Bradley Avery appears in this May 2020 News archive photo.

ALPENA — District Court Judge Thomas LaCross said on Tuesday he will decide within the next week if Alpena’s Bradley Avery, accused of videotaping teenage girls while they changed clothes during a county fair pageant, should move toward trial.

Avery, a former Alpena County Fair Board treasurer convicted in 2019 of embezzlement, is also accused in the current case of keeping images of unclothed minors on his personal phone.

If Avery had child porn on his phone, he didn’t know it, defense attorney Dan White argued, challenging Alpena County Prosecutor Cynthia Muszynski to prove that a handful of images found on his client’s phone depicted minors.

Avery, who was for some years committee head for the queen’s pageant at the fair, is accused of secretly filming three 15-year-old girls as they changed into and out of their pageant dresses during the 2017 fair.

As part of the investigation into the alleged videotaping, thousands of pornographic images were found on Avery’s phone. Eight of those images were tagged by police as possible child sexually abusive material, potentially depicting prepubescent children.

Avery has been charged with aggravated possession of child sexually abusive material (a felony with a maximum sentence of 10 years), capturing or distributing images of an unclothed person, and using computers to commit a crime.

At Tuesday’s preliminary examination, at which a judge determines if there’s enough evidence for a case to head to trial, one of the girls depicted in the videos described the evening Avery told her and two others they could change in a storage room at the fair office.

The News does not identify victims of sexual assault.

It was regular practice for some of the girls involved in pageants to change in the office, the girl said. Avery, in charge of escorting the contestants as part of his duties, went into the storage room alone before the girls entered, closing the door.

He told the girls he had to do something involving a safe in the storage room, although the girl testified she saw no money.

The videos — retrieved by a Michigan State Police computer crimes unit — were on the computer Avery used for his work with the Fair Board. Avery had been allowed to keep the computer for two days after admitting to the Fair Board he had falsified treasurer reports.

Time stamps on the videos show they were deleted during those two days, before police were contacted about the embezzlement and police confiscated the computer.

Avery appears in one of the videos, showing the girls the storage room before they changed clothes, White conceded.

The video clips police were able to retrieve do not show Avery turning on the camera, according to police reports.

The prosecution couldn’t prove a camera owned by Avery actually shot the videos, White contended. He also pointed out that, while Avery’s computer was almost exclusively used by him, computers can be accessed remotely.

Police seized about 20 phones and cameras from Avery’s house. Crime lab searches of the devices turned up links to adult porn sites but no illegal images, according to Alpena County Sheriff’s Deputy Cash Kroll, who testified Tuesday.

White closely questioned the officer about the chain of custody of the data from Avery’s personal phone, which passed through at least 10 sets of hands during the police investigation.

The MSP crime lab was not able to get past the passcode on Avery’s phone, and the defendant declined to share it. The U.S. Secret Service, assisting the Alpena County Sheriff’s Office, eventually retrieved over 16,000 images and 600 videos from the phone, many of them adult pornograpy.

A Secret Service report flagged two images as child porn, but indicated they had most likely been automatically downloaded without Avery’s knowledge when he visited adult porn sites.

Kroll, later reviewing the 16,000-some images on the phone himself, found six he said depicted “young — very, very young”-looking girls performing sex acts on adults.

Under cross examination by White, as the two men examined printed copies of the photos, Kroll acknowledged he couldn’t definitely say the girls and one boy depicted were underrage.

Arguing the court couldn’t justify calling the photos child porn without being certain those shown were actually minors, White also said the small number of potential child porn images indicate Avery wasn’t going looking for them.

Most people caught with child pornography have hundreds of the images in their possession, White said, with which Kroll — who said he has worked on such cases since 2009 — agreed.

Avery’s phone had been used for about 20 online searches specifically looking for teen porn, the secret service report said.

The highest-level charge against Avery specifies the knowing possession of photos of prepubescent children engaging in a sexual act or pose. The photos on Avery’s phone were post-pubescent, and therefore irrelevant to the charge, White said.

Muszynski, before making closing remarks to the judge, added a count of possession of child sexually assaultive materials, which would not require her to prove the child shown had not yet reached puberty.