                                                                  FILED
                                                             Apr 19 2017, 10:10 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




APPELLANT PRO SE                                            ATTORNEYS FOR APPELLEE
Philip R. Davis                                             Curtis T. Hill, Jr.
Fort Wayne, Indiana                                         Attorney General of Indiana
                                                            Lyubov Gore
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Philip R. Davis,                                            April 19, 2017
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            02A05-1609-IF-2026
        v.                                                  Appeal from the Allen Superior
                                                            Court
State of Indiana,                                           The Honorable John F. Surbeck,
Appellee-Plaintiff                                          Jr., Judge
                                                            The Honorable Jason C. Custer,
                                                            Magistrate
                                                            Trial Court Cause No.
                                                            02D06-1605-IF-7263



Baker, Judge.




Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017                 Page 1 of 11
[1]   Philip Davis appeals following a judgment against him for the civil infraction of

      speeding. He argues that the trial court erred by denying his motion to dismiss

      and that the trial court made erroneous evidentiary rulings. Finding no

      reversible error, we affirm.


                                                       Facts
[2]   Around 6:00 p.m. on May 13, 2016, Fort Wayne Police Sergeant John Shank

      was on duty and observing traffic in an area with a speed limit of thirty miles

      per hour. Sergeant Shank noticed a red Cadillac driving southbound in the

      middle lane. The vehicle was driving faster than the cars on either side of it and

      had an expired license plate. Sergeant Shank’s handheld radar unit showed that

      the vehicle was traveling at a speed of forty-nine miles per hour. He followed

      the vehicle and initiated a traffic stop.


[3]   Sergeant Shank approached Davis, the driver of the Cadillac, and asked him for

      his license and registration. As for the expired license plate, Davis claimed that

      he had paid his license registration fees but had not yet received the tag back

      from the State. The sergeant gave Davis the benefit of the doubt on the expired

      license and then issued an electronic speeding ticket. The ticket had Sergeant

      Shank’s name, badge number, and police agency electronically printed on it.


[4]   On May 18, 2016, the State filed a complaint and summons alleging that Davis

      had committed the infraction of speeding. The complaint and summons also

      had Sergeant Shank’s name, badge number, and police agency electronically

      printed on them, as well as a signature by the deputy prosecutor.

      Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 2 of 11
[5]   On August 2, 2016, Davis filed a motion to dismiss, arguing that the case

      should be dismissed because Sergeant Shank’s printed name on the ticket,

      complaint, and summons did not constitute a signature. The trial court denied

      the motion, finding that a non-electronic signature was not required by statute

      and that if there was a defect, it was a mere technicality that did not have the

      effect of preventing the reasonable objectives of the statutorily prescribed

      requirements from being met.


[6]   Davis’s jury trial was held on August 4, 2016. Before trial, Davis informed the

      trial court that he intended to introduce records of his vehicle’s maintenance,

      which were dated after May 14, 2016. The State objected on relevance

      grounds, on grounds that the exhibit was not on any exhibit list, and on

      foundational grounds because no witness would be called to support the

      admission of the exhibit. The trial court sustained the State’s objection. Davis

      did not attempt to introduce the exhibit at trial or make an offer of proof.


[7]   At trial, Davis admitted that he was driving at a speed of forty-nine miles per

      hour in an area with a speed limit of thirty miles per hour. He insisted that he

      did this out of necessity because his vehicle was overheating at the time and he

      was attempting to get the vehicle home or to a mechanic. To address Davis’s

      necessity defense, the State sought to elicit testimony from Davis regarding the

      type of specialty license plate he had. Davis wondered, “Can I ask the

      relevance of this?” Tr. p. 35. The State responded that it was relevant to the

      necessity defense, and the trial court permitted the question. Davis answered



      Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 3 of 11
      the question and did not object. The jury found Davis liable for the infraction

      of speeding and did not order him to pay any damages. Davis now appeals.


                                     Discussion and Decision
                                        I. Motion to Dismiss
[8]   Davis first argues that the trial court should have granted his motion to dismiss

      because the summons and complaint did not bear the sergeant’s signature. A

      motion to dismiss under Trial Rule 12(B)(6) “tests the legal sufficiency of a

      complaint: that is, whether the allegations in the complaint establish any set of

      circumstances under which a plaintiff would be entitled to relief.” Lockhart v.

      State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015) (internal quotations omitted).

      We apply a de novo standard of review to a trial court’s ruling on a Trial Rule

      12(B)(6) motion to dismiss. Id.


