Bianca Mosley v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), Aug 30 2013, 5:29 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any 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:
JARED MICHEL THOMAS GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BIANCA MOSLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1301-CR-6
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Wayne S. Trockman, Judge
Cause No. 82D05-1111-CM-6111
August 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Bianca Mosley appeals the trial court’s order that she pay $195.00 in restitution. We
affirm.
FACTS AND PROCEDURAL HISTORY
On November 5, 2011, Desiree Jennings was stopped at a stoplight in her vehicle
when Mosley and another woman, Latara Graves, pulled up behind her, exited their vehicle,
and began attacking Jennings. An hour later, Graves and Mosley went to Jennings’ house
and damaged the windshield, hood, and side view mirror of Jennings’ vehicle.
The State charged Mosley with Class A misdemeanor battery1 and Class B
misdemeanor criminal mischief.2 After a bench trial, the trial court found Mosley guilty of
Class B misdemeanor criminal mischief. The trial court sentenced Mosley to sixty days
suspended and ordered her to pay $195.00 in restitution within that time frame.
DISCUSSION AND DECISION
Mosley argues the trial court abused its discretion when it ordered her to pay
restitution of $195.00 for half of the cost to repair Jennings’ vehicle. During sentencing, the
trial court and counsel discussed restitution:
[State]: The state would simply ask that [Mosley] be required to pay that
remaining half of the um Criminal Mischief damages that was done in
additional because of her lack of a criminal record, we’re not asking for time
to be executed we would ask for a short period of time to be suspended on
condition she complete sixteen hours of community service.
[Court]: [Mosley’s counsel]
[Defense]: Um, Judge we would ask that there be a suspended sentence
possibly sixty days on the condition she pay the other half of the restitution and
that the court waive the fines and costs, she’s going to school, not working,
1
Ind. Code § 35-42-2-1(a)(1).
2
Ind. Code § 35-43-1-2(a)(1).
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trying to raise a child, she is indigent and um because of her schooling and her
responsibilities to her child and lack of prior record, we ask that she not be
required to do any community service.
(Tr. at 91.)
As Mosley agreed to pay restitution as part of her sentence, she invited any error that
occurred when the court ordered her to pay restitution. Error invited by the complaining
party is not reversible error. Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002). As such,
invited errors are not subject to appellate review. Gamble v. State, 831 N.E.2d 178, 184 (Ind.
Ct. App. 2005), trans. denied. Thus, Mosley cannot now complain that restitution was
imposed. Nor can she complain about the amount of restitution imposed when the trial court
heard information about Mosley’s employment and asked Mosley if she could pay $195.00
within sixty days, and she indicated she could. See Polen v. State, 578 N.E.2d 755, 758 (Ind.
Ct. App. 1991) (asking defendant if she is able to pay is sufficient inquiry into her ability to
pay restitution). Accordingly, we affirm the decision of the trial court.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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