## 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 . Ikerm an , 2012 IL App (5th) 110299

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee
, v. MARK A. I KERMAN, De fenda nt-Appellant.

District & N o. Fifth District Docke t No. 5-11-0299

Rule 23 Order

filed Motion to publ ish
g rante d J uly 9, 2012

August 1, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by 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

. ) The trial court did not abuse its discr etion in se ntencing defe ndant to 10
y ear s i n p ri son on two counts of ag g ravated driving while under the influence of alcohol that resulted in the death of a man and his infant son and denying defe ndant’s reque st for probation, since the evidenc e that the adult dece dent was out late at night with his son while he was intox icated and that h e p arke d his disabled vehicle on a road with no illumi nation shortly befor e defe ndant cra shed i n to his vehicle did not constitute extraordinary

circ umstances wa

rra nting pr obation.

Dec ision Under Review Appea l from the Circuit Court of Madison County
, No. 08-CF- 2607; the Hon. J ames Ha ckett, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Edwar d W. Unsell, of L aw Office of Edward W

. Unsell
, of East Alton, and Chet Ke lly , of B elleville, for a ppellant.

Thomas D. Gibbons, State’s Attorney
, of Edwar dsville (Patrick Delfino, Stephen E. Norris, and Sharon Shan ah an , all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE WEL CH delivere d the judg ment of the c ourt, with opinion.
J ustices Goldenher sh and Wex stten concur red in the judgme nt and opinion.

OP INION

¶ 1 The d ef

en d an t , Mark Ikerma

n, was found guilty of two counts of ag g ravated driving while under t h e influence (DUI ) of alcohol resulting in two deaths (625 I L CS 5/11- 501(d)( 1)(F ) (West 2008)), two counts of failure to repor t an acc ident involving two deaths (625 I L CS 5/11-401(b) (West 2008)), and two counts of ag g rava ted driving with a bloodalcohol level of 0.08 or more resulting in t wo d ea t hs (625 I L CS 5/11-501(d)( 1)(F ) (West 2008)). During sentenc ing, the trial court noted that the two convictions for ag gravated DUI and two convictions for ag g ravated d ri v i n g with a blood-alcohol level of 0.08 or more merg ed for sentenc ing purposes. The court further noted that the two convictions for failure
to repor t an acc i d en t al s o merg ed for sentenc ing. There afte r, the court sentenc ed the defe ndant to 10 year s in prison on the ag gravated-DU I convictions and 5 y ear s in prison on the failure -to-re port convictions, which was to run consecutively to the ag g ravated-DU I
sentenc e. ¶ 2 The defe ndant only challeng es his ag g ravated-DU I convictions and sentenc e on appea l. Specifica lly
, the defe ndant argues (1) the State failed to prove beyond a rea sonable doubt that he had a blood-alcohol content (B AC) of 0.08 or more, (2) the State failed to prove beyond

a rea sonable doubt that he was intoxi cate d at the time of the of fense , (3) the State failed to prove beyond a rea sonable doubt that he was the proxi mate cause of the deaths of the victims, Donald L eg ens, Sr., and Donald L eg ens, J r., and (4) the trial court abused its discretion at sentenc ing by failing to consider the mitigating fac tors prese nted by him and by denying his re quest for pr obation. For the followingrea sons, we af firm. ¶ 3 On Novembe r 17, 2008, the State c harg ed the de fenda nt by amende d information with
two counts of ag g ravated DUI for his involvement in a motor vehicle acc ident that resulted in two deaths and with two counts of failure to repor t an acc ident involving those two deaths. On October 7, 2010, the State also char g ed the defe ndant by information with two counts of
ag g ravated driving with a blood-alcohol l ev el of 0.08 or more resulting in two deaths. On

-2-October 18, 2010, the defe ndant waived his rig ht to a jury trial, and the case proce eded to a

b en ch trial. The evidenc e adduce d at trial established that in the late-night h o u rs o f November 13, 2008, Donald L eg ens, Sr., was trave ling in his Kia with his 10-month-old son, Donald L eg ens, J r., on Pontoon Road in Gra nite City

. As he was driving
, the vehicle ran out of g as, and he parke d in the far rig ht lane of the four- lane r oad. ¶ 4 Stephanie Ba

rks was driving home from work on November 14, 2008, at approximately 12 a.m., when she approa ched two vehicles stopped by a train on West Pontoon Road. After the t rain passed, the vehicle in the left-ha nd lane crossed the railroa d trac ks and continued
trave ling on West Pontoon Road. Howeve r, the vehicle in Ba rks’s lane, the rig ht-hand lane, did not move. Therefor e, Barks w as for ced to move into the l eft lane and pass the s topped vehicle. As she crosse d the railroa d tr ac k s , she noticed a man walking toward the vehicle

car rying a small child and a g as can. She also observe d that the vehicle’ s headlig hts wer e on. She continued driving until she was stopped at a stoplight at the next intersec tion. As she was stopped at the light, she watche d the m an fr o m her rea rview mirror until the light turned
g ree n. ¶ 5 Also on the same night shortly aft er m i d n i gh t , Ke rri Yount was trave ling west on Pontoon Road when she observe d a vehicle parke d in the same lane that she was driving (the far rig ht lane)

. She was approximately two car leng ths awa y when she observe d the vehicle parke d in her lane with no lights. Consequently
, she slammed on her brake s and swerve d out of the lane to avoid a collision. As she appr oache d the vehicle
, she noticed a man standing behind the vehicle car

rying something. I t appea red the man was g etting rea dy to step off the side of the road. She did n o t n o tice another person near the vehicle. She believed that she would have hit the pa

rked c ar a nd the man if she ha d not been pa ying a ttention. ¶ 6 Acc ording to Yount, the man had an unusual rea ction to almost g etting hit. He g ave her

a “blank stare,” as if he did not car e that he was almost hit by a vehicle, and then continued “doing what he was doing.” S h e considere d stopping to offe r assistance but ultimately decide d ag ainst it beca

use he was a “strang e man” and it wa s d ar k an d afte r midnight. Instead, she called the police to reque st an office r be dispatched to assist the man. She noted that the particula

r stretch of road wher e t h e car was parke d was not illumi nated and was under construction. She was driving slower than the speed limit beca use it was very dark and she wa s afr aid of hitting something

