(CN) - Dismissing 23 child-pornography counts, a Wisconsin appeals court said the state law at issue does not cover putting magazine baby pictures in a notebook filled with graphic sexual language.
Prosecutors had filed the charges against Albert Chagnon when he was about to be discharged from the Oshkosh Correction Institute after serving time for child pornography.
During a routine predischarge inventory of Chagnon's property, a correctional officer found a small red notebook in one of the pockets of Chagnon's pants.
The notebook contained nearly 200 photographs of fully clothed girls whose ages ranged from small babies to pre-teens.
Investigators say Chagnon cut the pictures from newspapers and magazines. Along side or on top of the images, Chagnon scrawled sexually graphic language that frequently described the girls' desire to have sex with an adult.
Chagnon had also written names for some of the girls.
Wisconsin law prohibits registered sex offenders like Chagnon from capturing images of minors without consent.
After an officer called the parents of 23 of the girls to confirm that Chagnon did not have their consent to "capture" the girls' photographs, the state brought the new charges.
Noting that he did not take the photographs, however, Chagnon contended that his actions do not fall within the meaning of the statutory term.
Though the Winnebago County Circuit Court refused to dismiss, a three-judge panel of the state Court of Appeals reversed Thursday.
"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," Justice Gary Sherman wrote for the court. "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. As we now explain, the legislature did not."
The ruling concludes with a push for the Legislature "to re-examine this statute to ascertain whether or not it accomplished what it intends."
The crux of the decision comes from the fact that Chagnon's misuse of the photographs did not equate to creating something new or store it in digital form.
"Suppose a politician pays for the production of signs with her photograph on it. 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," Sherman wrote. "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."
Ultimately the term "captures a representation" as statutorily defined "cannot reasonably be construed to apply to cutting pictures from magazines and newspapers and pasting them in a notebook," the ruling states.
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