State v. Linson

#27962-a-GAS
2017 S.D. 31

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TODD DAVID LINSON, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE BRADLEY G. ZELL
Judge

****

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

BEAU J. BLOUIN
Minnehaha County Public
Defenders Office
Sioux Falls, South Dakota Attorneys for defendant and
appellant.

****
CONSIDERED ON BRIEFS
ON APRIL 24, 2017
OPINION FILED 05/24/17
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SEVERSON, Justice

[¶1.] Todd Linson appeals his conviction on five counts of possessing child

pornography. He asserts that there was insufficient evidence to prove that he

knowingly possessed child pornography. He also asserts that the statute defining

possession of child pornography is unconstitutionally vague and that he was

convicted multiple times for a single act or course of conduct, in violation of his right

to be free from double jeopardy. We affirm.

Background

[¶2.] On the evening of March 3, 2013, Officers Mertes and Buss were

dispatched to Linson’s residence to investigate a report of possible child

pornography found on a computer. Linson’s wife and sister were at the residence

when law enforcement arrived. They directed the officers to a computer that

required a password to access. When Linson arrived home, he provided the login

password so the officers were able to look at web browsing history. After

discovering that Linson had searched for pornography using terms associated with

child pornography and observing that several websites in the browser’s history

contained child pornography, the officers decided to seize the computer.

[¶3.] Law enforcement performed a forensic analysis on the computer seized

from Linson’s home. Two user profiles were found on the computer. Forty-one

images of possible child pornography were found in the cache 1 on just one of those

1. “A cache (pronounced ‘cash’) is a storage mechanism designed to speed up the
loading of Internet displays. When a computer user views a webpage, the
web browser stores a copy of the page on the computer’s hard drive in a folder
or directory. That folder is known as the cache, and the individual files
(continued . . .)
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profiles—the one belonging to Linson. An additional 360 images of child

pornography were found in the unallocated space of the computer. 2 On September

24, 2014, a grand jury indicted Linson on five counts of possessing, distributing, or

otherwise disseminating child pornography in violation of SDCL 22-24A-3(3). The

five images associated with those five counts were each found in the cache files of

the computer. The analysis of the computer also revealed that the person using the

computer used the following search terms in internet search engines: “preteen, nude

preteen photos, free preteen photos, no tits, [and] Lolita.” 3 There were also adult

pornography searches that were done around the same time.

[¶4.] A two-day jury trial began on April 13, 2016. Before the case was

submitted to the jury, the defense moved for a judgment of acquittal, which the

circuit court denied. On April 14, 2016, the jury found Linson guilty on all five
_________________________________________________
(. . . continued)
within the cache are known as temporary Internet files. When the user later
returns to a previously visited webpage, the browser retrieves the cached file
to display the webpage instead of retrieving the file from the Internet. By
retrieving the page from the cache, instead of the Internet, the browser can
display the page more quickly.” Ty E. Howard, Don’t Cache Out Your Case:
Prosecuting Child Pornography Possession Laws Based on Images Located in
Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229-30 (2004)
(footnotes omitted).

2. “When a computer user deletes a file, it is not simultaneously removed from
her computer. The physical location on the hard disk where the deleted file
resides is marked by the computer as unallocated file space, which allows it
to be overwritten. The file is not actually removed from the computer until
another file overwrites it. While the file is marked for deletion (but not yet
overwritten), it exists in unallocated file space. Forensic software allows an
investigator to search and view the contents of the unallocated file space.”
Howard, supra ¶ 3 n.1, at 1273.

3. “‘Lolita’ is often a code word for child pornography.” Unites States v. Grimes,
244 F.3d 375, 379 n.7 (5th Cir. 2001).

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counts. On July 28, 2016, the court sentenced Linson to five years in the

penitentiary on each count, to run consecutively. It suspended two years on count

1, all five years on count 2, four years on count 3, all five years on count 4, and all

five years on count 5. Linson appeals his conviction, raising the following three

issues:

1. Whether the evidence was sufficient to prove Linson
knowingly possessed the images found in the temporary-
internet-file cache of the computer.

2. Whether SDCL 22-24A-3 is unconstitutionally vague in
violation of Linson’s due process rights under the United
States and South Dakota Constitutions.

3. Whether Linson’s double jeopardy rights were violated
because Linson was penalized multiple times for the same
offense or course of conduct.

Analysis

1. Whether the evidence was sufficient to prove Linson
knowingly possessed the images found in the temporary-
internet-file cache of the computer.

