¶1dissenting:
¶2I note that defendant raised the issue of sufficiency of the State’s evidence in the trial court, but failed to raise this issue on appeal. In this case, there is no evidence that defendant was under the influence of alcohol at the time he drove the automobile. No reasonable trial strategy supports the omission of this issue on appeal. The State failed to prove an essential element of the offense and we should not permit the judgment of conviction to stand. The law is well settled that "plain errors affecting substantial rights of the accused may be considered by this court notwithstanding the fact that they were raised neither in the trial court nor in the appeal.” People v. Baltimore (1972), 7 Ill. App. 3d 633, 645, 288 N.E.2d 240, citing People v. Donohoe (1917), 279 Ill. 411, 414, 117 N.E. 105; see also People v. Payne (1990), 194 Ill. App. 3d 238, 247, 550 N.E.2d 1214.
¶3The evidence presented at trial demonstrates that the State failed to prove defendant guilty of driving under the influence beyond a reasonable doubt. The law of the State is that "[a] person shall not drive or be in actual physical control of any vehicle within this State while [he is] under the influence of alcohol.” (625 ILCS 5/11—501(a)(2) (West 1992).) The offense has two elements: (1) the person must be driving a vehicle and (2) he must be intoxicated while driving. (People v. Call (1988), 176 Ill. App. 3d 571, 575, 531 N.E.2d 451.) However, the act of driving is not an "indispensable prerequisite” to conviction (Call, 176 Ill. App. 3d at 576), and a defendant may be convicted of DUI if it is shown that he was in "actual physical control” of the vehicle while under the influence of alcohol (People v. Karjala (1988), 172 Ill. App. 3d 871, 872, 526 N.E.2d 926). A conviction for DUI under these circumstances "requires only that one is behind the steering wheel in the driver’s seat with the ignition key and physically capable of starting the engine and moving the vehicle.” People v. Davis (1990), 205 Ill. App. 3d 431, 436, 562 N.E.2d 1152; Karjala, 172 Ill. App. 3d at 872, quoting People v. Heimann (1986), 142 Ill. App. 3d 197, 199, 491 N.E.2d 872.
¶4In the instant case, the State failed to show, by direct or circumstantial evidence, that defendant was driving while under the influence (see Call, 176 Ill. App. 3d at 575-76; People v. Jendrzejak (1968), 98 Ill. App. 2d 313, 318, 240 N.E.2d 239) or that he was in actual physical control of the vehicle (see People v. Niemiro (1993), 256 Ill. App. 3d 904, 908-10, 628 N.E.2d 212; Davis, 205 Ill. App. 3d at 435-36; Karjala, 172 Ill. App. 3d at 872-73; Heimann, 142 Ill. App. 3d at 198-99). Defendant was nowhere near the automobile when the police arrived. When he did appear on the scene "a short time” after Levy arrived and had conducted an initial investigation, defendant, intoxicated, stated that the automobile was his and that he had been driving it. If we give full credence to defendant’s statements for the sake of argument, there is no admission that, while driving, defendant was under the influence of alcohol.
¶5Moreover, in Illinois the corpus delicti of a charged offense cannot be proved solely by a defendant’s admission. There must be independent evidence which tends to corroborate the admission of the offense. (People v. Foster (1985), 138 Ill. App. 3d 44, 46, 485 N.E.2d 603; see also Call, 176 Ill. App. 3d at 576-77.) Here, there was no independent evidence corroborating defendant’s admission. The only facts presented by the State were: (1) the police received a radio communication at 1 a.m. that a loud crash had been reported; (2) the police arrived at the scene five minutes later and found an automobile in a ditch; (3) defendant admitted to the police that he owned the vehicle and had been driving it; (4) the vehicle had been involved in an accident; and (5) defendant was intoxicated at the time he spoke with the officers. From these facts the trial court inferred that: (a) defendant drove the automobile sometime between 1 and 1:30 a.m.; (b) defendant was driving the automobile when it skidded and entered the ditch; (c) defendant was under the influence of alcohol at that time; (d) defendant could not control the automobile because he was under the influence of alcohol; and (e) the loud crash reported by the dispatcher was caused by the automobile in the ditch. However, as defense counsel argued at trial, there was simply no evidence to show what time the accident actually occurred or how long the car had been there, much less what time defendant left the scene or how much time had elapsed before his return. In response to these arguments, the trial court stated that defense counsel raised some "very interesting and provocative” questions. These questions were more than "interesting” and "provocative.” They were integral and necessary to the State’s case in proving defendant guilty beyond a reasonable doubt of driving while under the influence; the State should not be allowed to obtain a conviction based on mere conjecture and supposition. (See People v. Wells (1968), 103 Ill. App. 2d 128, 130-31, 243 N.E.2d 427 (defendant’s conviction for DUI reversed where defendant left the scene of an accident, walked home and consumed five glasses of liquor and the State failed to present evidence to the contrary, i.e., that defendant was intoxicated at the time and place of the accident).) There simply were no actual facts or reasonable inferences to support the trial court’s finding that defendant drove the car at the time and place in question while under the influence of alcohol.
¶6Additionally, the testimony about the reported loud crash was hearsay and should not have been considered by the trial court as substantive evidence. Hearsay is an out-of-court statement offered to establish the truth of the matter therein and resting for its value on the credibility of the out-of-court asserter. (People v. Lee (1986), 151 Ill. App. 3d 510, 525, 502 N.E.2d 399.) A police radio communication is admissible if it is used for the limited purpose of explaining the reason and manner in which the police conducted their investigation. (People v. Louisville (1992), 241 Ill. App. 3d 772, 781, 609 N.E.2d 682; People v. Palmer (1989), 188 Ill. App. 3d 414, 423, 545 N.E.2d 743.) Here, Levy testified that at approximately 1 a.m. he received a radio communication from a dispatcher that someone reported hearing a loud crash in the area where defendant’s vehicle was found. The trial court characterized this testimony about the radio communication as "unrebutted, uncontradicted” evidence that "other than the automobile being present at the scene in a ditch, through a fence, there was nothing else that I heard in evidence that could have caused a loud crash.” Accordingly, the radio communication was not used to explain the reason and manner in which Levy conducted his investigation. Rather, it was used as substantive evidence of the time and place of the accident. For this purpose, the police radio communication was hearsay and should not have been considered by the trial court.
¶7Based on the record before us, I would reverse the conviction.