The Indiana Court of Appeals has affirmed the three-year advisory sentence imposed on a man convicted of committing incest with his teenage niece and the imposition of sex offender probation conditions against the man, though one appellate judge found one of those conditions to be unduly intrusive.
In Kristopher L. Weida v. State of Indiana, 79A02-1608-CR-1760, 34-year-old Kristopher Weida pleaded guilty to Level 5 felony incest after having sex with his 16-year-old niece, K.M. During sentencing, the state introduced evidence that Weida had asked K.M. to show him “secret” photographs of herself and that K.M. had told Weida she had previously been molested by a non-blood relative. The evidence also alleged Weida asked K.M. if she had considered “doing stuff” with a family member.
Then during his sentencing allocution, Weida said he thought K.M. had seduced him and wanted to have sex with him. Weida also admitted to having a sexual relationship with Kendra Hughes, his sister and K.M.’s mother, but said Hughes initiated the relationship when he was 5 years old and she was 7 years old. The state’s evidence, however, included statements from Hughes claiming Weida had initiated the relationship and had also sexually assaulted her younger daughter when she was 3 years old.
The trial court ultimately imposed an advisory three-year sentence, with one year executed in the Indiana Department of Correction and two years suspended to probation. The court also imposed special probation conditions for adult sex offenders, which prohibited him from accessing websites, chat rooms or instant messaging programs frequented by children or accessing the internet without approval from his probation officer. However, Weida was granted permission to use a networking site to contact his own children.
On appeal, Weida first argued his sentence was inappropriate, but the Indiana Court of Appeals rejected that argument, with Judge Rudolph Pyle writing Weida’s offense was not “less egregious” than other acts of incest just because he did not use force against K.M. and only had sex with her on one occasion. Rather, Weida failed to take responsibility for his actions and abused a position of trust, Pyle said, and further called his character into question by willingly engaging in a sexual relationship with his sister.
Weida also argued the ban on his access to websites “frequented by children” is unconstitutionally vague, but Pyle pointed to the case of Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct. App. 2013), in which the appellate court previously upheld the constitutionality of that condition. A majority of the appellate panel further upheld the probation conditions because they were “reasonably related” to his offense and because they do not constitute a complete internet ban, as Weida argued on appeal.
However, Judge John Baker dissented with respect to the condition that requires Weida to get permission before accessing the internet, finding that condition 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,” Baker wrote. “…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.”
Baker concurred in all other respects.