d at 280. ¶ 20 C i rc u m s t an t i al ev idence that proves the elements of the crime charg ed b ey o n d 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 ‘pr o o f of fac ts and circumstance s from which the trier of fac t may infer other connec ted fac ts which rea sonably and usually follow acc ording
to common experience .’ ” People v. McPea k
, 399 I ll. App. 3d 799, 801 (2010) (quoting P eo p l e v. Stokes
, 95 I ll. App. 3d 62, 68 (1981))

. When assessing circ umstantial evide n ce , “the trier of fac t is not require d to d i s reg ard infere nces which flow normally from the evidenc e and to sear ch out all possible explanations consistent with innocenc e and raise them
to a level of rea sonable 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 person shall not drive or be in actua l phy sical control of any vehicle within [the State of I llinois ] while: *** (2) under the influence of alcohol.” 625 I L CS 5/11-501(a)(2) (West 2006)

. “A person need not drive
to be in actua l phy sical control of a vehicle, nor is the person’ s intent to put the car in motion rele vant to the deter

mination of actua l phy sical control.” City ofNaperville v. W atson , 175 I ll. 2d 399, 402 (1997). The issue of actua l phy sical control is deter mined on a case -by-ca se basis, g iving considera

tion to fac tors such as whether defe ndant: (1) possessed the key to the ignition; (2) had the phy sical cap ab i lity of operating the vehicle; (3) was positioned in the driver’ s seat; and (4) was alone in the vehicle with the doors locked. People v. Slinkard
, 362 I ll. App. 3d 855, 859 (2005). These fac tors mere ly provide a guideline to deter mine whether defe ndant had actua l phy sical control of the vehicle; the list is neither exhaustive, nor is the absenc e of one individual fac tor controlling

. Slinkard
, 362 I ll. App. 3d at 859. I llinois courts have found individuals discovere d sleeping in vehi cl es to be in actua l phy sical control. W atson , 175 I ll. 2d at 402. ¶ 22 In the case at bar, Smit h’s testimony was sufficie nt to prove beyond a rea sonable doubt

-6-that defe ndant had actua l phy sical control of his vehicle. Smith testified that he observe d the

vehicle stopped in the ro ad sever al fee t behind a stop sign, and that the taillights wer e illumi nated and smoke was emitting from the tail pipe. Smith noted that it was dawn and the lightingwas “ very g ood,” and that he obser ved the stationar

y vehicle f or 30 sec onds while he approa ched it from a distance of 100 yards. Smith then inspected the vehicle on foot and observe d defe ndant sleepin g alone in the driver’ s seat. Smith’s testimony establishes that defe ndant had actua l phy sical control of his vehicle beca use he was positioned in the driver’ s seat with the eng ine running
, and thus had th e phy sical capa bility to drive his vehicle. Slinkard, 362 I ll. App. 3d at 859. ¶ 23 De fe n d an t cl ai ms that the State did not meet its burden of proof beca use Smith never mentioned the ignition key in his testimony
, nor was the key mentioned i n the arr est and inventory rep o rt s

. Neither the key nor the repor ts wer e admitted into evidenc e at trial. Def endant argues that, since the State did not show the location of the ignition key
, it failed
to prove that he was p h y s i ca l ly capa ble of starting the eng ine and driving his vehicle. Howeve r, while Smit h did not expli citly mention the ignition key i n his testimony
, he did
state that he observe d the vehicle’ s t aillights illumi nated and that exhaust smoke was

emanating from the tail pipe. The trial court drew the rea sonable infere nce fr o m S m ith’s observations that the vehicle’s eng ine was r unning a nd thus the key was in the i gnition, or the court could have conclude d 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 th e v eh i cl e was no longe r runningafte r defe ndant exit ed the vehicle. This g ives rise to the rea sonable infere nce that defe ndant turned off the vehicle befor e exit ing, and thus provides further proof that defendant was in possession of the igni t i o n key

. Since we g ive the State the benef it of all rea sonable infere nces, we cannot say that Smith’s testimony was insufficient to susta i n d efendant’s conviction. W

heele r , 226 I ll. 2d at 116-17. ¶ 25 De fe n d an t argues that, in deter mining actua l phy sical control, the trial court’s fo cu s should be on the location of the ignition key

. In support, defe ndant cites People v. Long
, 351 I ll. App. 3d 821, 825 (2004), which rec ognized that the ty pical case in whi ch co u rts have upheld the convic tion of a sleepingdriver ha s involved a def endant who le ft the key in the ignition. Long
, ho weve r, is distinguishable from the case at bar beca use, in that case , the defe ndant was arr ested for a DUI when police found him asleep in his vehicle lying acr oss the front seat, with the ignition key on the floor beneath the steering column. Long
, 351 I ll. App. 3d at 8 2 2

. T he trial court gra nted the defenda

nt’s motion to quash hi s arr est, and the appellate court reve rsed, finding that he had actua l phy sical control of his vehicle. Long
, 351 I ll. App. 3d at 822. Whil e the appel l at e court noted the importance of the location of the ignition key in its analy sis, it did so beca use the defe ndant’s vehicle was not running when the police discovere d him. Long
, 351 I ll. App. 3d at 822. In the instant case , though there was

no expli cit testimony conce rning the location of the ignition key
, Smith testified that the vehicle’ s taillights wer e illumi nated and smoke was emitting from the tail p i p e, which supports a rea sonable infere nce that the key was in the ignition. Moreove r, possession of the ignition key is just one of nu m er o u s fa ctors that the trial court may consider when deter mining actua l phy sical control, and the fac tors are weighed on a case -by-ca se basis.

