No. 2--96--0465
                                    
                                    
                                    
                                    
                                 IN THE 
                                    
                       APPELLATE COURT OF ILLINOIS
                                    
                             SECOND DISTRICT



THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court 
OF ILLINOIS,                    )  of Du Page County.
                                )
     Plaintiff-Appellee,        )  No. 95--DT--1274
                                )
v.                              )  
                                )
JOHN EYEN,                      )  Honorable 
                                )  George J. Bakalis,
     Defendant-Appellant.       )  Judge, Presiding.
 

     JUSTICE THOMAS delivered the opinion of the court:
     Defendant, John Eyen, was charged by complaint with the
offense of driving while under the influence of alcohol (625 ILCS
5/11--501 (West 1994)).  Following a bench trial, the trial court
convicted defendant and sentenced him to one year of conditional
discharge; 30 days in the county jail, subject to a motion to
vacate; counseling; attendance at a victim impact panel; and a fine
of $300.  On appeal, defendant argues that we must reverse his
conviction because (1) the trial court did not obtain a proper
waiver of defendant's right to a jury trial; and (2) the State
failed to establish defendant's guilt beyond a reasonable doubt. 
We reverse and remand.  
     We will consider the jury waiver issue first.  Defendant
argues that he never executed a written jury waiver and that the
absence of a written jury waiver mandates a reversal of his
conviction.  The State concedes that defendant did not execute a
written jury waiver.  The State argues, however, that the absence
of a written jury waiver constitutes harmless error.
     On December 13, 1995, the prosecutor and an unidentified
attorney representing defendant appeared before the trial court for
a pretrial hearing.  The report of proceedings reveals that
defendant was not present on this date.  During this hearing, the
unidentified attorney suggested a trial date of late February and
requested a bench trial.  The trial court set the matter for a
bench trial on February 29, 1996.
     On February 29, 1996, the matter came up for the bench trial. 
The report of proceedings shows that defendant was present on this
date.  Prior to the bench trial commencing, and while defendant was
present, the following exchange occurred:
     "THE COURT:  On Eyen, are you ready, State?
     MR. ELWARD [Assistant State's Attorney]:  Yes, we are ready.
     THE COURT:  Mr. Lynch, are you ready?
     Mr. LYNCH [Defense Counsel]: Ready, Judge, yes."
The trial court then invited the prosecutor to call his first
witness, and a bench trial commenced.
     On April 10, 1996, the parties appeared before the trial court
on defendant's motion to reconsider verdict or in the alternative
motion for a new trial.  The motion argued in part that the trial
court had not obtained a valid jury waiver from defendant.  The
trial court denied the motion and sentenced defendant.  Following
sentencing, the trial court noticed that the file did not contain
a written jury waiver.  The trial court asked defense counsel
whether defendant would be willing to sign a jury waiver that day. 
Defense counsel responded that there was no waiver of the jury in
this case and that defendant was not willing to sign a waiver.
     The record otherwise indicates that the trial court neither
admonished the defendant as to his right to a jury trial nor
confirmed in defendant's presence that defendant had waived his
right to a jury trial.
     The accused in a criminal proceeding has a constitutional
right to a jury trial (U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, 8, 13).  In order to waive his or her right to a
jury trial, the accused must understandingly waive the right in
open court (725 ILCS 5/103--6 (West 1994)), and such waiver must be
in writing (725 ILCS 5/115--1 (West 1994)).  Notwithstanding the
foregoing, the absence of a written jury waiver may constitute
harmless error where the record demonstrates that the accused made
a knowing and understanding oral waiver of his right to a jury
trial in open court.  People v. Silas, 278 Ill. App. 3d 400, 403
(1996).
     Whether the accused knowingly and understandingly waives his
right to a jury trial does not rest on a precise formula but rather
turns on the facts and circumstances of each particular case. 
