FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
Aug 29 2014, 9:33 am
IN THE
COURT OF APPEALS OF INDIANA
C.H., )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-JV-904
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Geoffrey Gaither, Magistrate
Cause No. 49D09-1306-JD-1818
August 29, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
C.H. appeals his two adjudications as a delinquent child for having committed acts
that, if committed by an adult, would constitute criminal trespass as a Class A
misdemeanor,1 and unlawful entry of a motor vehicle as a Class B misdemeanor.2 First,
C.H. argues that the juvenile court should have excluded an officer’s identification
testimony from evidence pursuant to the fruit of the poisonous tree doctrine of the
exclusionary rule. Additionally, C.H. argues that his two adjudications violated the
actual evidence test of Indiana’s Double Jeopardy Clause. Lastly, C.H. appeals the
juvenile court’s dispositional order requiring him to pay restitution.
First, because the officer had reasonable suspicion and his actions were reasonable
under the totality of the circumstances, we conclude that C.H.’s federal and state
constitutional rights were not violated and that the identification testimony was properly
admitted into evidence. In regard to C.H.’s double jeopardy claim, we conclude there is a
reasonable possibility that the State used the same evidence to support both adjudications,
and we remand to the juvenile court to vacate C.H.’s adjudication with the less severe
penal consequence. Lastly, because C.H. did not object to any aspect of restitution and
invited any error that may have occurred with the restitution order, we will not review his
restitution challenge.
We affirm in part, reverse in part, and remand.
1
IND. CODE § 35-43-2-2.
2
I.C. § 35-43-4-2.7.
2
ISSUES
1. Whether the juvenile court abused its discretion by admitting an
officer’s identification testimony into evidence.
2. Whether C.H.’s adjudications for criminal trespass and unlawful entry
of a motor vehicle violate Indiana’s Double Jeopardy Clause.
3. Whether the juvenile court abused its discretion by ordering C.H. to pay
restitution.
FACTS
On June 20, 2013, Felipa Xique-Juarez (“Felipa”) was working from 3 p.m. to 9
p.m. That day, Felipa lost the keys to her white 1995 Honda Accord, and she did not give
anyone else permission to drive her car. When Felipa finished work that evening, her car
was gone, and she called the police to report that it had been stolen.
On June 21, 2013, Officer Havis Harris (“Officer Harris”) was on duty working
the third shift and patrolling for the stolen white Honda. Around midnight, Officer Harris
observed a white Honda that matched the description of the stolen vehicle. After Officer
Harris began to follow the white Honda, the vehicle turned into a Marathon gas station
located on 4200 North Franklin Road. When Officer Harris began approaching the rear
of the white Honda, she observed “three (3) to four (4) subjects bail[ ] out of the vehicle.”
(Tr. 9). Additionally, Officer Harris observed the white Honda’s driver walk to the rear
of the building and saw the passengers run away from the gas station “initially north then
east behind a yard.” (Tr. 9). Next, Officer Harris notified dispatch that she “had three
(3) to four (4) black males take off running[,]” and she informed dispatch of the suspects’
direction of travel. (Tr. 9). Following Officer Harris’ communication with dispatch, she
3
examined the white Honda and “ran the VIN which came back as a stolen vehicle.” (Tr.
10).
Officer James Blythe (“Officer Blythe”), who was on patrol in a marked squad car
“very close to the area[,]” heard Officer Harris’ call regarding “three (3) subjects run[ing]
from a vehicle from the 42nd Street/Franklin [R]oad area[.]” (Tr. 38). Officer Blythe
then “went to the first street east of that area which [was] Arbor Crest and tried to set up a
perimeter.” (Tr. 38). “[W]ithin five (5) minutes” of Officer Harris’ radio call, (Tr. 45),
Officer Blythe, who was parked in a driveway, “saw two (2) subjects walk behind [his]
vehicle and[,] . . . they was [sic] watching [him] watching them.” (Tr. 39). The two
males matched the general description and direction of travel given by Officer Harris.
Officer Blythe then “pulled out of the driveway and stopped them.” (Tr. 39). One of
these individuals was fourteen-year-old C.H.
After Officer Blythe stopped C.H. and the other individual, Officer Blythe took
their names and dates of birth and ran their information through the Juvenile Center “to
see if they had anything outstanding[.]” (Tr. 43). Officer Blythe then “waited for
Officer Harris to come to the scene so she could identify” the two individuals as the
suspects who “had ran [sic] from her, from the vehicle.” (Tr. 44).
