July 31, 2015 at 5:11 p.m.
Convicted sex offender wins Court of Appeals case
Photo collection of girls not illegal, court rules
Convicted sex offender wins Court of Appeals case
The court reversed a lower court decision denying dismissal of the charges against Albert J. Chagnon, a former Rhinelan-der resident, and remanded the matter to the court for reconsideration.
It was a major victory for Chagnon, who had challenged the felony counts after officials found a notebook containing images of fully clothed girls taken and cropped from various publications, including The Lakeland Times, while serving time in prison. Some of the photos were accompanied by written commentary of a graphic and sexual nature.
Chagnon had been charged under a statute that prohibits sex offenders from intentionally "capturing a representation" of any minor without written consent of the minor's parent, legal custodian, or guardian. The question was, was keeping photos of minors culled from print publications the same as capturing the minors' representation?
Without a doubt it is, prosecutors maintained.
"Chagnon made visual representations of twenty-three children by clipping their pictures from various sources - newspapers, magazines, other print publications - and mounting them in his notebook," the Department of Justice brief in the case states. "By removing the pictures from their original source and mounting them in a different location, in a different context, and then adding his own comments, he created new visual representations."
Or to say it another way, he captured their representations, according to the brief.
Chagnon disagreed and challenged the charges. The statute at hand and the meaning of "captures a representation," he asserted, applies only when registered sex offenders actually create - by taking a photograph or recording a video, for instance - a visual representation.
And while the statute also forbids the recording or storing "in any medium data that represents" such a visual image, Chagnon's lawyers argued that storage in the statutory context is not the same as mere possession, and the statute's reference to "data" referred to digital images that did not need to be physically developed to create and view.
The court agreed with the core of Chagnon's arguments.
The case
According to the criminal complaint, Chagnon was an inmate at the Oshkosh Correctional Institute who was about to be discharged when a routine pre-discharge inventory of Chagnon's property turned up "a small red notebook in the back pocket of a pair of [Chagnon's] pants." The 189 photographs of young girls, some in apparent infancy and others aged 10 or younger, had been cut and pasted from the periodicals into the notebook.
"For the most part, the photographs were so closely cropped that other imagery in the original photos was removed and all that was left was the portion of the original depicting one or more girls," the court decision summarized. "There was handwriting, sometimes on the photographs, sometimes next to the photographs, and sometimes both. The written comments used sexually graphic language and often described the girls' desire or request to have sexual intercourse with an adult."
Law enforcement subsequently made contact with the parents of the 23 girls and determined that no parental permission had been given to Chagnon to "capture a representation or possess a photograph of their children," as the complaint put it.
At the heart of the case, the court stated, was a proper interpretation of the term "captures a representation." Using a "plain meaning analysis" of the statute, the appeals court found that the complaint's allegations did not satisfy the statutory requirement that Chagnon captured a representation, even if the conduct was repugnant.
"No doubt Chagnon's behavior in creating and maintaining his notebook, with its sexual captions and commentary about the very young girls depicted, is disturbing to say the least," the decision stated. "And, it might be that the legislature could prohibit a person in Chagnon's status from creating or possessing such a notebook. However, the question here is whether the legislature did cover Chagnon's conduct when it enacted (the law)."
The Legislature did not, the court determined, though it urged lawmakers to revisit the language to see if the statute actually accomplished what legislators intended.
A definition by any other statute
The actual controversy, the court observed, arose not in the statute under which Chagnon was charged but in a separate law that defined "capture a representation."
Specifically, that statute defines "capture a representation" as taking a photograph, making a motion picture, videotape, or other visual representation, or recording or storing in any medium data that represents a visual image.
First, the court pondered, did creating the notebook translate into making a visual representation? Second, did keeping the images in the notebook amount to "storing in any medium data that represents a visual image?"
The state argued that by cutting images from larger photos and cropping them, as well as by adding sexually graphic comments, Chagnon had created entirely new images, much as artists use existing photographs to create photomontages. As such, the state argued, he had captured their representation.
The court disagreed.
For one thing, the panel ruled, "capturing a representation" clearly refers to a visual image of a person, so the context is irrelevant, and thus Chagnon did not create a new image by cropping the photo and removing the surrounding context. That is significant, the court reasoned, because it means Chagnon did not make visual representations of the girls but merely used ones that already existed.
"The photographic images are those Chagnon found in publications," the decision stated. "Putting existing images into a sexual context is not the same as making the images. We agree that Chagnon created something new and that Chagnon misused the photographs. But Chagnon did not, under any common definition of the term, 'make' new visual representation of the girls."
The court employed an analogy to illustrate its conclusion.
"Suppose a politician pays for the production of signs with her photograph on it," the decision stated. "Suppose further that an opponent acquires a sign, crops the photograph of the politician from it, and creates new signs with a negative reference to the politician. In this scenario, a new sign has been created, but the image of the politician is the same. The part of the sign that is the image of the politician remains the same."
