                                                                                   FILED
                                                                              Jan 24 2019, 8:35 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Jon A. Keyes                                                Curtis T. Hill, Jr.
      Allen Wellman McNew Harvey, LLP                             Attorney General of Indiana
      Greenfield, Indiana
                                                                  Tyler G. Banks
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Robert E. Dunham,                                           January 24, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-IF-1442
              v.                                                  Appeal from the Henry Circuit
                                                                  Court
      State of Indiana,                                           The Honorable David L. McCord,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  33C03-1803-IF-868



      Shepard, Senior Judge.


[1]   The General Assembly has established a weight limit for heavy equipment on

      highways, but there is an exception for farm drainage machinery. Robert E.

      Dunham appeals the trial court’s determination that he violated the weight




      Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019                             Page 1 of 6
                                           1
      limit, a Class C infraction, claiming his equipment fell under the exception.

      We reverse.


                                                       Issue
[2]   Dunham raises three issues, which we restate as: whether the court erred in

      determining he was guilty of a Class C infraction.


                                   Facts and Procedural History
[3]   The facts are not in dispute. Robert Dunham worked for Drainage

      Construction Unlimited, Inc. (DCU), a company specializing in farm drainage

      work. The Henry County Drainage Board hired DCU to install drain tiles at a

      farm near the intersection of Interstate 70 and Indiana Highway 3.


[4]   On February 26, 2018, Dunham installed drain tiles on the farm using an

      excavator. When he was finished, Dunham put the excavator on a trailer and

      towed the trailer away from the farm by truck.


[5]   On the way back to DCU’s office, Dunham was pulled over by Indiana State

      Trooper Todd Wallace. Dunham told Wallace he had been doing excavation

      work for the county. Wallace asked Indiana State Trooper Brandon Steffey to

      weigh the truck, trailer, and excavator. This was accomplished, and Steffey




      1
          Ind. Code § 9-20-18-12 (2016).


      Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019     Page 2 of 6
      determined the truck, trailer, and excavator collectively weighed 85,300

      pounds, in violation of the statutory limit of 80,000 pounds.


[6]   Steffey issued a citation to Dunham for exceeding the weight limit. Appellant’s

      App. Vol. 2, p. 6. Dunham contested the ticket, and the trial court held a bench

      trial on May 11, 2018. The court determined Dunham was guilty of a Class C

      infraction and imposed a fine of $35.50, plus $135.50 in court costs.


                                     Discussion and Decision
[7]   Dunham argues the trial court erred in determining he had violated the weight

      limit for heavy equipment on state highways. The parties agree this appeal

      presents a question of law, which we review de novo with no deference to the

      trial court’s decision. Seel v. State, 739 N.E.2d 170 (Ind. Ct. App. 2000).


[8]   Indiana Code section 9-20-4-1 (2016) states a person may not operate a vehicle

      or combination of vehicles upon a highway if the “overall gross weight” of the

      vehicle or vehicles exceeds “eighty thousand (80,000) pounds.” A person may

      not operate “or move upon a highway” a vehicle or combination of vehicles

      exceeding the weight limit. Ind. Code § 9-20-1-1 (2016). Violation of the

      weight limit is a Class C infraction. Ind. Code § 9-20-18-12. Dunham does not

      deny that DCU’s truck, trailer, and excavator were subject to these statutes, and

      he concedes that the truck, trailer, and excavator collectively exceeded the

      statutory weight limit.




      Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019          Page 3 of 6
[9]    Dunham instead claims the equipment was subject to a statutory exception to

       the weight limit. The limit set forth in Indiana Code section 9-20-4-1 does not

       apply to the following:


               (1) Machinery or equipment used in highway construction or
               maintenance by the Indiana department of transportation,
               counties, or municipalities.


               (2) Implements of agriculture when used during farming
               operations or when constructed so that the implements can be
               moved without material damage to the highways.


               (3) Farm drainage machinery.


       Ind. Code § 9-20-2-2(b) (2007).


[10]   This appeal thus hinges on the term “farm drainage machinery,” which is not

       defined in Title 9, Article 20. Dunham argues in part that the term is

       ambiguous, and the truck, trailer, and excavator are covered by the exception.

       The State responds that the exception does not apply because Dunham was not

       using the equipment for farm drainage work at the precise moment when the

       state trooper stopped him.


[11]   The parties have not directed us to any cases interpreting section 9-20-2-2, but

       we may rely on well-established principles of statutory construction. If the

       language of a statute is unambiguous, we simply give the language its plain,

       ordinary, and usual meanings. Dobeski v. State, 64 N.E.3d 1257 (Ind. Ct. App.

       2016). A statute is ambiguous when it allows more than one reasonable


       Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019      Page 4 of 6
       interpretation. Day v. State, 57 N.E.3d 809 (Ind. 2016). If a statute is

       ambiguous, we resort to the rules of statutory construction to fulfill the

       legislature’s intent. Id. Penal statutes are to be strictly construed against the

       State and ambiguities are to be resolved in favor of the accused. State v. Turner,

       567 N.E.2d 783 (Ind. 1991). A monetary judgment entered upon a finding of a

       violation of an infraction is the functional equivalent of a penal fine. Horne v.

       State, 572 N.E.2d 1333 (Ind. Ct. App. 1991), trans. denied.


[12]   The “farm drainage machinery” exception is not limited by its plain language to

       machinery that is actively being used to do drainage work. By contrast, the

       General Assembly set forth specific limitations on the other two exceptions

       listed in section 9-20-2-2(b). Machinery or equipment used in highway

       construction or maintenance is exempt only if owned by government entities.

       Implements of agriculture are exempt only if they are used during farming

       operations or when they are constructed so that the implements can be moved

       without material damage to the highways. Generally, when the legislature uses

       particular language in one section of a statute but omits it in another section, we

       presume that it is intentional. In re J.B., 61 N.E.3d 308 (Ind. Ct. App. 2016), on

       reh’g.


[13]   The farm drainage machinery exception may be reasonably read to apply to

       Dunham’s equipment. We conclude Indiana Code section 9-20-2-2(b)(3) is

       ambiguous as applied to the facts of this case. Under the rule of lenity, the

       ambiguity is construed against the State, and Dunham was entitled to prevail.

       See Turner, 567 N.E.2d at 784 (reversing truck driver’s conviction for carrying a

       Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019         Page 5 of 6
       handgun without a license; the term “express company” as set forth in an

       exception to the licensing requirement was ambiguous and construed against

       State).


[14]   The State claims that under Dunham’s interpretation, the farm drainage

       equipment exception could apply to any equipment being hauled on state

       highways that could conceivably be used in farm drainage work, thereby

       frustrating Indiana Code section 9-20-4-1’s purpose of preventing wear and tear

       to roads. We share the State’s concern, and our holding is limited to the facts

       before us: the equipment in question had just been used to perform farm

       drainage work, and Dunham was transporting it directly to the office after

       finishing the work. We express no opinion as to how the ambiguity in the

       statutory exception would apply to different facts, except to note that the

       burden of proof and persuasion generally falls on the litigant claiming the

       benefit of an exemption.


                                                  Conclusion
[15]   We reverse the judgment of the trial court.


[16]   Reversed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-IF-1442 | January 24, 2019      Page 6 of 6
