dissenting in part.
I respectfully dissent from the majority's determination that the trial court erred by merging Wright's conviction for theft as a Class D felony into his conviction for burglary as a Class C felony. First, the issue of whether it was proper for the trial court to merge Wright's theft convietion into his burglary conviction arose solely from the State's cross appeal. However, at trial, the State "point[ed] out" to the trial court that "the [theft does merge in with the [blurglary." Tr. at 119. The following colloquy between the trial court and the State ensued:
[Court:] You agree that the Theft does merge?
[State:] Yes.
Id. The trial court then merged the theft conviction into the burglary conviction.
It is well settled that a party may not appeal invited error. Beeching v. Levee, 764 N.E.2d 669, 674 (Ind.Ct.App.2002) (holding appellant waived arguments regarding admissibility of grievances when he offered five of them for admission himself). Here, the State invited the merger that it now claims as error. Indeed, the trial court acted at the State's behest when it merged the theft conviction into the burglary conviction. Accordingly, the State has waived any claim of error associated with the merger. See generally State v. Keith, 507 N.E.2d 245, 245 (Ind.Ct.App.1987) ("A party may not sit idly by, permit the [trial] court to act in a claimed erroneous manner, and then attempt to take advantage of the alleged error at a later time. A timely objection must be asserted so that the trial court has an opportunity to promptly correct the alleged error.")
Waiver notwithstanding, the trial court did not err by merging Wright's theft conviction into his conviction for burglary. Indiana Code Section 35-50-1-1 provides that: "The court shall fix the penalty of and sentence a person convicted of an offense." The trial court's decision to merge Wright's theft conviction into his burglary conviction, at the State's request, was apparently motivated by perceived double jeopardy concerns. In Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), our supreme court enunciated the following two-part test:
two offenses are the "same offense" and thus violate double jeopardy if, with respect to either the statutory elements of *748the 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.
Id.
In the present case, I agree with the majority that the offenses of burglary and theft each contain statutory elements that are separate and distinct from the other.1 In brief, to convict Wright of burglary, the State was required to prove that he broke into and entered a building, with the intent to commit a felony therein. § 35-48-2-1. To convict Wright of theft, the State had to prove that he knowingly or intentionally exerted unauthorized control over the property of another, with intent to deprive that person of any part of its value or use. Ixp.Copge § 35-48-4-2(a). Thus, to obtain a conviction for burglary, it was not necessary for the State to prove that Wright committed theft because the burglary is complete upon the breaking and entering with the intent to commit the theft; likewise, a conviction for theft does not require a breaking and entering. Therefore, each of the offenses contains at least one element that is separate and distinct from the other offense. See Vestal v. State, 773 N.E.2d 805, 807 (Ind.2002) ("Vestal II ").
However, I take issue with the majority's analysis regarding the application of the actual evidence test of double jeopardy. In Vestal v. State, 745 N.E.2d 249, 250 (Ind.Ct.App.2001) ("Vestal I'), another panel of this court held, in part, that the defendant's convictions for burglary as a Class C felony and theft as a Class D felony did not constitute double jeopardy. There, the defendant, who lived in Terre Haute, Indiana, asked his son "if he wanted to make some money," and the son answered in the affirmative. Id. The defendant and his son then went to a liquor store in Brazil, Indiana, and "pried the door open with a crowbar." Id. The two men next entered the store, took several items of property including beer and cigarettes, and returned to Terre Haute. Id. The defendant was later apprehended and convicted of Class C felony burglary and Class D felony theft. Id. at 251.
On direct appeal, the defendant argued that his burglary and theft convictions violated Indiana's prohibition against double jeopardy because "the jury used the same evidence to convict him on both crimes." Id. The Vestal I court properly observed that the defendant's convictions did not violate the statutory elements test of the double jeopardy clause. Id. The Vestal I court then determined that because "the evidence of the intent to commit the theft required for the burglary is the same evidence required to prove the theft," a strict application of Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), would result in a finding of double jeopardy under the actual evidence test. Vestal I, 745 N.E.2d at 251-52. Opining that our supreme court could not have intended such a result, the Vestal I court ultimately held that the defendant's convictions for burglary and theft did not constitute double jeopardy because even though the actual commission of the theft was used to prove the *749intent element of burglary, theft was a distinct act from the burglary itself. Id. at 252.
