Sonya A. Livitz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Sonya A. Livitz (“Livitz”), pro se, appeals the trial court's judgment that she committed the offense of speeding, a Class C infraction.¹ Livitz argues that: (1) the trial court was not impartial; (2) the State engaged in a Brady violation ² when it disclosed police dashcam and bodycam videos to her before trial but chose not to use the videos as evidence during trial; and (3) there was insufficient evidence to support the trial court's judgment that Livitz committed the infraction of speeding. Concluding that: (1) Livitz has waived her impartiality argument and that, waiver notwithstanding, Livitz has failed to show that the trial court was not impartial; (2) there was no Brady violation; and (3) the evidence is sufficient, we affirm the trial court's judgment.

[2] We affirm.³

Issues

1. Whether the trial court was impartial.

2. Whether the State engaged in a Brady violation.

3. Whether there is sufficient evidence to support the trial court's judgment that Livitz committed the infraction of speeding.

Facts 4

[3] The facts most favorable to the judgment reveal that, around 5:30 pm, on January 6, 2024, Indiana State Trooper Sam Sharp (“Trooper Sharp”), who was in uniform and in a marked vehicle, was on patrol in LaGrange County on the I-90 toll road. At that time, the traffic conditions were “decently light” and consisted of “a lot of semis compared to passenger cars.” (Tr. Vol. 2 at 7). The posted speed limit was seventy miles per hour. As Trooper Sharp was traveling westbound near the 113-mile marker, he noticed a white Hyundai (“the white Hyundai”) driving eastbound towards him at “a high rate of speed.” (Tr. Vol. 2 at 7). The white Hyundai was “one of the only passenger vehicles on the road at that time.” (Tr. Vol. 2 at 9). Trooper Sharp, who had been trained in how to visually estimate a vehicle's speed, visually estimated the white Hyundai to be traveling at ninety miles per hour. To confirm the speed, Trooper Sharp “activated [his] front-facing radar antenna[,]” which indicated that the white Hyundai was traveling 100 miles per hour. (Tr. Vol. 2 at 8).

[4] Upon confirming the speed, Trooper Sharp planned to initiate a traffic stop. Trooper Sharp drove down to the next crossover, which was approximately a half mile away, so he could get into the eastbound lanes. Once Trooper Sharp was driving in the eastbound lanes, he had initially lost sight of the white Hyundai, and he had to “hammer down” his vehicle and “ travel at a very high rate of speed to catch” up to the white Hyundai. (Tr. Vol. 2 at 9, 12). Once Trooper Sharp got behind the white Hyundai, he “paced [the white Hyundai] at 95” miles per hour and then “activated his emergency lights to signal a traffic stop.” (Tr. Vol. 2 at 10). Trooper Sharp initiated the traffic stop of the white Hyundai at the 123-mile marker. Livitz was driving the white Hyundai, and her husband (“Livitz's husband”) was a passenger. When Trooper Sharp informed Livitz of her speed, she appeared “[a] little confused” and stated that she had been driving seventy-five miles per hour. (Tr. Vol. 2 at 10).

[5] Thereafter, the State filed a traffic citation against Livitz for speeding. Livitz filed a denial, and the trial court set the case for a bench trial. Prior to trial, the State filed a notice of discovery compliance and provided Livitz with Trooper Sharp's bodycam and dashcam videos.

[6] The trial court held a bench trial in April 2024. Livitz represented herself at trial. At the beginning of the trial, the State indicated that it would waive making an opening argument. The trial court then explained to Livitz that “typically, the parties waive an opening statement, and we get right to the evidence. Is that ․ satisfactory to you, Ms. Livitz?” (Tr. Vol. 2 at 4). Livitz responded, “Yes, I can make an opening statement.” (Tr. Vol. 2 at 4). The trial court then asked, “or would you like to waive an opening statement so we can get right to the evidence?” (Tr. Vol. 2 at 4). Livitz responded, “Sure.” (Tr. Vol. 2 at 4).

[7] Trooper Sharp testified to the facts as set forth above. He also testified that he had been trained in how to visually estimate a vehicle's speed and how to pace a vehicle's speed. Additionally, Trooper Sharp testified that he had verified, both before and after his shift, that his front-facing radar antenna had been properly working and that there had been nothing between his radar and the white Hyundai when he tracked Livitz's speed at 100 miles per hour. The State presented its case through the testimony of Trooper Sharp and did not present any exhibits.

