                                                                                   FILED
                                                                             Aug 29 2017, 8:04 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brian A. Karle                                            Curtis T. Hill, Jr.
      Ball Eggleston, PC                                        Attorney General of Indiana
      Lafayette, Indiana                                        Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kristopher L. Weida,                                      August 29, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1608-CR-1760
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Randy J. Williams,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                79D01-1602-F5-13



      Pyle, Judge.


                                        Statement of the Case
[1]   Kristopher L. Weida (“Weida”) appeals his sentence for Level 5 felony incest.

      He argues that his three-year advisory sentence, with one year executed and

      two years suspended to probation, is inappropriate. He also challenges two sex


      Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017                      Page 1 of 24
      offender probation conditions that restrict his access to the internet, arguing that

      these conditions are: (1) vague; (2) not reasonably related to his offense; or (3)

      unduly intrusive. Concluding that Weida has failed to meet his burden of

      showing that his sentence is inappropriate and that the trial court did not abuse

      its discretion by imposing the challenged probation conditions, we affirm his

      sentence and probation conditions.


[2]   We affirm.


                                                       Issues
               1. Whether Weida’s sentence is inappropriate pursuant to Indiana
               Appellate Rule 7(B).

               2. Whether the trial court abused its discretion by imposing sex
               offender probation conditions that restrict Weida’s access to the
               internet.

                                                        Facts
[3]   On March 28, 2015, thirty-four-year-old Weida had sexual intercourse with his

      sixteen-year-old niece, K.M. (“Niece”), who was the daughter of his sister,

      Kendra Hughes (“Hughes”). Thereafter, the State charged Weida with Level 5

      felony incest. In May 2016, Weida pled guilty as charged without a written

      plea agreement.1 The trial court accepted his guilty plea and entered judgment

      of conviction.


      1
        We note that INDIANA CODE § 35-35-3-3(a) requires that a plea agreement on a felony charge be
      made “in writing” and “before the defendant enters a plea of guilty.” We have explained that “‘[t]he
      purpose behind [INDIANA CODE § 35-35-3-3] is to [e]nsure that a defendant does not base his guilty
      plea upon certain promises made by the prosecutor where the judge has in fact not accepted the
      [S]tate’s recommendation.’” Gil v. State, 988 N.E.2d 1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting
      Davis v. State, 418 N.E.2d 256, 260 (Ind. Ct. App. 1981)). However, we also explained that “failure to

      Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017                       Page 2 of 24
[4]   During Weida’s sentencing hearing, the State introduced State’s Exhibit 1,

      which was a supplemental narrative report from the Tippecanoe County

      Sheriff’s Department. This report was an attachment to the State’s sentencing

      memorandum, which the State had filed with the trial court.2 State’s Exhibit 1

      contained a detailed recitation of facts from Niece regarding Weida’s actions

      leading up to and including his act of having sex with her. For example, as

      Weida smoked a cigarette with Niece in the bedroom, he asked her if she had

      any photographs of herself, took her phone and looked at her hidden

      photographs, and called her a “naughty girl” for “showing” him the

      photographs. (State’s Ex. 1 at 2).3 Exhibit 1 also revealed that Niece had

      previously been molested by a non-blood relative and that she had discussed

      this with Weida on the day he had sex with her; specifically, she told him that

      she had looked at an incest-related website to try and understand why the

      relative would have done that to her. Weida asked Niece if the website had

      information relating to uncles and nieces. They then “reviewed the website[,]”




      reduce an agreement to writing need not itself be deemed a sufficient ground for rejection” of a
      defendant’s guilty plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v. State, 501 N.E.2d 415, 417-18
      (Ind. 1986)). Even so, it is important to observe statutory requirements for plea agreements.
      2
        The State’s sentencing memorandum and the report were submitted as confidential documents under
      Indiana Administrative Rule 9(G)(5). Weida did not include a copy of the State’s sentencing memorandum
      in his Appellant’s Appendix.
      3
        As noted above, the State filed Exhibit 1 as a confidential exhibit pursuant to Administrative Rule 9, and it
      is, therefore, excluded from public access. However, in this case, the information contained in Exhibit 1 is
      “essential to the resolution” of Weida’s appellate claims. See Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we
      have included confidential information in this decision only to the extent necessary to resolve the appeal.



      Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017                         Page 3 of 24
      and Weida asked Niece if she “had ever thought of ‘doing stuff’ with a family

      member, or her mother.” (State’s Ex. 1 at 3).


[5]   During Weida’s sentencing allocution, he told the trial court that he had started

      counseling, which he started after Niece had reported him to the police. He

      admitted that he “knew [Niece] was sixteen at the time” he had sex with her

      and “knew it was wrong.” (Tr. 37). However, Weida attempted to mitigate or

      excuse his actions by shifting the blame to Niece. Weida stated that he believed

      that Niece had seduced him and that she had wanted to have sex with him, and

      he stated that Niece had already had a sexual relationship with someone else.

      Weida’s counsel also pointed to the fact that Niece was “sixteen, [the] age of

      consent,” and he asked that the trial court impose a sentence that was fully

      suspended to probation. (Tr. 41).


[6]   Also during the sentencing hearing, the parties discussed the fact that, aside

      from Weida having had sex with Niece, he had also had a sexual relationship

      with his own sister, Hughes, for multiple years. Weida admitted that he had

      had an inappropriate sexual relationship with his sister, but he claimed that his

      sister was the one who had initiated it when he was five years old and she was

      seven years old. He stated that the sexual relationship with his sister continued

      “for many years” into their “late teens, and early twenties.” (Tr. 28). He stated

      that he had first thought that having sex with his sister was normal, but he had

      later realized, when he was a teenager, that it was wrong. Weida also stated

      that even after realizing that it was wrong to have sex with his sister, he,

      nevertheless, continued to do so.

      Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 4 of 24
[7]   However, State’s Exhibit 1 contained information from the sheriff’s interview

      with Weida’s sister, Hughes, who stated that Weida had initiated a sexual

      relationship with her. She also stated that Weida had engaged in sexual

      intercourse with her ten to twenty times between 2002 and 2008, which would

      have been when Weida was twenty-two to twenty-eight years old. Hughes also

      alleged that Weida had sexually assaulted Hughes’ younger daughter when that

      daughter was three years old.


[8]   Additionally, Exhibit 1 contained information from Weida’s police interview,

      during which he admitted to police that he had had sex with Niece but stated

      that he had put a condom on before doing so and stated that he had thought

      that she was of the “legal age of consent.” (State’s Ex. 1 at 14). He also

      admitted that he smoked cigarettes with her, showed her pornographic images

      on his cell phone, rubbed Niece’s vagina with his finger, and kissed and licked

      her vagina. Weida also told the police that Niece’s age and his prior sexual

      relationship with his own sister “justified” his actions. (State’s Ex. 1 at 10).


[9]   Before pronouncing Weida’s sentence, the trial court addressed Weida’s

      arguments as follows:

              I knew it was wrong. I wish it hadn’t happened. I’m sorry it
              happened. But you never told me why you wish it hadn’t
              happened or why you were sorry about it. Everything I’ve heard
              is, is essentially been a, this [ha]s happened to me in the past,
              which . . . I recognize that. But, . . . never once did I hear you
              say anything about [the] [e]ffect that this would have on the
              victim and her future life. The issue was raised, talking about
              breaking the cycle, what you have done, what you have done is

      Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 5 of 24
               perpetuate the cycle by bringing another individual into this
               sorted [sic] family relationship. . . . [T]his whole thing about her
               having sex with several other people, so even if that is something
               in which you were aware, prior to this act, I don’t understand the
               relevance.

               My recollection from the latest, the report that was filed is that
               there was a condom used. Which would also suggest that there
               was that period of time in which you made the conscious
               decision to have sex with your sixteen[-]year[-]old niece, that you
               had to step back, open up the packet, remove a condom and put
               it on yourself. So there was that period of time in which you had
               the opportunity to step back and think, this isn’t a good thing for
               me to be doing. But you chose not to. And that you recognize at
               some point that it was not, with your sister, it was not the right
               thing to do or the normal thing to do, that would have been in
               your teens, it was clearly, clearly known to you that this was the
               wrong thing to do.