The defendant in Vestal I appealed to the Indiana Supreme Court arguing that his theft and burglary convictions violated the actual evidence test of double jeopardy. On transfer, our supreme court vacated Vestal I only as to its discussion of double jeopardy. Vestal II, 778 N.E.2d at 807. Specifically, the Vestal II court found that, under the facts presented, there is no reasonable possibility that the jury used the same evidentiary facts to establish the essential elements of both burglary and theft. The court noted the following:
The evidentiary facts establishing the commission of theft (removing goods and cash from the liquor store with the intent to deprive the owner of its use or value) do not also establish that the defendant broke and entered the store. Similarly, the evidentiary facts establishing the commission of burglary (diseuss-ing desire to get money and then driving from Terre Haute to Brazil in the early morning hours and using crowbar to break into and enter liquor store) do not also establish that the defendant exerted control over and removed goods and cash from the store.
Id.
Further, in Vestal II, the defendant had relied upon Marcum v. State, 725 N.E.2d 852, 864 (Ind.2000), wherein the Indiana Supreme Court vacated an auto theft conviction because there was at least a reasonable possibility that the jury used the same evidentiary fact-i.e., the theft of a van-to prove an essential element of the conspiracy to commit burglary and also the essential elements of auto theft. Id. In discussing Marcum, the Vestal II court recognized that:
We reached that reasoned conclusion because the jury instructions on the conspiracy offense required the jury to use the specific facts of the auto theft to constitute the overt act element of the conspiracy. Unlike Mareum, the present case presents separate evidence of the defendant's intent at the time of the breaking and entering. In addition, the Mareum conspiracy instruction informed the jury that proof of the completed auto theft was the overt act of the conspiracy, whereas, in the present case, the instructions did not direct the jury to find the elements of the completed theft in order to establish the defendant's intent at the time of the breaking and entering.
Id. at 807.
Armed with this distinction of Marcum, the Vestal II court held that the defendant did not establish a reasonable possibility that the jury used the same evidentiary facts to convict him of two offenses because the evidence presented at trial to establish the burglary offense-i.e., the defendant asking his son if he wanted to make some money, driving to Brazil in the middle of the night, going to the liquor store, taking out the crowbar and breaking a window and prying open the door, and entering the store-did not also establish the commission of the theft, in violation of the Indiana Double Jeopardy Clause. Id.
Here, unlike in Vestal II, the only evidence of Wright's intent to commit a felony at the time he committed the breaking and entering is the commission of the theft itself. Indeed, the fact-finder, ie., the trial court, and the State both agreed, at least implicitly, that to establish the "intent to commit a felony" element of burglary, the fact-finder had to rely upon the actual commission of the theft itself. The record in this case reveals that Wright broke into and entered the store, walked around inside, and took cigarettes. Wright hurriedly left the store when the alarm sounded *750and police officers found him approximately fifteen minutes later in close proximity to the store and the boxes of stolen cigarettes. Thus, the only evidence of Wright's intent to commit theft after breaking into and entering the store is the fact that he took cigarettes while inside the store. Other than the actual commission of the theft, the record reveals no independent evidence regarding Wright's intent to commit a felony after he broke into and entered the store. As such, the trial court did not err by merging Wright's theft conviction into his burglary conviction based upon double jeopardy concerns.
For these reasons, I respectfully dissent from the majority opinion.
. The majority uses the phrase "actual elements" in lieu of the phrase "statutory elements" to refer to the statutory elements test enunciated in Richardson. I have come across four post-Richardson cases that, too, use the phrase "actual elements" instead of "statutory elements," compared to over ninety post-Richardson cases that employ the phrase "statutory elements." Our nomenclature has blurred the lines between the labels "statutory elements" and "actual elements" in reference to the statutory elements test pertinent to a double jeopardy analysis. I prefer to use the language "statutory elements" as in Richardson.