MEMORANDUM DECISION                                                         FILED
                                                                       May 24 2018, 7:05 am
Pursuant to Ind. Appellate Rule 65(D),                                      CLERK
this Memorandum Decision shall not be                                   Indiana Supreme Court
                                                                           Court of Appeals
regarded as precedent or cited before any                                    and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Rory Gallagher                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Lee Couch,                                         May 24, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1711-CR-2655
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Hooper,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1706-CM-23110



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018             Page 1 of 8
                                        Statement of the Case
[1]   John Lee Couch (“Couch”) appeals the trial court’s restitution order entered

      following his conviction for Class B misdemeanor criminal mischief1 and Class

      B misdemeanor disorderly conduct.2 Couch argues that the trial court erred by

      ordering him to pay $144.00 in restitution to the victim, contending that the

      amount of restitution was based on insufficient evidence. Because Couch

      specifically agreed that $144.00 was the amount of restitution, he invited any

      alleged error with the restitution order and has waived his appellate challenge to

      restitution.


[2]   We affirm.


                                                      Issue
                 Whether the trial court erred by ordering Couch to pay $144.00 in
                 restitution to the victim.

                                                      Facts
[3]   On June 21, 2017, Couch was injured in a car accident and taken by ambulance

      to the emergency room (“ER”) at Eskenazi Hospital (“Eskenazi”). When

      Couch arrived at Eskenazi, he was strapped to a backboard and had a C-collar

      around his neck. An ER nurse, Rachel Thomas (“Nurse Thomas”), took

      Couch from the EMTs, put him into an ER room, and performed an initial



      1
       IND. CODE § 35-43-1-2(a). This statute was subsequently amended after the commission of Couch’s offense,
      and an amended version of the statute will become effective on July 1, 2018.
      2
          I.C. § 35-45-1-3(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018           Page 2 of 8
assessment. Nurse Thomas noted that Couch was “a little anxious” and that he

seemed “ready to . . . get off that board and out of that C-collar.” (Tr. Vol. 2 at

9). Nurse Thomas told Couch that a doctor would come to see him, and she

then left the room. Shortly thereafter, Nurse Thomas heard a “loud bang”

coming from Couch’s room. (Tr. Vol. 2 at 9). Nurse Thomas went back into

the room, where she saw that the call light had been ripped from the wall and

that a suction unit had been broken off the wall. Couch was “very agitated,

cussing, yelling, [and] calling names.” (Tr. Vol. 2 at 10). Couch demanded

“treatment right away” and stated that he was going to leave and find another

hospital. (Tr. Vol. 2 at 10). Nurse Thomas assured Couch that a doctor would

soon see him and called for security. The security officer told Couch that he

could not destroy hospital property and that he needed to calm down and

remain quiet. The security officer also informed Couch that a doctor would

soon see him. After Nurse Thomas and the security officer left the room,

Couch loudly and “continually” yelled and cussed. (Tr. Vol. 2 at 17). After

Couch was treated and discharged, the security officer went to talk to Couch,

who tried to walk away. Couch yelled and made “a loud scene” and was

eventually arrested. (Tr. Vol. 2 at 28). Couch admitted to the security officer

that he had “broke the stuff off the wall[.]” (Tr. Vol. 2 at 28).




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 3 of 8
[4]   The State charged Couch with Class B misdemeanor criminal mischief and two

      counts of Class B misdemeanor disorderly conduct.3 In October 2017, the trial

      court held a bench trial, during which Couch testified and denied that he had

      told the security officer that he had broken anything. The trial court found

      Couch guilty of Class B misdemeanor criminal mischief and one count of Class

      B misdemeanor disorderly conduct, and it found him not guilty of the other

      Class B misdemeanor disorderly conduct charge. 4 Per the State’s request, the

      trial court set the sentencing hearing out one week so that the State could obtain

      “the exact cost of the suction unit . . . to include . . . as part of the restitution.”

      (Tr. Vol. 2 at 41).


[5]   During the subsequent sentencing hearing, the following exchange occurred

      regarding restitution:


                 THE COURT: Remind me why we kicked [the sentencing
                 hearing] out. Was it restitution?

                 [THE STATE]: The restitution. We were trying to get the exact
                 amount of the suction device that was broken.

                 THE COURT: Oh, yes. Any witnesses here, or any agreements?

                 [THE STATE]: We have a receipt for $144.

                 THE COURT: Do you agree with that?




      3
        One count alleged that Couch had made an unreasonable noise and continued to do so after being asked to
      stop, see INDIANA CODE § 35-45-1-3(a)(2), and the other count alleged that he had engaged in fighting or
      tumultuous conduct. See I.C. § 35-45-1-3(a)(1).
      4
          The trial court found him guilty of the disorderly conduct charge relating to making an unreasonable noise.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018                 Page 4 of 8
        [COUCH’S ATTORNEY]: Judge, I don’t have any reason to
        dispute the receipt, no.

        THE COURT: Okay. Because I’ve been reversed on this stuff. I
        need you to either continue it, or you agree to it, we have a
        hearing, I mean. You don’t dispute it, which means what? I
        know he can’t agree because he thinks he – he wants to maintain
        his innocence.