                                                     *****

               So I had sex with my sixteen[-]year[-]old niece. Big deal, we’re
               going to talk it out as a family and then she’s, everyone’s going to
               be fine. That’s not how it works. I recognize that you plead[ed]
               guilty because there’s no question that you had sex with your
               sixteen[-]year[-]old niece. But I question your taking
               responsibility for the act. Your remorse, again, is centered on
               you and not directed at all to that of the victim. When asked,
               you stated whether or not you thought that you were seduced,
               you said, I did have that feeling. Nothing has been said that that
               feeling has changed.

       (Tr. 47-48).


[10]   The trial court found the following mitigating circumstances: (1) Weida had

       pled guilty; (2) he had a lack of criminal convictions; (3) he was current with his


       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 6 of 24
       child support; (4) he had mental health issues; (5) he had a work history; and (6)

       he had support from his family. It also determined that the following were

       aggravating circumstances: (1) his failure to take responsibility for his actions;

       (2) his position of trust with the victim; and (3) his history of substance abuse.

       The trial court determined that “the aggravating factors outweigh[ed] the

       mitigating factors” and imposed an advisory three (3) year sentence, with one

       (1) year executed in the Indiana Department of Correction and two (2) years

       suspended to probation. (App. Vol. 2 at 41). The trial court also recommended

       that Weida have a mental health evaluation and engage in therapy while in

       prison.


[11]   The trial court also imposed the general conditions of probation and “special

       probation conditions” for adult sex offenders. (App. Vol. 2 at 47-50). These

       special conditions included the following two conditions, which Weida

       challenges in this appeal:

               8. 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).

                                                     *****

               26. 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

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 7 of 24
               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 encryption
               technique or program.

       (App. Vol. 2 at 48, 50) (emphasis in original). The trial court recognized that

       Weida, who had three children, would want to “contact [his] own children[.]”

       (Tr. 51). When discussing probation condition 8, the trial court specifically

       informed Weida that he “would be able to use a networking site or the instant

       messaging for [his] children.” (Tr. 51). Additionally, when the trial court

       discussed condition 26, it informed Weida that he “c[ould] have access for the

       purpose of contact with [his] children at any time.” (Tr. 51). Weida now

       appeals his sentence and these two probation conditions.


                                                    Decision
[12]   On appeal, Weida contends that: (1) his sentence is inappropriate; and (2) the

       trial court abused its discretion when imposing probation conditions that

       restricted his access to the internet. We will review each argument in turn.


       1. Inappropriate Sentence


[13]   Weida contends that the trial court’s imposition of an advisory three-year

       sentence, with one year executed and two years suspended to probation, is

       inappropriate for his Level 5 felony incest conviction. He suggests that we

       should revise his sentence to either “a sentence below the advisory” or “an

       advisory sentence without time executed in prison.” (Weida’s Br. 8).



       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 8 of 24
[14]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied. Whether a sentence is inappropriate ultimately turns on “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and a myriad of other factors that come to light in a given case.”

       Cardwell, 895 N.E.2d at 1224.


[15]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Weida pled guilty to Level 5 felony incest. A Level 5 felony has a range

       of one (1) to six (6) years with an advisory sentence of three (3) years. I.C. § 35-

       50-2-6. The trial court imposed an advisory three (3) year sentence, with one

       (1) year executed and two (2) years suspended to probation. The trial court also




       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 9 of 24
       recommended that Weida have a mental health evaluation and engage in

       therapy while in the Indiana Department of Correction.


[16]   The nature of Weida’s offense involved him having sex with his sixteen-year-

       old niece, who, Weida knew, had apparently already been previously molested

       by another family member. Weida received only one year of executed time for

       this sexual act against his own relative with whom he had a position of trust.

       Because Weida pled guilty, his factual basis contains only basic, elemental facts

       of his incest offense. However, State’s Exhibit 1, which was introduced during

       the sentencing hearing, reveals the sordid details of Weida’s offense against

       Niece and the grooming acts that led to Weida’s act of sexual intercourse with

       her. This exhibit also reveals that Weida did more than just have sex with

       Niece. Indeed, Weida admitted to police that he showed Niece pornographic

       photographs on his phone, rubbed Niece’s vagina with his finger, and kissed

       and licked her vagina. Furthermore, as the trial court pointed out during the

       sentencing hearing, Weida had the “opportunity to step back” and stop himself

       from this act when he stopped to put on a condom, but he “chose not to” and

       proceeded to have sex with his sixteen-year-old niece. (Tr. 48).


