                                                                                      FILED
                                                                                 May 31 2018, 8:54 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ruth Ann Johnson                                          Curtis T. Hill, Jr.
      Victoria L. Bailey                                        Attorney General of Indiana
      Marion County Public Defender Agency
      Indianapolis, Indiana                                     Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John W. Anthony,                                          May 31, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1712-CR-2859
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Marcel A. Pratt,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                49G13-1707-IF-35689



      May, Judge.


[1]   John W. Anthony appeals the trial court’s determination he violated Indiana

      Code section 9-19-19-3, which prohibits driving “with a sign, poster,

      sunscreening material, or other nontransparent material upon the front

      windshield, side wings, or side or rear windows of the vehicle that obstructs the


      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018                       Page 1 of 8
      driver’s clear view of the highway or an intersecting highway.” As the State did

      not present any evidence to prove Anthony violated that statute, we reverse.



                             Facts and Procedural History
[2]   On July 25, 2017, Indianapolis Metropolitan Police Department Officer

      Kenneth Greer observed a car being driven by Anthony. The car “had plastic

      bags of trash, canned foods, clothes, piled from the bottom of [its] floor to the

      ceiling . . . on the dashboard and along the side windows and rear windows.”

      (Tr. Vol. II at 6.) After looking around the car and being able to see in only the

      driver’s window, Officer Greer issued a citation to Anthony for violation of

      Indiana Code section 9-19-19-3.


[3]   On November 13, 2017, at a bench trial, Anthony represented himself and

      denied violating the statute. Throughout his testimony Anthony repeatedly

      noted the statute prohibits “nontransparent material upon the” windows, Ind.

      Code § 9-19-19-3 (emphasis added), and argued he “didn’t have nothing on the

      windshield. [He] didn’t have nothing on the side windows. [He] did have

      items in the automobile.” 1 (Tr. at 13) (errors in original).




      1
        Anthony submitted a picture of his vehicle as Defendant’s Exhibit A. An affidavit from the court reporter
      indicates the Exhibit was admitted but could not be located when the Exhibit volume was being prepared for
      appeal.

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018                          Page 2 of 8
[4]   The State, during its cross-examination of Anthony, told Anthony he was not

      understanding the statute correctly. The following exchange occurred:


              [State:]      A person may not drive a motor vehicle with a sign,
              poster or non-transparent material, that’s debris, on the front
              windshield, side windows, rear window of the vehicle, obstructs
              the driver’s clear view of the highway or intersection highway.
              You read this?


              [Anthony:] It says nothing on the windshield. I don’t have
              nothing on the windows.


              [State:]          I don’t believe you understand what I’m saying, sir.


              [Anthony:] I understand what you’re saying. I understand what
              I’m reading too.


              [State:]      So you do understand that non-transparent
              materials is not a decal? That’s not a sticker. It’s any non-
              transparent material, do you understand?


              [Anthony:] Yeah, it’s not on the windows. It’s in the vehicle.


              [State:]     That’s correct and as you can see here, it actually
              says that you cannot have those things inside your vehicle to
              obstruct your view of the highway.


      (Id. at 17.) The trial court found Anthony had committed the violation and

      assessed a fine. Anthony paid the fine and filed this appeal.



                                 Discussion and Decision
      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018          Page 3 of 8
                                          Statutory Interpretation

[5]   Anthony was cited for violating Indiana Code section 9-19-19-3, which

      provides:


              (b) A person may not drive a motor vehicle with a sign, poster,
              sunscreening material, or other nontransparent material upon the
              front windshield, side wings, or side or rear windows of the
              vehicle that obstructs the driver’s clear view of the highway or an
              intersecting highway. However, signs, posters, or other
              nontransparent material not larger than four (4) inches square
              may be placed upon the front windshield, side wings, or side or
              rear windows in the lower corner farthest removed from the
              driver’s position.


[6]   Anthony asserts the “State presented no evidence of any nontransparent

      materials upon [his] windshield or windows[.]” (Appellant’s Br. at 7)

      (formatting changed). Although Anthony concedes his car had items stacked to

      the ceiling, he argues the statute requires the items to be upon the windows and

      they were not. The State argues the legislature’s intent was to prevent drivers

      having their view obstructed by items blocking the windows. Further, it argues

      the word “upon” should be construed broadly and not just mean “affixed”

      because the legislature uses that word in other statutes and would have used it

      here if it meant the nontransparent material only applied to items affixed to the

      windows. (Appellee’s Br. at 7-8.) The crux of the parties’ arguments, and thus

      our review, focuses on the meaning of the word “upon.”


[7]   When faced with a question of statutory interpretation, our review is de novo. In

      re M.W., 913 N.E.2d 784, 786 (Ind. Ct. App. 2009). We first decide if the

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018       Page 4 of 8
      statute is ambiguous. Id. If not, we need not and do not interpret it, but instead

      apply its plain and clear meaning. Id. If the statute is susceptible to more than

      one reasonable interpretation, it is ambiguous, and we must determine the

      legislature’s intent so that we can give effect to that intent. Maroney v. State, 849

      N.E.2d 745, 748 (Ind. Ct. App. 2006). Statutes must be read in harmony with

      related statutes. St. Margaret Mercy Healthcare Ctrs., Inc. v. Poland, 828 N.E.2d

      396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the legislature intended

      statutory language to be applied in a logical manner consistent with the statute’s

      underlying policy and goals. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct.