[8] When Livitz cross-examined Trooper Sharp, she asked him why her speed on the radar gun had not been shown on any videos. Trooper Sharp explained that his dashcam and bodycam did not “have a view of the radar inside the vehicle.” (Tr. Vol. 2 at 12). Livitz then stated that “[t]hat d[id] not give enough evidence to show that [she] was going that fast” and that it could have been “a mistake[.]” (Tr. Vol. 2 at 13). The trial court told Livitz, “Okay. That's a ․ statement. Do you have any more questions for [Trooper] Sharp[?]” (Tr. Vol. 2 at 13). Livitz then asked Trooper Sharp how he knew that the speeding car was her white Hyundai and not another white car, and Trooper Sharp explained that there had been more semis than passenger cars on the highway that day.

[9] Livitz called her husband as a witness, and she asked him what he thought her speed had been. Livitz's husband responded that he did not have a specific number but that it had “seemed like a normal speed.” (Tr. Vol. 2 at 15). Livitz's husband also testified that they had not been “passing really anybody ․ aside from a couple of trucks[.]” (Tr. Vol. 2 at 15). Livitz then asked her husband if he thought, “based on the footage,” that Trooper Sharp's vehicle had been “traveling much faster than other ․ individuals driving over 75 miles an hour[.]” (Tr. Vol. 2 at 16). Livitz's husband responded that he had seen the dashcam video and that Trooper Sharp “didn't seem to have [Livitz] in h[is] sight at any time or any speed gun.” (Tr. Vol. 2 at 16).

[10] After Livitz's husband had testified, the trial court asked Livitz if she had any further evidence that she wanted to present. Livitz then stated, “I would just say that the prosecution's largest piece of evidence here is the dash cam and body cam footage, um, with no radar gun accuracy or visual accuracy.” (Tr. Vol. 2 at 17). The trial court then explained to Livitz that she was “getting into final argument” and that the procedure would be for the State to first present its closing argument then followed by Livitz's closing argument. (Tr. Vol. 2 at 17).

[11] During Livitz's closing argument, Livitz stated that “there d[id] not seem to appear any other evidence other than ․ the dash cam and body cam.” (Tr. Vol. 2 at 18). She argued that “[w]e don't necessarily ․ always visualize accurately” and that “a radar gun would have been appropriate to include if [the State] wanted to prove that [she had been] going well over 70 miles an hour.” (Tr. Vol. 2 at 18). Livitz stated that she had “not [been] aware that [she] was going 95” miles per hour and that she “d[id] not think that [she] was going this fast.” (Tr. Vol. 2 at 18). Livitz argued that there was no evidence to “prove this violation beyond a reasonable doubt.” (Tr. Vol. 2 at 18).

[12] Before entering judgment, the trial court told Livitz that it “need[ed] to correct” her and explained that “this is an infraction, and it's a civil matter[,] ․ so the burden of proof [wa]s much less than in a criminal trial.” (Tr. Vol. 2 at 19). The trial court then explained that the burden was not beyond a reasonable doubt and that it was by a preponderance of the evidence. Thereafter, the trial court noted the State's evidence—that Trooper Sharp had testified that he had visually estimated Livitz's speed at ninety miles per hour, paced her speed at ninety-five miles per hour, and had used his radar to clock her speed at 100 miles per hour—and concluded that “the State ha[d] quite easily met [its] burden of proof in this case.” (Tr. Vol. 2 at 19). The trial court found that Livitz had committed the offense of speeding, a Class C infraction and ordered her to pay fines and costs totaling $175.

[13] Livitz now appeals.

Decision

[14] At the outset, we note that Livitz has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Id. “We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

[15] Livitz argues that: (1) the trial court was not impartial; (2) the State engaged in a Brady violation when it disclosed police dashcam and bodycam videos to her before trial but chose not to use the videos as evidence during trial; and (3) there was insufficient evidence to support the trial court's judgment that Livitz committed the infraction of speeding. We will review each argument in turn.

1. Impartiality of the Trial Court

[16] Livitz argues that the trial court was not impartial because it: (1) asked her if she wanted to waive her opening statement; (2) informed Livitz that an infraction was a civil matter and that the burden of proof was a preponderance of the evidence; and (3) judged the credibility of witnesses. Livitz, however, fails to support her bare assertions with cogent argument or citations to legal authority. A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority. See Ind. App. Rule 46(A)(8)(a). See also Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments by failing to provide cogent argument). Accordingly, Livitz has waived appellate review of her impartiality argument.