[17]   Weida attempts to minimize the nature of his offense by arguing that his

       “offense is less egregious than a typical incest offender” because he had sex

       with Niece “on only one occasion” and did not use violence or force against

       her. (Weida’s Br. 8). We do not, however, find the nature of Weida’s offense

       to be less egregious. Weida’s one act of sexual intercourse with Niece is

       reflected in the fact that the State charged him with only one count of incest.

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 10 of 24
       Furthermore, “[a]lthough incest is not exclusively a crime against children, it is

       very often committed against children or other particularly vulnerable victims.”

       Pavan v. State, 64 N.E.3d 231, 235 (Ind. Ct. App. 2016). Nor do we find his

       argument regarding a lack of force to be compelling. See Norton v. State, 106

       Ind. 163, 6 N.E. 126, 130 (1886) (explaining that under the incest statute, if a

       relative has sexual intercourse with another relative that he knows is related,

       “he is guilty of incest[,] and [t]his is so . . . whether such intercourse is had by

       force or without force”); Pavan, 64 N.E.3d at 234 (noting that “the incest statute

       contains no element of force”).


[18]   In support of Weida’s argument that his sentence is inappropriate in regard to

       his character, Weida points to the fact that he pled guilty, had no prior criminal

       convictions, sought counseling on his own, was current on his child support,

       was employed, and had letters of support from family and friends. The trial

       court considered these factors as mitigating circumstances and took them under

       consideration when imposing the sentence of one year executed with two years

       suspended to probation. The trial court, however, determined that the

       aggravating factors regarding Weida’s character outweighed these mitigating

       factors. Notably, Weida failed to take full responsibility for his actions and,

       instead, tried to shift the blame to Niece by stating that she had seduced him

       and had already been sexually active. He also violated a position of trust with

       his own niece, whom he knew had already been victimized by another family

       member. Furthermore, his character is poorly reflected by his willingness to




       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 11 of 24
       engage in an extended sexual relationship with his own sister despite his claim

       that he knew it was wrong.


[19]   Here, the trial court did not impose the maximum sentence for Weida’s incest

       conviction. Instead, it imposed an advisory three-year sentence with only one

       year executed and two years suspended to probation for Weida’s act of having

       sexual intercourse with his niece. Weida has not persuaded us that this

       sentence is inappropriate. Therefore, we affirm the trial court’s sentence.


       2. Probation Conditions


[20]   Weida argues that the trial court abused its discretion by imposing sex offender

       probation conditions relating to restrictions on his internet usage. Specifically,

       he contends that: (1) probation condition 8 is “unconstitutionally vague[;]” and

       (2) probation conditions 8 and 26 are: (a) “not reasonably related to [his]

       offense or rehabilitation” and (b) “unduly intrusive” on his constitutional rights

       because they impose a “blanket Internet ban[.]” (Weida’s Br. 9, 13).4 Weida

       asks that we order the trial court to vacate these two probation conditions. 5



       4
         Weida also argues that conditions 8 and 26 are “unconstitutional as applied to him.” (Weida’s Br. 9). We
       note that an “as applied” challenge generally applies only to a challenge to statutes or regulations. See
       Bratcher v. State, 999 N.E.2d 864, 873 n.3 (Ind. Ct. App. 2013), trans. denied. See also Harris v. State, 985
       N.E.2d 767, 774 n.1 (Ind. Ct. App. 2013) (“An ‘as applied’ challenge asks a reviewing court to “declare the
       challenged statute or regulation unconstitutional on the facts of the particular case.”), trans. denied. Condition
       8 is based on a statute that requires the imposition of certain restrictions for sex offenders. See IND. CODE §
       35-38-2-2.2. Weida, however, does not challenge the statute underlying that probation condition.
       5
         The State argues that Weida has waived any challenge to his probation conditions because he did not object
       to them at sentencing and because he signed the special probation condition form, agreeing to comply with
       the conditions. For the reasons set out in Bratcher, we conclude that Weida has not waived appellate review
       of his probation conditions. See Bratcher, 999 N.E.2d at 873-74. Accordingly, we will review Weida’s
       challenge to his two probation conditions.