. ¶ 7 Minute s l at er , b ef ore the police arrived, the defe ndant was driving home on Pontoon R oad following a night of playing pool at Mac and Mick’s taver n. He was d ri v i n g h i s employ er’ s tow truck. The defe ndant was trave ling in the s ame lane as the pa rked K ia and ultimately collided with the vehicle. His tow truck pushed the Kia 364 fee t until the vehicles

came to rest on a dirt embankment on the north side of the road. The defe ndant then backe d up and lef t the scene of the c rash. ¶ 8 Amber Pace was driving toward the scene of the acc ident when she observe d a tow truck with no front end and no headlig hts trave ling in the opposite direc tion. She believed that the
tow truck was trave ling faster than the speed limit of 30 or 35 miles per hour. Pace observe d the tow truck for approximately 30 to 40 seconds and did not observe i t s we rve. As she

crosse d the railroa d track s, she noticed a wre cked blue SUV on a dirt embankment to her

-3-rig ht. She then noticed a body lying in the middle of the road. She parke d her vehicle in the

road, stopped oncoming traff ic befor e the body was hit, and called 9-1-1. Pace descr ibed the

are a as “not brig htly lit, but *** not pitch dark.” She observe d debris scatter ed over the four lanes of traff

ic. She did not rea liz e a baby was involved in the acc ident until she saw the baby beingput in the ambulance

. ¶ 9 Gar

y Poss lived on the south side of Pontoon R o ad
, n ea r t h e ar ea wh er e the cr ash

occur red. That night, he hear d a “massi v e n o i s e, ” which sounded like an explos ion. After hear ing the noise of the cra sh, he walked to the scene and observe d a “massive amount” of debris in the s t re et an d a lot of smoke. He also observe d the taillights of a larg e vehicle rapidly leaving the scene

. He opined that the truck was rapidly leaving the scene beca use it

was “bouncing all over the railroa d trac ks.” He did not see the SUV until the next morning

. He testified that many of the streetlig hts in the are a wer e remove d due to the construction of

a new overpa ss. Howeve r, some near by businesses had larg e parking lot lights that provided the ar ea w ith some ill umination. ¶ 10 Arriving at the scene s h o rt l y afte r the acc ident, Gra nite City police office r Eric B ailey observe d a body lying in the road and noted the individual was dece ased. He also observe d debris on the road. He testified that an infant was injured in the vehicle cra sh, but he did not see the baby

until he observed the baby beingput in the ambulance

. ¶ 11 Michae l Miz e observe d the damag ed tow truck sitti ng in the middle of the road when he

was driving on West Pontoon Road on the night of the acc ident. Acc ording to Miz e, the tow truck had signific ant front-e nd damag e and did not have front headlig hts. He noticed the tow truck beca

use he thought it peculiar that the truck would be at the acc ident scene befor e any

emer g ency vehicles. He observe d the truck leave the scene and decide d to follow it beca use it was obvious that a car acc ident had occur red. As he turned around to follow the truck, he noticed the SUV on the embankment. He followed the truck for approximately six or seven miles until it turned into a drivewa y to a trailer court. Miz e then went to the Pontoon Be ach
p o l i ce d ep artment to repor t the accident. He g ave the office rs at the pol ice department the truck’s license plate number and informed them that he believed the truck had been involved in a hit-and-r

un acc ident. ¶ 12 Sharon Hildreth rec eive d a p h o n e ca ll from the defe ndant at approximately 1 a.m. on November 14, 2008. The defe ndant told her that he had been in a vehicle acc ident, but he did not know what he hit bec ause he had blac ked out. He sa id that the whole fr ont of his truck was damag ed, and he left the acc ident scene beca use he was drunk. She estimated that t he

conver sation lasted 30 to 45 minutes. Whil e on the phone with the defe ndant, sh e h ea rd police o ff

i cer s knocking on his door for approximately 15 to 20 minutes. She knew the knocking was from police office rs beca use the defe ndant told her. Severa l times during the phone conver sation she advised the defe ndant to open the door and talk to the office rs; howeve r, he ref

used beca use he was d ru n k an d scar ed. She char acte rized the defe ndant’s
speec h as slurred and said he was “all over the place .” Howeve r, the defe ndant’s speec h was not so slurred t h at s h e was unable to understand him. He was very emotional during the

conver sation, and he admitted sever al times that he was drunk. After the defe ndant was taken into custody (this occur

red approximately seven hours afte r the cra sh), Hildreth visited him in jail. During the visit, he blamed her for ever y thing and t o l d her that he was drinking

-4-followingthe ac cident bec ause he had a toothac he.

¶ 13 J amie Mi tcher son was on the s ame pool lea gue as the defendant. P rior to the accident, the def endant and Mitcherson wer e play ing pool at Mac and Mick’s taver n until approximately

10:30 or 11 p.m. Mitche rson observe d the defe ndant drinking mix ed drinks throug hout the night, but was unable to say exactl y h o w many drinks the defe ndant had beca use he never persona lly saw the defe ndant order a drink. He did not know how intox icated the defe ndant was that night. Howeve r, h e d id not reme mber seeing the defe ndant without a drink in his hand. He had known the defe ndant for approximately three y ear s, but had neve r see n him “totally intox icated.” ¶ 14 Chris Modrusic, a Pontoon Be ach police office r, was di s p at ch ed t o 2 9 0 0 Sand Road beca use the depar

tment had rec eived a call of a fata l hit-and-r un acc ident and a witness had identified the suspect’s vehicle at this location. He arrived at the residenc e at 12:27 a.m. and identified the truc k as desc ribed by the witness. When he appr oache d the truck, he noticed it had extensive front-e nd damag e and smoke was coming from the eng ine compar tment. As he appr oache d the trailer , he hea rd someone r

unning a round inside. ¶ 15 Gar

y Br ooks, a detective with the Granite City police department, arrived at the trailer afte r Modrusic. Be cause he had order s to make contact with the occ upant of the trailer, he
approa ched and beg an knocking on the doors and windows. He hear d movement inside the trailer, but no one answere d the door. He believed t h at h e k n o ck ed on the door off and on pretty loudly for at least one hour. Af t er approximately 30 to 45 minutes, he could hear snoring coming from inside the t ra i l er. The tow truck was eventua lly impounded by the police depar

tment, and he left to make sure the t ru ck was secur ed inside the depar tment’s
t ow-impound building. He then went to the acc ident scene and transporte d the Kia to t h e impound building befor e returning to the suspect’s tra iler to wait for a sear ch war rant. The