[9]   Indiana Code section 9-30-3-6 governs the contents of a traffic infraction

      summons and complaint. See also I.C. § 9-30-3-5.3 (stating that an electronic

      traffic ticket must contain the same content required in section 6 but it may be

      modified as necessary for the electronic format). Specifically with respect to

      civil traffic cases, the complaint and summons—and, consequently, the

      electronic traffic ticket—must include a variety of information, including the

      “officer’s signature[.]” I.C. § 9-30-3-6(c). The statute does not specify what

      form the signature must take.




      Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 4 of 11
[10]   Another statute, while not directly relevant, provides some elucidation on the

       validity of electronic signatures. Indiana Code section 9-30-3-5.7(b) provides as

       follows:


               An electronic traffic ticket issued under this chapter that bears a
               printed or digital signature of:


                        (1)      the law enforcement officer who issued the
                                 electronic traffic ticket; and


                        (2)      the prosecuting attorney, or a representative of the
                                 office of the prosecuting attorney, of the county in
                                 which the electronic traffic ticket was issued;


               is admissible in a court proceeding as if the signatures referred to
               in subdivisions (1) and (2) were original signatures.


       In this case, the admissibility of the ticket itself is not at issue, so section 5.7 is

       not directly relevant. But this statute does suggest that the General Assembly

       accepts that electronic signatures can constitute original signatures.


[11]   Here, Davis seems to acknowledge that an electronic signature can be a valid

       signature, but insists that it should be formatted in such a way that it is

       differentiated from the rest of the text. According to Davis, “[t]he mere printing

       of a name, in the same type as the rest of the complaint and summons, is not a

       signature.” Reply Br. p. 5. We find no authority in statutes or caselaw

       supporting this proposition.




       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017        Page 5 of 11
[12]   Initially, we note that it is well established that an original, personally-signed

       signature is not required under Indiana Code section 9-30-3-6. See Ford v. State,

       650 N.E.2d 737, 740 (Ind. Ct. App. 1995) (holding that a mechanically stamped

       signature complies with the statute because “requiring manual signing of every

       record certified from the Drivers License Division” would be a “waste of time

       and money”); James v. State ex rel. Comm’r of Motor Vehicles, 475 N.E.2d 1164,

       1166 (Ind. Ct. App. 1985) (same, observing that “the law presumes the

       certifying officer authorized the stamping of his signature unless the record

       affirmatively contains evidence to the contrary”). We hold that the same policy

       permitting the use of a mechanically stamped signature applies equally to the

       use of an electronic signature, especially where it is uncontested that the signing

       officer was the one who prepared, printed, and gave the ticket to the defendant.


[13]   Furthermore, this Court has determined that, in the context of Indiana Code

       section 9-30-3-6, “[s]ubstantial compliance with statutory requirements means

       compliance to the extent necessary to assure the reasonable objectives of the

       statute are met.” Hamill v. City of Carmel, 757 N.E.2d 162, 165 (Ind. Ct. App.

       2001). And the reasonable objectives of this statute are to “inform the offender

       of the nature of the traffic violation and to indicate to the offender when he is to

       appear in court.” Id. Therefore, no technical defect, such as missing check

       marks, the failure to obtain the defendant’s signature at the scene of the stop, or

       the officer’s failure to sign the instrument in front of a deputy clerk had the

       effect of preventing the reasonable objectives of the statute from being met. Id.




       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 6 of 11
[14]   Here, it is undisputed that the ticket issued to Davis included all necessary

       information regarding the nature of his offense and when and where he was to

       appear in court to answer for it. The ticket also included Sergeant Shank’s

       name, badge number, and police agency. While we do not find that Sergeant

       Shank’s signature was required to take any certain form, even if there was such

       a requirement, the failure to meet it would have been a mere technicality. The

       electronic ticket here was in substantial compliance with statutory requirements

       such that the reasonable objectives of the statute were met. The trial court

       properly denied Davis’s motion to dismiss.


                                       II. Evidentiary Rulings
[15]   Next, Davis raises two evidentiary arguments: (1) the trial court erred by

       excluding Davis’s vehicle repair records from evidence; and (2) the trial court

       erred by permitting the State to question Davis about his specialty license plate.

       The decision to admit or exclude evidence rests within the sound discretion of

       the trial court. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). We will reverse

       only if the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it or if the trial court has misapplied the law. Jimerson

       v. State, 56 N.E.3d 117, 120 (Ind. Ct. App. 2016), trans. denied.


                                   A. Vehicle Repair Records
[16]   Davis contends that the trial court should not have excluded his vehicle repair

       records from evidence. Initially, we note that Davis has waived this argument

       by failing to make an offer of proof. Indiana Evidence Rule 103(a)(2) provides

       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017     Page 7 of 11
       that error may not be predicated on a ruling that excludes evidence unless “the

       substance of the evidence was made known to the court by a proper offer of

       proof, or was apparent from the context within which questions were asked.”

