People v. Banks

delivered the opinion of the court:

Following a bench trial in the circuit court of Kendall County at which defendant, Ronnell R. Banks, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2004)) and driving while his license was suspended (625 ILCS 5/6 — 303 (West 2004)), defendant appeals. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of driving while his license was suspended, because there was no evidence that his license was actually suspended on the date of the purported offense. Defendant also contends that the fact that a videotape of the traffic stop was lost renders the record insufficient for appellate review and thereby deprives him of his constitutional right to a direct appeal. Finally, defendant asserts that the evidence was insufficient to prove him guilty of DUI. We reject defendant’s contentions and affirm.

I. BACKGROUND

We summarize the pertinent facts. On February 1, 2005, a bench trial commenced. A verbatim transcript of the testimony rendered during trial was not prepared. Instead, for purposes of appeal, the parties prepared an agreed statement of facts and attached police reports prepared by Sergeant Terry Klingel of the Yorkville police department and Deputy John Collins of the Kendall County sheriffs department. The parties indicated that the police officers testified consistently with their narrative reports. Additionally, Deputy Mitch Hattan of the Kendall County sheriffs department testified similarly to Klingel and Collins. The following recitation is taken from the police reports attached to the agreed statement of facts. We note that absent from the agreed statement of facts is any indication that defendant objected to the hearsay testimony regarding defendant’s suspended license, which was admitted into evidence instead of a certified driver’s abstract. Also absent is any best-evidence objection.

Klingel related that, at about 11:30 p.m., on Friday, September 17, 2004, he was dispatched to the area of Route 126 and Hinkler Road. There, he observed a red Chevrolet sport utility vehicle (SUV), registered to defendant, with its hazard lights activated. As Klingel approached the vehicle, he observed defendant exit the passenger side of the SUV Klingel observed that defendant was staggering as he exited the vehicle. Klingel asked defendant if he was okay. Defendant responded that he was fine, but Klingel noted that defendant’s speech was “slurred” and “thick-tongued.” Klingel also noticed that an odor of an alcoholic beverage was emanating from defendant’s face and mouth. Klingel asked if defendant had been drinking that night and defendant stated, in slurred speech, that he had. Klingel asked defendant if he had been driving. Defendant informed Klingel that he had been driving and drinking, but did not want to drive anymore, so he pulled onto the side of the road. As Klingel was speaking to defendant, he noticed a beer bottle protruding from a paper bag that was lying on the floor of the front passenger side of the vehicle. Klingel, who was outside of his jurisdiction, called for a Kendall County sheriffs deputy.

Collins reported that, upon arriving at the scene, Klingel related that defendant appeared to be intoxicated and had admitted that he had been drinking alcohol, and Klingel reported that he had observed a bottle of beer in a paper bag under defendant’s feet. Collins related that Klingel had learned defendant’s name, and Collins noted in his narrative report that defendant’s “driver’s license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/]ll — 501(a)(2) [(West 2004))].”

Collins related that, when he asked defendant to roll down the passenger window, defendant appeared to have trouble doing so. Collins opened the passenger door for defendant and noticed the odor of alcohol coming from the car. Collins noticed that defendant was disheveled and had glassy, bloodshot eyes. Collins observed a bottle of beer inside a paper bag on the passenger-side floor of the car.

Collins related that defendant said that he ran out of gas and would need help. Collins asked defendant where he was coming from and defendant stuttered and appeared to be confused as he answered. Defendant pointed and appeared to have trouble formulating his answer. Defendant stuttered and told Collins that his wife did not want him to return home. Defendant told Collins that, when he arrived at home, his wife told him to leave and he did so.

Collins related further details about the encounter, in which defendant appeared to be confused and contradicted himself. For example, defendant claimed to be heading toward Aurora, but he was not headed in the direction toward Aurora when he was found by police. Additionally, defendant claimed to have obtained food from a Portillo’s restaurant, but instead had food wrapped in McDonald’s packaging in his car. Defendant also told Collins repeatedly that he had not been drinking alcohol, which contradicted what he told Klingel.