war rant was not executed until approximately 7:20 a.m. on November 14. After the war rant

was obtained, office rs enter ed the trailer and found the defe ndant inside. The defe ndant was taken into custody , and B rooks transpor ted him to the Granite City police depa

rtment. ¶ 16 Kenne th Wojt owicz, a detec tive with th e Gr an i t e C i t y police depar tment, had a brie f

conver sation with the defe ndant befor e he was transporte d to the police depar tment. The defe ndant admitted that he wa s the driver of the truc k. ¶ 17 L at er , wh ile at the station, the defe ndant spoke with Wojt owicz and another offi ce r

conce rning the events of the past n i gh t

. He told the office rs that he drove his tow truck to Mac and M i ck ’s t av ern the previous night to play pool in his pool league. He arr ived at approximately 7:30 or 8 p.m. H e admitted drinking two to three mix ed drinks at the taver n

no later than 9 p.m. Whil e at the taver n, he ate some pizz a at approximately 9:30 p.m. He left the taver n at approximately 10 p.m. and went to Wal-Mart to g et dog food. He told the office rs that he never went into Wal-Mart that night beca use he started fee ling “we ird” and beg an experiencing chest pains. He le ft the Wal-Mart parking lot a nd drove straight home

. He did not have any

thing to drink once he arr ived home. He repe atedly insisted that his truck

was not damag ed and that he was not involved in an acc ident. He maintained that he did not

reme mber noticing any damag e to his truck. He den i ed m aking any phone calls afte r he
returne d home and denied that he was intox icated that night. He also denied hear ing the

-5-police office rs knocking on his doors and windows. He further denied talking on the phone

with a fe male. ¶ 18 The de fenda

nt eventually

admitted that he remembere d hitting s omething, ba ckingup, and then g oing home. He ex plained that he blac ked out and “ snapped to” as a r esult of t he

cra sh. Howeve r, he left without looking to see what he hit, and he did not know that he hit another v eh i cl e. On ce he arr ived home, he called Hildreth. He admitted that he talked to Hildreth a second time befor e the police office rs took him into custody
, and she informed him that he had hit a per son that night. ¶ 19 The office rs prepa red an alcohol influence repor t, which indicated that the defe ndant had red an d/ or g lassy eyes, a dry mouth, and a confuse d appea ranc e. I t also indicated that the office rs detec ted the faint odor of alc o h o l on his brea th. Following the interview, the defe ndant was taken to the eme rg ency room at Gateway

Reg ional Medica l Center because he consente d to a blood and urine sample. The parties stipulated that if Dar eea Patrick-Paiva,

a fore nsic scientist employ ed by the I llinois State Police, was called as a witness, she would testify that, within a rea sonable deg ree of scientific cer tainty
, the results of the defe ndant’s blood test would indicate the prese nce of ethanol at a conce ntration of 0.020 g rams per 100 milli liters. ¶ 20 At trial, Kris Ge bke, a traff ic cra sh rec onstruction office r with the I llinois State Police, testified t hat he arr ived at the accident sce ne at approxi mately 2:30 a.m. on November 14. As part of his r econstruc tion duties, he surveyed the scene , examined the tow truck and the Kia, and took photographs of the are a. He testified that on initial impact, the Kia collapsed from front to rea

r five fee t and the rea

r frame w as ex p o s ed

. T h e tow truck pushed the Kia 3 6 4 fee t and the truck’s final resting place was on top of the car ’s frame. He observe d indentations in the road cause d by the rea r frame of the car being pushed downwar d into the road, but did not observe any preimpac t marks indicating that the tow truck had brake d prior
to impact. He c alculate d the postimpact speed of the t wo vehicles to be 43 miles per hour. He c alculate d the pre impact spee d of the tow truck to be a minimum of 50 miles per hour

. He testified that the speed limit on West Pontoon R o ad wa s 35 miles per hour. He deter mined that the defe ndant did not reduc e his speed prior to the collision and that the primary cause of the cra sh was the defe ndant’s inability to avoid the collision. He conclude d that the lights of the Kia we re turne d off at the time of impact. ¶ 21 Dr. Christopher L ong , the direc tor of the St

. L o u i s Un i v er s i t y S chool of Medicine fore nsic tox icolog y laboratory , testified as an expert in tox icolog y an d re t rogra de extrapolation. Dr. L ong explained that retrograde extrapolation allows for the calc ulation of

a person’ s unknown BA C when blood is drawn sometime afte r a particula r occur renc e. He testified that the formula he used for the retrograde -extrapolation calc ulation was g ener ally

ac ce p t ed in the field of tox icolog y

. In rea ching his conclusions, he analy zed the acc id en t repor t, deposition testimony from the civil case that resulted from the cra sh, the defe ndant’s video statement, and the I llinois State Police laboratory repor t, which indicated that the defe ndant had a 0.020 BA C 10 hours following the cra sh. He also considere d the defe ndant’s actions on the night of the cra sh and the police descr iption of the acc ident. He also discussed the incident wi t h t h e d ef endant’ s neig hbor. Dr. L ong explained that alcohol is g ener ally metabolized at 0

. 0 18 g rams per hour. Ba sed on his calc ulations, he conclude d that the

-6-defe ndant’s B AC at the time of the c rash wa s 0.200 g rams per 100 milli liters. ¶ 22 Dr

. L ong testified that a person’ s height and weig ht had n o ef fe ct o n re t ro gra d e extrapolation, but it should be consider ed whe n conver ting blood a lcohol to the number of drinks consumed. He estimated that the defe ndant had 9 to 11 drinks in his sy stem when the

cra sh occur

red. He explained that food would delay ab s o rpt ion of alcohol; howeve r, he opined that the defe ndant eating a few slices of pizz a betwee n 10 and 11 p.m. had no eff ect

on his calc ulations of the defe ndant’s BA C at the time of the acc ident. He conclude d that the defe ndant was impaired in his ability to safe ly and properly operate a motor v eh i cl e at the time of the cra sh. He maintained that the use of a disinfecting swab containing alcohol would have no eff

ect on the blood test perf

ormed by the I llinois State Police. He conclude d that the
marg in of err or on the BA C test was low beca use the blood sample was run in the duplicate, resulting in rea dings of 0.01999 and 0.02000. He testified that indi v i du al s wi t h a BA C of 0.18 to 0.30 exhibi ted the following sy mptoms: emotional instabilit y , decr ease d inhibiti ons, loss of critica l judgme nt, impairment of mem o ry and compre hension, decr ease d sensory response , increased reac tion time, and som e mus cular incoordination. Dr. L ong noted t hat these sy mptoms mig ht not appea

