Justices reverse ‘unreasonable’ probation internet restriction

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The Indiana Lawyer on 4/12/2018 by Olivia Covington

A Tippecanoe County man convicted of incest with his teenage niece will have one of his probation conditions revisited after the Indiana Supreme Court determined the condition requiring him to get permission to access the internet was not reasonably related to his crime.

In Kristopher L. Weida v. State of Indiana, 79S02-1711-CR-687, 34-year-old Kristopher Weida had sex with his 16-year-old niece, K.M., after looking at explicit photos on their cellphones and perusing a website about incest. Weida subsequently pleaded guilty to Level 5 felony incest and left sentencing to the Tippecanoe Superior Court’s discretion.

The trial court sentenced Weida to three years, with one year executed and two years suspended to the probation. Among the probation conditions imposed was Condition 8, which prohibited Weida from access websites “frequented by children,” and Condition 26, which prohibited him from accessing the internet without prior approval from his probation officer. However, Weida was permitted to use the internet to contact his children.

A divided panel of the Indiana Court of Appeals upheld those probation conditions in August, with Judge Rudolph Pyle writing the conditions were “reasonably related” to Weida’s offense and because they did not constitute a complete internet ban. But Judge John Baker dissented, finding Condition 26 was “unduly intrusive and unnecessarily restrictive.”

After hearing oral argument in December, the Indiana Supreme Court unanimously agreed with Baker’s dissent regarding Condition 26, but aligned with the majority opinion with regard to Condition 8.

Looking first to Condition 8, Justice Christopher Goff rejected Weida’s argument that the trial court should have provided “an illustrative list of prohibited activities to pass constitutional muster.” Then, taking his probation conditions as a whole — which included other prohibitions on explicitly communicating with children in person or on the internet — Goff said Weida’s probation imposed a blanket ban on contacting children other than his own.

Thus, a person of ordinary intelligence would understand that Condition 8 prohibits Weida from visiting websites where he could engage in such communication, Goff said. That prohibition is reasonably related to Weida’s rehabilitation and to protecting the public considering the nature of his offense, he said, and does not unduly intrude on his First Amendment rights.

But turning to Condition 26, the high court found its provisions — which have since been altered on a statewide level — were not reasonably related to Weida’s rehabilitation or to public safety. Relying on Waters v. State, 65 N.E.3d 613, 619-20 (Ind. Ct. App. 2016), the court noted that Weida had no history of misuse of the internet, aside from the time he spent looking at an incest website with his niece.

“A more appropriate internet restriction — one that reasonably relates to his rehabilitation and protecting the public — will restrict access to obscene or sexually explicit material,” Goff wrote. “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.”

Thus, the court remanded the case with instructions to impose a more reasonable internet restriction. In a footnote, they also summarily affirmed the Court of Appeals’ holding that Weida’s sentence was not inappropriate.

Update on this story in the Journal & Courier on April 16, 2018