Tanner Wilson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 15, 2016
• Docket: 28A01-1603-CR-707
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 15 2016, 8:29 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Special Assistant to the State Public Attorney General of Indiana Defender Wieneke Law Office, LLC Brooklyn, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tanner Wilson, August 15, 2016 Appellant-Defendant, Court of Appeals Case No. 28A01-1603-CR-707 v. Appeal from the Greene Circuit Court State of Indiana, The Honorable Eric C. Allen, Appellee-Plaintiff Judge Trial Court Cause No. 28C01-1511-F5-29

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016 Page 1 of 4 Case Summary [1] Tanner Wilson pled guilty to child exploitation and possession of child

pornography and was sentenced to a term of incarceration to be followed by a

year of probation. As conditions of that probation, Wilson was ordered not to

visit any business that sells sexual devices or aids or to enter any establishment

where alcohol is served by the drink. He appeals the imposition of these

conditions. Because the sexual-devices-or-aids condition is overly broad, we

remand this matter to the trial court with instructions to either vacate or narrow

the condition. We affirm the alcohol condition.

Facts and Procedural History [2] Wilson pled guilty to Level 5 felony child exploitation and Class A

misdemeanor possession of child pornography based on his possession and

distribution of digital images of nude children. The trial court sentenced him to

four years on the felony, with one year suspended to probation, and to time

served on the misdemeanor. Among other probation conditions, the court

ordered Wilson not to “visit . . . businesses that sell sexual devices or aids,”

Appellant’s App. p. 110-11, or to “enter any establishment where alcohol is

served by the drink,” id. at 114. Wilson now appeals the imposition of these

two conditions.

Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016 Page 2 of 4 Discussion and Decision [3] A trial court has broad discretion in imposing probation conditions, and we

review the court’s decision in this regard only for an abuse of that discretion.

Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999). Indiana Code section 35-38-2-

2.3(a)(15) gives courts authority to impose any term of probation that is

“reasonably related to the person’s rehabilitation.”

[4] As for the condition barring Wilson from visiting any business that sells “sexual

devices or aids,” this Court has already held that such a restriction imposes an

“unfairly broad prohibition” because it would cover not only adult-oriented

businesses but also places like drug stores. Collins v. State, 911 N.E.2d 700, 714

(Ind. Ct. App. 2009), trans. denied. The State acknowledges Collins and does not

defend the imposition of the condition in this case. We therefore conclude that

the trial court must either vacate or significantly narrow the condition.

[5] Wilson also challenges the condition that prohibits him from entering any

establishment that serves alcohol by the drink. He argues that this condition is

overbroad because it prevents him from entering a wide variety of venues,

including certain restaurants, zoos, and sports stadiums. The State defends the

condition on the ground that such venues are frequented by children. The State

contends that the condition is permissible in light of Carswell v. State, 721

N.E.2d 1255, 1265 (Ind. Ct. App. 1999), where we recognized “the propensity

of alcohol to impair judgment and reduce inhibition,” and Smith v. State, 779

N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied, where we held that

Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016 Page 3 of 4 “probation conditions that reduce the potential for access to children are

reasonable.”

[6] We agree with the State. “Probation is a matter of grace and a conditional

liberty which is a favor, not a right.” Ripps v. State, 968 N.E.2d 323, 326 (Ind.

Ct. App. 2012). It is granted only when the convicted defendant “specifically

agrees to accept conditions upon his behavior in lieu of imprisonment.”

Carswell, 721 N.E.2d at 1258. The only limitation placed on the discretion of

the sentencing court is that the conditions “have a reasonable relationship to the

treatment of the accused and the protection of the public.” Id.; see also Ind.

Code § 35-38-2-2.3(a)(15). Excluding Wilson from venues that both serve

alcohol and allow children unquestionably furthers both of these societal

interests. We affirm the imposition of this condition.

[7] Affirmed in part and remanded in part.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 28A01-1603-CR-707 | August 15, 2016 Page 4 of 4