r in a n individual who routinely perf orms rote tasks under the influence of alcohol, beca use the body is adapta

ble. Howeve r, when require d to perf orm more than just routine tasks, the impairme nt would surfac e. ¶ 23 After the State rested its case , the defe nse called Mary Sloan to the stand. Sloan testified that she play ed i n the same pool league as the defe ndant, and she was at the taver n on the night of the i ncident. S he was able to obs er v e t h e d efendant t hroug hout the ni g ht, and she noted that he wa s drinking a lcohol but did not ex hibit any signs of intox ication. ¶ 24 After leaving Mac and Mi ck ’s t av ern, the defe ndant stopped at Sparky 397 Pub (the d efendant did not mention this second stop during his police interview)

. Mark E d d l em an testified that his family owned the bar. Whil e working at the bar on November 13, Eddleman

was informed that the defe ndant had parke d his tow truck in the cente r of the bar’ s parking lot, a nd it ne eded to be moved. Eddleman spoke to the defe ndant betwee n 11:45 a nd 11:50
p

. m

. and requested that he move the t ruck. He estim ated that the conversation l ast ed fo r a couple of minutes. When asked whether he believed the defe ndant was intox icated, he responde d: “Intox icated–ma y be–yeah, he probably had a few drinks. I knew he had one at my bar, but did he over- intox icate wher e I wouldn’t serve him, no.” Eddleman was involved in a dramshop case a s a re sult of the cra sh. ¶ 25 Fr ed S em k e testified as an acc ident rec onstruction expert for t h e d ef en s e. S em k e examined the pi cture s of t he crash, the damag e to the vehicles, an d Gebke ’s report, which included his calc ulations on the preimpac t and postimpact speeds of the v eh icles. He deter mined that Gebke ’s conclusion conce rning the speed of the tow truck befor e impact was incorre ct. He e x plained that Ge bke’s methodolog y was sound, but opined that Gebke used

an incorre ct drag fac tor coef ficient of friction i n h i s ca lculations. Consequently
, Gebke ’s

ca l culation of the defe ndant’s preimpac t speed was highe r. Semke estimated that the t o w truck’s spe ed bef

ore impac t was betwe en 38 and 47 miles pe r hour. ¶ 26 Ronald Henso n , t h e d ef endant’ s expert in retrograde extrapolation and collection and analy sis procedur es for

blood testing, testified a s follows. Henson testified that the marg in

-7-of err or within a chromatogr aph could g ener ally be as much as 0.0 0 5

. He believed that

perf orming tw o tests would not remove that err or beca use the same machine was used in both tests and the control samples used to calibrate the device usually had a 0.002 marg in of

err or. He claimed that the use of disinfecting swabs containing ethanol could skew the results of the blood test. He note d that he wa s familiar with indepe ndent studies conducted on the disinfecting swabs used in the I llinois State Pol i ce DUI kits, and the results from those

s tudies indicated that the residual liquid squeezed out of the swabs contained an et h an o l

conce ntration of 0.005. ¶ 27 Henson testified that bacte ria could also aff ect the rea ding unless prec autions wer e take n to safe guard ag ainst contamination in reg ard to the collection tube and h an dling of the sample. He explained that the documents he r eviewe d (and which wer e re lied upon by Dr. L ong ) provided no explanation reg arding the prec autions taken when the blood sample was handled. He further explained that the I llinois State Police crime laboratory does not test for
any ty pe of microbial contamination or any ty pe of bacte rial contamination within the blood sample. He opi n ed t h at contamination could s kew the results of t he blood testing by more than 0.02. He a lso testified that endog enous etha nol in the amount of 0.001 to 0.003 could exis t in a person who ha d consumed no a lcohol. ¶ 28 T h e d ef

en d an t re s t ed

. T h e S tate rec alled Dr. L ong to rebut Henson’s te s t i m o n y

conce rning the blood test perf ormed by the I llinois State Police. Dr. L ong testified that Henson made a mathematica l err or in calc ulating the amount o f endog enous alcohol that

co u l d natura lly occur in a person’ s sy stem. Dr. L ong believed that the actua l figure of 0.00016 g rams was an insignifica nt number. Ba sed on his revie w of the I llinois State Police laboratory repor

ts and his training and experience in the field of tox icolog y , he did not have
any doubt reg arding the validity of the 0.02 rea ding in this case

. Fur ther, he noted that even if Henson’s testimony reg arding the 0.005 marg in of err or in chromatogr aph machines was

acc epted, the differ ence s in the retrograde -extrapolation calc ulations would be insignifica nt. ¶ 29 Following closing arguments, the t rial court stated as follows reg arding i t s d ec i sion in the ca se: “Without much comment on the streng ths and weakness[es] of the case prese nted or the evidenc e prese nted I would say this, that having taken all that as true and understanding the obligation on the Court, the law is the law no matter which way it g oes in favor of t he S tate or in favor of t he Defenda nt as applied and int erpr eted as the t rier of fa ct.
I do state ag ain that I am familiar with t h e l aw ap p licable in this case and have revie wed it ag ain during this trial, pre- trial and ag ain during the trial. I am also satisfied that I understand the evidenc e and I have re v i ew ed it and considere d it, and it is my judgme nt that the State has met the burden of proof and the Def endant is found guilty as char g ed.” ¶ 30 On Marc h 30, 2011, the defe ndant filed a m o t i o n fo r j u dg ment of acquittal or in the alternative for a new trial, arguing, inter alia
, that the State failed to prove the defe ndant
guilty beyond a rea sonable doubt (1) of driving under the influence of alcohol, (2) of having

a BA C of 0.08 or more, an d (3) of driving under the influence of alcohol and there by

-8-proxi mately causingthe deaths of Donald L eg ens, Sr., and Dona ld L eg ens, Jr. ¶ 31 On April 27, 2011, the trial c ourt denied the defe ndant’s motion and stated a s follows:

