Kristopher L. Weida, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Tippecanoe Superior Court The Honorable Randy J.
Williams, Judge Trial Court Cause No. 79D01-1602-F5-13
Attorney for Appellant Brian A. Karle Ball Eggleston, PC
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Monika Prekopa Talbot Deputy Attorney General
of the Case
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 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.
Whether Weida's sentence is inappropriate pursuant to
Indiana Appellate Rule 7(B).
Whether the trial court abused its discretion by imposing sex
offender probation conditions that restrict Weida's
access to the internet.
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. The trial court accepted his guilty plea
and entered judgment of conviction.
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. 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). 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[,
]" 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).
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.
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.
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.
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).
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 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.
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.
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 ...