Storage versus possession
That contestation was easily resolved, but more nagging was whether Chagnon's act of storing the image in his notebook ran afoul of the statutory prohibition of "storing in any medium data that represents a visual image."
Specifically, was the prohibition limited to the storage of images the person had created or captured, or did it also prohibit the storage or possession of such images, even if the person did not create the images?
While Chagnon argued that possession and storage were distinct and that "data" in the statutory context referred to digital data, the state had argued for a broader interpretation.
"To recap, under the State's view, the word 'stores' is a reference to mere storage, regardless how an image was created, and "data" refers to all information and, thus, includes all images - digital, hardcopy, or otherwise," the decision stated. "Thus, under the State's analysis, 'capture a representation' includes an activity distinct from making a representation, namely, storing a representation that has previously been made. And, although the State repeatedly emphasizes the sexual nature of Chagnon's notebook as a factual matter, the State's analysis of the statutory language does not assert that language in the statute speaks to this topic."
But that broad interpretation carried with it significant baggage, the state decided, namely, it had no apparent limit.
"So far as we can tell, under the State's reading of the 'stores' language, the storage of any magazines or newspapers that happen to contain photographs of children is prohibited when the person storing those publications is a sex offender," the decision stated. "This means that Chagnon would have violated (the law) if he had done nothing more with the publications he received than stack them in his room. There is nothing in the State's explanation of the 'stores ... data' language that requires proof that Chagnon actually did anything with the original images except store them in some manner."
That's unreasonable, the court determined.
The digital revolution
Next, the court turned to Chagnon's contention that the "stores" language was all about addressing the issue of capturing images electronically. To determine the validity of that argument, the court turned again to the statute where the definitional language appeared, "a statute addressing a related but different problem, namely, the nonconsensual photographing or recording of nude persons and the retention and distribution of such images."
Significantly, the court observed, that statute has separate subdivisions for "capturing a representation" and for "possessing, distributing, or exhibiting" such representations. In other words, the statute made it a crime to 'capture a representation' of nude persons nonconsensually and a separate crime to "possess" such a representation.
"This is significant because if the definition of 'capture a representation' includes possessing a representation, then the part of ... prohibiting possession is rendered surplusage," the decision stated.
A basic rule of statutory construction is that every word carries weight and meaning, such that no portion of a statute is rendered superfluous, the court explained. That being the case, the judges determined, "storing" visual images within the context of capturing a representation is not the same as possession of such an image.
"Otherwise, the subdivision of the statute prohibiting possession would be superfluous," the decision stated. "Because (the law under which Chagnon was charged) uses the same definition, the fact that (it) does not contain a subsection or subdivision prohibiting possession does not lead to a contrary conclusion. Rather, it simply emphasizes that mere possession of an image is not prohibited by (the statute)."
Don't store on me
And that gets to the heart of Chagnon's argument that "storing" in the context of the statute is not about keeping or accumulating, as the state contended, but about data created from the use of a digital camera or video recorder. That is to say, the court explained, the entire definition of "capture a representation," including the "stores" language, is directed at making, not possessing.
"The collection and storage of digital data is an inherent part of the process of producing a digital image, analogous to taking a photograph or motion picture," the court determined. "On the other hand, if storage of data means any possession of information in any form, as the State argues, then it is indistinguishable from possession of that information, and thus the possession part of (the definitional statute) is surplusage - an interpretation that would not occur to our hypothetical reasonably informed person."
Indeed, looking at legislative history, the court determined, the Legislature has consistently considered possession of an image as separate from capturing an image.
For example, the judges wrote, an analysis by the Legislative Reference Bureau of 2005 Assembly Bill 251, which was the source of the statute under which Chagnon was charged, states: "This bill prohibits persons who are required to register as sex offenders from intentionally photographing, filming, or videotaping any person under the age of 17 unless the parent, custodian, or guardian of the person under the age of 17 provides written consent."
It was clear from that analysis that the bill was intended to prohibit the creation of images, not their mere possession, the court found.
"In sum, the structure of (the definitional statute), with its separate subdivisions for capturing a representation and possessing such a representation, and the legislature's decision to import the definition of 'captures a representation' from (that statute) into (the charging statute), along with legislative history indicating that the purpose of (the law) is to prohibit sex offenders from photographing, filming, or videotaping minors without parental consent, leads to the conclusion that 'stores in any medium data that represents a visual image' does not include the mere possession of visual images."
The judges thus reversed the order of the circuit court denying Chagnon's motion to dismiss and remanded the case for further review.
The appeals panel was composed of judges Paul B. Higginbotham, Paul Lundsten, and Gary Sherman. Sherman wrote the decision.
Richard Moore may be reached at [email protected].
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