Judge dismisses some charges against deputy

Three charges against a retired Douglas County Sheriff's Department deputy were dismissed in Douglas County Court Thursday - two felony charges of possessing a recording of nudity without consent and one misdemeanor charge of obstructing an officer.

William James Webber, 55, still faces three misdemeanor charges - two counts of fourth degree sexual assault and one count of obstructing an officer - as well as a single felony charge of exposing a child to harmful material.

Webber's attorney, Chris Gramstrup, argued the videotapes, which show a woman getting out of the shower nude, were made in 1993, but the statute he was charged under wasn't enacted until 1995. He made it clear that Webber believes the tapes were made with the consent of the woman, who was in a relationship with Webber at the time they were filmed. She denied giving consent for such filming during a preliminary hearing in April

But, Gramstrup argued, consent is not the issue. The statute states that "whoever possesses, distributes or exhibits a representation that was captured or reproduced in violation of subsections of the law would be guilty of a felony.

"Because the statute was not in effect at the time the tapes were made, they were not captured in violation of the statute," he told Burnett County Judge Ken Kutz. "In effect the tapes were not made illegally."

Ashland County District Attorney Sean Duffy, who is serving as the special prosecutor for the case, argued the legislature never intended for such recordings to be grandfathered in.

"There was a time in society when you could possess child pornography and methamphetamine," Duffy told the court, but those have been made illegal by state law.

Gramstrup said laws making child pornography and meth illegal don't reference other subsections. They just say if you possess it after the date the statute takes effect, it is a felony.

Kutz looked to the "plain language" of the statute to determine the intent behind it.

"Given the straight-up language, it must be made in violation of subsection 1," he said. "This videotape wasn't made in violation of subsection 1."

Kutz also dismissed one of the two obstruction counts because they were multiplicities - identical in law and fact. For the first count, Webber is accused of lying to Superior police officers when he denied he possessed any photos of a minor. In the second count, he is accused of lying to police when he said he had never taken photos of the minor. The questions were asked during the same police interview, almost right after each other, Gramstrup argued. And both dealt with the same type of actions.

Duffy told Kutz the two charges were significantly different, as they could serve as a basis for entirely different violations.

Kutz ruled the charges involved the same subject that arose out of the same interview; they were identical. And, he noted, the legislature does not intend to punish someone for the same violation twice.

Both attorneys left the courtroom feeling they had strong cases.

"At this point I really like our case," Gramstrup said. "I think Mr. Webber is anxious to get things out in trial. Mr. Webber is accused of a lot of things he didn't do."

He said he felt Duffy's videotape charges were "a bit of a stretch," as was the double obstruction charges.

"The judge makes rulings all the time," Duffy said. "These didn't go the way we wanted ... but we still have four strong charges. The charges that are left are still good and I'm going to pursue them."

He did express concerns about the dropped videotape charges, which will never be heard by a jury.

"I look at the violation and the kind of violation that was for the (woman) and I think there's going to be a bit of injustice in not going forward with them," Duffy said.

He was less concerned about the obstruction charge.

"I still get to bring in all that information," Duffy said. The judge's ruling, he said, merely consolidated it into one count, which may simplify things for a jury.

Neither attorney knew of any upcoming motions, but said some could be filed before the case goes to trial on Sept. 22.