                                                                           FILED
                                                                      Apr 12 2018, 11:44 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




                                IN THE

        Indiana Supreme Court
             Supreme Court Case No. 79S02-1711-CR-00687

                        Kristopher L. Weida
                        Appellant (Defendant below)

                                     –v–

                           State of Indiana
                          Appellee (Plaintiff below)


             Argued: December 7, 2017 | Decided: April 12, 2018

     Appeal from the Tippecanoe Superior Court, No. 79D01-1602-F5-13
                  The Honorable Randy J. Williams, Judge

         On Petition to Transfer from the Indiana Court of Appeals,
                          No. 79A02-1608-CR-01760



                          Opinion by Justice Goff
Chief Justice Rush, Justice David, Justice Massa, and Justice Slaughter concur.
Goff, Justice.

   Indiana’s Special Probation Conditions for Adult Sex Offenders impose
significant restrictions on probationers’ conduct, including their internet
access and use. 1 As we increasingly live our lives in cyberspace, probation
conditions limiting internet use must meet the same criteria as conditions
that restrict other conduct. First, they must adequately inform
probationers of what conduct will return them to jail; second, they must
reasonably relate to the purposes of probation—rehabilitating the
probationer and protecting the public. Here, Kristopher Weida challenges
the propriety of two special sex offender probation conditions, arguing
that they are both unreasonable and unconstitutional. Because we agree
that one probation condition proves unreasonable as applied to Weida, we
affirm in part, reverse in part, and remand to the trial court.


Factual and Procedural History
   On March 28, 2015, thirty-four-year-old Kristopher Weida had sexual
intercourse with his sixteen-year-old niece, K.M. Although Weida and
K.M. offered police differing versions of the encounter, they agreed on
some details. 2 Both told police that before having sex they looked at
pictures of K.M. on her cell phone, they viewed other explicit photos on
Weida’s phone, and K.M. showed Weida a website she found about incest.
Weida also admitted using his phone to google explicit pictures and
showing them to K.M. The State accordingly charged Weida with Level 5




1In deciding this matter, we noticed the growing trend to lowercase “internet” and write
“website” and “online” as single words. The Chicago Manual of Style §§ 7.80, 7.83, 7.89 (17th ed.
2017); see also Philip B. Corbett, It’s Official: The ‘Internet’ Is Over, N.Y. TIMES (June 1, 2016)
https://www.nytimes.com/2016/06/02/insider/now-it-is-official-the-internet-is-over.html. Cf.
Bryan A. Garner, Garner’s Modern English Usage 523, 654, 956 (4th ed. 2016). We’ve opted to
follow this prevailing trend, deviating from it only when quoting the record and Mr. Weida’s
briefing (which also quoted the record).
2Weida and K.M. voluntarily spoke to police and their statements were admitted without
objection at the sentencing hearing. See Confidential Documentary Exhibits, State’s Exhibit 1.



Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018                  Page 2 of 17
felony incest (Ind. Code § 35-46-1-3) and he pleaded guilty without an
agreement on sentencing terms.

   Following a sentencing hearing in which Weida and the State each
presented evidence and argument, the trial court sentenced Weida to three
years—one year executed in the Department of Correction and two years
suspended to probation. The court imposed probation conditions,
including Indiana’s Special Probation Conditions for Adult Sex Offenders.
Some conditions limited Weida’s internet use.

   Specifically, Condition 8 provided:

      You are prohibited from accessing or using certain web sites,
      chat rooms, or instant messaging programs frequented by
      children. You are prohibited from deleting, erasing, or
      tampering with information on your personal computer with
      intent to conceal an activity prohibited by this condition.
      *Required as a condition of probation by IC 35-38-2-2.2(4).


Appellant’s App. Vol. II, p. 48 (emphasis in original). Condition 9
elaborated upon Condition 8, instructing Weida that he could not use a
social networking website, instant messaging program, or chat room to
communicate with children. Id.

