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

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.
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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.
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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
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“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.
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