Possession of child pornography charges against Arbor Vitae man dismissed

A 47 year-old Arbor Vitae man charged with possession of child pornography had the case against him dismissed in Vilas County court on Feb. 14.

At the time of his arrest in early March, 2023, Lucas R. Aschbrenner had been on the teaching staff of the Minocqua Hazelhurst Lake Tomahawk (MHLT) school district for seven years.

Aschbrenner’s trial was scheduled to begin on Feb. 18. 

In his motion to dismiss two charges of possession of child pornography, a Class D felony, Vilas County district attorney Karl Hayes asked that the case against Aschbrenner be dismissed “without prejudice.” 

That type of case dismissal means the plaintiff is allowed to re-file charges at a later date. 

Hayes stated in his motion filed on Feb. 13 there “is no identified victim in this case.”

“In making this motion, the State has conferred with the investigating officers both with the Vilas County Sheriff’s Office and the (Wisconsin Department of Justice-Division of Criminal Investigation),” he wrote. “As grounds, the State asserts that, in light of the defendant’s various motions to exclude, there remains insufficient admissible evidence to allow the State to carry the burden of proof at the trial.”

In addition, Hayes wrote, a report given to the prosection by the defense expert witness on Jan. 17 “arguably creates reasonable doubt as to Count 2, particularly as to the defendant’s knowledge and intent.”

“In deciding whether to grant or deny the State’s motion to dismiss a prosecution, the Court must consider the public interest,” he wrote.

Hayes cited case law from 1978 and 1980 as examples that established the court should make “some finding ... with respect to the impact of the ruling on the public interest in proper enforcement.” 

He then wrote the state “asserts that the public interest is not served in impaneling a jury when, in the opinion of the District Attorney, trial evidence is weak or lacking, or when a reasonable doubt as to the defendant’s guilt exists.”

“The State’s motion to dismiss under these circumstances is an example of the exercise of legitimate discretion,” Hayes wrote.

According to a court transcript from the Feb. 14 Vilas County court proceeding, Hayes was asked by Vilas County circuit court judge Martha Milanowski if he had anything to add.

“Judge, I don’t have much to add that wasn’t in my motion without getting too bogged down in the minutia of the case,” he said. “I think it’s important to understand that this was never a conventional possession case wherein video or an image was found to have been saved on a device belonging to the defendant. Most other kinds of child pornography cases fall into that category. This was a little bit different. This was a circumstantial situation involving a hash match that was detected by electronic service provider. That is to say a search engine that seemed to suggest that an image was attempting to be uploaded to a search bar on the theory that the user was attempting to locate similar images.”

During the rest of his comments to Milanowski, Hayes said “there just simply isn’t sufficient admissible evidence to allow the state to carry its burden for a variety of reasons” and Hayes again moved to have the charges against Aschbrenner dismissed. 

Aschbrenner’s defense had no objection to the motion by Hayes and Milanowski made the ruling to dismiss the charges. 

“Were we to go to trial and the parties try the case next week, it would be very questionable to do so based on what the state has put before the court and it would be a waste of taxpayer resources as well as costs to the defense and to the state,” Milanowski said in her comments before making her ruling. “So, based on the state’s motion and their position that they’re not able to prove this case beyond a reasonable doubt, the court does grant the motion to dismiss this case.”

Brian Jopek may be reached via email at [email protected].