Bradley Avery appears in this May 2020 News archive photo.

ALPENA — On Monday, attorneys for Alpena’s Bradley Avery will argue that a lower court judge shouldn’t have moved Avery toward trial on a charge of possession of child pornography.

Avery is accused of videotaping several girls as they were changing clothes for a pageant in the Alpena County Fair office in 2017. He is also charged with one count of child porn possession after eight images of young-looking individuals were found among thousands of legal adult pornography images and videos on his phone during a police investigation.

Two of the eight photos of potentially underage minors found on Avery’s phone were identified in a report by a U.S. Secret Service agent who viewed the data as “drive-bys,” or images left on a user’s device without their knowledge during visits to legal pornography sites.

The court was wrong for deciding Avery should be held responsible for the drive-by images, according to the agent’s report, Attorney Dan White said.

That report should never have been allowed to be read into the court record, protested Alpena County Prosecutor Cynthia Muszynski in a written response.

Read at a hearing before Judge Thomas LaCross in the 88th District Court in July, the report — read by someone other than the person who wrote it — violated the rules of hearsay and the opinions it contained can’t be used as an argument by the defense, Muszynski argued.

Whether or not he knew of the two photos challenged by the defense, at least six other photos were discovered on Avery’s phone that depicted young-looking people performing sex acts on adults, Muszynski said.

At the July hearing, White challenged the classification of those six images as child porn, drawing from a police officer on the witness stand an admission that he couldn’t definitely say the girls and one boy depicted were underrage.

The search of Avery’s phone also revealed 21 searches for teen porn sites.

In Michigan, teenagers as young as 18 can legally be depicted in pornographic images.

LaCross determined, after the July hearing, that there was enough evidence to allow Avery’s case to move toward trial on charges of capturing images of unclothed persons, using a computer to commit a crime, and possession of child sexually abusive material.

On Monday, Judge Benjamin Bolser in the 26th Circuit Court will consider whether LaCross’s decision regarding the child porn charge was justified.

The defense does not dispute LaCross’s decision to bind Avery over to the higher court regarding the other charges.

Julie Riddle can be reached at 989-358-5693, jriddle@thealpenanews.com or on Twitter @jriddleX.