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017                          Page 12 of 24
[21]   We have set forth our standard of review for reviewing a trial court’s imposition

       of probation conditions as follows:


                  Probation is a criminal sanction wherein a convicted defendant
                  specifically agrees to accept conditions upon his behavior in lieu
                  of imprisonment. Trial courts have broad discretion in
                  determining the appropriate conditions of a defendant’s
                  probation. This discretion is limited only by the principle that
                  the conditions imposed must be reasonably related to the
                  treatment of the defendant and the protection of public safety.
                  Thus, our review is essentially limited to determine whether the
                  conditions placed on the defendant are reasonably related to
                  attaining these goals. We will not set aside a trial court’s
                  probation terms unless it has abused its discretion.

                  Convicted individuals do not enjoy the same constitutional
                  protections as law-abiding citizens[,] and probation conditions
                  that intrude upon constitutionally protected rights are not
                  necessarily invalid. Where, as here, a defendant contends that a
                  probation condition is unduly intrusive upon a constitutional
                  right, the following three factors must be balanced: (1) the
                  purpose sought to be served by probation; (2) the extent to which
                  constitutional rights enjoyed by law-abiding citizens should be
                  afforded to probationers; and (3) the legitimate needs of law
                  enforcement.

       Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013) (internal citations

       and quotations omitted), trans. denied.


[22]   We will first address Weida’s argument that probation condition 8 is

       unconstitutionally vague.6 This challenged condition provides as follows:




       6
           He does not make a vagueness argument in regard to condition 26.


       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 13 of 24
               8. 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).


       (App. Vol. 2 at 48) (italics emphasis added; bold emphasis in original). Weida

       contends that the phrase “frequented by children” in this probation condition is

       vague because the condition does “not include a list of examples of web sites

       frequented by children to clarify the condition and create a predicable [sic]

       standard for Weida’s Internet use.” (Weida’s Br. 15).


[23]   “[The language in a probation condition must be such that it describes with

       ‘particularity and clarity’ the misconduct that will result in penal

       consequences.” Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct. App. 2013)

       (quoting Hunter v. State, 883 N.E.2d 1161, 1163-64 (Ind. 2008)). A probation

       condition “need only inform the individual of the generally proscribed conduct”

       and “[i]t need not list, with itemized exactitude, every item of conduct that is

       prohibited.” Id.


[24]   We have previously reviewed this exact probation condition for vagueness and

       held that it was not unconstitutionally vague. See Patton, 990 N.E.2d at 516-17;

       Bratcher, 999 N.E.2d at 879. Specifically, the Patton Court, when addressing the

       defendant’s vagueness argument, explained as follows:


               In our view, the language of the condition prohibiting [the
               defendant] from “accessing or using certain websites, chat rooms,

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 14 of 24
               or instant messaging programs frequented by children”
               adequately informs him that he is prohibited from internet
               activity that would allow him to view communications between
               children and to communicate with them. Restricting a sex
               offender’s access to the internet that “offers unlimited access to
               people, including children” serves to protect the public and to
               prevent future criminal activity. See Harris, 836 N.E.2d at
               275 (finding a complete ban on internet use without the prior
               approval of the parole agent to not be vague).

                                                     *****

               Because the condition of probation in this case is specifically
               tailored to only those internet activities that are “frequented by
               children,” [the defendant] is provided with adequate notice that
               he would be in violation of his probation by accessing websites
               that are designed and known to be used by children for
               communication. Also, in light of the vast nature of the internet,
               it would be virtually impossible for the legislature to list each and
               every website, chat room, or instant messaging program that
               permits communication by and among children. In short,
               because the language of the probation condition afforded [the
               defendant] a predictable standard and notice with regard to his
               internet usage during his probationary period, his constitutional
               claims fail, and we decline to set aside the condition of probation
               that relates to his internet usage.