Collins asked defendant to get out of the car and to come to the rear of his vehicle. Collins smelled a strong alcoholic odor coming from defendant. Collins again asked defendant if he had consumed any alcohol, and defendant replied that he had “had one beer.” Defendant refused to take a field sobriety test. Collins then arrested defendant. Collins’ search of defendant’s car uncovered four unopened bottles of beer, two opened bottles of beer with very little beer remaining, and one opened can of beer with a small amount of beer remaining. Defendant was transported to the county jail and charged with, among other things, DUI and driving while his license was suspended. The beer containers were placed into evidence as well as a videotape of the encounter recorded from Collins’ dashboard video camera.

Also attached to the agreed statement of facts was Collins’ “Law Enforcement Sworn Report” (sworn report). The report contained check boxes to indicate whether defendant surrendered his driver’s license. The “No” box was checked, and Collins recorded that defendant did not surrender his license at the time of the encounter because his “driver[’]s license [was] suspended.”

During the encounter, Collins requested that a deputy be dispatched to defendant’s home to make sure that no violence had occurred between defendant and his wife. Hattan responded to the call. Hattan learned from defendant’s wife that defendant had come home drunk and that she told him to leave.

A dashboard videotape of the encounter with defendant was displayed to the trial court. According to the agreed statement of facts, the videotape displays “a portion of the events testified to by Deputy Collins and Sergeant Klingel.”

Defendant did not testify at trial. No other evidence was offered on his behalf. The trial court noted that, following “presentation of testimony & video,” it found defendant guilty of both charges. For the DUI conviction, defendant was sentenced to a 364-day term of imprisonment, and for the conviction of driving while his license was suspended, defendant was sentenced to a 24-month term of probation. In addition, defendant was assessed fines and costs totaling $750 and required to undergo a level III alcohol treatment program, which was modifiable based upon defendant’s evaluation. Defendant’s posttrial motions were denied, and defendant timely appeals. At some point while the appeal was pending, the parties discovered that the videotape of the traffic stop and arrest was no longer in the possession of either the circuit court clerk, the State’s Attorney, or the public defender. Included in the record on appeal is an affidavit acknowledging that none of those parties had or were able to locate a copy of the videotape of defendant’s traffic stop and arrest.

II. ANALYSIS

On appeal, defendant challenges the sufficiency of the evidence of his convictions of driving while his license was suspended and DUI. Defendant also contends that the loss of the videotape of his traffic stop and arrest makes the record insufficiently complete for review and thereby deprives him of his right to appeal his conviction of DUI.

A. Sufficiency of Evidence to Sustain Conviction of Driving While His License Was Suspended

Defendant’s initial argument on appeal is that the evidence is insufficient to prove that his license was suspended on the date of the traffic stop. Defendant points to a phrase in Collins’ narrative report that related that defendant’s “driver’s license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/] 11 — 501(a)(2) [(West 2004))].” Defendant contends that this is ambiguous and could mean that defendant’s license was due to be suspended October 1, about two weeks after the date of the traffic stop at issue here, or was suspended in October 2001, three years before the stop. Defendant also notes that there is no driver’s abstract or other documentary evidence in the record to show that defendant’s license was suspended on September 17, 2004, the date of the stop. However, defendant did not argue the best-evidence rule or inadmissible hearsay below or in this court. Defendant concludes that the evidence was insufficient to support his conviction of driving while his license was suspended. We disagree.

When a defendant challenges the sufficiency of the evidence, the relevant question for the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. People v. Berrier, 362 Ill. App. 3d 1153, 1169 (2006). Here, the issue is whether there was sufficient evidence in the record that defendant’s license was suspended on the date of the stop.

Often, a circuit court will not have a court reporter present during a trial on a traffic or misdemeanor offense. People v. Malley, 103 Ill. App. 3d 534, 535 (1982). Given Supreme Court Rule 323 (210 Ill. 2d R. 323), which sets out alternate methods for obtaining a report of proceedings for the record on appeal, the presence of a court reporter is not necessarily required in order to ensure that the record on appeal is sufficiently complete for review. The responsibility for preserving a sufficiently complete record of the proceedings before the trial court rests with the defendant, as the appellant. People v. Fernandez, 344 Ill. App. 3d 152, 160 (2003); Malley, 103 Ill. App. 3d at 536. Where the record on appeal is incomplete, any doubts arising from that incompleteness will be construed against the defendant (Fernandez, 344 Ill. App. 3d at 160) and every reasonable presumption will be taken in favor of the judgment below {Malley, 103 Ill. App. 3d at 536). Moreover, a defendant cannot agree to a statement of facts, fail to obtain a more detailed alternative, and then argue on appeal that the record is insufficient. See People v. Luke, 253 Ill. App. 3d 136, 140 (1993).