[¶5.] “We review the denial of a motion for judgment of acquittal as a

question of law under the de novo standard.” State v. Bausch, 2017 S.D. 1, ¶ 25

889 N.W.2d 404, 411 (quoting State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35,

40). “We consider the evidence in the light most favorable to the verdict and will

not set aside a guilty verdict on appeal ‘if the state’s evidence and all favorable

inferences that can be drawn therefrom support a rational theory of guilt.’” Id.

(quoting Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40).

[¶6.] To prove the crime possessing, distributing, or otherwise disseminating

child pornography under SDCL 22-24A-3(3), the State needed to establish that

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Linson “[k]nowingly possesse[d], distribute[d], or otherwise disseminate[d] any

visual depiction of a minor engaging in a prohibited sexual act, or in the simulation

of such an act.” Linson concedes that the images depict child pornography. He only

disputes whether he knowingly possessed those images. Although possession is not

statutorily defined, this Court (in a possession of marijuana case) has stated that it

“signifies dominion or right of control over [contraband] with knowledge of its

presence and character.” State v. Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d 89, 92 (per

curiam). “[P]ossession can either be actual or constructive and need not be

exclusive.” Id. It may be proven by circumstantial evidence. Id. ¶ 11, 681 N.W.2d

at 93.

[¶7.] This Court has not previously considered whether cached images are

themselves the contraband that a defendant possesses or whether they are merely

evidence of possession of child pornography. Here, where there was no evidence

that Linson knew how the cache operated, he cannot be said to have known what

images were present in his cache or to have had dominion or control over those

cached images. Other courts have held that the presence of cached images or files,

standing alone, is not sufficient to establish that a defendant knowingly possessed

those cached images or files. See Marsh v. People, 389 P.3d 100, 108 (Colo. 2017)

(“[T]he presence of photos in the internet cache alone does not automatically

establish knowing possession.” (citing United States v. Winkler, 639 F.3d 692, 698-

99 (5th Cir. 2011))). The Colorado Supreme Court explained some of the reasons for

such a holding:

advances in internet technology have made it easier to access
child pornography and have also facilitated cyber-attacks like

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viruses and hacking. Such intrusions could conceivably result in
a computer displaying sexually exploitative images without the
knowledge of that computer’s owner, even where the owner has
exclusive physical access to the computer.

Id. The Eighth Circuit has also noted the problematic nature of files such as those

that are cached. It explained that “[t]he presence of Trojan viruses and the location

of child pornography in inaccessible internet and orphan files[4] can raise serious

issues of inadvertent or unknowing possession.” United States v. Kain, 589 F.3d

945, 949 (8th Cir. 2009) (citing United States v. Romm, 455 F.3d 990, 998-1001 (9th

Cir. 2006)). The Eighth Circuit concluded that “[t]he presence of child pornography

in temporary internet and orphan files on a computer’s hard drive is evidence of

prior possession of that pornography, though of course it is not conclusive evidence

of knowing possession and control of the images.” Id. at 950. And it determined

that issues of inadvertent or unknowing possession are “issues of fact, not of law.”

Id. at 949.

[¶8.] We agree with those courts holding that the mere presence of child

pornography in a computer’s cache is not sufficient to establish that a defendant

knowingly possessed it; the cached images are not themselves the contraband.

Instead, cached images or files are evidence of possession. The State notes that we

have defined constructive possession as the dominion or control over either the

contraband or the premises in which the contraband was found. See State v. Riley,

2013 S.D. 95, ¶ 16, 841 N.W.2d 431, 436. In this case, Linson had dominion or

4. A detective in Kain explained that “orphan files” are “files ‘that were on the
computer somewhere saved’ but were subsequently deleted, ‘so the computer
doesn’t know exactly where they came from.’” Kain, 589 F.3d at 948.

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control over the premises where the images were found—the computer and user

profile—thus, the State asserts, the element of possession is met. We reject such an

approach; it would make a computer owner strictly liable for anything that

inadvertently loads on a computer, and it leaves unaddressed the concerns that

other courts have highlighted, such as viruses and pop-ups. Those issues are ones

reserved for a fact-finder.