Officer Harris then “went to Sergeant Blythe’s location, which was “maybe a
block over[.]” (Tr. 10). Officer Harris “[o]bserved the subjects . . . asked . . . why they
were out so late, how old they were.” (Tr. 17.) Officer Harris then went back to the
Marathon gas station to view its surveillance video.
4
When Officer Harris watched Marathon’s video footage, she saw four black
males, three of whom ran from the vehicle and the driver who walked away. She also
saw that “two (2) of the gentlemen that was [sic] in the video matched the description of
the two (2) that Sergeant Blythe had stopped just a street over.” (Tr. 20). Specifically,
she saw that one of the suspects was “wearing a black and white striped shirt with black
shorts” and the “other was wearing a black zip up jacket[.]” (Tr. 20).
While driving back to Officer Blythe’s location, Officer Harris radioed ahead to
tell him that “the video footage matched the description of the two (2) gentlemen there on
the scene.” (Tr. 31). When Officer Harris arrived at the scene, she arrested C.H. and the
other individual.
On June 28, 2013, the State filed a petition alleging that C.H. was a delinquent
child for committing the following offenses that would be crimes if committed by an
adult: Count 1, criminal trespass as a Class A misdemeanor; and Count 2, unlawful entry
of motor vehicle as a Class B misdemeanor. At the time of these alleged offenses, C.H.
had been on probation for one month for adjudications of Class A misdemeanor criminal
trespass and Class C misdemeanor operating a vehicle without a license (“May 2013
Adjudications”).3
On September 11, 2013, the juvenile court held a denial hearing. During Officer
Harris’ direct examination, C.H objected to the officer’s identification testimony.
Additionally, C.H. argued that Officer Blythe violated his rights under the Fourth
3
As part of C.H.’s probation from these May 2013 Adjudications, the juvenile court imposed a 7 p.m.
curfew on C.H. and ordered him, among other things, to complete a restitution work program and to pay
the victim, Mary Coleman, restitution of $500.
5
Amendment of the United States Constitution and Article One, Section Eleven of the
Indiana Constitution by stopping him and that, as a result, the juvenile court should have
excluded Officer Harris’ identification testimony from evidence as fruit of the poisonous
tree. Furthermore, during closing arguments, C.H. argued that the State’s charges against
him violated the actual evidence test of Indiana’s Double Jeopardy Clause. The juvenile
court entered a true finding on both allegations without acknowledging C.H.’s double
jeopardy claim.
On October 4, 2013, the juvenile court held a disposition hearing. The probation
department prepared a pre-dispositional report (“PDR”) in preparation for the hearing.
The PDR indicated that C.H. had not started his restitution work program from his prior
probation order entered as part of his May 2013 Adjudications. In the PDR, the
probation department recommended, in regard to this case, that C.H. be placed on a
suspended commitment, pay restitution to Felipa, not have any contact with Felipa, and
adhere to a parent-monitored 9 p.m. curfew. Additionally, the probation department
recommended that C.H. be ordered to complete all prior probation orders, including
paying Mary Coleman $500 restitution. During the disposition hearing, the State echoed
the recommendations of the probation department and specified that the requested
amount of restitution to Felipa was $500 “through the Restitution Work program.” (Tr.
55).4
4
The State informed the juvenile court that it had gotten “information” from Felipa that her damages to
her car were approximately $2,000.00 but that she “underst[oo]d that we’ve got a limit here in Juvenile
Court.” (Tr. 55). The State further stated that Felipa was only requesting $500.00 through the work
release program and that she did “not want to proceed civilly for the rest of it.” (Tr. 55).
6
In response, C.H.’s attorney stated, “Your Honor, I’ve reviewed the orders made,
the, the requested orders from Probation. My client is in agreement with all of them with
two . . . exceptions.” (Tr. 55-56). C.H.’s attorney then challenged the recommendations
for a suspended commitment and curfew. C.H. did not make any challenges to the
recommendation to pay restitution or to the specific amount sought.