   Condition 26 imposed a broader internet prohibition. It read:


      You shall not access the Internet or any other on-line service
      through use of a computer, cell phone, iPod, Xbox, Blackberry,
      personal digital assistant (PDA), pagers, Palm Pilots,
      televisions, or any other electronic device at any location
      (including your place of employment) without prior approval
      of your probation officer. This includes any Internet service
      provider, bulletin board system, e-mail system or any other
      public or private computer network. You shall not possess or
      use any data encryption technique or program.




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Id. at 50. The court discussed these provisions during sentencing.
Referencing Conditions 8 and 9, the court said, “[T]o the extent that you
need to speak with, or contact your own children, you are able to use a
networking site or the instant messaging for your children. I’m not going
to take that away from you.” Tr. at 51, ¶¶ 8-12. Regarding Condition 26’s
internet access ban, the court reiterated, “[A]gain, you can have access for
the purpose of contact with your children at any time.” Id. at ¶¶ 16-17.

   Weida appealed, raising three arguments. He first argued his three-year
sentence proved inappropriate considering his character and the nature of
the offense. He then challenged Conditions 8 and 26 as unreasonable and
unconstitutional as applied to him because they created sweeping
prohibitions on internet usage. Finally, Weida challenged Condition 8’s
prohibition on “certain web sites . . . frequented by children” as
unconstitutionally vague. A divided Court of Appeals affirmed, rejecting
all three arguments. Weida v. State, 83 N.E.3d 704 (Ind. Ct. App. 2017).

  Weida petitioned for transfer, which we granted, thereby vacating the
Court of Appeals opinion. 3 See Ind. Appellate Rule 58(A).


Standard of Review
    Trial courts enjoy broad discretion in fashioning defendants’ probation
conditions. Hevner v. State, 919 N.E.2d 109, 113 (Ind. 2010). We will not
disturb a court’s probation order absent an abuse of that discretion. Bailey
v. State, 717 N.E.2d 1, 4 (Ind. 1999).

   A court abuses its discretion when the probation conditions imposed
are not reasonably related to rehabilitating the defendant and protecting
the public. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013)
(citation omitted). Our review, therefore, centers around whether imposed




3We summarily affirm the Court of Appeals decision rejecting Weida’s 7(B) claim that his
sentence was inappropriate considering the nature of the offense and his character. See Ind.
Appellate Rule 58(A)(2).



Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018              Page 4 of 17
probation conditions “reasonably relate to attaining these goals.” Id.
(citation omitted).

   However, to the extent a defendant challenges a probation condition on
constitutional grounds (either a vagueness or as-applied challenge), our
review is de novo. Cf. Smith v. State, 8 N.E.3d 668, 676 (Ind. 2014).


Discussion and Decision
   We live in the internet age. The internet, cyberspace, the World Wide
Web, whatever moniker you choose, pervades our daily lives. For many,
we even carry the internet around in our pockets or purses. Our cell
phones provide the gateway into cyberspace’s vast domains. Hoosiers
accomplish life’s most meaningful and mundane everyday tasks with
cyberspace at our fingertips. We apply for jobs, we file tax returns, we pay
bills, we attend college, we read the news, we navigate, we communicate,
we shop—all online. To be sure, most Hoosiers don’t think twice about
googling the answer to a vexing question, or checking the weather online,
or updating their status on social media. And that’s all right—for most
Hoosiers. But probationers are not most Hoosiers.

   When criminal defendants receive probation, they “agree[] to accept
conditions upon [their] behavior in lieu of imprisonment.” Bratcher, 999
N.E.2d at 873 (citation omitted). When defendants are sex offenders, those
probation conditions often include internet restrictions like those imposed
here. Although probationers “do not enjoy the same constitutional
protections as law-abiding citizens,” they may not be subjected to vague
probation terms that require them to acquiesce to unduly intrusive
constitutional violations. Id. Weida calls on us to decide when probation
conditions limiting internet access become unreasonable or unduly
intrusive upon a probationer’s constitutional right to free speech.

