November 17, 2014 at 4:47 p.m.
Judge rules case against sex offender should proceed
Judge rules case against sex offender should proceed
On Monday, a judge rejected a legal challenge to the 23 felony charges against the sex offender, Albert Chagnon. Absent further developments, the ruling effectively means typical criminal proceedings against him will go forward.
Those proceedings were halted earlier this month when Chagnon's defense attorney sought to throw out the felony charges before a preliminary hearing could occur.
Chagnon, formerly of Rhinelander, is accused of creating a booklet filled with images of about 250 girls while an inmate at the Oshkosh Correctional Institution. According to the criminal complaint against him, he removed the images from The Lakeland Times, to which he subscribed in prison, and other publications. (Chagnon has since canceled his subscription to the paper.) The complaint claims Chagnon wrote sexually explicit commentary in the booklet, and in some instances, recorded the names and ages of the girls and their parents.
At issue during Monday's hearing was whether that alleged conduct is illegal.
The law from which the felony charges derive makes it a crime for a sex offender to intentionally capture a representation of a minor without the written consent of that minor's parent or legal guardian. The term "capture a representation" is defined by statute and means "takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image."
Chagnon's defense attorney, Raymond Edelstein, disputed the applicability of that statute to Chagnon's alleged conduct and argued the law applies only when a sex offender actually takes a photograph or video, or digitally stores an image, such as scanning it. The hard-copy images Chagnon allegedly compiled are not "data," Edelstein asserted, because they were not digitized. He subsequently moved to dismiss the felony charges.
Edelstein also argued the legislative history of the statute bolstered his claim. On Friday, he filed papers in which he sought to show the law was enacted to criminalize the creation of an image -- not just possession.
"The state argues that pasting a picture from a newspaper into a notebook violates the statute and asks whether it makes a difference if a defendant had scanned the same image and stored it digitally," Edelstein wrote. "The answer is quite simple; the prohibition is against the creation of an image."
He continued: "If the legislature had intended to prohibit the possession of the type of articles possessed by the defendant surely the legislature would have clearly stated so."
But the prosecution argued the term "data" should be read broadly to include both digital and non-digital material. Noting that the word "data" originated in the 1600s, Winnebago County Deputy District Attorney Scott Ceman wrote in a court filing last week that to constrain the definition of the word only to digital information would defy common sense.
Winnebago County Circuit Judge Scott Woldt agreed. During Monday's hearing, which lasted about five minutes, Woldt said the state statute at issue properly applied to the conduct alleged in the criminal complaint.
"When someone takes these photographs of minors and puts them in a notebook, and writes things next to them -- that is exactly what this statute is all about," Woldt said.
He also found the term "data" includes photos stored both on paper and digitally.
"There's so many ways to do it these days," Woldt said, referring to various methods of storing photographic material.
Lt. Terri Hook of the Oneida County sheriff's office attended the hearing. She said in an interview that Woldt's decision affirmed her belief the charges were properly issued.
Chagnon, she said, "is not supposed to collect photographs of children, and this is exactly what I believe the statute stated."
Monday's court session attracted a large audience, which included parents of the girls whose photos Chagnon is accused of storing.
Chagnon could appeal Woldt's decision. His attorney, Edelstein, did not immediately return a call seeking comment Monday.
A new preliminary hearing has been scheduled for next week, in which Woldt will decide whether there is probable cause to bind Chagnon over for trial. Hook expects to testify at that hearing.
In addition to the 23 felony counts, Chagnon also faces four misdemeanor counts of violating prison policy. If convicted on all counts, he could be sentenced to a maximum of nearly 181 years in prison and a $232,000 fine, though he could cut a plea deal with a shorter prison term. More charges are also possible.
The case is being prosecuted in Winnebago County as that's where the illegal conduct is alleged to have occurred.
Chagnon was convicted of possession of child pornography in 2003, in which he emailed sexually explicit images of children to a co-worker. He has since been in and out of prison, and most recently served a two-year sentence in Oshkosh for violating the state's sex offender registry rules.
He has never been charged with a sexual assault, according to court records.
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