The juvenile court placed C.H. on a suspended commitment and, as conditions of
probation, ordered C.H. to: not have any contact with Felipa; pay restitution of $500 to
Felipa; participate in a Restitution Work program; and adhere to a 9:00 p.m. curfew. The
juvenile court also ordered C.H. to complete all prior court orders from his May 2013
Adjudications, including paying Mary Coleman $500 restitution. C.H. now appeals. We
will provide additional facts as necessary.
DECISION
1. Admission of Evidence
C.H. argues that the juvenile court abused its discretion by admitting Officer
Harris’ identification testimony into evidence. Specifically, C.H. contends that the police
violated his rights under the Fourth Amendment of the United States Constitution 5 and
Article 1, Section 11 of the Indiana Constitution6 when the police conducted a Terry stop
5
The Fourth Amendment to the United States Constitution provides, in relevant part: “The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .”
6
Article 1, Section 11 of the Indiana Constitution provides, in relevant part: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be
violated . . . .”
7
and that, as a result, the juvenile court should have excluded Officer Harris’ testimony
from evidence as fruit of the poisonous tree.
The admission and exclusion of evidence falls within the sound discretion of the
trial court, and we review the admission of evidence only for an abuse of discretion.
Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g denied.
We afford these decisions great deference on appeal, reversing only when a manifest
abuse of discretion denies the defendant a fair trial. Price v. State, 765 N.E.2d 1245,
1248 (Ind. 2002).
A. Fourth Amendment
C.H. contends that the police lacked reasonable suspicion to initiate an
investigatory stop and that by stopping him the police violated his rights under the Fourth
Amendment.
The Fourth Amendment prohibits unreasonable searches and seizures by the
government, and its safeguards extend to brief investigatory stops of persons or vehicles
that fall short of traditional arrest. L.W. v. State, 926 N.E.2d 52, 54 (Ind. Ct. App. 2010),
reh’g denied. “However, a police officer may briefly detain a person for investigatory
purposes without a warrant or probable cause if, based upon specific and articulable facts
together with rational inferences from those facts, the official intrusion is reasonably
warranted and the officer has a reasonable suspicion that criminal activity ‘may be
afoot.’” Moultry v. State, 808 N.E.2d 168, 170-171 (Ind. Ct. App. 2004) (quoting Terry
8
v. Ohio, 392 U.S. 1, 21-22 (1968)). Reasonable suspicion must be more substantial than
an officer’s unparticularized suspicion or hunch. Croom v. State, 996 N.E.2d 436, 440
(Ind. Ct. App. 2013), reh’g denied, trans. denied. In determining whether reasonable
suspicion exists, we must examine “the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for suspecting
wrong doing.” Id. (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
The crux of C.H.’s argument is that Officer Blythe’s stop of him was
unconstitutional because the officer did not receive a description of the clothing that C.H.
was wearing. While Officer Harris may not have given a description of C.H.’s clothing,
a review of the totality of the circumstances demonstrates that Officer Blythe had
reasonable suspicion to stop C.H. Specifically, the police were on patrol and were aware
a report of a recently stolen white Honda. Shortly after midnight, Officer Harris saw a
white Honda that matched the description and then followed it into a gas station, where
the four black male occupants immediately exited the car. Upon seeing three of the four
black male occupants run east, Officer Harris radioed dispatch to alert other patrolling
officers of the fleeing suspects and included a description of the suspects’ race, gender,
and direction of travel. Thereafter, Officer Blythe, who was about a block away from the
gas station and driving a marked police car, immediately set up a perimeter in the
suspect’s direction of travel. Less than five minutes from receiving the dispatch, Officer
Blythe saw two black males walking behind his vehicle, and he saw that “they was [sic]
watching [him] watching them.” (Tr. 39). Additionally, Officer’s Blythe’s testimony
reveals that the area where he stopped C.H. had sparse activity at that time of night, as he
9
saw only “a couple of other people walking” in that area. (Tr. 45). However, Officer
Blythe did not stop these people (a male and female) because they did not match the
dispatched description of the fleeing suspects. Thus, the totality of the circumstances
reveal that Officer Blythe’s stop of C.H. was not random and was instead based on a
reasonable suspicion that criminal activity was afoot. Accordingly, we conclude that
Officer Blythe did not violate C.H.’s Fourth Amendment rights.