   Defendant Weida levels a multilayered attack against two standard
probation conditions he received. He initially argues that Condition 8’s
language prohibiting him from “accessing or using certain web sites . . .
frequented by children” is unconstitutionally vague because it fails to
inform him what specific websites are forbidden. Next Weida contends


Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 5 of 17
that Condition 8 and Condition 26 “create a sweeping Internet ban”—one
that is both unreasonable and unconstitutional. Specifically, he posits the
conditions fail to reasonably relate to his rehabilitation or public safety.
He then claims the conditions’ de facto internet ban unduly intrudes on
his First Amendment right to free speech and is therefore
unconstitutional.

  Addressing each argument in turn, we affirm in part, reverse in part
and remand to the trial court for further proceedings consistent with this
opinion.


    I.      Probation Condition 8 is not unconstitutionally
            vague.
   Probation conditions place restrictions on probationers’ conduct and
carry significant consequences. Hunter v. State, 883 N.E.2d 1161, 1163 (Ind.
2008). If a probationer violates even one condition, he risks probation
revocation and return to jail. Given these high stakes, probation
conditions cannot be vague. They “must . . . describe[] with clarity and
particularity the misconduct that will result in penal consequences” for
probationers. Id.

    When faced with a vagueness challenge to a probation condition, i.e.,
the condition lacks the requisite clarity and particularity, we employ the
same standard we apply when evaluating penal statutes for vagueness.
See id. We will find a probation condition unconstitutionally vague “only
if individuals of ordinary intelligence would not comprehend it to
adequately inform them of the conduct to be proscribed.” Patton v. State,
990 N.E.2d 511, 516 (Ind. Ct. App. 2013). See also Brown v. State, 868 N.E.2d
464, 467 (Ind. 2007). Probation conditions, like criminal statutes,
sufficiently inform probationers of restricted actions when they identify
“the generally proscribed conduct.” Patton, 990 N.E.2d at 516 (emphasis
added). See also Brown, 868 N.E.2d at 467. Fastidious specificity is not
required. In other words, probation conditions “need not list, with
itemized exactitude, every item of conduct that is prohibited.” Patton, 990
N.E.2d at 516.



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   When considering a vagueness challenge, we confine ourselves to the
facts and circumstances of the case before us. Brown, 868 N.E.2d at 467. We
will not allow a probationer “to devise hypothetical situations that might
demonstrate vagueness.” Patton, 990 N.E.2d at 516. What’s more, we take
the challenged probation provisions or language in context, not in
isolation. Brown, 868 N.E.2d at 467.

   Weida’s vagueness challenge centers around Condition 8, which in
relevant part provides:

      You are prohibited from accessing or using certain web sites,
      chat rooms, or instant messaging programs frequented by
      children.


Appellant’s App. Vol. II, p. 48. Isolating the phrase “certain web sites . . .
frequented by children,” Weida claims Condition 8 lacks the requisite
clarity and particularity to put him on notice of what conduct is
prohibited. He therefore argues an explanatory list is necessary to rescue
the condition from vagueness. We take his second point first.

   In proposing an illustrative list to save Condition 8, Weida relies upon
the Court of Appeals opinion in Collins v. State, 911 N.E.2d 700, 715-16
(Ind. Ct. App. 2009), trans. denied. There the contested probation condition
provided: “You shall not participate in any activity which involves
children under 18 years of age, such as, but not limited to, youth groups,
Boy Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams, unless
given permission by the Court.” Id. Like here, the defendant challenged
the condition as unconstitutionally vague. The Court of Appeals observed
the condition “consists of somewhat vague language that might otherwise
be inadequate were it not sufficiently clarified elsewhere.” Id. at 716. But
because the condition “included a list of prohibited activities, including
‘Boy Scouts, Brownies, [etc.]’” the Court of Appeals “conclude[d] the . . .
list sufficiently clarifie[d]” the condition. Id.