      App. 2003).


[8]   “Upon” was defined in Clark v. Clark, 971 N.E.2d 58 (Ind. 2012), a case that

      interpreted Indiana’s Guest Statute. 2 Our Indiana Supreme Court held:


              The word “upon,” both at the time it was originally added to the
              Guest Statute, see Act of Mar. 11, 1937, ch. 259, § 1, 1937 Ind.
              Acts 1229, and when the statute was most recently amended, see
              Pub.L. 68-1984, 1984 Ind. Acts 925, should be given its literal
              meaning: “[u]p and on” or simply “on.” The New Century
              Dictionary 2112 (1929); American Heritage Dictionary 1328 (2d
              college ed. 1985). Being “in or upon the motor vehicle” thus
              connotes a physical connection to or contact with the vehicle,
              such as being “in” a car or “upon” a motorcycle or truck bed. . .
              . Thus, if the injury is sustained at a time when a passenger is in
              mere physical contact with the motor vehicle but standing




      2
        Indiana’s Guest Statute provides one is not responsible for damages “arising from injuries to or death of
      [certain family members or hitchhikers] resulting from the operation of a motor vehicle while [those persons
      were] being transported . . . in or upon the motor vehicle[.]” Ind. Code § 34-30-11-1.

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018                           Page 5 of 8
               outside of or off of it or at a time when the passenger is not being
               “transported” by the vehicle, then the Indiana Guest Statute does
               not bar a passenger’s damage action against the driver.


       Id. at 62 (footnotes omitted).


[9]    The plain meaning of the word “upon” has not changed. Simply, it means

       “on.” https://www.merriam-webster.com/dictionary/upon (last visited May

       2, 2018). The definition of the word “on” is “a function word to indicate

       position in contact with and support by the top surface of[.]”

       https://www.merriam-webster.com/dictionary/on (last visited May 2, 2018).

       The word “on” (and thus, the word “upon”) does not merely mean “near” but

       rather “fixed” to or in some way resting atop or dependent on. The word

       “upon” in this statute is not ambiguous. It clearly means the listed items are

       not allowed to be affixed to the windows.


[10]   The State argues the statute should be construed broadly to include the

       circumstances at issue herein. However, the legislature has already seen fit to

       prohibit the operation of a vehicle when the driver’s view of the roadway is

       obstructed by materials loaded in the vehicle. Indiana Code section 9-21-8-43

       provides: “A person may not drive a vehicle when [it] is loaded in a manner . . .

       so as to obstruct the view of the person who drives the vehicle to the front or

       sides of the vehicle.” Because the legislature has already provided a means to

       punish citizens who drive vehicles loaded in a manner that obstructs the driver’s

       view, we need not interpret Indiana Code section 9-19-19-3 so broadly that

       “on” means more than its plain and ordinary meaning. See House of Prayer

       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018        Page 6 of 8
       Ministries, Inc. v. Rush Cty. Bd. of Zoning Appeals, 91 N.E.3d 1053, 1063-64 (Ind.

       Ct. App. 2018) (if the language of the statute is plain, the “judiciary has no

       discretion to substitute different language for that of the statute[;]” however,

       even if the language is ambiguous, the judiciary “would be obliged to avoid

       interpreting it” in a way that would lead to an absurd result).


                                          Sufficiency of the Evidence

[11]   “[T]raffic infractions are civil, rather than criminal, in nature and the State must

       prove the commission of the infraction by only a preponderance of the

       evidence.” Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans.

       denied. When reviewing a challenge to the sufficiency of the evidence, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). If there

       is substantial evidence of probative value supporting the trial court’s judgment,

       it will not be overturned. Rosenbaum, 930 N.E.2d at 74.


[12]   While there seems to be little doubt Anthony’s vehicle was full of items that

       obstructed his view, those items were not affixed to the windows or dependent

       on the windows for their support. Rather, the items in Anthony’s car were

       resting on the floors, the seats, and the dashboard. By all accounts, his

       operation of the vehicle raised safety concerns because his view was obstructed.
       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018     Page 7 of 8
       However, Indiana Code section 9-19-19-3 does not prohibit an “obstructed

       view,” generally. It prohibits placement of “material upon . . . windows . . .

       that obstructs the driver’s clear view.” Ind. Code § 9-19-19-3. The State did not

       present such evidence. Accordingly, we reverse. See Atteberry v. State, 911

       N.E.2d 601, 611 (Ind. Ct. App. 2009) (“State’s failure to properly charge . . . is

       no mere technicality . . . the State must prove the elements of the crime it

       charged, not the elements of some other crime the defendant may have

       committed.”).


[13]   Reversed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2859 | May 31, 2018    Page 8 of 8