People v. Frey, 103 Ill. 2d 327, 332 (1984).  A knowing and
understanding oral waiver can be found where, in the accused's
presence and without objection from the accused, defense counsel
expressly advises the court of the accused's desire to proceed by
a bench trial.  People v. Smith, 106 Ill. 2d 327, 334 (1985). 
However, the accused will not be deemed to have acquiesced in a
jury waiver made by his counsel outside of the accused's presence. 
People v. Watson, 246 Ill. App. 3d 548, 549 (1993).
     In the present case, the record fails to demonstrate that
defendant made a knowing and understanding oral waiver of his right
to a jury trial in open court.  The record reveals only one
occasion when the issue of jury waiver was discussed in defendant's
presence.  On April 10, 1996, following the sentencing of
defendant, the trial court noted that the record did not contain a
written jury waiver.  The trial court then asked defense counsel
whether defendant would be willing to execute a written jury
waiver.  Defendant's counsel responded that there was no waiver of
the jury in this case.  Thus, the only discussion relating to
defendant's right to a jury trial for which defendant was present
occurred six weeks after the conclusion of defendant's bench trial. 
Moreover, during such discussion, defendant's counsel insisted that
defendant did not waive his right to a jury trial.  Under these
circumstances, we cannot conclude that defendant made a knowing and
understanding oral waiver of his right to a jury trial in open
court.
     The State argues that, although defendant did not make a
knowing and understanding oral waiver of his right to a jury trial
in open court, defendant should be deemed to have acquiesced in and
therefore to be bound by the actions of his counsel.  In
particular, the State points to (1) the December 13, 1995, status
hearing at which defense counsel requested a bench trial; and (2)
the February 29, 1996, bench trial at which defense counsel
answered ready and in which defense counsel participated willingly. 
     In support of its argument, the State relies upon People v.
Asselborn, 278 Ill. App. 3d 960 (1996), and People v. Sailor, 43
Ill. 2d 256 (1969).  In Asselborn, as in the present case, defense
counsel specifically requested a bench trial, the defendant did not
execute a written jury waiver, and the trial court did not admonish
the defendant regarding his right to a jury trial.  Asselborn, 278
Ill. App. 3d at 962.  Similarly, in Sailor, defense counsel
expressly waived a jury trial, and the trial court did not admonish
the defendant as to his right to a jury trial.  Sailor, 43 Ill. 2d
at 260.  In both cases, the reviewing court determined that the
defendant was bound by the acts of his counsel and therefore waived
his right to a jury trial.  Asselborn, 278 Ill. App. 3d at 962-63;
Sailor, 43 Ill. 2d at 260.  In addition, in Asselborn, the court
specifically held that, under the facts and circumstances of that
case, the absence of a written jury waiver did not mandate a
reversal of the defendant's conviction.  Asselborn, 278 Ill. App.
3d at 963.
     The State's reliance upon Asselborn and Sailor is misplaced. 
In both cases, the defendant was present in open court when defense
counsel expressly waived the defendant's right to a jury trial. 
Asselborn, 278 Ill. App. 3d at 962; Sailor, 43 Ill. 2d at 260.  In
Asselborn, the report of proceedings indicated that, at the
commencement of trial and while the defendant was present, defense
counsel specifically requested a bench trial.  Asselborn, 278 Ill.
App. 3d at 962.  Similarly, in Sailor, the report of proceedings
indicated that, at the commencement of trial and while the
defendant was present, defense counsel expressly advised the court
that a jury was waived.  Sailor, 43 Ill. 2d at 260.  In neither
case did the defendant object to defense counsel's waiver of a
jury.  Asselborn, 278 Ill. App. 3d at 962; Sailor, 43 Ill. 2d at
260.  Accordingly, both defendants were deemed to have acquiesced
in the conduct of their counsel.  Asselborn, 278 Ill. App. 3d at
962-63; Sailor, 43 Ill. 2d at 260-61.
