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
