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

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
2

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,1and 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.
3

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 
4

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.
5

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.
6

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). 
7

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 Constitution5and 

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 . . . .”
8

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 
9

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
10

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)). 
11

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”). 
12

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: 
13

[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. 
14

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. 
15

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.
16

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.
17

“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.
18

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.