With these principles in mind, we turn to defendant’s argument that the evidence in the record was insufficient to show that his license was suspended on September 17, 2004. Specifically, defendant contends that the record does not contain direct evidence proving that his license was suspended on that date. We disagree with defendant’s contention. First, we note that there were no objections to hearsay evidence. It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural and probative effect. People v. Akis, 63 Ill. 2d 296, 299 (1976). Here, the agreed statement of facts stipulates that the police officers all testified consistently with their reports and that the reports were attached to the agreed statement of facts. Collins filed two reports that were attached to the agreed statement of facts, a narrative report and a sworn report. The narrative report relates that defendant’s driver’s license was “suspended as of 10/01.” Collins’ sworn report relates that, at the time of defendant’s arrest, defendant did not surrender his driver’s license because it was already suspended. The sworn report also states that defendant’s driver’s license was not valid at the time of defendant’s arrest. Taken together, the narrative report and the sworn report reasonably establish that defendant’s driver’s license was suspended at the time of his arrest. Indulging in all reasonable presumptions in favor of the trial court’s judgment demonstrates that the State proved beyond a reasonable doubt that defendant’s driver’s license was suspended on September 17, 2004. Defendant’s argument focuses only on the sufficiency of the evidence and fails to consider the waiver wrought by his failure to object to the admissibility of the evidence. Accordingly, we reject defendant’s contention that the evidence was insufficient to support his conviction of driving while his license was suspended.

B. Contentions Arising From DUI Conviction

Next, defendant makes a dual contention. First, defendant argues that the omission of the videotape from the record on appeal precludes effective review because the videotape was displayed for the trier of fact. Defendant also argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt. We will address each contention in turn.

1. Reviewability of record

Defendant begins his analysis by arguing that the State has an obligation to provide a record of sufficient completeness to permit appellate review, citing Luke, 253 Ill. App. 3d at 139 (“[t]he State must furnish a record of sufficient completeness to permit proper consideration of [the defendant’s] claims”). This rule posited by defendant appears to conflict with the requirement, exemplified in cases like Fernandez and Malley, that a defendant is responsible for preserving and preparing a sufficiently complete record for purposes of appeal. Fernandez, 344 Ill. App. 3d at 160; Malley, 103 Ill. App. 3d at 536. However, the conflict is illusory — the responsibility for preparation of the record remains with the defendant. The financial burden of obtaining a transcript, if the defendant is indigent, is placed upon the State. See Luke, 253 Ill. App. 3d at 139, quoting Griffin v. Illinois, 351 U.S. 12, 19, 100 L. Ed. 891, 899, 76 S. Ct. 585, 591 (1956) (“a State must afford an indigent defendant ‘as adequate appellate review as defendants who have money enough to buy transcripts’ ”). Thus, the responsibility of providing the record for the appellate court to review remains with the defendant; the defendant’s financial burden for so doing is borne by the State where the defendant cannot afford to do so.

Having determined that a defendant must provide a sufficiently complete record on appeal, we review the applicable principles. In order to raise an appeal, the defendant must present a record of sufficient completeness to permit proper consideration of the defendant’s specific claims of error. People v. Hopping, 60 Ill. 2d 246, 251-52 (1975); Luke, 253 Ill. App. 3d at 139. (As noted above, this obligation remains with even the indigent defendant. The indigent defendant is not disadvantaged unduly, however, because the State must bear the cost of preparing the record on appeal.) Where the court finds that the defendant is not at fault for the incompleteness of the record, it will be amenable to affording the defendant relief on the basis that the record is insufficient to allow appellate review. We provide several examples.