       Patton, 990 N.E.2d at 516-17. Based on our prior holdings that the language

       contained in probation condition 8 is not vague, we conclude that the trial court

       did not abuse its discretion by imposing this probation condition. See, e.g., id.;

       Bratcher, 999 N.E.2d at 879.


[25]   Next, we address Weida’s arguments that probation condition 8 (which limits

       his access to internet sites “frequented by children”) and condition 26 (which


       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 15 of 24
       limits his access on the internet “without prior approval of [his] probation

       officer”) are: (a) “not reasonably related to [his] offense or rehabilitation” and

       (b) are “unduly intrusive” on his constitutional rights because they impose a

       “blanket Internet ban[.]” (Weida’s Br. 9, 13).


[26]   Weida acknowledges that he is now classified as a sex offender and that

       probation conditions “identical” to his conditions 8 and 26 were already

       reviewed in Patton and Bratcher and determined to be reasonably related to

       rehabilitation for sex offenders. (Weida’s Br. 11). Specifically, in Patton, our

       Court held that the probation condition that restricts access to websites

       “frequented by children” was “reasonably and directly related to deterring [the

       defendant] from having contact with children and to protecting the public.”

       Patton, 990 N.E.2d at 516. Additionally, in Bratcher, we held that the same two

       probation conditions that Weida now challenges were “reasonably related to

       attaining the goals of rehabilitation and protecting the public.” Bratcher, 999

       N.E.2d at 879. We also explained that probation conditions that restrict

       internet access and “reduce the potential for access to children” were

       “reasonable” because “child molesters molest children to whom they have

       access[.]” Id. (internal quotation marks and citations omitted).


[27]   Weida, however, contends the holdings of these two cases are “inapplicable” to

       him and that his two probation conditions are not reasonably related to his

       incest offense or rehabilitation because he “did not use the Internet to perpetrate

       his offense” and because Niece “was over the age of consent.” (Weida’s Br. 10,

       11).

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 16 of 24
[28]   First, we reject Weida’s argument that his probation conditions were not

       reasonably related because he did not use the internet to commit his offense.

       State’s Exhibit 1, which was introduced during the sentencing hearing, reveals

       that Weida used the internet as part of the grooming process to get Niece to

       have sex with him. Specifically, the exhibit reveals that they looked at an

       incest-related website and that he used his cell phone to show her pornographic

       photographs.


[29]   Moreover, we have previously rejected an argument similar to Weida’s in

       McVey v. State, 863 N.E.2d 434 (Ind. Ct. App. 2007), reh’g denied, trans. denied.

       In that case, the defendant argued that his probation condition, which

       prohibited internet access “without prior approval of [a] probation officer[,]”

       was not reasonably related to his rehabilitation because “his offense [of child

       molesting] did not involve any sort of computer or online media[.]” McVey, 863

       N.E.2d at 450. Although the defendant in McVey had, indeed, not used the

       internet when molesting the child victim, we rejected the defendant’s argument

       and explained as follows:


               We find that the limitation on [the defendant’s] access to the
               internet is reasonably related to his successful reintegration into
               the community. Clearly, accessing prohibited material is easily
               accomplished with a computer, and for that reason computer
               access would provide a temptation of such a magnitude that
               exposure to it would not be in the best interest of [the
               defendant’s] rehabilitation. This is so because the internet defies
               boundaries and offers unlimited access to people, including
               children. This access is often subtle to children and undetected
               by most parents. Restricting a child molester’s access to this

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 17 of 24
               communication medium, therefore, serves to protect the public
               and to prevent future criminal activity.

               Moreover, we note that the condition in question does not
               completely prohibit [the defendant] from using the internet,
               which has increasingly become a vital means of communication
               in the business world. Instead, it simply requires him to receive
               prior approval from his probation officer to use the internet.
               Thus, the trial court did not err in restricting [the defendant’s]
               access to computers and online computer services.

       Id. (internal citations omitted).