[¶9.] Linson contends that using cached images as evidence of possession

amounts to the punishment of viewing child pornography, especially here where

there was no evidence introduced that Linson exercised his ability to control the

images that he retrieved, that he knew about his computer’s cache, or that he knew

how to access images in the cache. The federal government and other states have

prohibited viewing child pornography, but it is not explicitly prohibited by South

Dakota’s statutes. See 18 U.S.C. § 2252A(a)(5)(B) (2012) (“(a) Any person who— (5)

either— (B) knowingly possesses, or knowingly accesses with intent to view, any

book, magazine, periodical, film, videotape, computer disk, or any other material

that contains an image of child pornography . . . shall be punished as provided in

subsection (b).”). Linson refers us to various cases in support of his argument that

he could not possess images found only in his cache. A couple of the cases he cites

determined that their respective legislatures did not intend to criminalize behavior

such as Linson’s. See State v. Barger, 247 P.3d 309, 567 (Or. 2011) (concluding

“that the acts at issue here—navigating to a website and bringing the images that

the site contains to a computer screen—are not acts that the legislature intended to

criminalize”); Worden v. State, 213 P.3d 144, 147 (Alaska Ct. App. 2009) (“[T]he

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evidence supported the inference that [defendant] had viewed child pornography on

certain websites at some point in the past. . . . But . . . the Alaska Statute

prohibiting the knowing possession of child pornography does not criminalize

merely viewing images of child pornography on a computer.”). The courts in several

other cases he has cited considered whether a defendant knew about the computer’s

cache. 5 Knowledge about the functioning of the cache or how to access the images

5. See United States v. Flyer, 633 F.3d 911, 919 (9th Cir. 2011) (“The
government concedes that it presented no evidence that Flyer knew of the
presence of the files on the unallocated space of his Gateway computer’s hard
drive. The government also concedes it presented no evidence that Flyer had
the forensic software required to see or access the files. . . . Our precedent
relating to cache files suggests that a user must have knowledge of and
access to the files to exercise dominion and control over them.”); United
States v. Dobbs, 629 F.3d 1199, 1204-05, 1207 (10th Cir. 2011) (“[T]he
government presented no evidence that [defendant] had accessed the files
stored in his computer’s cache, including the two images at issue. And, more
tellingly, there was no evidence that he even knew about his computer’s
automatic-caching function.” And prosecution did not show that defendant
conducted search for child pornography “immediately prior to the creation of
those two images in the cache.” “[F]or th[e] evidence to be probative of the
question of knowing receipt, the government needed to present proof that
[defendant] at least knew of the automatic-caching process.”); United States
v. Kuchinski, 469 F.3d 853, 862 (9th Cir. 2006) (“[T]here was no evidence that
[defendant] was sophisticated, that he tried to get access to the cache files, or
that he even knew of the existence of the cache files.”); People v. Kent, 970
N.E.2d 833, 841 (N.Y. 2012) (“The People did not demonstrate that defendant
knew that the page, or any other, for that matter, had been cached [nor]
[t]hat defendant . . . . controlled the image while it was on his screen. . . .
Thus, the evidence was insufficient to show that defendant knowingly
possessed the . . . Web page, either in the form of the cached file or as an
image on his screen. It follows, therefore, that there was not sufficient
evidence that defendant procured the . . . page; defendant did not ‘get
possession of the page by particular care or effort’ as by downloading it.”
(quoting People v. Keyes, 552 N.E.2d 617, 619 (N.Y. 1990)); Barton v. State,
648 S.E.2d 660, 663 (Ga. Ct. App. 2007) (“[T]he State was required to show
that [defendant] had knowledge of the images stored in his computer’s cache
files.”). But see New v. State, 755 S.E.2d 568, 575 (Ga. Ct. App. 2014)
(“Barton cannot be read to foreclose the State’s ability to prosecute and
(continued . . .)
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contained therein is irrelevant when the cached images are evidence of possession

and do not themselves conclusively establish possession. See Ty E. Howard, Don’t

Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on

Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1257

(2004) (explaining that under the “evidence of” approach, “criminal liability arises

not from the cached images themselves, but rather from the images that the user

originally searched for, selected, and placed on his computer screen”). Accordingly,

those cases, which do not follow the evidence of possession approach, are largely

inapplicable to our analysis.

[¶10.] Drawing a line between the mere viewing of images on a potentially

mobile electronic device such as a computer and possessing those images highlights

the difficulty of applying older legal concepts rooted in a brick-and-mortar world to

today’s virtual world. See generally Audrey Rogers, From Peer-to-Peer Networks to

Cloud Computing: How Technology is Redefining Child Pornography Laws, 87 St.