In People v. Stark, 33 Ill. 2d 616 (1966), the supreme court remanded the cause for a new hearing on the defendant’s motion to suppress when, through no fault of the defendant, there was no transcript of the suppression hearing available in the record on appeal. The court noted that, where the issues discussed during the suppression hearing touched upon the defendant’s knowing waiver of his right to consult an attorney and whether his confession was made knowingly or had been induced by the police, the transcript of the suppression hearing was “essential to an adequate review.” Stark, 33 Ill. 2d at 621. Thus, the court in Stark incorporated both whether the defendant was at fault in not providing a portion of the record and the missing portions’ importance or materiality to the court’s ability to review the matter.

In People v. Ramos, 295 Ill. App. 3d 522, 524 (1998), the defendant’s original attorney did not file a notice of appeal. Three years later, the defendant was allowed to file a late notice of appeal. For the next year-and-a-half, the defendant attempted to compile a complete record on appeal, but was unable to locate the stenographic notes of the bench trial. Additionally, the defendant’s attempts to create a bystander’s report were unsuccessful because the defense attorney, the prosecutor, and the trial court could not locate their notes or files and had insufficient independent memories of the proceedings. Ramos, 295 Ill. App. 3d at 524. The appellate court ruled that, on the defendant’s challenge to the sufficiency of the evidence, the defendant had demonstrated lack of fault in providing an incomplete record as well as some State fault in placing the defendant in that situation. Ramos, 295 Ill. App. 3d at 526-27. As a result, the court held that the defendant was entitled to a new trial in order to vindicate the defendant’s right to a direct appeal. Ramos, 295 Ill. App. 3d at 527. Ramos, then, appears to follow the idea in Stark of combining the relative fault of the defendant with the importance or materiality of the missing portion of the record.

In People v. Seals, 14 Ill. App. 3d 413 (1973), the State was ordered to complete a bystander’s report but did not obey the order. Ultimately, the trial court provided a synopsis of the proceedings. The defendant filed a statement that conflicted with the trial court’s rendition. Seals, 14 Ill. App. 3d at 414. The court noted that the trial court’s summary was sufficient to show the defendant’s guilt but was full of conclusory language and lacking in detail sufficient to allow appellate review. The court held that the report of proceedings was not sufficient to enable the court to properly review the alleged trial errors, entitling the defendant to a new trial. Seals, 14 Ill. App. 3d at 414. Again, Seals combined the concepts of fault (the defendant bore no fault while the State was at fault for not complying with the order to complete a bystander’s report) and the materiality of the missing evidence or portion of the record to the court’s ability to review the issues on appeal.

In Stark, Ramos, and Seals, both elements were present: the defendant’s lack of fault and the materiality of the missing evidence or portion of the record to the court’s review. Defendant, by contrast, suggests that a per se rule should obtain: If evidence presented at trial is missing from the record on appeal, then the record is not sufficiently complete for appellate review. Our analysis of the law in Illinois belies this per se rule. We therefore turn to other jurisdictions to attempt to discern the roots of defendant’s per se rule.

The principles present in Illinois law, materiality of the missing evidence and lack of fault in causing the omission, have been adopted in a number of other jurisdictions. See Chadwick v. State, 214 Ga. App. 643, 448 S.E.2d 751 (1994) (if the defendant fails to take steps to procure a complete record, the court will not review the claim); Hall v. State, 849 N.E.2d 466 (Ind. 2006) (loss of transcript of guilty plea hearing will not prevent review where there is no showing of misconduct by the State and the defendant does not argue that he was prejudiced); Commonwealth v. Pudder, 41 Mass. App. 930, 673 N.E.2d 82 (1996) (the defendant found to be at fault in failing to provide a transcript; the court did not order a new trial in such a circumstance); Commonwealth v. Barry, 19 Mass. App. 995, 475 N.E.2d 425 (1985) (neither the defendant nor the Commonwealth was at fault for a gap in the record; the appellate court resolved disputes in favor of the defendant to nullify any prejudice that may have occurred as a result of the incomplete record); Brawner v. State, 947 So. 2d 254 (Miss. 2006) (the defendant possessed the tapes necessary to provide a complete record but did not provide a complete record; the court held that the defendant’s fault effectively waived the claim of error); Dykes v. McNeill, 735 S.W.2d 213 (Mo. 1987) (the defendant diligently attempted to provide complete record and was therefore not at fault for the incomplete record; the court ordered a new trial because the incomplete record precluded review); State v. Bishop, 350 N.J. Super. 335, 795 A.2d 297 (2002) (the defendant’s decision to flee caused the loss of significant portions of the record; the court held that the defendant could not now be rewarded by a new trial due to his earlier wrongful actions); Brown v. State, 743 P.2d 133 (Okla. Crim. App. 1987) (the defendant held to be at fault for not attempting to obtain videotape he claimed to be missing from record; the court denied the defendant’s claim on appeal).