     Unlike Asselborn and Sailor, the report of proceedings in the
present case indicates that defendant was not present for the
December 13, 1995, pretrial hearing at which his counsel
specifically requested a bench trial.  Thus, we cannot deem
defendant to have acquiesced in the conduct of his counsel during
that hearing.  Watson, 246 Ill. App. 3d at 549.
     In addition, unlike Asselborn and Sailor, defense counsel in
the present case did not expressly waive defendant's right to a
jury trial in defendant's presence on the day of trial.  On the
contrary, the report of proceedings indicates that, on the day of
trial, neither defendant's counsel nor the trial court made any
mention of whether the trial would proceed by jury or by bench. 
Rather, the trial court simply asked whether both sides were ready. 
Under these circumstances, where nothing is stated in defendant's
presence to suggest that defendant has an option between a bench
trial and a jury trial, we cannot deem defendant to have acquiesced
knowingly in his counsel's participation in a bench trial.
     Finally, the State argues that, although the report of
proceedings for the December 13, 1995, pretrial hearing indicates
that defendant was not present, the existence of errors elsewhere
in the record precludes us from concluding that defendant was not
present on December 13, 1995.  The State cannot attempt to rewrite
the record through argument.  People v. Stokes, 281 Ill. App. 3d
972, 977 (1996).  If the State believes that the report of
proceedings for December 13, 1995, is inaccurate and that defendant
was present at the pretrial hearing, Supreme Court Rule 329 (134
Ill. 2d R. 329) affords the State a procedure for correcting the
record.  The State has not availed itself of this procedure.  Thus,
we shall take the record on appeal as true and correct.  134 Ill.
2d R. 329; Stokes, 281 Ill. App. 3d at 977.   
     In sum, because the record shows that defendant neither
executed a written jury waiver nor made a knowing and understanding
oral waiver of his right to a jury trial, we conclude that
defendant has not waived his right to a jury trial.  Accordingly,
we reverse defendant's conviction and remand the cause for a new
trial.
     Defendant's second argument is that the State failed to prove
defendant's guilt beyond a reasonable doubt.  Under the mandate of
People v. Taylor, 76 Ill. 2d 289 (1979), this court must consider
defendant's challenge to the sufficiency of the evidence in order
to avoid the risk of subjecting him to double jeopardy.  76 Ill. 2d
at 309.
     On April 8, 1995, at approximately 1 a.m., Officer Douglas
Olsen of the Village of Addison police department noticed defendant
pushing his car northbound on Sable near the intersection of Itasca
and Sable in Addison, Illinois.  Defendant was pushing the car from
the driver's side with the driver's door open.  No other passengers
were in defendant's car, and no other people were in the area. 
When he approached defendant, Officer Olsen observed that defendant
had glassy, watery eyes; had trouble standing; was wobbling and
swaying; and projected a strong odor of alcohol.  On the basis of
defendant's condition, Officer Olsen concluded that defendant was
intoxicated.
     Officer Olsen also observed that defendant's car was missing
its front license plate and that the car's front bumper and hood
were damaged.  Officer Olsen asked defendant whether defendant had
been driving the vehicle, and defendant responded, "No, I don't
drive drunk."  Defendant added that someone else had been driving
the car, but defendant was unable to provide Officer Olsen with
this other person's name.  After observing a large amount of oil
leaking from defendant's car, Officer Olsen looked under the car
and found extensive damage to the car's undercarriage.  Officer
Olsen asked defendant whether defendant's engine had locked up, and
defendant responded, "No, I shut it off." 
     After placing defendant under arrest, Officer Olsen searched
defendant and found a set of car keys in the front right pocket of
defendant's pants.  Officer Olsen testified that the keys fit in
the ignition of defendant's car and turned the car over.  In
addition, Officer Olsen testified that defendant's car has an
automatic transmission and could be pushed only if the gear shift
was in neutral.  After attempting to operate the gear shift on
defendant's car, Officer Olsen determined that defendant's car
could not be placed in neutral unless the key was in the ignition
and that the key could not be removed from the ignition if the car
was still in neutral.  On cross-examination, Officer Olsen
testified that he never saw defendant actually driving the car. 