John’s L. Rev. 1013 (2013). Various courts treating cached images as evidence of

possession find relevant whether the defendant navigated to websites containing

child pornography (through conduct such as performing searches containing terms

associated with child pornography) and the control that technology gives defendant

over the images retrieved. The Pennsylvania Supreme Court, using the Black’s

Law dictionary definition of control, explained as follows:

_________________________________________________
(. . . continued)
convict a defendant for prior possession of child pornography when automatic
backup files, in addition to other direct or circumstantial evidence, establish
same.”).

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An individual manifests such knowing control of child
pornography when he purposefully searches it out on the
internet and intentionally views it on his computer. . . . [T]he
viewer may, inter alia, manipulate, download, copy, print, save
or e-mail the images. It is of no import whether an individual
actually partakes in such conduct or lacks the intent to partake
in such activity because intentionally seeking out child
pornography and purposefully making it appear on the
computer screen—for however long the defendant elects to view
the image—itself constitutes knowing control.

Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009), cert. denied, 558 U.S.

875, 130 S. Ct. 200, 175 L. Ed. 2d 127 (2009); see also New v. State, 755 S.E.2d 568,

575-76 (Ga. Ct. App. 2014) (“[A] computer user who intentionally accesses child

pornography images on a website ‘gains actual control over the images, just as a

person who intentionally browses child pornography in a print magazine

“knowingly possesses” those images, even if he later puts the magazine down.’”

(quoting Kain, 589 F.3d at 950)).

[¶11.] Similar to those cases, there was evidence introduced that Linson

entered multiple search terms associated with child pornography, repeatedly

seeking it out. The officers investigating the computer at his house reported that

they had to wait for Linson to arrive before they could access his user profile, which

contained the child pornography. Linson’s wife testified that those reports were

inaccurate and that she and Linson’s sister had access to his user profile. But the

jury is tasked with making a credibility determination. And based on the evidence

introduced, it could infer that Linson had exclusive access to the computer profile on

which the images were found. One of the responding officers testified that Linson

initially claimed that pop-ups were to blame for the child pornography on his

computer’s history. He told the officer that he searched for and viewed adult

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pornography when the child pornography was displayed in a pop-up. The officer

further testified that “after some conversation back and forth, I don’t recall the

exact conversation, but he did admit that he typed some of those terms into there[.]”

The detective performing the computer analysis testified that she found an

additional 360 images of child pornography in the unallocated space of the

computer. Thus, the jury could also infer that Linson consciously sought out and

retrieved the images that were introduced. In taking such actions, he gained

control over the images that he ultimately accessed and thus knowingly possessed

them. See State v. Mercer, 782 N.W.2d 125, 139 (Wis. Ct. App. 2010)

(“[Defendant’s] repetitive searches for and navigation within child pornography

websites show that this was not a person doing a search for a benign topic who just

happened to mistakenly click on a website featuring child pornography.”). Some of

the various actions that Linson could take in regard to the images include printing,

taking a screenshot, emailing, uploading to a cloud-based service, or copying. This

is not a case involving mere viewing of child pornography or one in which it was

clear that the images found on the computer had been placed there inadvertently. 6

6. On this point, a Wisconsin appellate court found a hypothetical from a
journal helpful. It explained:
We disagree with [defendant] that this case falls so far on the viewing
end of the possession-viewing spectrum that it represents a “pure
view” case. The following hypothetical, advanced by a commentator in
a legal journal, aptly describes what comes to our minds when we
think of a “pure view” case. The same hypothetical also neatly
contrasts “pure view” from what we ultimately believe is the situation
in this case:
Patrick Pedophile logs onto his computer and opens his web
browser. He goes to a common search engine, like Google or
(continued . . .)
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The evidence indicated affirmative actions by Linson to seek out child pornography

and place it on his computer at one point in time and for whatever duration he

chose, bringing it under his control. 7 See State v. McKinney, 2005 S.D. 74, ¶ 13,

_________________________________________________
(. . . continued)
Lycos, and types in several search terms including “lolita,”
“preteen nude pics,” and “underage sex kittens.” Upon receiving
his search results, Patrick clicks on a particular website, which
contains thumbnail images of child pornography. He then clicks
on several of the thumbnail images to enlarge them and views
them at his desk. As he is doing so, Patrick’s coworker, Ian
Innocent, happens to walk by Patrick’s desk, where he stops to
chat for a moment. When Ian arrives, he looks directly at
Patrick’s computer screen and views the precise same image
that Patrick is viewing for several seconds.