“I did g ive quite a bit of cre dibilit y or cre dence to the expert testimony

. I thought in their individual prese ntation all of the experts, the defe nse and the State, had something
cog ent to say

and mater ial to offer

. But I am satisfied with *** the scienc e prese nted by the St at e’ s ex p ert and his thoroug h knowledg e of it. I do think that *** was eve n demonstrated by his corre ction

on the defe nse’s witness which–whe rein he pointed out an err or in his calc ulations which

was va lid.
The issue of the extrapolation is–when prese nted wi t h the rig ht evidentiar y substructure, is valid and has been acc epted by a lot of Courts. There are way s it can be

wea kened and way s it can be attacke d and way s that it would be found insufficient. But the overvie w that I had, the opinion that resulted wer e t h at t h e corroborating circ umstances, corr oborating testimony was such that I d i d gi v e cre dence to his interpre tation. The lay witnesses’ test i m o n y I did not find to be so much i mpeac hed that it would become unreliable . I

think it was sufficient for the points offer ed.
*** I didn’t find the *** evidenc e *** as to the possible r amifications of the innate alcohol content in the defe ndant’s sy stem or the alleg ed skewing of results beca use of a swab or draw contamination. I acc epted, obviously
, the summary of Dr. L ong and the other evidenc e as prese n t ed in the case that *** did not play a signific ant part in this matter.” There afte r, the trial c ourt denied the defe ndant’s motion. ¶ 32 On May 25, 2011, the sentenc ing h earing was held. The trial court noted that the two convictions for ag g ravated DUI and the two convictions for ag g ravated driving with a BA C of 0.08 or more merg ed for sentenc i n g p u rp o s es. The court also noted that the two convictions for failure to repor t also merg ed for sentenc in g

. The defe ndant offe red mitigating evidenc e in the form of testimony and prese nted a statement in allocution. In announcing the defe ndant’s sentenc e, the trial court noted, as fac tors in mitigation, that (1) the defe ndant had “no g reat history of prior criminal activity” and (2) the defe ndant was unl ikely to commit another crime. F urther, the court noted, as fac tors in ag g ravation, that the s entenc e needed
to deter others from committing t he same crime. The court noted t hat t he d ef en d an t could

rec eive probation under extra o rd i n ary circ umstances; howeve r, it conclude d that extraordinary

circ umstances we re not pre sent in this case. ¶ 33 There afte r, the trial court sentenc ed the defe ndant to 10 y ear s in prison on the ag g ravatedDUI convictions and 5 y ear s in prison on the failure -to-re port convictions. (The court initially sentenc ed him to 11 y ears on the ag g ravated-DU I conviction, but subsequently
enter ed a corr ecte d order reduc ing the sentenc e to 10 y ear s.) The sentenc e for failure to repor t was to run c onsecutively

to the ag gravated-DU Isentenc e. ¶ 34 On J une 10, 2011, the defe ndant filed a motion to modify and reduc e sentenc e, arguing that the trial court err ed at sentenc ing by deny ing his reque st for probation and by failing to

-9-consider all the mitigating fac tors set forth by him at the sentenc ing hear ing. On J uly 5, 2011,

the trial cour

t denied the de fenda

nt’s motion. The defe ndant appe als. ¶ 35 First, the defe ndant argues the State failed to prove beyond a rea sonable doubt that he had a BAC of 0.08 or m ore. Specifically
, he argues t hat retrog rade extrapolation “is in no way reliable enoug h to prove intox ication beyond a re asonable doubt.” ¶ 36 The rele vant inquiry when revie wing a ch al l en ge to the sufficie ncy of the evidenc e is whether
, viewing the evidenc e in a light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the offe nse beyond a rea sonable doubt. People v. Jo h n s o n , 392 I ll. App. 3d 127, 130 (2009). A revie wing court will not reve rse a criminal conviction unless the evi d ence was so unsatisfac tory , improbable, or implausible as to justify

any rea sonable doubt as to the defe ndant’s guilt. People v. Latto , 304 I ll. App. 3d 791, 798 (1999). “The trier of fact has the responsibi l i t y t o d eter mine the credibility of witnesses and the weig ht give n to the ir testimony , to resolve c onflicts in the evidenc e, and to draw r easona

ble infer ence s from that evide nce.” Johnson , 392 I ll. App. 3d at 130. ¶ 37 Ap p l y i n g t h i s standard, we find that the evidenc e was su ff i ci en t t o s up p o rt t h e defe ndant’s convic tions for ag g ravated driving with a blood-alcohol level of 0.08 or more

. Although the defe ndant admits that it is wel l rec og nized that I llinois courts have allowed experts to testify about the theory of retrograde extrapolation, he argue s that retrograde extrapolation is unreliable to prove intox ication beyond a rea sonable doubt. In support of this position, he cites Mata v. State
, 46 S.W .3d 902 (Tex. Crim. App. 2001) ( en banc ), a Texas

co u rt of appea ls case that raised conce rns about rely ing on the theory of retr o gra d e extrapolation. ¶ 38 Howeve r, we note t hat this court in People v . Barham
, 337 I ll. App. 3d 1121, 1133-34 (2003), deter

mined that evidenc e reg arding retrograde extrapolation is admissible as long as it is prese nted by a qualified expert. In Barham
, 337 I ll. App. 3d at 1134, this court conclude d that the State’s ex p er t wa s not qualified to explain retrograde extrapolation beca use no evidenc e was prese nted to indicate that she was qualified by education, training
, or experience

. There fore , this court conclude d that the State fa iled to present a ny qualified witness “to rende r an opinion that [retrog rade ] extrapolation [wa s ] a g ener ally acc epted method in the appropr iate scientific community , that it produce[d] valid results, and that it could be applied to defe ndant in this case .” Id. Be cause retrograde extrapolation was a complex scientific evaluation, “[e]x pert testimony [was] require d i n i t i all y to establish reliability and then its admissibili ty and re levanc e to [the] case .” Id. ¶ 39 In the prese nt c ase, Dr. L ong ’s testimony on the theory of retrograde extrapolation w as

nece ssary to prove the de fenda

nt’s BA C at the time of the cra sh beca use the defe ndant left the sce ne of the cra sh and re mained in his residenc e until the police wer e able to execute a

sear ch war

rant, which did not occur until approximately seven hours afte r the cra sh. Dr. L ong testified as to his qualificati o n s c o n c e r n in g r e tro g rade extrapolation. He explained that he had been the direc tor of the St. L ouis University School of Medicine fo re n s i c tox icolog y laboratory for over 20 y ear s. Prior to that, he was employ ed as the chief tox icolog ist for the I llinois State Police and was also employ ed as a medical examiner for 11 y ear s. He had a bache lor’s degr ee in chemistry
, a master’s degr ee in medical biology , a master’s degr ee in