     Officer James Kaplan of the Village of Addison police
department responded to the scene shortly after Officer Olsen's
arrival.  Officer Kaplan testified that defendant was swaying back
and forth, had glassy and bloodshot eyes, was slurring his speech,
and possessed a strong odor of alcohol on his breath.  Officer
Kaplan spoke briefly with defendant at the scene, and defendant
again insisted that someone else had been driving the car.  This
time, defendant identified this other driver as Steve Smith. 
Defendant was unable, however, to provide Officer Kaplan with an
address or phone number for Mr. Smith.  On cross-examination,
Officer Kaplan testified that he never saw defendant actually
driving the car. 
     Defendant neither testified at trial nor called any witnesses
on his behalf.      
     Defendant argues that his conviction of driving while under
the influence of alcohol is not supported by the evidence.  In
particular, defendant argues that the State failed to prove beyond
a reasonable doubt that defendant was driving his car.  Defendant
does not challenge the trial court's finding that defendant was
intoxicated.
     A conviction must be based upon proof beyond a reasonable
doubt.  People v. Miller, 284 Ill. App. 3d 16, 24 (1996).  The
reviewing court's duty is not to ask itself whether it believes
that the evidence establishes the defendant's guilt.  Miller, 284
Ill. App. 3d at 24.  Rather, the reviewing court's duty is to ask
whether the evidence viewed in a light most favorable to the
prosecution would allow any rational trier of fact to find the
essential elements of the crime proved beyond a reasonable doubt. 
Miller, 284 Ill. App. 3d at 24.  The reversal of a conviction is
required only where the defendant can show that the evidence is so
unsatisfactory or improbable as to create a reasonable doubt of the
defendant's guilt.  Miller, 284 Ill. App. 3d at 24.
     The trial court convicted defendant of the offense of driving
while under the influence of alcohol (625 ILCS 5/11--501 (West
1994)).  Section 11--501 of the Illinois Vehicle Code provides in
pertinent part that a person shall not drive or be in actual
physical control of any vehicle while the alcohol concentration of
his or her blood is 0.10 or more or while the person is under the
influence of alcohol.  625 ILCS 5/11--501(a)(1), (a)(2)(West 1994). 
Whether the defendant was in actual physical control of the vehicle
is a question of fact.  People v. Scapes, 247 Ill. App. 3d 848,
850-51 (1993).  
     The Illinois Supreme Court has held recently that a person
need not drive in order to be in actual physical control of a
vehicle.  City of Naperville v. Watson, 175 Ill. 2d 399, 402
(1997).  Likewise, the person's intent to put the vehicle in motion
is irrelevant to the determination of actual physical control. 
Watson, 175 Ill. 2d at 402.  Instead, actual physical control is to
be determined on a case-by-case basis giving consideration to
factors such as whether the motorist is positioned in the vehicle's
driver's seat, has possession of the ignition key, and has the
physical capability of starting the engine and moving the vehicle. 
Watson, 175 Ill. 2d at 402.  
     Although it is one factor to be considered, the presence of
the motorist in the driver's seat is not an essential ingredient to
a finding of actual physical control. People v. Davis, 205 Ill.
App. 3d 431, 436 (1990).  In Davis, the court held that the
evidence supported a finding of actual physical control where the
police discovered the defendant asleep inside a zipped sleeping bag
in the backseat of the car.  205 Ill. App. 3d at 437.  In reaching
that conclusion, the court in Davis explained that the defendant's
location in the backseat in no way makes him harmless because he
could in an instant get back into the driver's seat.  205 Ill. App.
3d at 437.