  Here, Weida urges that “[a]bsent a list of examples similar to that
approved in Collins, Condition 8 must be found unconstitutionally
vague.” But Collins notwithstanding, our vagueness precedent instructs



Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 7 of 17
that probation conditions, like criminal statutes, need not include an
illustrative list of prohibited activities to pass constitutional muster. See
Brown, 868 N.E.2d at 467; Patton, 990 N.E.2d at 516. Explanatory lists
might be helpful but are not required. Recall, we do not demand
fastidious specificity from probation conditions. We will not start now. See
Lock v. State, 971 N.E.2d 71, 75 (Ind. 2012) (stating that to survive a
vagueness challenge, the contested provision, like a criminal statute, “does
not need to provide an express or explicit list of prohibited conduct with
scientific precision, however much we might think it helpful”).

   Turning now to the merits of Weida’s vagueness challenge, we observe
that his argument focuses on specific language from Condition 8, “certain
web sites . . . frequented by children.” But our longstanding case law
cautions against reviewing allegedly vague language in isolation rather
than in context. See State v. Beckman, 219 Ind. 176, 180, 37 N.E.2d 531, 533
(1941) (“When all parts of the section from which the above quotations are
taken are read and considered together, it clearly appears that some acts
constituting reckless disregard for the safety of others are set out with
sufficient certainty to meet the requirements of a valid statute defining a
crime.”); Crump v. State, 259 Ind. 358, 362, 287 N.E.2d 342, 345 (1972)
(considering a vagueness challenge to specific language in the larger
context of the foregoing statutes); Brown, 868 N.E.2d at 467 (“To determine
whether the vagueness doctrine applies, we consider each [challenged] . . .
term[] not in isolation, but in context.”); Smith, 8 N.E.3d at 677 (evaluating
a vagueness challenge to the use of “immediately” “within the context of
Indiana’s reporting statutes”). And so we review this contested probation
term in the larger context of Condition 8 and Weida’s probation
conditions as a whole.

   Considering Condition 8’s prohibition on “accessing or using certain
web sites . . . frequented by children” in the big picture, we understand
the term to prohibit using websites that allow Weida to contact or
communicate with children. Indeed, a handful of Weida’s probation
conditions work together to limit his contact or communication with
children through any means, internet included.




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   Conditions 7, 8, and 9 specifically address internet contact and
communication with each condition building upon the next. For example,
Condition 7 requires Weida to consent to searches of his computer at any
time. Appellant’s App. Vol. II, p. 48. Condition 8 then prohibits him from
accessing or using the internet to venture into any type of website that
children regularly use to communicate. Id. After all, Condition 8 groups
“certain web sites, chat rooms, or instant messaging programs” all
together. Reading these terms in context leads us to understand that
Condition 8 prohibits accessing or using internet websites that open the
door to contact and communication with children. Condition 9 confirms
that understanding by ultimately imposing the more specific restriction—
no contact or communication with children over the internet, absent a
written court order. Id.

  Other probation conditions prohibit Weida from contacting or
communicating with children through any medium.

   Condition 20, for example, provides:


      You shall have no contact with any person under the age of 16
      unless you receive court approval or successfully complete a
      court-approved sex offender treatment program, pursuant to
      IC 35-38-2-2.4. Contact includes face-to-face, telephonic,
      written, electronic, or any indirect contact via third parties.

Appellant’s App. Vol. II, p. 49. Conditions 21 and 22 likewise forbid
Weida from contacting or communicating with children in person. The
former provides: “You shall not be present at schools, playgrounds, or day
care centers unless given permission by the court.” Id. The latter provides:


      You shall not participate in any activity which involves
      children under 18 years of age, such as, but not limited to,
      youth groups, Boy Scouts, Girl Scouts, Cub Scouts, Brownies, 4-
      H, YMCA, YWCA, or youth sports teams, unless given
      permission by the [c]ourt.




Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 9 of 17
Id. On the whole, we read these conditions to prohibit Weida’s contact and
communication with children, period.

        We further note that probationers are not required to decipher
probation conditions alone, with no guidance. See United States v. Romero,
676 F.2d 406, 407 (9th Cir. 1982) (“In addition to the bare words of the
probation condition, the probationer may be guided by the further
definition, explanations, or instructions of the . . . court and the probation
officer.”). Here Weida was not left alone to understand these probation
conditions on his own. The trial court instructed Weida regarding the
conditions restricting his internet use. The court told Weida he could use
the internet for the purpose of contacting and communicating with his
own children. Tr. at 51, ¶¶ 8-11, 16-17.