       See also Tibbs v. State, 59 N.E.3d 1005, 1015 (Ind. Ct. App. 2016) (failure to

       make an offer to prove results in a waiver of the asserted evidentiary error on

       appeal), trans. denied. Here, because no offer to prove was made, we are unable

       to evaluate the actual documents that Davis insists should have been admitted

       and he has waived the argument.


[17]   Davis has waived this argument in an additional way. At trial, when the State

       objected to this evidence, Davis’s only response was that “I have no response

       except just trying to provide evidence for the Court to consider.” Tr. Vol. II p.

       4. On appeal, for the first time, Davis cites to the Rules of Evidence regarding

       relevance and the business records exception to hearsay to contend that the

       records were admissible. Because he failed to make these arguments to the trial

       court, he has waived them. Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct. App.

       2014).


[18]   Waiver notwithstanding, Davis claims that the reason he was speeding on the

       day in question was because his vehicle was overheating and he had to drive at

       a high rate of speed to prevent the vehicle from reaching a higher temperature.

       At trial, Davis claimed that the records would show that repairs were made to




       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 8 of 11
       his vehicle “shortly after” or “days after” the traffic stop. Tr. Vol. II p. 4. 1

       Consequently, the records would not be relevant to the condition of Davis’s

       vehicle at the time of the traffic stop. Furthermore, there was no evidence

       introduced to tie the alleged overheating problem to the need to drive above the

       speed limit; thus, to the extent that the records did contain evidence that the

       vehicle was overheating at the time of the traffic stop, the evidence was not

       relevant in any event.2 As a result, the trial court did not err by excluding this

       evidence.


                                    B. Specialty License Plate
[19]   Finally, Davis argues that the trial court erred by permitting the State to

       question him about whether he has a specialty license plate. Specifically, the

       State elicited evidence that Davis has a DePauw University license plate. The

       State asserts that this evidence is relevant to rebut Davis’s reasonable necessity

       defense to speeding.


[20]   To establish a necessity defense, a defendant must show the following:




       1
         On appeal, Davis has included maintenance records in the appendix. Appellant’s App. p. 24. Because
       these records were not before the trial court, we will not consider them on appeal. We note, however, that
       the records were for maintenance dated August 2, 2016, nearly three months after the traffic stop occurred.
       2
         Because we find that this evidence was not relevant, we need not address Davis’s argument that it was
       admissible under the business records exception to the hearsay rule. We note briefly, however, that he did
       not seek to introduce a witness, such as the mechanic who generated the records, to authenticate them or lay
       a proper foundation for their admission. Consequently, the records would not have been admissible. Ind.
       Evidence Rule 901(a); Ind. Evidence Rule 803(6).

       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017                        Page 9 of 11
               (1) the act charged as criminal was the result of an emergency
               and was done to prevent a significant harm;


               (2) there was no adequate alternative to the commission of the
               act;


               (3) the harm caused by the act was not disproportionate to the
               harm avoided;


               (4) the Defendant had a good-faith belief that his/her act was
               necessary to prevent greater harm;


               (5) the Defendant’s belief was objectively reasonable under all the
               circumstances of the case; and


               (6) the Defendant did not substantially contribute to the creation
               of the emergency.


       Hernandez v. State, 45 N.E.3d 373, 377 (Ind. 2015) (citing Toops v. State, 643

       N.E.2d 387, 390 (Ind. Ct. App. 1994)). The State sought to rebut this defense,

       in part, by showing that Davis is a college educated individual who is employed

       full-time as a real estate broker and has the means to repair his vehicle.

       Consequently, Davis should have known to maintain his vehicle in a safe

       operable condition and, short of that, should have known not to drive it when it

       was malfunctioning.


[21]   We agree with Davis that the fact that he has a specialty license plate is not

       probative of the allegations against him; in other words, it is irrelevant. Any

       error in its admission, however, was harmless in light of the other evidence in


       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 10 of 11
       the record supporting the jury’s finding. Davis admitted that he was driving

       forty-nine miles per hour in an area with a speed limit of thirty miles per hour.

       And even if we were to accept for argument’s sake that his vehicle was

       overheating and needed to be driven at a high rate of speed to prevent the

       temperature from getting even higher, that does not support his defense of

       necessity. He could have called a tow truck to his residence. He could have

       pulled over to the side of the road. He could have asked for assistance

       following the traffic stop but he did not; he drove away. He did none of these

       things even though he had the education, experience, and financial means to

       know better and take smarter, safer actions. Under these circumstances, any

       error in the admission of evidence regarding his specialty license plate was

       harmless.


[22]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 02A05-1609-IF-2026 | April 19, 2017   Page 11 of 11