-10-pharma colog y tox icolog y , and a Ph.D. i n t o x icology

. He was also board cer tified in
tox i co l o gy

. Ba sed on these cre dentials, the trial court conclude d that he was qualified to testify as an e x pert in the fie ld of tox icolog y

. ¶ 40 Dr. L ong then testified that the formula that he used to calc ulate retrograde extrapolation

was g ener ally acc epted in the field of tox icolog y

. He testified that he revie wed the acc ident
repor t, the depositions taken in the civil case reg arding this cra sh, the police repor t, the video interview with the defe ndant, the I llinois State Police laboratory repor t, which indicated that the defe ndant’s BAC was 0.020 approximately 10 hours following the cra sh, and the

corone r’s report. He explained the t heory behind retrog rade extrapolat i o n and the formula used to ca lculate it. He se t f orth his calculations for deter mining that the de fenda

nt’s BA C

was 0.20 at the time of the cra sh. He n o t ed t h at he relied on the I llinois State Police’s laboratory repor

t in making his calc ulations, and he had no rea s o n t o b el i eve that the t ests conducte d by

the I llinois State Police wer e contaminated or unre liable. ¶ 41 The rec ord indicates that the trial court was satisfied with Dr. L ong ’s qualifications, the scienc e behind the the ory of re trog rade extrapolation, a nd Dr. L ong ’s understanding of the subject. Specifica lly
, the trial court noted t h at the issue of retrograde extrapolation was

acc epted as valid by many courts when it was pre s ented with the rig ht evidentiar y substructure. The court also noted that it was satisfied with Dr. L ong ’s thoroug h knowledg e of the theory

. Fr om our revie w of the rec ord, we find no rea son to disturb the trial co urt’s decision to rely on the testimony of Dr. L ong and the theo ry o f retrograde extrapolation. Acc ording ly , the trial cour t corre ctly

deter mined that the State prove d the def endant guilty beyond a reasonable doubt of t wo counts of aggravated drivi ng with a blo o d-alc ohol level of 0.08 or more resultingin two deaths. ¶ 42 Next, the defe ndant argues that the State failed to prove beyond a rea sonable doubt that he was intox icated at the time of the cr ash beca use none of the evidenc e prese nted at trial

reve aled that he exhibi ted any signs of intox ication. The defe ndant notes that no witness, aside from Dr. L ong , testified that he was intox icated or display ed any signs consistent with being intox icated. The State counter s that it wa s not r equire d to show signs of intox ication beca use the defe ndant was convicted of driving with a blood-alcohol conce ntration of more than 0.08 under section 11-501(a )(1) of the I llinois Vehicle Code (625 I L CS 5/11-501(a) (1) (West 2008)), a strict-liability violation. Fur ther, the State argues th at o v er whelming evidenc e was prese nted to support Dr. L ong ’s conclusion that the defe ndant was intox icated at the time of the c rash. We agree with the State. ¶ 43 Her e, the evidenc e prese nted at trial was sufficie nt to support Dr. L ong ’s testimony that the defe ndant was intox icated at t h e t i m e of the cra sh. First, the rec ord reve als that the defe ndant left the scene of the cra sh and drove sever al miles with the entire front of his truck and h eadlig hts missing. He reme mbere d hitting something, but was unawa re that he hit a vehicle with enoug h forc e to push it 364 fee t until it rested on a dirt embankment. Although he denied bein g i n t o x icated, he admitted to drinking two or three drinks while he play ed pool. ¶ 44 Hildreth, the defe ndant’s friend, testified that the defe ndant repe atedly stated that he was intox icated when they wer e talking on the phone on the night of the cra sh. She char acte rized

-11-the defe ndant’s speec h as slurred and stated that “he was all over the place .” Mitcherson, a

member of the defe ndant’s pool team, indicated that he had observe d the defe ndant drinking mix ed drinks throug hout the night. He also indicated that he did not r emember ever seeing the defe ndant without a drink in his hand. Although he observe d the defe ndant drinking
, he

was unsure if the defe ndant was intox icated. Eddleman, who was fac ing a dramshop lawsuit

as a result of this incident, t estified that it appea red the defe ndant had a few drinks, but he

was not “over ly i n t ox icated” to the point that he would not serve him. The defe ndant was

serve d at least one drink while he w as at Eddlema n’s bar

. ¶ 45 The evidence al s o i n d i ca t ed t h at wh en t h e p o l i ce i n t er v i ew ed the def endant approximately seven hours afte r the cra sh, they detec ted a faint odor of alcohol on his breath. Fur ther, they described the defe ndant as having red and/or g lassy eyes and a co n fu sed
appea ranc e. Although the witnesses indicated that the defe ndant did n o t ex h i b it any overt

s i gn s co n s istent with intox ication, the trial court deter mined that he was guilty of drivi n g under the influence of alc ohol on the night of the cr ash. “O n appea l, we will not substitut e

our judgme nt for that of a trier of fac t in case s wher e the fac ts could lead to either of two infere nces, unless the infere nce acc epted by t h e fac t finder is inhere ntly impossibl e or

unrea sonable.” People v. Lemke
, 349 I ll. App. 3d 391, 398 (2004). Be cause we do not f ind the trial court’s finding s inhere ntly impossibl e or unrea sonable, we find that the State proved the defendant guilty

beyond a re asonable doubt of two counts of ag g ravated DUI resulting in two deaths. ¶ 46 The defe ndant also argues that Dr. L ong improper l y re l i ed on the I llinois State Police laboratory repor

t, which indicated that his BA C was 0.020 approximately 10 hours following the cra sh. Specifica lly
, the defe ndant argues that Dr. L ong was unable to e ntirely eliminate the possibili ty that the blood sample might be contaminated. We disag ree with the defe ndant. ¶ 47 The defe ndant prese nted expert testimony indicating that the chromatogr aph could have

a marg in of err or of as much as 0.005 and contamination of the blood sample could result if the proper proce dures for handling t h e s am p l e wer e not observe d. The defe ndant’s expert noted that the laboratory repor t did not indicate whether these safe guards wer e taken with
reg ard to the defe ndant’s blood sample. In contra st, Dr. L ong testified that he had no rea son to question the validity of t h e 0.020 analy sis of the defe ndant’s blood. He indicated that a marg in of err or in the BAC test was insi g nificant because the bl ood sample wa s run in the duplicate, which resulted in a 0.00001 diffe re n ce (t he first rea ding was 0.01999 and the second was 0.02000). He testified that even if the 0.005 marg in of err or in the chromatogr aph machine was acce pted, t he differe nce to the re trog rade -extrapolation calc ulation would be insignifica