   Based on the foregoing, we find that a person of ordinary intelligence,
reading all the probation conditions in context and receiving instructions
from the court, would understand that Condition 8 forbids him from
visiting websites that allow him to contact or communicate with children.
Because Condition 8 provides sufficient clarity and particularity to give a
person with ordinary intelligence fair notice of what conduct is generally
proscribed, we hold the condition is not unconstitutionally vague.


    II.     Condition 8 is neither unreasonable nor unduly
            intrusive on Weida’s constitutional rights.
   Weida next argues that Condition 8 creates a sweeping ban on the
internet and is both unreasonable and unduly intrusive upon his First
Amendment right to free speech. Evaluating Weida’s argument entails a
two-part analysis. First, using the abuse of discretion standard, we must
determine whether Condition 8 is reasonably related to rehabilitating the
probationer and protecting the public. If we find the provisions
reasonable, we must address Weida’s constitutional argument: that
Condition 8 unduly intrudes upon his First Amendment rights.




Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 10 of 17
   A. Condition 8’s internet restrictions reasonably relate to
      Weida’s rehabilitation and protecting the public.

   We find that Condition 8 is reasonably related to Weida’s rehabilitation
and protecting the public. When a defendant commits a sex crime against
a child, as happened here, it is reasonable to restrict that defendant’s
access to children through any medium. Restricted access to children
simultaneously helps the defendant avoid temptation and protects the
public. See Patton, 990 N.E.2d at 516; Bratcher, 999 N.E.2d at 879 (citing
Smith, 779 N.E.2d at 117). Accordingly, the trial court did not abuse its
discretion in imposing Condition 8 upon Weida.


   B. Condition 8’s internet restrictions are not unduly intrusive
      upon Weida’s right to free speech under the First
      Amendment.

   Likewise, we find that Condition 8 does not unduly intrude on Weida’s
First Amendment rights. When faced with a challenge that a probation
condition proves unduly intrusive upon a constitutional right we balance
three factors:

   1.   [T]he purpose to be served by probation;
   2.   [T]he extent to which constitutional rights enjoyed by law-abiding
        citizens should be enjoyed by probationers; and
   3.   [T]he legitimate needs of law enforcement.

Patton, 990 N.E.2d at 515. We take each factor in turn.

   First, as we have already noted there are two purposes for Weida’s
probation: rehabilitation and public safety. As we explained above, both
purposes are served by preventing Weida from using the internet to
contact and communicate with children because Weida committed his
offense against a child.

  Second, it is well-established that probation conditions “may impinge
upon a probationer’s right to exercise an otherwise constitutionally
protected right because ‘probationers simply do not enjoy the freedoms to
which ordinary citizens are entitled.’” Patton, 990 N.E.2d at 515 (quoting



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Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App. 1999)). We note Condition 8
does not ban internet access altogether, but only access to websites
children use to communicate. In our view, this limitation does not
severely curtail Weida’s First Amendment internet activity vis-à-vis the
average law-abiding citizen. Like normal Hoosiers, he can still use the
internet to communicate with adults and complete the myriad everyday
online tasks.

   Third, although the internet played a small role in this crime, we
acknowledge that Weida did not find or prey upon his victim using the
internet. Unlike other sexual predators who locate and then lure their
victims online, he did not carry out the crime using the internet.
Accordingly, the law enforcement need for Condition 8 in this situation
lessens compared to other cases.

   On balance, we find Condition 8 does not unduly intrude upon Weida’s
First Amendment rights. Consequently, we hold that Condition 8 is
constitutional as applied to Weida.


    III.    Condition 26 is not reasonably related to Weida’s
            rehabilitation and maintaining public safety.
   Weida levels the same multilayered attack against Condition 26—that it
creates a blanket internet ban that is both unreasonable and
unconstitutional as applied to him. We therefore employ the same
analysis we previously applied: first deciding whether Condition 26
reasonably relates to rehabilitating Weida or protecting the public; and
second, if necessary, deciding whether it unduly intrudes upon a
constitutional right. Condition 26 provides in pertinent part:


      You shall not access the Internet or any other on-line service . . .
      without prior approval of your probation officer.


