MEMORANDUM DECISION                                                     FILED
                                                                   Aug 15 2016, 8:29 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   CLERK
                                                                    Indiana Supreme Court
regarded as precedent or cited before any                              Court of Appeals
                                                                         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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Special Assistant to the State Public                    Attorney General of Indiana
Defender
Wieneke Law Office, LLC
Brooklyn, Indiana                                        Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Tanner Wilson,                                           August 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         28A01-1603-CR-707
        v.                                               Appeal from the Greene Circuit
                                                         Court
State of Indiana,                                        The Honorable Eric C. Allen,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         28C01-1511-F5-29



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016       Page 1 of 4
                                          Case Summary
[1]   Tanner Wilson pled guilty to child exploitation and possession of child

      pornography and was sentenced to a term of incarceration to be followed by a

      year of probation. As conditions of that probation, Wilson was ordered not to

      visit any business that sells sexual devices or aids or to enter any establishment

      where alcohol is served by the drink. He appeals the imposition of these

      conditions. Because the sexual-devices-or-aids condition is overly broad, we

      remand this matter to the trial court with instructions to either vacate or narrow

      the condition. We affirm the alcohol condition.



                            Facts and Procedural History
[2]   Wilson pled guilty to Level 5 felony child exploitation and Class A

      misdemeanor possession of child pornography based on his possession and

      distribution of digital images of nude children. The trial court sentenced him to

      four years on the felony, with one year suspended to probation, and to time

      served on the misdemeanor. Among other probation conditions, the court

      ordered Wilson not to “visit . . . businesses that sell sexual devices or aids,”

      Appellant’s App. p. 110-11, or to “enter any establishment where alcohol is

      served by the drink,” id. at 114. Wilson now appeals the imposition of these

      two conditions.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016   Page 2 of 4
                                 Discussion and Decision
[3]   A trial court has broad discretion in imposing probation conditions, and we

      review the court’s decision in this regard only for an abuse of that discretion.

      Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999). Indiana Code section 35-38-2-

      2.3(a)(15) gives courts authority to impose any term of probation that is

      “reasonably related to the person’s rehabilitation.”

[4]   As for the condition barring Wilson from visiting any business that sells “sexual

      devices or aids,” this Court has already held that such a restriction imposes an

      “unfairly broad prohibition” because it would cover not only adult-oriented

      businesses but also places like drug stores. Collins v. State, 911 N.E.2d 700, 714

      (Ind. Ct. App. 2009), trans. denied. The State acknowledges Collins and does not

      defend the imposition of the condition in this case. We therefore conclude that

      the trial court must either vacate or significantly narrow the condition.

[5]   Wilson also challenges the condition that prohibits him from entering any

      establishment that serves alcohol by the drink. He argues that this condition is

      overbroad because it prevents him from entering a wide variety of venues,

      including certain restaurants, zoos, and sports stadiums. The State defends the

      condition on the ground that such venues are frequented by children. The State

      contends that the condition is permissible in light of Carswell v. State, 721

      N.E.2d 1255, 1265 (Ind. Ct. App. 1999), where we recognized “the propensity

      of alcohol to impair judgment and reduce inhibition,” and Smith v. State, 779

      N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied, where we held that


      Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016   Page 3 of 4
      “probation conditions that reduce the potential for access to children are

      reasonable.”

[6]   We agree with the State. “Probation is a matter of grace and a conditional

      liberty which is a favor, not a right.” Ripps v. State, 968 N.E.2d 323, 326 (Ind.

      Ct. App. 2012). It is granted only when the convicted defendant “specifically

      agrees to accept conditions upon his behavior in lieu of imprisonment.”

      Carswell, 721 N.E.2d at 1258. The only limitation placed on the discretion of

      the sentencing court is that the conditions “have a reasonable relationship to the

      treatment of the accused and the protection of the public.” Id.; see also Ind.

      Code § 35-38-2-2.3(a)(15). Excluding Wilson from venues that both serve

      alcohol and allow children unquestionably furthers both of these societal

      interests. We affirm the imposition of this condition.

[7]   Affirmed in part and remanded in part.

      Baker, J., and Najam, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016   Page 4 of 4