There does not appear to be a uniform national standard regarding how to apportion the burden to provide a sufficiently complete appellate record. For example, some jurisdictions seem to have a no-fault rule: anytime the record on appeal is not sufficiently complete, the defendant will receive relief. See Wilson v. State, 334 Md. 469, 639 A.2d 696 (1994) (where parties attempt to reconstruct record but fail, remedy is new trial); State v. Tilton, 149 Wash. 2d 775, 72 P.3d 735 (2003) (same). Likewise, in other jurisdictions, the burden of maintaining a complete record on appeal rests on the State or the trial court instead of the defendant. In those jurisdictions, the failure to provide a sufficiently complete record on appeal will result in a new trial. See Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003) (trial court had responsibility to keep a complete record of the trial; review of record showed it was sufficiently complete for purposes of appeal); Jacobs v. State, 327 Ark. 498, 939 S.W.2d 824 (1997) (trial court had responsibility to keep complete record; new trial ordered where attempts to remedy incomplete record unsuccessful); State v. Walker, 844 So. 2d 1060 (La. App. 2003) (constitution imposes requirement for complete record on appeal; missing evidence crucial to review of case and therefore, the defendant received the remedy of a new trial).

From our examination of cases in Illinois, as well as those in other jurisdictions that follow similar principles, we conclude that the rule described in Hopping provides the general statement of the law in Illinois: the defendant is obligated to provide a sufficiently complete record for appellate review. Hopping, 60 Ill. 2d at 251-52. This rule is relaxed where the incomplete record results through no fault of the defendant and the insufficiency precludes effective appellate review. See Stark, 33 Ill. 2d at 621. Defendant, therefore, must make a dual showing: that the videotape is material to defendant’s contentions on appeal and that he is not at fault for failing to preserve the videotape.

We note that, from Stark, Ramos, and Seals, defendant draws the proposition that an incomplete record on appeal requires that the defendant be granted a new trial. This argument is flawed, however, because defendant neglects the necessary steps that must be fulfilled before the relief of a new trial can be granted. As noted immediately above, the defendant must show both that the missing part of the record is necessary for effective appellate review and that the defendant is not at fault for the fact that the record is incomplete. As we discuss, defendant has fulfilled neither requirement.

Defendant essentially asserts that the loss of the videotape alone, with no other showing, renders the record incomplete for meaningful review on appeal and entitles him to a new trial. This, as we have demonstrated, is the law neither in Illinois nor even in those states that place the burden of producing the record on appeal on the State or the trial court. In all instances, the defendant must establish that the missing portion of the record is essential for appellate review. See, e.g., People v. Majka, 365 Ill. App. 3d 362, 370 (2006) (the defendant-appellant must first show a colorable need for the evidence missing from the record; upon such showing, the State-appellee must show that a substitute for the missing evidence is sufficient); see also, e.g., Simpson v. Commonwealth, 759 S.W2d 224 (Ky. 1988) (substitute for missing record sufficient to allow appellate review); State v. Stokes, 829 So. 2d 1009 (La. 2002) (missing audiotape not material portion of record for purposes of review); State v. Mitchell, 897 S.W.2d 187 (Mo. App. 1995) (the defendant neither demonstrated nor argued that missing audiotape contained information relevant to the appellate review of his contentions); Bordman v. State, 56 S.W.3d 63 (Tex. App. 2001) (neither State nor the defendant raised issue regarding missing tape; court held that tape was unnecessary for resolution of appeal).

Defendant does not argue that there is a colorable need for the videotape. Defendant fails to articulate what the videotape would show. Defendant further fails to suggest that the videotape was exculpatory or contradictory of any other evidence presented at trial. Defendant argues only that the videotape is missing. This is an insufficient demonstration of a colorable need.