B. Article 1, Section 11
C.H. contends that the investigatory stop also violated his rights under Article 1,
Section 11 of the Indiana Constitution. Although the Fourth Amendment and Article 1,
Section 11 are worded identically, our Indiana constitutional standard “has evolved
differently from the Fourth Amendment analysis[.]” Smith v. State, 744 N.E.2d 437, 440
(Ind. 2001). Under Article 1, Section 11, ‘‘‘we focus on the actions of the police
officer[]’ and employ a totality-of-the-circumstances test to evaluate the reasonableness
of the officer’s actions.” Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010) (quoting Trimble
v. State, 842 N.E.2d 798, 803 (Ind. 2006), adhered to on reh’g, 848 N.E.2d 278 (Ind.
2006)). In doing so, we balance three factors: ‘‘1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method of the
search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law
enforcement needs.’’ Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). “It is the
State’s burden to show that intrusion into ‘those areas of life that Hoosiers regard as
private’ was reasonable under the totality of the circumstances.” Austin v. State, 997
N.E.2d 1027, 1034 (Ind. 2013) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)).
10
Balancing the three Litchfield factors, we conclude that Officer Blythe’s actions
were reasonable under a totality of the circumstances. First, there was a high degree of
concern that a violation had occurred. While on patrol around midnight, Officer Harris
saw a white Honda that matched the description of Felipa’s recently reported stolen
vehicle. When Officer Harris followed the car, the four black male occupants jumped out
of the car and fled the scene. Upon receiving Officer Harris’ description of the fleeing
suspects’ race, gender, and direction of travel, Officer Blythe, who was about one block
away, immediately set up a perimeter in that direction. Less than five minutes later,
Officer Blythe stopped C.H. and another individual who fit the description given and who
were acting somewhat suspiciously upon seeing the officer.
Additionally, the degree of intrusion was minimal. “[I]n examining the degree of
intrusion, we consider the nature of the privacy interest upon which the search intrudes
and the character of the intrusion itself.” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct.
App. 2009) (citing Litchfield, 824 N.E.2d at 361). Here, Officer Blythe stopped C.H. on
a public street late at night where few people were present and asked for C.H.’s
identification information. Moreover, Officer Blythe did not search C.H. and merely
briefly detained C.H. and the other individual “due to the fact that they, [were]
conducting an investigation of the possible two (2) subjects.” (Tr. 40). Thus, the degree
of intrusion was minimal. See, e.g., Myers v. State, 839 N.E.2d 1146, 1154 (Ind. 2005)
(concluding that the intrusion on the defendant, “at least as to public notice and
embarrassment, was somewhat lessened because of the hour and place of the search”).
11
Finally, the extent of law enforcement needs was high where, as discussed above,
the stop occurred in the context of investigating fleeing suspects from a stolen vehicle.
See McDermott v. State, 877 N.E.2d 467, 473 (Ind. Ct. App. 2007) (explaining that “‘[a]
brief stop of a suspicious individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may be most reasonable in
light of the facts known to the officer at the time’”) (quoting Russell v. State, 519 N.E.2d
549, 551 (Ind. 1988)), trans. denied.
Based on our balancing of the above factors and the specific facts of this case, we
conclude that Officer Blythe acted reasonably to investigate C.H.’s involvement in the
stolen vehicle and that his actions in stopping C.H. did not violate C.H.’s state
constitutional rights. Because Officer Blythe’s stop of C.H. was not unconstitutional, the
juvenile court properly admitted Officer Harris’ identification testimony into evidence.
2. Double Jeopardy
C.H. argues that the juvenile court violated Indiana’s Double Jeopardy Clause by
entering true findings for Class A misdemeanor criminal trespass and Class B
misdemeanor unlawful entry of motor vehicle. Specifically, C.H. argues that the State
violated the Double Jeopardy Clause under the actual evidence test because the State
used the same evidence to substantiate both true findings. The State contends that C.H.’s
“adjudications for criminal trespass and unlawful entry of a motor vehicle were
established by separate and distinct facts[.]” (State’s Br. 13).
Our Indiana Supreme Court established the following test for deciding a double
jeopardy claim:
12
[T]wo or more offenses are the same offense in violation of Article I,
Section 14 of the Indiana Constitution if, with respect to either the statutory
elements of the challenged crimes or the actual evidence used to convict,
the essential elements of one challenged offense also establish the essential
elements of another challenged offense.
