from www.tincities.com – The Minnesota Court of Appeals ruled Tuesday that a photograph of an 11- or 12-year-old girl, naked from the waist up, did not constitute child pornography as defined by state law.

A three-judge panel threw out the conviction of Gary Lee Johnson, 31, of Dilworth, Minn., in Cass County on a charge of possession of child pornography.

Johnson denied taking the picture but admitted transferring it to his cell phone from another phone.

The girl in the photo, a relative of Johnson’s, is depicted lying on her back and crossing her arms over her torso. One arm is in contact with her breasts.

Prosecutors at the district court argued that the girl was “holding her breasts.”

But the appeals court said the “contact between her arms and her breasts is incidental to where her arms are resting.”

If child pornography laws were interpreted too broadly, it would affect material that is constitutionally protected, said the ruling, written by Judge Harriet Lansing for a panel that included judges Terri J. Stoneburner and Matthew E. Johnson.

“Fashion and fine art images or paintings could be prohibited if they used models who are under the age of 18 and who appear seductive,” the court wrote. “Similarly, family images of naked children could be banned if they were perceived as alluring.”

In addition, the court said that the lower court “read into Minnesota law an element relating to the sexual stimulation of the viewer,” meaning Johnson.

But Minnesota law says nothing about “the viewer,” the appeals court said.

Other photographs were discovered on the phone for which charges were dismissed at the lower court.

But while those facts are “deeply troubling,” the court wrote, “and may well provide a basis for other charges, or, at minimum, a child-protection action, they may not be considered when deciding whether the single, upper-body image involved in this prosecution depicts sexual conduct.”