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
