870 N.W.2d 27
Wis. Ct. App.2015Background
- Chagnon, a registered sex offender incarcerated at Oshkosh, was charged with 23 counts under Wis. Stat. § 948.14(2)(a) for intentionally photographing a minor without parental consent after officers found a notebook with 189 cropped magazine/newspaper photos of young girls and sexual handwritten captions. 23 parents disavowed consent for photographs of their children.
- The complaint alleged Chagnon “capture[d] a representation or possess[ed] a photograph” of the children; Chagnon moved to dismiss for failure to allege he “captured a representation” as required by § 948.14(2)(a).
- The definition of “captures a representation” in a related statute, Wis. Stat. § 942.09(1)(a), reads: “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.” The parties disputed whether that definition covers cutting/pasting printed photos into a notebook.
- The State argued “stores…data” includes non-digital possession (e.g., clipped photos pasted into a notebook) and alternatively that pasting + sexual captions created new visual representations.
- The circuit court denied dismissal; Chagnon obtained leave to appeal. The appellate court reviewed statutory interpretation de novo.
Issues
| Issue | Chagnon’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether cutting/pasting printed photos into a notebook constitutes “makes … other visual representation” | Chagnon: He did not make new visual representations; he only reused existing images | State: Cropping/isolation and sexual captions effectively created new visual representations (like photomontage) | Court: No — recontextualizing existing photos is not “making” a new visual representation |
| Whether storing printed images in a notebook is “stores in any medium data that represents a visual image” | Chagnon: Phrase should be read in context (ejusdem generis) to cover digital recording/storage as part of creating images, not mere possession | State: “Stores” and “data” have broad dictionary meanings that encompass keeping hardcopy photos or pasted clippings | Court: No — in context and statutory structure, “stores…data” refers to digital data inherent to creating images (not mere possession); broad reading would render separate possession offense surplusage |
| Whether § 948.14(2)(a) as drafted reaches Chagnon’s conduct (clipped/pasted printed photos) | Chagnon: Complaint fails to allege required element of capturing a representation under § 942.09(1)(a) | State: Legislative intent and plain meanings allow prosecution for possession/collection of images in any medium | Court: § 948.14 imports § 942.09(1)(a)’s definition, which does not reasonably include clipping/pasting printed photos; counts insufficient |
| Whether legislative history supports limiting “stores…data” to digital creation/storage | Chagnon: Yes — statutory history shows focus on capturing/recording images and separate possession offense | State: Legislative text/dictionaries suffice to justify broader meaning | Court: Legislative history and statutory structure confirm limitation to digital/data storage related to image creation |
Key Cases Cited
- State v. Adams, 152 Wis. 2d 68 (complaint sufficiency standard)
- State v. Cole, 233 Wis. 2d 577 (statutory interpretation reviewed de novo)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (statutory interpretation principles)
- State v. Stevenson, 236 Wis. 2d 86 (struck prior statute as overbroad; legislative response noted)
- Lake City Corp. v. City of Mequon, 207 Wis. 2d 155 (avoid rendering statutory language superfluous)
- Bruno v. Milwaukee County, 260 Wis. 2d 633 (statutory ambiguity standard)
- Richards v. Badger Mutual Insurance Co., 309 Wis. 2d 541 (use of statutory history in plain-meaning analysis)