Appeals court dismisses charges against sex offender (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A state appeals court threw out charges Thursday against a sex offender who clipped photos of children out of magazines and newspapers, ruling he can possess the images because he didn’t create them himself.

The case involves Albert Chagnon, a 33-year-old registered sex offender from Rhinelander. According to court documents, Chagnon was about to be discharged from the Oshkosh Correctional Institute when a guard discovered a notebook in his pants during an inventory of his property.

The notebook contained nearly 200 photographs of fully clothed girls between the ages of infancy and 10 cut out of magazines and newspapers. Handwritten comments on the photographs used sexually graphic language and often described the girls’ desire to have sex with an adult.

Wisconsin law prohibits sex offenders from intentionally capturing representations of any minor without the minor’s guardian’s written consent. Prosecutors charged Chagnon last year with 23 felony counts of intentionally photographing a minor without consent.

Chagnon argued that the charges should be dismissed because he didn’t take the photographs.

Attorneys with the state Justice Department countered that Chagnon made the photos by cutting their images out of larger photographs and adding a new visual component to them with his sexual comments. They also maintained that the legal definition of capturing a representation includes storing the images. Chagnon met that part of the definition because he kept the photographs in his notebook, the DOJ attorneys argued.

A Winnebago County judge refused to dismiss the charges. The 4th District Court of Appeals overturned that decision on Thursday.

Judge Gary Sherman, a former Democratic state representative, wrote for the court that Chagnon’s actions were disturbing but weren’t illegal. Even though Chagnon placed existing images into a sexual context he didn’t make any new representations of the girls himself.

The storage language refers to digital images, Sherman added. Any other interpretation would be far too broad and unreasonable, potentially leading to charges against Chagnon for simply stacking the publications in his room, he wrote.

“Specifically, we conclude that ‘captures a representation,’ as that term is statutorily defined, cannot reasonably be construed to apply to cutting pictures from magazines and newspapers and pasting them into a notebook,” Sherman wrote.

DOJ spokeswoman Anne Schwartz said in an email the agency was reviewing the decision.

Chagnon still faces four misdemeanor counts of violating prison rules.