Defendant attempts to avoid the necessity of demonstrating a colorable need for the missing videotape by arguing that there is no acceptable substitute for it in reviewing the issue of the sufficiency of the evidence of defendant’s guilt. Regardless of the validity of that view, defendant could have established a colorable need. Had there been anything depicted on the videotape that was inconsistent with Collins’ and Klingel’s testimony, defendant could have amended or supplemented the agreed statement of facts.

Defendant also could have established a colorable need by pointing to argument of counsel or comments by the trial court about the videotape. See, e.g., People v. Appelgren, 377 Ill. App. 3d 137, 144 (2007) (colorable need for missing evidence established because of the emphasis given it in the prosecutor’s closing argument). If, for example, the agreed statement of facts reported that counsel for the State and for defendant had disagreed on what conclusions should be drawn from the videotape, then there might be a colorable need for the videotape, because we would have to decide what conclusions could be properly drawn from it.

Defendant argues only that the absence of the videotape renders the record insufficient for purposes of appellate review. As we have noted, this is neither the standard nor a sufficient demonstration of colorable need. Because defendant has not made even a prima facie showing that the absence of the videotape impairs our review of the record on appeal, we conclude that the record as it now stands is sufficient for review. The fact that defendant does not argue that the videotape was even in the least bit exculpatory or inconsistent with any of the police testimony presented at trial leads us to conclude that it is not material to the points he raises on appeal.

Likewise, defendant makes no argument that the incomplete record was not due to his fault in assembling the record on appeal. Without such a contention, defendant cannot satisfy the lack-of-fault element of the Hopping-Stark-Ramos-Seals line of cases. We note that the loss of the videotape was confirmed at least five weeks in advance of the due date of defendant’s brief on appeal and about five months before the matter was ready to be placed before this court for decision. There was ample time for defendant to correct the agreed statement of facts to reflect any inconsistencies between the videotape and the officers’ testimony. Defendant has not demonstrated, even cursorily, that the record on appeal is insufficient for our review. Accordingly, we conclude that we may review the record on appeal as it stands before us.

2. Sufficiency of evidence supporting DUI conviction

Defendant also explicitly argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt. We disagree.

Our analysis above has demonstrated that defendant has failed to establish that the videotape is essential to the issue of sufficiency of the evidence or to any other of defendant’s contentions. Accordingly, we will examine the record as it stands before us to determine whether any reasonable trier of fact could have found defendant guilty of DUI beyond a reasonable doubt. Berrier, 362 Ill. App. 3d at 1169.

The police reports attached to the agreed statement of facts indicate that defendant mumbled, stuttered, spoke incoherently, was confused as to his whereabouts, was confused as to where he was going, smelled strongly of alcohol, and staggered when he attempted to walk. In addition, defendant’s eyes were glassy and bloodshot, and defendant was disheveled. Defendant also refused to take a field sobriety test. We hold that this evidence was manifestly sufficient to allow the court to find defendant guilty of the offense of DUI beyond a reasonable doubt. Accordingly, we reject defendant’s explicit contention that the evidence was insufficient to support his DUI conviction.

Before concluding, we respond to the special concurrence’s more germane points. The special concurrence states that defendant did not raise the sufficiency of the evidence of DUI and attaches an excerpt from defendant’s brief to support its notion. The first sentence in the attachment belies the assertion: “Because the loss of a [sic] crucial prosecution evidence renders the record insufficiently complete to permit full and proper consideration [of] the claim that the defendant raised in his post-trial motion — that he was not proved guilty beyond a reasonable doubt (C33) — the defendant has been deprived of his constitutional right to a direct appeal.” Integral to the parties’ entire conception of the issues on appeal is the idea that the evidence was insufficient to support defendant’s conviction beyond a reasonable doubt. Accordingly, we are compelled to address this issue.

Belatedly, the special concurrence strongly criticizes the majority for reaching both elements of the missing evidence inquiry, the fault inquiry and the colorable need or materiality inquiry. The special concurrence would impose a waiver on defendant for failing to discuss the fault element, and it would terminate its analysis at that point. In our view, however, both elements need to be addressed, considering the equities of this case.

