Randi Setto v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 28 2018, 11:21 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Evelyn Lecia Keaton Curtis T. Hill, Jr.
Law Office of Evelyn Keaton Attorney General of Indiana
Indianapolis, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randi Setto, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-IF-854
v. Appeal from the Whitley Superior
Court
State of Indiana, The Honorable Douglas M. Fahl,
Appellee-Plaintiff. Judge
Trial Court Cause No.
92D01-1709-IF-3171
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 1 of 8
[1] Randi Setto appeals the trial court’s finding that he disregarded a traffic signal,
a class C infraction. He raises two issues which we revise and restate as:
I. Whether the evidence is sufficient to prove Setto disregarded a
traffic signal; and
II. Whether the trial court erred in imposing a fine.
We affirm.
Facts and Procedural History
[2] On September 6, 2017, Indiana State Trooper Joel Lemmon was traveling
westbound in the passing lane of US 30 between State Road 109 and Armstrong
Drive and attempting to pass Setto’s semi-truck when he noticed that they were
approaching a mowing crew and slowed down. Setto turned on his turn signal
and moved over into the passing lane which “made [Trooper Lemmon] slam on
[his] brakes and make evasive action.” Transcript Volume II at 6. Trooper
Lemmon looked up and observed that the traffic light at Armstrong Drive was
red when Setto entered the intersection and proceeded through the red light.
Trooper Lemmon initiated a traffic stop and cited Setto for driving through the
signal.
[3] On September 11, 2017, the State filed an infraction citation against Setto. On
March 21, 2018, the court held a bench trial. On direct examination, Trooper
Lemmon testified as follows:
[Setto] put his turn signal on, moved over, made me slam on my
brakes and make evasive action. Also, the guy behind me had to
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 2 of 8
slow quickly to allow him to come into the passing lane, which
he did. Uh, he didn’t give me very much room to maneuver.
Uh, at that point, I looked up and we approached the Armstrong
light, which was red when we entered the intersection, and we
proceeded through the red light.
Id. Trooper Lemmon testified that they “had a long argument ‘cause he
wouldn’t allow me to explain to him the violations I witnessed. So, it was a
long argumentative stop.” Id. at 6-7. When asked if he could see the lights
controlling the intersection, Trooper Lemmon answered: “Yes, sir. I saw it
clear as day.” Id. at 7. He also explained that he pulled off onto the berm. The
following exchange then occurred:
Q And it’s my understanding, sir, from that perspective, you
were able to clearly see that it was a red light. And, could you . .
. could you tell from that perspective, uh, whether or not the
vehicle in front of you, that was operated by Randi Setto, uh,
entered that intersection, uh, prior to or . . . or after the light had
turned red?
A It was prior to and also east of the white line prior to the
intersection when it was red.
Q So, he had not made it to through the intersection when the
light turned red.
A He was not into the intersection when it was red.
Id. at 8. On cross-examination, Setto’s counsel asked Trooper Lemmon, “Are
you saying that the light turned red after he committed to the intersection or
before he went into it?” Id. Trooper Lemmon answered: “The light was red
prior to him even getting to the white line, which indicates that the intersection
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 3 of 8
starts at U.S. 30. So, he was east of the light . . . or, the white line when it was
red.” Id. at 9.
[4] After the parties rested, the prosecutor argued that Trooper Lemmon was lucky
he did not make contact with the vehicle that cut him off, that Setto could have
received additional citations, and that Setto was screaming at a law
enforcement officer trying to keep people safe and was not polite. The
prosecutor asked the court to impose a maximum fine. Setto’s counsel stated
that Setto had “something of an animated personality” and that “some of what
the officer experienced was Mr. Setto being Mr. Setto . . . .” Id. at 11. The
court entered judgment against Setto and imposed the maximum fine of $500
fine and court costs of $135.
Discussion
I.
[5] The first issue is whether the evidence is sufficient to prove Setto disregarded a
traffic signal. Traffic infractions are civil in nature. Rosenbaum v. State, 930
N.E.2d 72, 74 (Ind. Ct. App. 2010), trans. denied. As such, the State must prove
the commission of an infraction by a preponderance of the evidence. Id. When
reviewing a challenge to the sufficiency of the evidence, we will neither reweigh
the evidence nor judge the credibility of witnesses. Id. Rather, we look to the
evidence that best supports the judgment and all reasonable inferences to be
drawn therefrom. Id. If there is substantial evidence of probative value
supporting the trial court’s judgment, it will not be overturned. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 4 of 8
[6] Setto appears to argue that there is insufficient evidence to support the
infraction because Ind. Code § 9-21-3-7 does not apply to intersections and
because Trooper Lemmon provided conflicting testimony regarding the color of
the light when he entered the intersection. The State argues that the evidence
regarding the color of the light at the time Setto entered the intersection was not
conflicting. It also contends that Setto’s argument that the statute does not
apply to traffic signals at intersections misreads the statute.
