Court of Appeals Construes Subsection of Possession of Child Pornography Statute to Penalize Possession of Depictions of Specific Conduct.

State v. Johnson, Minn.Ct.App., 12/1/2009.  A district court judge found Gary Johnson guilty of possession of child pornography under Minn. Stat. § 617.247, subd. 4(a) (2006), which prohibits the possession of any visual depiction that uses a minor to depict actual or simulated sexual conduct.  Mr. Johnson snapped an image of his step daughter with his cell phone; the shot showed her from the waist up, naked and lying down.   She is, by everyone’s account, frowning.  When Mr. Johnson got himself a new cell phone he gave this one to his step daughter but he first sent the image to his new phone.

The appellate court took a look at the image.  Here’s how the court describes it:

The image on the cell phone in the sealed file is of a young girl unclothed from the waist up, who the parties stipulate to be AD. The image does not show the lower part of her body. She is lying on her back with her arms crossed over her ribs. Her right hand is resting on her stomach; her left hand is resting on her right forearm. The top of her left forearm is in contact with her breasts.

The appellate court decided that what it was looking at did not depict “sexual conduct,” an element of the offense.  Even though the statute has five definitions of “sexual conduct,” only one of them is in play here:

physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

The appellate court decides that this language is clear and unambiguous, and requires “depiction of an act that is or appears to be one of sexual stimulation or gratification, an act that constitutes sexual abuse when a minor is involved.”  Sexual stimulation of the viewer is not an element of the offense. 

AD’s arms, which are crossed under her breasts, are passively resting across her upper torso. The contact between her arms and her breasts is incidental to where her arms are resting. The physical contact between AD’s forearm and breast is not part of an act of sexual stimulation or gratification. Consequently, the image of AD does not depict sexual conduct and is not a pornographic work.