[17] Waiver notwithstanding, Livitz has failed to show that the trial court was not impartial. “The law presumes that a judge is not biased or prejudiced in the matters that come before the court.” Washington v. State, 758 N.E.2d 1014, 1018 (Ind. Ct. App. 2001). “A court's judgment will not be reversed unless the record shows actual bias and prejudice against the defendant,]” and a defendant “must establish that the judge's actions crossed the bounds of impartiality and actually prejudiced the defendant's case.” Id. Livitz has not made any such showing. Indeed, our review of the bench trial reveals that the trial court made attempts to help and instruct Livitz, who represented herself pro se, and that the trial court was not biased or prejudiced against Livitz. Accordingly, we reject Livitz's argument that the trial court was not impartial.

2. Brady Claim

[18] Livitz next argues that the State engaged in a Brady violation when it disclosed police dashcam and bodycam videos to her before trial but chose not to use the videos as evidence during trial. Again, Livitz fails to support her argument with cogent argument or citations to legal authority and has, therefore, waived appellate review of this argument. See Ind. App. Rule 46(A)(8)(a). See also Griffith, 59 N.E.3d at 958 n.5. Waiver notwithstanding, Livitz's argument is without merit. “To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App. 2012) (quotation marks and citations omitted), reh'g denied, trans. denied. Livitz has not and cannot show that police dashcam and bodycam videos were suppressed where the State provided them to her before the trial. Therefore, we reject Livitz's argument that the State engaged in a Brady violation.

3. Sufficiency of the Evidence

[19] Lastly, Livitz argues that there was insufficient evidence to support the trial court's judgment that Livitz committed the infraction of speeding. We disagree.

[20] Traffic infractions are civil, rather than criminal, in nature. Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans. denied. Therefore, the State must prove the commission of the infraction by only a preponderance of the evidence. Id. When reviewing a challenge to the sufficiency of the evidence supporting a trial court's finding that an individual committed an infraction, we do not reweigh evidence or reassess the credibility of witnesses. Id. We look only to the evidence that supports the judgment and to all the reasonable inferences that may be drawn therefrom. Id. We will affirm a trial court's judgment if there is substantial evidence of probative value to support the judgment. Id.

[21] Indiana Code § 9-21-5-2 provides, in relevant part, that “[a] person may not drive a vehicle on a highway at a speed in excess of the following maximum limits: ․ (3) Seventy (70) miles per hour on a highway on the national system of interstate ․ highways[.]” I.C. § 9-21-5-2(a)(3). Therefore, the State was required to prove by a preponderance of the evidence that Livitz drove her vehicle at a speed in excess of seventy miles per hour on the highway.

[22] Here, Trooper Sharp testified that the speed limit on the highway was seventy miles per hour and that Livitz had surpassed that speed limit. Trooper Sharp, who had been trained in how to visually estimate a vehicle's speed and how to pace a vehicle for speed, testified that he had visually estimated Livitz's speed at ninety miles per hour and had paced her speed at ninety-five miles per hour. Additionally, Trooper Sharp testified that he had used his radar to clock Livitz's speed at 100 miles per hour. He further explained that he had verified, both before and after his shift, that his radar had been properly working and that there had been nothing between his radar and the white Hyundai when he tracked Livitz's speed. Livitz's argument challenging the sufficiency of the evidence is nothing more than a request to reweigh the evidence and the trial court's credibility determination, which we will not do. See Rosenbaum, 930 N.E.2d at 74. The evidence presented at the bench trial was sufficient for the trial court to conclude that Livitz had committed the infraction of speeding. Accordingly, we affirm the trial court's judgment.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 9-21-5-2.

2.   See Brady v. Maryland, 373 U.S. 83 (1963).

3.   We note that, in Livitz's appellant's brief, she has included photographs that she did not submit to the trial court as an exhibit during her bench trial. She also makes arguments based on these photographs. Because the photographs are not part of the record on appeal, we will not consider them. Gonser v. State, 843 N.E.2d 947, 951 (Ind. Ct. App. 2006) (“It is well established that we may not consider evidence or arguments not properly presented to the trial court.”).

Pyle, Judge.

Judges Bradford and Kenworthy concur. Bradford, J., and Kenworthy, J., concur.