[7] The portions of Ind. Code § 9-21-3-7 relevant to this matter explain the meaning
of the green, yellow, and red lights in a traffic signal and set forth the actions
that are prohibited by vehicular traffic when those lights are displayed.
“Vehicular traffic facing a steady circular yellow or yellow arrow signal is
warned that the related green movement is being terminated and that a red
indication will be exhibited immediately thereafter.” Ind. Code § 9-21-3-
7(b)(2)(A). The statute provides that a “[s]teady red indication” means the
following:
(A) Except as provided in clauses (B) and (D), vehicular traffic
facing a steady circular red or red arrow signal shall stop at a
clearly marked stop line. However, if there is no clearly marked
stop line, vehicular traffic shall stop before entering the crosswalk
on the near side of the intersection. If there is no crosswalk,
vehicular traffic shall stop before entering the intersection and
shall remain standing until an indication to proceed is shown.
Ind. Code § 9-21-3-7(b)(3). A person who violates Ind. Code § 9-21-3-7
commits a class C infraction. Ind. Code § 9-21-3-11.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 5 of 8
[8] In support of his argument that the statute does not apply to intersections, Setto
points to Ind. Code § 9-21-3-7(b)(5), which provides: “This section applies to
traffic control signals located at a place other than an intersection. A stop
required under this subdivision must be made at the signal, except when the
signal is supplemented by a sign or pavement marking indicating where the stop
must be made.”
[9] To the extent that this case requires that we interpret Ind. Code § 9-21-3-7(b),
when interpreting a statute, our primary goal is to fulfill the legislature’s intent.
Day v. State, 57 N.E.3d 809, 812 (Ind. 2016). “[T]he ‘best evidence’ of that
intent is the statute’s language.” Id. (quoting Adams v. State, 960 N.E.2d 793,
798 (Ind. 2012)). “If that language is clear and unambiguous, we simply apply
its plain and ordinary meaning, heeding both what it ‘does say’ and what it
‘does not say.’” Id. (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)).
[10] With respect to Setto’s assertion that Ind. Code § 9-21-3-7(b)(3) does not apply
to intersections, we disagree. As pointed out by the State, Ind. Code § 9-21-3-
7(b)(3)(A) specifically refers to vehicular traffic stopping “before entering the
crosswalk on the near side of the intersection” and “before entering the
intersection.” (Emphases added). We conclude that the plain language of Ind.
Code § 9-21-3-7(b)(3)(A) indicates that it applies to intersections. Based upon
the testimony above and in the record, we conclude that evidence of probative
value was presented from which the trial court could find that Setto disregarded
a traffic signal as a class C infraction.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 6 of 8
II.
[11] The next issue is whether the trial court erred in imposing a fine. Setto asserts
that he “knows he can be obnoxious and it is his way of being in the world on a
regular basis as Mr[.] Setto being argumentative is his normal.” Appellant’s
Brief at 11. He appears to argue that the prosecutor’s argument to enhance the
fine based upon his argumentative behavior violates his right to free expression.
The State argues that Setto’s challenge to his fine is waived for failure to make a
cogent argument and that, waiver notwithstanding, Setto’s claim fails. The
State asserts that the record does not show that Setto’s behavior was the reason
why the court imposed a $500 fine, that Setto’s behavior prolonged the length
of the stop and increased the risk of danger to passing motorists, the officer, and
himself, and that Setto engaged in multiple traffic violations including recklessly
pulling his semi-truck over into the passing lane right in front of another
vehicle.
[12] Ind. Code § 34-28-5-4(c) provides in part that “a judgment of up to five hundred
dollars ($500) may be entered for a violation constituting a Class C infraction.”
With respect to Setto’s free speech argument, Setto cites only Whittington v.
State, 634 N.E.2d 526 (Ind. Ct. App. 1994), reh’g denied, vacated, which
addressed a conviction for disorderly conduct, and which was vacated by the
Indiana Supreme Court. See Whittington v. State, 669 N.E.2d 1363 (Ind. 1996).
Further, Setto does not point to authority that a trial court must consider certain
factors before imposing a fine that is authorized by statute. We cannot say that
Setto has demonstrated that the trial court erred when it imposed a $500 fine.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 7 of 8
Conclusion
[13] For the foregoing reasons, we affirm the trial court.
[14] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-IF-854 | September 28, 2018 Page 8 of 8