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). ‘“[U]nder the
Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated
when the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a second
offense.” Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting Spivey v. State,
761 N.E.2d 831, 833 (Ind. 2002)). For a successful double jeopardy claim under the
Richardson actual evidence test, “a defendant must demonstrate a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a second
challenged offense.” Richardson, 717 N.E. at 53. On appeal, in determining the facts
used by the fact-finder, it is appropriate for a reviewing court to examine the evidence
presented, the charging information, arguments of counsel, and any other factors that may
have guided the fact-finder in making a decision. See Goldsberry v. State, 821 N.E.2d
447, 459 (Ind. Ct. App. 2005).
C.H. argues that the State violated the actual evidence test of Indiana’s Double
Jeopardy Clause. Specifically, C.H. contends that the manner in which the State charged
and argued the case created a reasonably possibility that the juvenile court used the same
evidence to establish the essential elements of both offenses. We agree.
13
At the denial hearing, the State presented evidence that C.H. had entered Felipa’s
car without her permission. In regard to the State’s allegation that C.H. had committed
criminal trespass, it alleged that he “knowingly or intentionally interfere[d] with the
possession or use of the property of Felipa . . . , by having entered and travelled in
[Felipa’s] vehicle without [Felipa’s] permission.” (App. 16). For the unlawful entry of a
motor vehicle allegation, the State alleged that C.H. “knowingly or intentionally enter[ed]
a motor vehicle knowing that [he] [did] not have the permission of an owner Felipa . . . ,
and [did] not have a contractual interest in the motor vehicle.” (App. 16). Thus, the
State based both of the juvenile allegations on C.H.’s action of entering Felipa’s car
without her permission. The State then made the following closing argument:
Your Honor, the State has proven beyond a reasonable doubt, doubt both
counts 1 and 2 . . . . As to criminal trespass, you heard from Felipa . . .
herself today that she did not give permission for anyone to drive her
vehicle and that that [C.H.] did knowingly or intentionally interfere with
the possession or use of her property by being in her car and traveling in
her car. You heard from Officer Harris that she saw [C.H.] as well as a few
of his friends leave the vehicle in front of the Marathon gas station and run,
not having contractual interest in that property. As to count 2, the class B
misdemeanor the unlawful entry of a motor vehicle, you heard again that
the victim in this case owned a 1995 Honda Accord, not giving anybody
permission or the keys to this vehicle on June 21st and the child did
knowingly or intentionally enter that vehicle that did not belong to the
driver or any of the people that were in the car with him.
(Tr. 51-52). In C.H.’s closing argument, his counsel specifically “argue[d] that the actual
evidence test appli[ed,] which would mean that he could only be found true for one and
not both, double jeopardy . . . .” (Tr. 53). The juvenile court entered true findings for
both offenses, but it did not distinguish between the evidence it used to support the two
adjudications.
14
Based on the allegations, the evidence presented at trial, and the State’s failure to
delineate separate facts that established both offenses, we hold that C.H. demonstrated
that there is a reasonable possibility that the same evidentiary facts were used to establish
the essential elements of both offenses.
Where two convictions—or in this case, adjudications—are determined to have
violated double jeopardy principles and where neither conviction/adjudication can be
reduced to a “less serious form of the same offense” to eliminate the violation, then the
conviction/adjudication “with the less severe penal consequences” must be vacated.
Richardson, 717 N.E.2d at 54-55. Therefore, we reverse and remand to the juvenile court
with instructions to vacate the Class B misdemeanor unlawful entry of motor vehicle
adjudication.
3. Restitution
C.H. argues that the juvenile court’s restitution order should be vacated primarily
because of the following reasons: (1) the State did not present evidence to support the
amount of restitution ordered; (2) the State did not inquire into C.H.’s ability to pay; (3)
the juvenile court did not consider whether restitution should be apportioned between
C.H. and other respondents; and (4) the juvenile court did not specifically advise C.H.
that he would be required to pay $500.00 restitution to Mary Coleman. 7 C.H.
acknowledges that he did not raise these issues above at his denial hearing; however, he
contends that the juvenile court committed a fundamental error.
7
Mary Coleman was the victim to whom the juvenile court had previously ordered C.H. to pay restitution
as a condition of probation in his May 2013 Adjudications.
15
The State responds that the juvenile court’s order should be upheld because C.H.:
(1) “waived all claims with regard to restitution due to his failure to object to any aspect
of the juvenile court’s order regarding restitution[;]” and (2) invited any error by
affirmatively agreeing to all of the terms to which he now objects. (State’s Br. 16).