nt. The tri al court acc epted the testimony of Dr. L ong and reje cted Henson’s testimony conce rning the possible contamination of the blood sa mple. The court found Dr. L ong ’s testimony cr ed i b l e an d stated it was satisfied with his thoroug h knowledg e of the subject. As previously explained, deter minations of witness cre dibil i t y and resolution of conflicts in evidenc e are functions for the trier of fac t. There fore
, we conclude that sufficie nt evidenc e exis ted to justify the trial court’s finding that the defe ndant was guilty of ag g ravated driving while under the influence of alcohol resulting in two deaths and ag g ravated driving with a blood-alc ohol level of 0.08 or mor e re sulting in two deaths. ¶ 48 The defe ndant further argues that the State failed to prove beyond a rea sonable doubt that

-12-his intox ication or impairment was the proxi mate cause of the deaths of Donald L eg ens, Sr.,

and Donald L eg ens, J r. Specifica lly
, the defe ndant argues that Donald L eg ens, Sr.’s actions in dang erously leaving his vehicle in the middle of the road without any headlights was the proxi mate ca

use of the c rash. We disagree with the defe ndant. ¶ 49 As explained above, c halleng es to the suffic iency of the evidence in criminal ca ses ar e revie wed by deter

mini n g wh et her the evidenc e is so unsatisfac tory , improbable, or implausible as t o cre ate a rea sonable doubt as t o the defendant’s guilt. Latto , 304 I ll. App. 3d at 798. The offense of ag g ravated DUI is committ ed whe n a per son’s driving under the influence is a proxi mate cause of the victim’s injurie s, not the sole and immediate cause of the injuries. People v. Merritt
, 343 I ll. App. 3d 442, 448 (2003). “Proxi mate cause includes both cause in fac t and leg al cause .” Johnson
, 392 I ll. App. 3d at 131. In the prese nt case , the defe ndant argues the State failed to prese nt s u ff i ci en t evidenc e to prove cause -in-fa ct proxi mate cause

. The cause -in-fa ct req u i re ment of proxi mate cause is prese nt when

rea sonable c erta inty

exis ts that the defe ndant’s ac tions caused the injury or dama g e. Id. ¶ 50 Her e, the defe ndant was found guilty of t wo counts of aggr av ated driving with a B AC of 0.08 or more resulting in two deaths and two counts of agg ravated driving under the influence of alcohol re s ulting in two deaths. Section 11-501(a )(1) of the I llinois Vehicle Code (625 I L CS 5/11-501(a) (1) (West 2008)) provides that a person shall not drive or be in
actua l phy sical control of any vehicle while the alcohol conce ntration in the person’ s blood is 00.08 or more. Section 11-501(a )(1) is a strict-liability violation and does not require proof of impairment. People v. Martin
, 2011 I L 109102, ¶ 26. Be cause proof of impairment is not require d under this section, proxi mate cause require s the State to show a causa l link betwee n the phy sical act of driving and another person’ s death. Id. Howeve r, the S t at e m ay be require d to prove impairment under cer tain ag g ravated-DUI ch ar ges. “[W ]hether proof of impairment is nece ssary t o sustain a conviction for ag g ravated DUI under section 11- 501(d)( 1)(F ) dep e n d s u

p o n wh e th e r im

p a ir me nt is an element of the underly ing misdemeanor DUI .” Id. A p er s o n co mmits ag gravated DUI under section 11-501(d) (1)( F) of t he I llinois Vehicle Code (625 I L CS 5/11-501(d)( 1)(F ) (West 2008)) when the person is d ri ving a vehicle under the influence of al co h o l an d that results in the death of another person. The DUI violation must be the proxi mate cause of the death. 625 I L CS 5/11-501(d)( 1)(F ) (West 2008). When the underlying misdemeanor DUI is driving under the influence of alcohol (625 I L CS 5/11-501(a) (2) (West 2008)), impairment is an el em ent of the offe nse. Be cause impairment is an element o f this offe nse, the State must show that impairment was a proxi mate ca

use of the de ath. See Martin , 2011 I L109102, ¶ 26. ¶ 51 In this case , the defe ndant argues that the State failed to prove that his actions of driving under the influence of alcohol or d ri v i n g wi th a BA C of 0.08 or more was the proxi mate

cause of the deaths of Donald L eg ens, Sr., and Donald L eg ens, J r. The defe ndant notes that Donald L eg ens, Sr., cre ated a dang erous situation by parkinghis darkly colore d vehicle on the road wi t h n o h eadlig hts at night. In support of his argument, the defe ndant points to Yount’s testimony that she did not observe the SUV until she was two car leng ths awa y , and she was forc ed to swerve into another lane to avoid hitting it. Howeve r, as noted by the trial
court , t h i s fa ct also indicates the opposite, i.e.
, that a sober driver, driving the speed lim it, had time to rea ct and take evasive action. The rec ord reve als that the defe ndant failed to take

-13-any evasive action to avoid the cra sh. The State’s acc ident rec onstructionist testified that the

defe ndant neve r ap p l i ed his brake s, his preimpac t speed was a minimum of 50 miles per hour, and he pushed the Kia 364 fee t until it was stopped by a dirt embankment. The defe ndant admitted to his friend th at he was drunk and that he had blacke d out. Severa l witnesses testified that he was drinking on the night of the acc ident. As previously explained, the State prese nted sufficie nt evidenc e to prove the defe ndant was intox icated at the time of the cra sh. Acc ording ly
, the State prese nted sufficie nt evidenc e to prove beyond a rea sonable doubt that the defendant’s actions of phy sically drivingthe tow truck a

nd of driving under the influenc e of a lcohol cause d the deaths of Donald L eg ens, Sr., and Dona ld L eg ens, Jr. ¶ 52 The defe ndant also argues that his sentenc e was an abuse of discretion. Specifica lly , he
argues the trial court failed to consider all the mitigating fac tors that wer e prese nted by him duringsentenc ing, a

nd the court abused its discretion by denying his reque st for probation as he pr oved extraordinar y circ umstances e x isted to justi fy a sente nce of

probation. ¶ 53 We initially note that the State filed a motion to cite additional authority
, which this c ourt order ed taken with the case on May 4, 2012. In its motion, the State soug ht permission to cite People v. Hill
, 2012 I L App (5th) 100536, as support for its argument that this case did not

war rant a sentenc e of probation. W e hereby g rant the State’s m o tion and consider t he Hill

case when deter

mining whether the trial court abused its discretion in denying the defe ndant’s re quest for pr obation. ¶ 54 The leg islature has established the rang e of sentenc es permissible for a p a r tic ular off ense. People v. Fern
, 189 I l l

