¶28 (dissenting) — Although I agree with the majority’s analysis concerning the amendment of the information, I would dismiss the entire matter because I do not believe the facts contained in the search warrant affidavit allege the commission of a criminal offense. Accordingly, I must respectfully dissent.
Schultheis, J.¶29 RCW 9.68A.070 makes it unlawful to “knowingly possess [] visual or printed matter depicting a minor engaged in sexually explicit conduct.” Under the statute, unless a picture depicts “sexually explicit conduct” it is not illegal to possess it. State v. Grannis, 84 Wn. App. 546, 548, 930 P.2d 327 (1997). Sexually explicit conduct includes “[ejxhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer.” RCW 9.68A.011(3)(e). Here, the affidavit relates that Aaron Griffith “was taking nude pictures of [C.R.] as a birthday present to him.” Clerk’s Papers at 107. Three other persons helped her pose for the pictures. I find insufficient facts to support two elements.
¶30 First, the affidavit does not state that Ms. R.’s private parts were exposed. A “nude” photograph does not always depict an area of the body that would make possession of the picture illegal. In other words, if the anatomy required to be shown by the statute is obscured, there is no crime. See, e.g., State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 764-65, 82 P.3d 554, cert, denied, 135 N.M. 51, 84 P.3d 668 (2003); Doe v. Chamberlin, 139 F. Supp. 2d 637, 642 (M.D. Pa. 2001), aff’d, 299 F.3d 192 (3d Cir. 2002).
¶31 The probable cause here can be compared to that found in State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). In Petrone, a juvenile victim testified before a county judge as part of a request for a search warrant. Id. at 537. She first testified generally that she and others were *493photographed in the nude. Id. at 547. The judge initially declined to issue the warrant, remarking that nudity alone was insufficient to show a violation of the child pornography law; the photographs had to be sexually explicit — a lewd exhibition of genitals. Id. The victim then testified they were asked to “sit on the ground and like put our knees up and stuff and just so that we could show parts of our bodies.” Id. The judge issued the search warrant. The Wisconsin Supreme Court held the victim’s description was sufficient to establish probable cause by showing that the defendant had photographed the victims’ genital or pubic areas. Id. There was no such clarification here, only that there were nude photos.
132 Second, the affidavit does not show that the purpose of the exposure alleged was for sexual stimulation. The facts presented — that the pictures were taken as a birthday present for Mr. Griffith and that others helped her pose— are not helpful to reach the conclusion that possession of the photographs would constitute a crime without some indication that there was exposure of an intimate body part. That is what sets this case apart from State v. Myers, 133 Wn.2d 26, 941 P.2d 1102 (1997). There, the Washington State Supreme Court held that the jury could infer that the defendant made a videotape for the purpose of sexual stimulation of the viewer when he posed his seven-year-old daughter while bathing and then repeatedly photographed extreme close-ups of her pubic area. Id. at 37-38. Here, there are no facts upon which the sexual stimulation can be logically inferred because the exposure is ambiguous.
¶33 For these reasons, the search warrant should have been suppressed and Mr. Griffith’s convictions reversed.
Review denied at 156 Wn.2d 1037 (2006).