     In the present case, Officer Olsen testified that defendant
was pushing his car by hand along the roadway, that defendant could
not push the car unless it was in neutral, and that defendant's car
could not be in neutral unless the keys were in the ignition.  In
addition, Officer Olsen testified that he found the ignition key to
defendant's car in the front pocket of defendant's pants.  Most
importantly, defendant admitted that he had shut off the car's
engine.  The trial court would not be irrational in concluding,
based on these premises, that defendant was in possession of the
ignition key, that the key was in the ignition when defendant was
pushing his car along the road, and that defendant was physically
capable of starting the engine and moving the vehicle.  Thus, under
Watson, the trial court would not be irrational in concluding that
defendant was in actual physical control of his vehicle.  Watson,
175 Ill. 2d at 402. 
     The fact that defendant in the present case was not in the
driver's seat is of no consequence.  The evidence shows that, like
the defendant in Davis, defendant in the present case had physical
control of the car, had the keys in the ignition, and could in an
instant move into the driver's seat.  Davis, 205 Ill. App. 3d at
437.  Accordingly, like the defendant in Davis, defendant in the
present case was not rendered harmless by virtue of his absence
from the driver's seat.  Indeed, the trip to the front seat in the
present case is a much easier trip than in Davis.  In Davis, to
enter the driver's seat, the defendant was required to (1) wake up,
(2) negotiate the zipper from inside a sealed sleeping bag, and (3)
move from the backseat to the front seat by straddling the console
between the two front bucket seats.  Davis, 205 Ill. App. 3d at
437.  Here, defendant need only sit down.
     Finally, we must emphasize that actual physical control is a
concept distinct from driving.  The Appellate Court, First
District, has noted that, if a person is shown to be operating a
vehicle, that person is also, by virtue of operating the vehicle,
exerting actual physical control over the vehicle.  People v.
Niemiro, 256 Ill. App. 3d 904, 909 (1993).  The opposite, however,
is not always true.  Niemiro, 256 Ill. App. 3d at 909.  A person
who is shown to be exerting actual physical control over a vehicle
need not be shown to have been operating the vehicle, but only that
he or she had the capability or potential to do so.  Niemiro, 256
Ill. App. 3d at 909.  Given this dichotomy, it is difficult to
imagine a person possessing greater physical control than defendant
who moved his vehicle along the road by hand with the driver's door
open and the keys in the ignition.  Anything more and defendant
would have graduated from actual physical control to actual
driving.    
     Based on the foregoing and reviewing the evidence in the light
most favorable to the prosecution, we conclude that the evidence
supports a finding that defendant was in actual physical control
and thus that defendant was driving while under the influence of
alcohol (625 ILCS 5/11--501 (West 1994)).  This conclusion does not
in any way imply that we have made a determination of defendant's
guilt or innocence which would be binding on retrial.  Taylor, 76
Ill. 2d at 310.  We have considered the sufficiency of the evidence
solely to remove the risk of subjecting defendant to double
jeopardy.  People v. Nuccio, 263 Ill. App. 3d 315, 318 (1994).
     Defendant raises two additional arguments which we can dispose
of easily.  First, defendant argues that the State offered no
evidence to show that defendant ever drove the car on the night in
question.  Second, defendant argues that the trial court inverted
the burden of proof because, while rendering its verdict, the trial
court observed that "[t]he defendant was unable to give any
information regarding who Steven Smith was or who was the purported
driver of this vehicle."  Both of these arguments are without merit
because both relate to whether defendant drove the car.  Again,
under Illinois law, a defendant need not drive in order to be
convicted of driving while under the influence.  Watson, 175 Ill.
2d at 402.  Rather, a defendant must either drive or be in actual
physical control of a vehicle.  625 ILCS 5/11--501(a)(1),
(a)(2)(West 1994).  As discussed above, there is ample evidence in
the present case to support a finding that defendant was in actual
physical control of his car when he was pushing it along the road. 
Thus, whether defendant actually drove the car on the night in
question is irrelevant.
     For the foregoing reasons, the judgment of the trial court is
reversed, and the cause is remanded to the trial court for a new
trial consistent with this opinion.  
     Reversed and remanded.
     COLWELL and RATHJE, JJ., concur.