Denton v. State, 2-378A76

• Decision Date: 18 October 1979
• Docket Number: No. 2-378A76,2-378A76
• Citation: 395 N.E.2d 812,182 Ind.App. 464
• Parties: Waymon D. DENTON, Russell C. Musgrove, Thomas G. Fetterhoff, Louis E. Mathes, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 812

395 N.E.2d 812

182 Ind.App. 464

Waymon D. DENTON, Russell C. Musgrove, Thomas G. Fetterhoff Louis E. Mathes, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 2-378A76.

Court of Appeals of Indiana, Second District.

Oct. 18, 1979.

Opinion on Petition For Rehearing Dec. 26, 1979.

See 398 N.E.2d 1288.

Don G. Blackmond, South Bend, for appellants-defendants.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SULLIVAN, Judge.

In September of 1977, defendants Denton, Musgrove, Fetterhoff, and Mathes were convicted of operating vehicles which exceeded the weight limitations set out in I.C. 9-8-1-12 (Burns Code Ed. 1973). Subsequently, they were sentenced pursuant to I.C. 9-8-1-13 (Burns Code Ed. 1973). The four cases were consolidated for the purposes of appeal and involve two issues:

1. whether I.C. 9-8-1-13 provides for excessive fines contrary to article 1, section 16 of the Indiana Constitution and,

2. whether a sufficient foundation was established for the admission of evidence as to the aggregated axle weights of the vehicles.

We affirm.

I.

Defendants argue that the penalty provision of I.C. 9-8-1-13 is unconstitutional. The pertinent part of the statute reads:

"(O)n conviction each such person . . . shall be fined as follows:

(6) If the total of all excesses of weight under one or more of the limitations of IC 1971, 9-8-1-12 is 5,000 pounds or more, ten cents (10cents) a pound for each pound over 1,000 pounds of excess weight.

. . . Parties fined by the court must pay the fine within thirty (30) days." I.C. 9-8-1-13(6) (Burns Code Ed. 1973).

The defendants urge that when the penalty provision is read in conjunction with I.C. 35-4.1-4-16 (Burns Code Ed. 1975) an excessive fine results. ¹ The latter statute provides that if a convicted person is not indigent but refuses or fails to pay his fine, the court may incarcerate that person and credit his prison time toward the payment of the fine at a rate of five dollars per day.

The defendants do not clearly demonstrate standing to raise this issue. The record is devoid of any evidence that the defendants intend to refuse to pay their fines. Nonetheless, we feel the issue is significant and merits consideration.

Defendants contend that in order to pay off their fines, the required imprisonment would range from 51 to 509 days. Such extended incarceration, they argue, clearly demonstrates the excessive nature of the penalty. The constitutional prohibition against cruel and unusual punishment proscribes atrocious obsolete punishments and is aimed at the kind and form of punishment rather than the duration and amount. Hollars v. State (1972) 259 Ind. 229, 286 N.E.2d 166; Clifton v. State (1st Dist. 1978) Ind.App., 375 N.E.2d 1126. We do not find the punishment to be so grossly excessive as to render it unconstitutional.

As additional support for their argument, defendants compare the instant offense to that of driving while intoxicated which calls for a maximum fine of $500 and imprisonment of up to six months. Defendants' argument is cogent and appealing but does not comport with the applicable case law. The comparative offense rationale was rejected in Rector v. State (1976) 264 Ind. 78, 339 N.E.2d 551. There the court held that the legislature is free to establish penalties that are not proportionate to one another so long as the crimes are not lesser included offenses. Certainly, lesser included offenses are not at issue here. Hence, the disparity between them is not prohibited by article 1, section 16 of the Indiana Constitution.

The problem of imprisonment to satisfy fines was addressed in Williams v. Illinois (1970) 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. There the United States Supreme Court held that a pauper's prison sentence, imposed to discharge a fine, which exceeded the maximum punishment for the crime, violated equal protection. Our state Attorney General discussed the application of the Williams case to Indiana. He explained:

"It should be pointed out quite emphatically however, what the case of Williams v. State does Not hold.

This case does Not affect the State's right to do the following:

1. Imprisonment for Willful refusal to pay the fine or court costs, as distinguished from pauperism, which prevents one from paying such fine or court costs." (1970 O.A.G. 46.)

We find I.C. 9-8-1-13 not unconstitutional.

II.

Next, the defendants urge that evidence about the vehicles' weights was admitted without proper foundation. The weights were obtained by the use of portable scales (also known as loadometers).

The weighing was done by Patrolman Heimann who testified that he was assigned to the motor carrier division of the Indiana State Police and was trained in the use of the scales. Furthermore, I.C. 9-8-1-17 (Burns Code Ed. Supp.1975) specifically authorizes policemen to stop, measure and weigh vehicles. The first requirement was adequately satisfied.

As to the equipment itself, the record is replete with expert testimony about the inspection and certification of the portable scales used by Officer Heimann. Metrologist Jeffers stated that he checked and certified the scales for accuracy March 21, 1977. The arrests occurred April 4, 1977. The testing was corroborated by two other witnesses: Paul Seitz and Ralph Finney. There was, then, sufficient evidence regarding the precision of the equipment.

Finally, a proper foundation must establish that the operator used approved techniques. The crux of defendants' argument is that there was no evidence that the portable scale method is an accepted procedure or an accurate way of obtaining gross weight. Defendants point out that the portable scales showed a disparity of weight from one side of each trunk to the other. This fact alone, they contend, shows the absurdity of such a weighing technique. The problem of accurate weighing of large vehicles is undeniably complex and involves many intricate principles of physics. At least one other jurisdiction has confronted and approved the use of portable scales:

"The officer described, in explicit detail, the weighing procedure which was followed in this case, and there is nothing in the record to suggest that the procedure was incorrect. While counsel urged that such an inference can be drawn because the total axle weight of one side of the vehicle was 2,000 pounds in excess of the other side, the side-to-side weight differential is readily attributable to the liquid cargo shifting because of a slight beveling of the road surface, where the weighing took place. Certainly the differential obtained does not give rise to a reasonable inference that the scales were incorrect or that the weighing procedure was improper. Loadometers are in widespread use by law enforcement agencies throughout the country, and they are a relatively simple but accurate means of determining vehicle or axle weights without seriously delaying commercial traffic. Loadometer readings have been accepted as satisfactory evidence in other jurisdictions to support convictions for vehicle weight violations (see, e. g., People v Vinciguerra, 24 Misc.2d 63, 203 N.Y.S.2d 953 (Sup.Ct.1960)) . . .." State v. Horn (1971) 117 N.J.Super. 72, 283 A.2d 561, Modified on other grounds, 120 N.J.Super. 203, 293 A.2d 676 (1972).

Additional support for the use of portable scales comes from the Indiana statute itself. I.C. 9-8-1-17 entitled "Size and Weight," section 17 deals with enforcement of the rules governing truck weight. It begins:

"Any peace officer having reason to believe that any vehicle herein described or the load thereon is unlawful is authorized to stop, measure and weigh the same on any public highway by means of Portable or stationary scales . . .." (Emphasis added.)

However, defendants challenge the use of portable scales because it is directly contrary to the mandate of Indiana Rules and Regulations (24-6-3-2)-1, (24-6-3-2)-2, and (24-6-3-13)-1(e). ² Interpretation of these regulations must begin with a close reading of I.C. 24-6-3-2 (Burns Code Ed. 1974), enacted in 1925 and entitled "Inspectors," which is the enabling statute for the aforementioned regulations. Even a cursory reading of the sections of chapter 3 reveals that the chapter was...