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Gary Lee Johnson

Moorhead man's child porn conviction overturned

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region Park Rapids,Minnesota 56470 http://www.parkrapidsenterprise.com/sites/default/files/styles/square_300/public/fieldimages/22/0304/johnson-gary-lee.jpg?itok=KEmuJocC
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Moorhead man's child porn conviction overturned
Park Rapids Minnesota PO Box 111 56470

The Minnesota Court of Appeals has overturned the conviction of a Moorhead man who served time in jail on a charge of possessing child pornography.

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In the case involving Gary Lee Johnson, 31, the court ruled that an image found on a cell phone showing the naked upper half of a girl who was about 11 or 12 years old did not depict "sexual conduct" and therefore did not constitute illegal pornography.

Johnson was convicted in Clay County District Court of possessing child pornography and sentenced to six months in jail.

The case began when a mandatory reporter - someone whose job required them to report suspected abuse - was visiting the home of a girl and discovered a nude image of the girl on her cell phone.

The girl told police the cell phone had belonged to Johnson and police later determined the image was transferred from the girl's phone to Johnson's new cell phone, court records show.

The girl did not reveal who took the picture, which according to court documents showed her naked upper body with arms crossed over her chest.

Johnson denied taking the picture, but admitted that he transferred the image to his new phone, according to court records.

The appeals court ruled that for an image to be considered child pornography, the physical contact depicted must be part of an "apparent act of sexual stimulation or gratification."

The court went on to say that while the underlying facts of the case "are deeply troubling, and may well provide a basis for other charges ... they may not be considered when deciding whether the single, upper-body image involved in this prosecution depicts sexual conduct."

Johnson said in a phone interview that he was relieved by the court decision, but he said he is worried prosecutors will bring new charges against him.

Clay County Attorney Brian Melton said he disagreed with the appeals court ruling and he has talked with the Minnesota Attorney General's Office about the possibility of appealing the case to the state Supreme Court.

Melton said he is also looking into the possibility of charging Johnson under different statutes.

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