In his reply brief, C.H. relinquishes his fundamental error argument and contends
that “even if this Court finds that C.H. invited the error he now challenges, this Court
may still address the merits of the restitution order under the public interest exception.”
(C.H.’s Reply Br. at 6).8
“The purpose behind an order of restitution is to impress upon the criminal
defendant the magnitude of the loss he has caused and to defray costs to the victim
caused by the offense.” Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999).
Pursuant to INDIANA CODE § 31-37-19-5(b)(4), a juvenile court may order a child to “pay
restitution if the victim provides reasonable evidence of the victim’s loss, which the child
may challenge at the dispositional hearing.” The restitution order is within the court’s
discretion, and this Court will reverse only upon a showing of an abuse of discretion.
P.J. v. State, 955 N.E.2d 234, 235 (Ind. Ct. App. 2011). An abuse of discretion occurs
when the trial court’s determination is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual deductions to be
drawn therefrom. Id.
8
The public interest exception is an exception to the doctrine of mootness, not invited error. See Matter
of Lawrence, 579 N.E.2d 32, 37 (Ind. 1991). Thus, we decline C.H.’s request to review this case under
this exception.
16
“Generally, failure to object to an award of restitution constitutes waiver of a
challenge to the award on appeal, unless a defendant argues that the award was
fundamentally erroneous and in excess of statutory authority.” Morris v. State, 2 N.E.3d
7, 9 (Ind. Ct. App. 2013). “[A] defendant’s failure to make a specific and timely
objection to the trial court’s receipt of evidence concerning the amount of restitution
constitutes waiver of the issue on appeal.” Id. Nevertheless, a number of cases have
emphasized this Court’s preference for reviewing a trial court’s restitution order even
absent an objection by the defendant. See e.g., Rich v. State, 890 N.E.2d 44, 48-49 (Ind.
Ct. App. 2013) (“the vast weight of the recent caselaw . . . indicates that the appellate
courts will review a trial court’s restitution order even where the defendant did not object
based on the rationale that a restitution order is part of the sentence, and it is [our] duty . .
. to bring illegal sentences into compliance”) (internal quotation marks and citations
omitted), trans. denied.
Here, however, C.H. not only failed to object to restitution, but he affirmatively
agreed to the imposition of restitution. We addressed a similar argument in Mitchell v.
State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000), trans. denied. In Mitchell, the trial
court convicted Mitchell of rape and criminal deviate conduct. Mitchell, 730 N.E.2d at
201. At trial, Mitchell did not object to the issued restitution order and agreed to pay for
the victim’s counseling via restitution. Id. On appeal, we held that Mitchell had waived
appellate review by both not objecting to the restitution order at trial and by agreeing to
pay restitution, thus inviting error. Id.
17
Similar to the defendant in Mitchell, here, C.H. did not object to the juvenile court
ordering him to pay restitution and, in fact, affirmatively agreed to pay the requested
restitution. Specifically, after the State asked the juvenile court to follow the probation
department’s recommendations and requested that C.H. pay $500.00 in restitution to
Felipa through the restitution work program, C.H.’s attorney stated that he had reviewed
the probation department’s recommendations and that C.H. was “in agreement with all of
them” except for the suspended commitment and curfew recommendations. (Tr. 55-56).
Here, C.H waived error by not objecting to the restitution order and invited error
by affirmatively agreeing to the terms which he now argues were erroneous. Because
C.H. invited error, and invited error is not reversible error, we concluded that C.H. has
waived review of this claim of error. See, e.g., Mitchell, 730 N.E.2d at 201; see also
Kelnhofer v. State, 857 N.E.2d 1022 (Ind. Ct. App. 2006) (holding that a defendant
“cannot invite error and then request relief on appeal based upon that ground”). But see
Bennett v. State, 862 N.E.2d 1281, 1288 (Ind. Ct. App. 2007) (declining to follow
Mitchell and the application of waiver of restitution argument based on invited error
because the Bennett Court was unsure if fundamental error was argued in Mitchell and
because Bennett’s restitution order contained no set amount, required payment of future
expenses, was open-ended, and violated statutory authority).
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J., and MATHIAS, J., concur.
18
C.H. v. State of Indiana
Combined Opinion