[30]   Additionally, we reject Weida’s argument that his probation conditions that

       limit his internet access are not reasonably related to his offense or

       rehabilitation because Niece was sixteen years old at the time of his offense. It

       appears that Weida is arguing that probation condition 8, which prohibits his

       access to websites frequented by children, is unrelated to his incest offense

       because Niece was of the age of consent and arguably not a child. However, as

       the State points out, Niece was “still legally a child[.]” (State’s Br. 15) (citing

       IND. CODE § 35-47-10-3 (defining a “child” as “a person who is less than

       eighteen (18) years of age”). Furthermore, State’s Exhibit 1 contains allegations

       that Weida molested another niece when she was three years old. Thus, we

       conclude that Weida’s probation conditions were “reasonably related to

       attaining the goals of rehabilitation and protecting the public.” See Bratcher, 999

       N.E.2d at 879; see also Patton, 990 N.E.2d at 516.


[31]   Lastly, we turn to Weida’s contention that his probation conditions are “unduly

       intrusive upon [his] right to free expression and right to receive information and

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 18 of 24
       ideas” because the conditions impose a “blanket Internet ban[.]” (Weida’s Br.

       10, 13).


[32]   Again, we have already reviewed and rejected the argument that these two

       probation conditions impose a complete ban on internet access. In Bratcher, we

       explained that “neither condition imposes a complete prohibition on [the] use

       of the internet or social networking websites” because “[c]ondition [26] simply

       requires him to acquire the approval of his probation officer, and condition [8]

       specifically applies to websites ‘frequented by children.’” Bratcher, 999 N.E.2d

       at 879. Furthermore, when imposing Weida’s challenged probation conditions,

       the trial court clarified that Weida would have internet access to communicate

       with his own children. When discussing probation condition 8, the trial court

       specifically informed Weida that he “would be able to use a networking site or

       the instant messaging for [his] children.” (Tr. 51). Additionally, when the trial

       court discussed condition 26, it informed Weida that he “c[ould] have access

       for the purpose of contact with [his] children at any time.” (Tr. 51).


[33]   Weida acknowledges our holding in Bratcher but argues that it “overlooks the

       real world effect of these probation conditions” where people use the internet

       everyday and carry cell phones that have internet access contained on them.

       (Weida’s Br. 12). He contends that the probation conditions are unduly

       intrusive because it “is not a ‘simple’ matter” to seek permission from a

       probation officer when he wishes to use the internet. (Weida’s Br. 12). He also

       argues that this Court’s opinion in Waters v. State, 65 N.E.3d 613 (Ind. Ct. App.



       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 19 of 24
       2016) supports his argument that his probation conditions were unduly

       intrusive.7


[34]   Initially, we reject Weida’s argument that a lack of convenience in contacting

       his probation officer renders his probations conditions unduly intrusive.

       “Convicted individuals do not enjoy the same constitutional protections as law-

       abiding citizens[,] and probation conditions that intrude upon constitutionally

       protected rights are not necessarily invalid.” Bratcher, 999 N.E.2d at 873

       (citations and internal quotation marks omitted).


[35]   Furthermore, we conclude that this Court’s opinion in Waters is applicable in

       this specific case. In Waters v. State, 65 N.E.3d 613 (Ind. Ct. App. 2016),

       another panel of our Court addressed whether a challenged probation condition

       was overbroad, and in doing so, discussed the pervasiveness of internet usage. 8

       In Waters, the defendant—who was convicted of criminal deviate conduct,

       battery, and strangulation against a woman—argued that his probation

       condition 26, which restricted access to the internet without prior approval of

       his probation officer, was overbroad in its application.9 When addressing his

       argument, the Waters Court noted that “[t]he internet has become increasingly

       pervasive in our daily lives; we use it to pay bills, order food, get directions,

       communicate with friends and colleagues, and file taxes, among other things.”



       7
           Weida filed a Notice of Additional Authorities and cited to Waters.
       8
           The panel in Waters included Judge Baker, who is also a panel member in this case.
       9
           Probation condition 26 in Waters was identical to Weida’s condition 26.


       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017               Page 20 of 24
       Waters, 65 N.E.3d at 619. When analyzing the challenge to the probation

       condition as overbroad, the Waters Court relied on caselaw from other state

       courts that “ha[d] recognized that a sex offender who has no history of illegal

       internet use and did not use the internet as an instrument in his crime should not have

       a total ban on his internet access but rather a narrowly tailored restriction.”

