Weida v. State

• Decision Date: 29 August 2017
• Docket Number: Court of Appeals Case No. 79A02-1608-CR-1760.
• Citation: 83 N.E.3d 704
• Parties: Kristopher L. WEIDA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

83 N.E.3d 704

Kristopher L. WEIDA, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 79A02-1608-CR-1760.

Court of Appeals of Indiana.

August 29, 2017

Attorney for Appellant : Brian A. Karle, Ball Eggleston, PC, Lafayette, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana

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

[83 N.E.3d 707

sentence, with one year executed and two years suspended to probation, is inappropriate. He also challenges two sex 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.

[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

[83 N.E.3d 708

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[,]" 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.

[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

[83 N.E.3d 709

done, what you have done is 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 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

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