Appellant’s App. Vol. II, p. 50.

   To begin, we note that we do not anticipate receiving future challenges
to Condition 26 like Weida’s present challenge. Since Weida’s sentencing


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and our hearing this case, the standard Condition 26 underwent
significant changes. It no longer imposes an expansive internet ban. The
new Condition 26 now provides:


      You are prohibited from accessing, viewing, or using internet
      websites and computer applications that depict obscene matter
      as defined by IC 35-49-2-1 or child pornography as defined by
      18 U.S.C. § 2256(8). You shall not possess or use any data
      encryption technique or program to conceal your internet
      activity.


Sex Offender Special Conditions (Adult), INDIANA OFFICE OF COURT SERVICES,
http://www.in.gov/judiciary/probation/files/prob-sex-offender-conditions-
adult.pdf (last visited April 12, 2018). Although we see prudence in
Condition 26’s new, narrower internet restriction, we must still address
Weida’s arguments as to the old Condition 26 since the court imposed that
version during his sentencing.

   Weida labels the old Condition 26 a “blanket Internet ban” that
“requires [him] to contact his probation officer every time he wishes to
access the Internet.” We feel compelled to explain that Weida is mistaken
on both points. There is no blanket ban on all internet access for Weida
here because in the sentencing hearing the trial court expressly granted
him permission to access the internet at any time for the purposes of
communicating with his children. Tr. at 51, ¶¶ 16-17 (“Item . . . 26 again,
you can have access for the purpose of contact with your children at any
time”). What’s more, we don’t read Condition 26 to demand that Weida
receive prior approval every time he accesses the internet. “Prior
approval” does not translate to “single-instance-approval.” For example,
in the initial meeting the probation officer could grant Weida ongoing
permission to access the internet to search for jobs, pay bills, or read the
Wall Street Journal. Weida’s argument reads an onerous requirement into
old Condition 26 that was simply not there.

  Although we disagree with Weida’s characterization of the old
Condition 26, we agree its restriction on internet access in his case reaches
beyond reasonableness into unreasonableness. In other words, Condition


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26’s prior broad prohibition on internet access but for the court’s or the
probation officer’s permission, is not reasonably related to Weida’s
rehabilitation or maintaining public safety.

    As we said, we live in an internet-saturated society. Cyberspace
presents the primary conduit for information and communication. Given
the importance and prevalence of the internet in today’s world, we must
decide when it is reasonable to curtail a probationer’s internet access. Put
differently, when is an internet restriction reasonably related to the
probationer’s rehabilitation and reintegration into society, and when does
it protect the public from future harm?

   Our Court of Appeals addressed these questions in several cases in the
last decade, generally holding that the imposed internet restriction
reasonably related to the purposes of probation or parole. See Harris v.
State, 836 N.E.2d 267, 275-76 (Ind. Ct. App. 2005); McVey v. State, 863
N.E.2d 434, 450 (Ind. Ct. App. 2007); Patton, 990 N.E.2d at 516-17; Bratcher,
999 N.E.2d at 879. But recently the Court of Appeals sought additional
guidance from other jurisdictions, specifically, those courts that consider
whether the probationer previously used the internet in prior crimes or
used it in the current crime. Waters v. State, 65 N.E.3d 613, 619-20 (Ind. Ct.
App. 2016) (citing United States v. Perazza-Mercado, 553 F.3d 65, 72-73 (1st
Cir. 2009); United States v. Neeley, 675 F. Supp. 2d 655, 658 (W.D. Va. 2009);
State v. Cornell, 146 A.3d 895, 910-11 (Vt. 2016)), trans. not sought.