       Waters, 65 N.E.3d at 619 (emphasis added). The Waters Court ultimately held

       that Waters’ probation condition was “overly broad in its restrictions” because

       “there [wa]s no evidence in the record to show that Waters [had] used the

       internet to commit his attack on [the woman victim] or that he ha[d] a history

       of illegal internet use” and because the “trial court [had] noted that Water ha[d]

       ‘issues with respect to women,’ not issues with the internet.” Id. 620. The

       Waters Court explained that, under the specific facts of Waters’ case and given

       the various technological tools that could be used by the trial court to limit his

       access to certain websites, the trial court “should impose a narrower internet

       restriction that [wa]s more in line with Waters’ conviction and ‘issues with

       women.’” Id.


[36]   Unlike the defendant in Waters, Weida, who committed his crime of incest

       against a sixteen-year-old victim, has not raised an argument that his probation

       conditions were overbroad. More importantly, the record here does contain

       evidence that Weida used the internet as part of the grooming process before he

       had sex with his niece. Accordingly, we conclude that, given the facts and

       circumstances of this case, the trial court did not abuse its discretion when

       imposing probation conditions 8 and 26.

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 21 of 24
[37]   Affirmed.10


       Baker, J., concurs in part, dissents in part with opinion.


       Mathias, J., concurs.




       10
          Weida also suggests that his probation conditions “infringe upon [his] First Amendment rights” and cites
       to Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013). (Weida’s Br. 10). Based on our explanation
       set forth in Bratcher, we reject Weida’s argument and continue to conclude that that the holding and analysis
       of Doe is inapplicable to probation conditions that limit internet access to sex offenders. See Bratcher, 999
       N.E.2d at 878 (citing and quoting Patton, 990 N.E.2d at 515-16) (discussing the difference between sex
       offenders on supervised release who are challenging a probation condition and sex offenders who had already
       completed probation, were not subject to any form of supervised release, and were challenging the
       constitutionality of a statute under which they were convicted).
       We further note that the United States Supreme Court recently invalidated a North Carolina statute that
       “ma[d]e it a felony for a registered sex offender ‘to access a commercial social networking Web site where the
       sex offender knows that the site permits minor children to become members or to create or maintain personal
       Web pages.’” Packingham v. North Carolina, 137 S.Ct. 1730, 1733 (2017). Similar to Doe, the Packingham
       Court held that the statute at issue was overbroad and not narrowly tailored to serve a significant
       governmental interest. See id. at 1737. Like our conclusion regarding the inapplicability of Doe, we conclude
       that the holding and analysis of Packingham is not applicable to Weida, who is a sex offender subject to
       supervised release challenging a probation condition and not challenging the probation condition as
       overbroad.

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017                      Page 22 of 24
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Kristopher L. Weida,                                      Court of Appeals Case No.
                                                                 79A02-1608-CR-1760
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, dissenting in part.


[38]   I fully concur with the majority with respect to the appropriateness of Weida’s

       sentence and probation condition 8. I respectfully part ways with my

       colleagues, however, with respect to condition 26.


[39]   I believe that condition 26 is unduly intrusive and unnecessarily restrictive. In

       today’s day and age, to require an individual to seek prior approval for every

       single use of the Internet is a tall order indeed, especially in a case where the use

       of the Internet was not a significant part of the underlying crime. I echo the

       Waters Court’s observation regarding the pervasiveness of the Internet in our

       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017            Page 23 of 24
       daily lives, as well as its observation that “[m]odern technology affords the

       court the tools to limit [the defendant’s] access to certain dating websites and

       phone applications, as well as websites with sexually explicit materials—

       restrictions that are reasonably related to his rehabilitation and the protection of

       public safety.” 65 N.E.3d at 620. In my view, the trial court could and should

       have imposed a narrower, more specifically tailored Internet restriction as a

       condition of Weida’s probation.


[40]   In all other respects, I fully concur with the majority opinion.




       Court of Appeals of Indiana | Opinion 79A02-1608-CR-1760 | August 29, 2017   Page 24 of 24