. 2 d 4 8, 53 (1999). “Within that statutory rang e, the trial court is char g ed with fashioning a sentenc e based upon the particula r circ umstances of the individual

case , including the nature of the offe nse and the char acte r of the defe ndant.” Id. at 55. A trial court’s s e nte n c in g d e te r

mi n a ti on is g iven g reat defe renc e beca use that court, having observe d the defe ndant and the proce eding s, is in a better position to consider the par t i cular circ umstances of eac h case , such as the d efendant’s cre dibilit y , demea nor, g ener al moral char acte r, mentality
, social environment, and habits. People v. W inningham
, 391 I ll. App. 3d 476, 485 (2009). There fore
, the revie wing court must proce ed wi t h great caution when considering the trial court’s sentenc e, and it must not substitut e its own judgme nt for that of
t h e trial court just beca

use it would have weig hed the fac tors differ ently

. Id. “A s en t en ce within statutory limit s will not be deeme d excessive unless it is g reatly at varia nce with the spirit and purpose of the law or manifestly d i s p ro portionate to the nature of the offe nse.” Fern
, 189 I ll. 2d at 54

. Acc ording ly
, a revie wing court may not reduc e the defe ndant’s
sentenc e unless the sentenc e constitutes an abuse of discre tion. W inningham , 391 I ll. App. 3d at 485. ¶ 55 P u rs u an t to section 11-501(d) (2)( G)(ii) of the I llinois Vehicle Code (625 I L CS 5 / 1 1

- 501(d)( 2)(G) (ii) (West 2010)), a person convicted of ag g rava ted DUI
, which resulted in the death of two or more persons, shall be sentenc ed to a term of imprisonment of not less than 6 y ear s and not m o re t h an 2 8 year s unless the court deter mines that extraordinary circ umstances e x ist and require probation. ¶ 56 In the instant case , the defe ndant argued that seven fac tors in mitigation wer e prese nt in this case , i.e.
, he did not contemplate that his crimi n al conduct would cause or threaten

-14-serious phy sical harm to another
, substantial g rounds exis ted to justify his criminal conduct,

he coope rate d with a civil suit broug ht by the victim’s w ife as a re sult of this crash, he ha d

n o h istory of prior delinquency or criminal activity
, his criminal conduct was the re s u l t o f circ umstances unlikely

to reoc cur, his char acte r and attitude indicated that he wa s unlikely
to commit another crime, and he was particul ar l y l i kely to comply with the conditions of probation. ¶ 57 After revie wing all the evidenc e, the trial court deter mined that not “much of what [t he defe ndant arg ued] rea lly [ resulted] in mitigation.” I nstead, the court considered, as fac tors in mitigation, that the defe ndant had no history of prior criminal activity and that he was unlikely to commit another crime. After c a r e f ully considering the circ umstances surrounding the acc ident, the mitigating and ag g rava t i n g fac tors, the arguments conce rning sentenc ing alternatives
, an d the prese ntence repor t, the court sentenc ed the defe ndant to 10 y ear s’ imprisonment on the ag g ravated-DU I convictions. Given our highly defe rential standard of revie w, we conclude that the trial court’s consideration of only two of the seven mitigating fac tors prese nted by

the def endant wa s not an abuse of discretion. ¶ 58 Also, during sen t en ci n g, t h e defe ndant reque sted that the trial court sentenc e him to probation beca

use he proved the exis tence of extraordinary circ umstances. Specifica lly
, the defe ndant n o t ed t hat he was not the s ole cause of the vehicle cra sh. Instead, the defe ndant
argues that Donald L eg ens, Sr.’s decision to take his infant son out at midnight and park his vehicle in the road with no illumi nation was a fac tor in the acc ident. He also noted that the evidenc e reve aled that L eg ens was intox icated and had coca ine in his sy stem at the time of the cr ash. ¶ 59 As explained above, the trial court can impose a sentenc e of probation for an ag g ravated DUI involving a death when extraordinary circ umstances are p r e s e n t. H o w e v e r , the exis tence of extraordinary circ umstances is rar e. W i n n i n gh a m , 391 I ll. App. 3d at 483. “The

ex t raor dinary circ umstances require d for probation are matters for the trial cou rt ’s discretion.” Hill
, 2012 I L App (5th) 100536, ¶ 28. In Hill
, 2012 I L App (5th) 100536, ¶ 27, the defe ndant argued that extraordinary circ umstances, i.e.
, he was induced to drink alcohol and drive while intox icated at the victim’s sug g estion, war rante d that he rec eive a sentenc e of probation. This court concluded that extraordinary circ umstances were lacking and that the defendant’ s “a t t em p t to blame the victim for his own choices *** [was] without merit and *** not worthy

as a mitig atingfac tor.” Id. ¶ 28. ¶ 60 After car efully revie wing the re co rd
, we ag ree with the trial court that extraordinary circ umstances a

re la cking in this case. The defe ndant’s dec ision to drive while intox icated resulted in the deaths of Donald L eg ens, Sr., and Donald L eg ens, J r. The evidenc e indicated that the defendant did not take any evasive action to avoid t he crash, his tow truck p ushed the Kia 364 fee t befor e it r ested on an embankment, he did not reme mber hitting a vehicle, and then he drove off without chec king on the occupa nts of the vehicle. The fac t that Donald L eg ens, Sr., was intox icated and had parke d his vehicle in the road with no illumi nation does
not constitute extraordinary circ umstances to war rant the defe ndant rec eiving a sentenc e of probation. There fore
, we find that the trial court’s sentenc e of 10 y ear s’ imprisonment does not amount to an abuse of discretion.

-15-¶ 61 For the fore g oing rea sons, the judgme nt of the circ uit court of Madison County is he reby

aff irmed.

¶ 62 Affir

med.

-16-