-7-Slinkard
, 362 I ll. App. 3d at 859. Reg ardle ss of whether Smith testified to the exact location

of the ignition key
, h e i n dicated that defe ndant was in the driver’ s seat with the eng ine running
, which established that he had actua l phy sical control over his vehicle. Slinkard
, 362 I ll. App. 3d at 859. ¶ 26 Fur

thermore
, defe ndant claims that the dashboar d video showed that the vehicle was not running and that Smit h never testified that anyone turned the ignition off. Def endant cites People v. Kl a dis , 2011 I L 110920, ¶ 29, in support of his argument that video evidenc e is

more compelling than testimonial evide n ce and that the dashboar d video contra dicted Smit h’s testimony that the eng ine appea red to be ru

nn in g

. Kl a d is , howeve r, is distinguishable beca use, in that case , the defe ndant reque sted that the State produce a video rec ording of her DUI traff ic s top, but it subsequently destroyed the video. Kladis
, 2011 I L 110920, ¶ 1. On appea l, our supreme court found that the State had committed a discovery violation beca use “the routine video rec ord i n g o f traff ic stops has now become an integral part of those
encounte rs.” Kladis
, 2011 I L 110920, ¶ 29. Whil e the Kladis court found that video

rec ording s of traff

ic stops are discovera

ble ( Kladis
, 2011 I L 110920, ¶ 29), its finding does
not relate to the rele vant issue in this case conce rning the sufficie ncy of t he evidenc e. As noted, the testimony of a single witness is sufficie nt to convict i f th e wi t ness is cre dible. Smith
, 185 I ll. 2d at 541. Furthe rmore, c ircumstantial evidenc e that proves the elements of the crime charg ed beyond a rea sonable doubt is al s o s u ff i cient to sustain a criminal conviction. Hall
, 194 I ll. 2d at 330. Her e, Smith testified that he observe d defe ndant aslee p in the vehicle, which had its taillights illumi nated and exhaust smoke emanating from the tail pipe. The trial court found Smith to be a cre dible witness and it drew rea sonable infere nces from his te stimony

. Spann
, 332 I ll. App. 3d at 445. We c annot say that video evidenc e that the vehicle was later shut off compels the conclusion that no rea sonable person could acc ept the suffic iency

of Smith’s testim ony

. Cunningham , 212 I ll. 2d at 280. ¶ 27 This case is simil ar to People v. Robinson
, 368 I ll. App. 3d 963, 983 (2006). In Robinson
, a police of

fice r discover ed the defe ndant unconscious in the driver’s se at, with the vehicle parke d and the eng ine running

. Robinson
, 368 I ll. App. 3d at 983-84. At trial, the defe ndant

was convicted of a DUI despite no mention of the ign i t i o n k ey i n the office r’s testimony

. Robinson
, 368 I ll. App. 3d at 965-70. On appea l, we found that the office r’s testimony that he observe d the defe nd ant slumped over in the driver’ s seat of the running vehicle was sufficie nt to prove actua l phy sical c o ntr ol beyond a rea sonable doubt. Robinson
, 368 I ll. App. 3d at 983-84. Her e, a police office r simil arly testified that h e d i scover ed defe ndant unconscious in the driver’ s seat of a parke d vehicle that had its e ng ine running
, but did not mention the location of the ignition key

. As such, this case dema n d s a s i m i l ar result. Reg ardle ss of Offic er Smit h’s failure to mention the ignition key in his testimony
, the evidenc e was sufficie nt to prove that def en d ant had actua l phy sical control of his vehicle beca use Smit h’s testimony tha t th e v e hicle was running supported a rea sonable infere nce that defe ndant was c apable of drivinghis vehicle. Robinson , 368 I ll. App. 3d at 983-84. ¶ 28 Defen d an t als o claims that the S tate failed to establish actua l phy sical control because it did not show evidenc e that defe ndant was the sole occupa nt of a locked vehicle. Def endant argues that, though Smit h expli citly testified that defe ndant was alone in the vehicle, he did
not say whether the doors wer e locked, and his testimony that the back windows wer e down

-8-supports the infere nce that the doors wer e unlocked. Rece nt case law, howeve r, indicates that

courts tend to ignor e t h i s fa ct o r. See People v. Scapes
, 247 I ll. App. 3d 848, 850 (1993) (listing fac t o r wi t h o ut applying it to fac ts); Slinkard
, 362 I ll. App. 3d at 859-60 (same) ; Robinson
, 368 I ll. App. 3d at 983 (neve r m entioning f actor); 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 fac tor signific ant weight be cause the police office r testified that he observe d the def endant aslee p in a sl eeping bag on the bac kseat of his ve hicle, which w as not running

. On appeal,

we found that the evidenc e established that n o o n e b u t the defe ndant had actua l phy sical control of the vehi cle because he was alone and locked insi de and was readily able to turn

on the vehicle and drive. Davis
, 205 I ll. App. 3d at 436. Her e, the issue of actua l phy sical control is e ven strong er beca use Smith testified that, not only was defe ndant in the driver’ s seat, but the eng ine wa s running as well. As such, the evidenc e was sufficie nt to prove beyond a re asonable doubt that defe ndant had a ctual phy sical control of his vehicle.

¶ 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.

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