The State does not argue that defendant was at fault for failing to preserve the videotape. Instead, the State argues that defendant may be at fault for failing to demand earlier that the videotape be preserved. Rather than indicating that defendant was at fault, the State’s argument suggests the opposite — that defendant did not have the videotape and did not cause its loss. The circumstances reported in the affidavit concerning the loss of the videotape further indicate that the videotape was not under defendant’s control at the time of its loss. Accordingly, the record appears to support the idea that defendant, as a matter of historical fact, was not at fault for failing to preserve the missing evidence. Due to this factual circumstance, and notwithstanding defendant’s failure to recognize the role of fault in his analysis of the missing evidence, the ideals of justice and fairness dictate that we forgo strict application of waiver and proceed to the materiality or colorable need element of the missing evidence analysis.

The special concurrence cites a number of cases from which it purports to derive the rule that lack of fault must be decided before materiality or colorable need. 378 Ill. App. 3d at 875. Contrary to its representation, none of the cases cited by the special concurrence state a requirement that fault be considered before materiality or colorable need. Further, we perceive no requirement that either of the two hurdles defendant faces be addressed first. It is easy to imagine a situation where fault might be a close question but lack of materiality or colorable need is readily apparent. We wonder what the special concurrence would do if an appellee demonstrated quite conclusively that certain missing evidence simply had no bearing on the issues raised in the appeal and expressly declined to address the fault issue. In short, we do not see that one of the two hurdles is “prefatory” (378 Ill. App. 3d at 874) to the other. Either can be addressed first and sometimes it is better to address both, just as in a Strickland analysis of ineffective assistance of counsel.

The special concurrence contains a rather expansive discussion of Foutch v. O'Bryant, 99 Ill. 2d 389 (1984), concluding with: “Finally, it is a waste of time for three appellate justices to contemplate the possibility that the Foutch rule might not apply and to address the merits of an appeal that was improperly perfected, insufficiently constituted, and improperly argued with improper presumptions, only to conclude that the Foutch rule in fact does apply.” 378 Ill. App. 3d at 875. Actually, our only mention of Foutch is now, in response to the special concurrence, because we do not see it as at all applicable. An appellant confronted with Foutch will argue that the missing part of the record is not necessary for consideration of the appeal. Here, defendant’s motivation is precisely the opposite — he is arguing prejudice because the missing videotape is necessary for consideration of the appeal. Moreover, the special concurrence’s references to Foutch belie its contention that fault must be addressed before colorable need or materiality of the missing evidence. Foutch applies only if there is not “a sufficiently complete record of the proceedings at trial.” Foutch, 99 Ill. 2d at 391. Thus, in order to say that Foutch applies, the special concurrence must have already determined that there is a need for the item missing from the record. While we maintain that the order in which a court considers lack of fault and materiality does not matter, the special concurrence, by erroneously relying on Foutch, actually makes a strong argument that defendant must show colorable need first, because we would not apply Foutch unless there were a need for the evidence missing from the record.

The special concurrence complains that we incorrectly analogize our analysis with that in Strickland. 378 Ill. App. 3d at 875. However, the special concurrence effectively agrees with our analysis, recognizing that if materiality of or colorable need for the missing evidence is determined, then we can examine fault or lack of fault in its loss. 378 Ill. App. 3d at 875. Similarly, the special concurrence challenges our reliance on Malley, because it “applies the Foutch rule.” 378 Ill. App. 3d at 877. However, Malley states, “[ajbsent an adequate presentation of the record by the appellant, every reasonable intendment against the defendant is presumed on appeal.” Malley, 103 Ill. App. 3d at 536. “Absent an adequate presentation of the record” is another way of stating that the evidence missing from the record is material to the defendant’s claim, or that a colorable need for the evidence has been demonstrated. Thus, we are relying upon Malley’s statement that a defendant must demonstrate materiality or colorable need.

III. CONCLUSION

Defendant has failed to show that the evidence was insufficient to support his guilt beyond a reasonable doubt of driving while his license was suspended. Likewise, defendant has failed to make the requisite showing that he was not at fault regarding the omission of the videotape and that the videotape is material to his contentions on appeal. Defendant has also failed to demonstrate that the evidence was insufficient to support his DUI conviction. Accordingly, we affirm defendant’s convictions.

For the foregoing reasons, the judgment of the circuit court of Kendall County is affirmed.

Affirmed.

BYRNE, J., concurs.