   In Waters, the defendant pleaded guilty to criminal deviate conduct,
battery resulting in bodily injury, and strangulation after he attacked a
woman he took to a bar. Id. at 616. Waters received a twenty-one and one-
half-years sentence, with sixteen years executed and five-and-one-half
years suspended to probation. Id. The trial court imposed similar
probation conditions to those Weida received here, including an identical
Condition 26 that broadly prohibited internet access or use. Id. at 619.
Waters challenged 26’s internet restriction, arguing that since he did not
victimize a child the condition proved unreasonable. Id.

   In determining whether Condition 26 reasonably related to Waters’
rehabilitation and protection of public safety, the Court of Appeals
considered whether Waters previously used the internet illegally and


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whether he used the internet during his current crime. Id. 619-20. Since
Waters had not misused the internet in his past or present crimes, the
court determined that the standard broad internet restriction was
unreasonable. Id. at 620. The court opined a reasonable internet restriction
would prevent Waters from meeting women or viewing sexually explicit
materials. Id. The court remanded, instructing the trial court to “impose a
narrower internet restriction that is more in line with Waters’ conviction
and ‘issues with women.’” Id.

   At first blush, it may appear that Waters charted a new path in
evaluating whether probation conditions restricting internet use
reasonably relate to rehabilitating the probationer or protecting the public.
But it did no such thing. The Waters court applied the well-established
reasonably-related analysis, but considered new questions based on the
unique facts presented. We appreciate Waters’ nuanced, fact-specific
approach and apply it now.

   Here, the record reveals Weida has no history of misusing the internet
or using the internet to perpetrate a crime. However, the record does
show that Weida used the internet shortly before committing incest with
K.M. He admitted googling explicit photos and showing them to K.M. He
likewise admitted viewing an incest website before having sex with K.M.
We cannot ignore that when Weida enjoyed unfettered internet access he
committed incest. Whether or not he intentionally groomed K.M. for sex,
there is no doubt the two went from talking, to looking at sexually explicit
material online, to having sex. But Weida’s troubles recognizing sexual
boundaries in person and online should not result in a far-reaching, broad
internet ban. A more appropriate internet restriction—one that reasonably
relates to his rehabilitation and protecting the public—will restrict his
access to obscene or sexually explicit material. Such a restriction will assist
him in rehabilitating and avoiding enticement to re-offend yet allow him
to remain a productive member of our internet-dependent society. He can
still look for jobs, attend classes online, pay bills, read news, and
otherwise lead a rehabilitated life. We finally note that a narrower internet
restriction does not sacrifice public safety since Weida will still be
prohibited from accessing material that related to his offense.



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   We, therefore, find the trial court abused its discretion by imposing an
unreasonable probation condition that did not reasonably relate to
rehabilitating Weida and protecting the public. We remand this matter
with instructions to impose a reasonable internet restriction in place of the
old Condition 26. Since we decide this matter on Weida’s
unreasonableness claim, we need not address his constitutional argument
that the condition unduly intrudes upon his free speech rights. See Jean-
Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017) (declining to address a
raised issue based upon the longstanding principle of constitutional
avoidance).


Conclusion
   Because probation conditions restricting a probationer’s internet access
prohibit what would otherwise be lawful conduct, they cannot be vague;
they must reasonably relate to the probationer’s rehabilitation and public
safety; and they cannot unduly intrude upon constitutional rights.
Believing two probation conditions (namely, Conditions 8 and 26) limiting
his internet use did not meet these criteria, Weida brought this appeal. We
now hold that Condition 8 is not vague, unreasonable, or unduly intrusive
on Weida’s constitutional rights. But Condition 26, as previously written
and applied to Weida, is unreasonable since it does not reasonably relate
to his rehabilitation and protecting the public. Accordingly, we affirm in
part, reverse in part, and remand to the trial court for further proceedings
consistent with this opinion.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.




Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 16 of 17
A TT O RN E Y F O R A P P E L L A N T

Brian A. Karle
Ball Eggleston, PC
Lafayette, Indiana


A TT O RN E YS FO R A P PELL EE

Curtis T. Hill, Jr.
Attorney General of Indiana

Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 79S02-1711-CR-00687 | April 12, 2018   Page 17 of 17