        [COUCH’S ATTORNEY]: Right. Can I speak to my client just
        briefly?

        THE COURT: Yeah. I guess, “we’re not disputing restitution”
        type of saying might cover you?

        [COUCH’S ATTORNEY]: I think that’s accurate. We are not
        disputing the amount of restitution.

(Tr. Vol. 2 at 42-43). Thereafter, the trial court moved to sentencing

recommendations. The State argued that the trial court should order Couch to

do forty hours of community service and asked the court to enter a restitution

order for $144.00. Couch’s counsel responded, “Judge, we agreed upon the

restitution in the amount of $144” and then stated that “[f]or that reason, . . . I

think fewer hours of community service would be appropriate.” (Tr. Vol. 2 at

44). For each of Couch’s convictions, the trial court imposed a one hundred

and eighty (180) day suspended sentence, and it ordered that these sentences be

served concurrently. The trial court also ordered Couch to pay $144.00 in

restitution to Eskenazi and to do twenty-four hours of community service.

Couch now appeals.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 5 of 8
                                                     Decision
[6]   Couch argues that the trial court erred by ordering him to pay $144.00 in

      restitution.5 “[A] trial court has the authority to order a defendant convicted of

      a crime to make restitution to the victim[] of the crime.” Henderson v. State, 848

      N.E.2d 341, 345 (Ind. Ct. App. 2006) (citing IND. CODE § 35-50-5-3). “The

      principal purpose of restitution is to vindicate the rights of society and to

      impress upon the defendant the magnitude of the loss the crime has caused.”

      Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008), reh’g denied. “Restitution also

      serves to compensate the offender’s victim.” Id. When a victim has incurred

      property damage as a result of a defendant’s crime, the trial court’s restitution

      order will be “based on the actual cost of repair (or replacement if repair is

      inappropriate)[.]” I.C. § 35-50-5-3(a)(1). “The amount of a victim’s loss is

      a factual matter that can be determined only on presentation of evidence.”

      Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied. An order

      of restitution lies within the trial court’s discretion and will be reversed only

      where there has been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509

      (Ind. 2012). A trial court abuses its discretion when its decision is clearly

      against the logic and effect of the facts and circumstances or when the trial




      5
        Couch, acknowledging that he did not object to restitution during sentencing, argues that the trial court
      committed fundamental error by ordering him to pay $144.00 in restitution. The State contends that Couch’s
      lack of objection results in waiver of his argument on appeal. Generally, the failure to object to an award of
      restitution will result in waiver of an appellate challenge to the award; however, we note that our Court has
      “emphasized this Court’s preference for reviewing a trial court’s restitution order even absent an objection by
      the defendant.” See C.H. v. State, 15 N.E.3d 1086, 1095-97 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018                Page 6 of 8
      court has misinterpreted the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct.

      App. 2013).


[7]   Couch contends that the amount of restitution was based on insufficient

      evidence because the State did not offer the receipt for the requested restitution

      of $144.00 as an exhibit during the sentencing hearing. The State responds that

      Couch’s “argument that the State failed to present sufficient evidence proving

      the loss sustained ignores the fact that [Couch] agreed to the accuracy of the

      amount, thereby relieving the State of any need to prove it.” (State’s Br. 9).

      The State further asserts that Couch “cannot tell the State [that] he does not

      dispute the amount and then turn around on appeal and complain that the State

      did not present the evidence he said was unnecessary.” (State’s Br. 9). We

      agree with the State.


[8]   Here, during the sentencing hearing, the State sought restitution for the suction

      device that Couch had broken at Eskenazi. The State indicated that it had a

      receipt for $144.00, and Couch stated that he was “not disputing the amount of

      restitution.” (Tr. Vol. 2 at 43). When making a sentencing argument, Couch

      referred to his stipulation as a means to argue for lesser hours of community

      service. Specifically, his counsel stated, “Judge, we agreed upon the restitution

      in the amount of $144” and “[f]or that reason, . . . I think fewer hours of

      community service would be appropriate.” (Tr. Vol. 2 at 44).


[9]   Despite his agreement regarding the amount of restitution, Couch now attempts

      to argue on appeal that there is insufficient evidence to support the restitution


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 7 of 8
       amount ordered by the trial court. We reject his argument because of invited

       error. A defendant “cannot invite error and then request relief on appeal based

       upon that ground[.]” Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App.

       2000), trans. denied. Invited error is not reversible error. C.H. v. State, 15 N.E.3d

       1086, 1097 (Ind. Ct. App. 2014), trans. denied. Because Couch agreed to the

       amount of restitution, he invited any alleged error and waived his argument

       that there is insufficient evidence to support the restitution amount. See, e.g.,

       C.H., 15 N.E.3d at 1097 (holding that the appellant’s restitution argument was

       waived where he had invited any error regarding restitution); Mitchell, 730

       N.E.2d at 201 (providing that the defendant had waived his appellate challenge

       to the trial court’s restitution order because he had invited the error alleged).


[10]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2655 | May 24, 2018   Page 8 of 8
