It was lewd and appalling, but not outlawed, Washington County Judge Eric Butterfield said.
"From a legal point of view, which unfortunately today is my job to enforce, he didn't do anything wrong," the judge said Thursday.
Patrick Buono of Portland didn't dispute using his cellphone to take upskirt photos on Jan. 3 at the store in suburban Beaverton, The Oregonian (http://bit.ly/1zXl9hx) reported.
But his defense lawyer, Mark Lawrence, argued Buono didn't violate the laws against invasion of privacy and attempted encouraging child sexual abuse, a child pornography count.
The privacy law bans clandestine photography in bathrooms, locker rooms, dressing rooms and tanning booths, but the Target aisle was plainly public, Lawrence said.
Upskirt sightings can occur by happenstance, he said, citing a famous photo of Marilyn Monroe with her dress flying up. And that could happen to someone riding up an escalator, taking a spill or exiting a car, he said.
"These things are not only seen but video-recorded," Lawrence said. "It's incumbent on us as citizens to cover up whatever we don't want filmed in public places."
The privacy law also specifies nudity, and the girl was wearing underwear, Lawrence said.
The prosecutor conceded that the lack of nudity was a "live issue in this case," but he argued the charge applied.
"Sure, she's in a public place. But she had an expectation of privacy that a deviant isn't going to stick a camera up her skirt and capture private images of her body," Deputy District Attorney Paul Maloney said.
As for the charge related to child sex abuse, Lawrence said, the girl was not engaging in sexual conduct, which that statute specifies.
Maloney said Buono took the photos hoping they would be explicit.
Butterfield said the teenager's private parts were covered, and her conduct was not sexual.
The judge called his decision to acquit Buono "upsetting to say the least."
After the ruling, Buono shook his lawyer's hand and hurried from the courtroom.
Information from: The Oregonian, http://www.oregonlive.com