The distinction between Patrick and Ian’s conduct is clear.
Regardless of Ian’s intent or knowledge about the images on
Patrick’s computer screen, Ian did not possess them. He had no
control or dominion over them. He could not guide those images’
destinies. He had no ability to move, alter, save, destroy, or
choose the images. Ian merely viewed them. Contrast Ian’s
conduct with Patrick’s conduct. Unlike Ian, Patrick sought the
images out and affirmatively placed them on his computer
screen. He had the ability to move, alter, copy, save, destroy,
and otherwise manipulate the image. Patrick had total ability
to control and guide the image. In every sense, Patrick
possessed the image at that time—and his possession was
captured “on videotape” by his computer’s cache file.

We do not consider [defendant] to be in the same shoes as the fictional Ian.
This is not a “pure view” case.

Mercer, 782 N.W.2d at 132 (citation omitted) (quoting Howard, supra ¶ 3 n.1,
at 1267-68).

7. A justice on the Supreme Court of Oregon, who disagreed with the court’s
determination that Oregon did not prohibit purposefully seeking out child
pornography on a computer, noted that such a decision ignores the realities of
today’s technology. Justice Kistler explained:
[T]oday’s iPhone is yesterday’s photograph. There is no difference
between a person who uses his iPhone to pull an image of child
(continued . . .)
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699 N.W.2d 460, 465 (“[T]here is no amount of time these images must be in a

defendant’s possession before a conviction can be upheld.”). Such conduct, as found

by the jury, amounts to constructive possession of the child pornography.

2. Whether SDCL 22-24A-3 is unconstitutionally vague in
violation of Linson’s due process rights under the United
States and South Dakota Constitutions.

[¶12.] Linson contends that SDCL 22-24A-3 is unconstitutionally vague

because it fails to put the public on notice that viewing child pornography falls

within the purview of the statute. We review challenges to the constitutionality of a

statute de novo. See State v. Myers, 2014 S.D. 88, ¶ 6, 857 N.W.2d 597, 599.

However, Linson did not present this issue to the circuit court, and therefore our

review is limited to plain error. See SDCL 23A-44-15. As explained above, this case

is not one in which the viewing of child pornography is being criminalized. Supra ¶

11. Linson obtained constructive possession of the images that he affirmatively

sought out and brought under his control on the computer. See State v. Martin,

2003 S.D. 153, ¶ 32, 674 N.W.2d 291, 301 (“[V]agueness challenges are usually
_________________________________________________
(. . . continued)
pornography off the Internet and then passes that image, displayed on
his iPhone, around for his friends to see and a person who passes a
photograph of the same image to his friends. Both persons possess or
control the image. The fact that the person has not saved the image to
his iPhone does not mean that the person does not possess or control
it. . . .
....
. . . [W]hen the computer displaying the image is portable, as an
iPhone, iPad, or Droid is, then the user can take that displayed image
with him or her, move the image from one place to another, and show
it to others in different locations, all without ever saving the image to
the user’s hard drive.

State v. Ritchie, 248 P.3d 405, 411, 413 (Or. 2011) (Kistler, J., dissenting).

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‘examined in light of the facts of the case at hand.’” (quoting United States v.

Whiting, 165 F.3d 631, 634 (8th Cir. 1999)). Accordingly, there is no plain error for

this Court to notice. See State v. Fischer, 2016 S.D. 1, ¶ 15, 873 N.W.2d 681, 687

(“We invoke our discretion under the plain error rule cautiously and only in

‘exceptional circumstances.’” (quoting State v. Nelson, 1998 S.D. 124, ¶ 8, 587

N.W.2d 439, 443)).

3. Whether Linson’s double jeopardy rights were violated
because Linson was penalized multiple times for the same
offense or course of conduct.

[¶13.] Linson’s remaining argument is that his convictions violate his right to

be free from double jeopardy because he was penalized multiple times for the same

offense or course of conduct. “A defendant cannot receive two convictions for one

crime unless the Legislature intended multiple punishments.” State v. Chavez,

2002 S.D. 84, ¶ 15, 649 N.W.2d 586, 593 (quoting State v. Well, 2000 S.D. 156, ¶ 23,

620 N.W.2d 192, 197). “Multiple charges and punishments in a single prosecution

will not violate double jeopardy if the Legislature plainly intended to impose

cumulative punishments.” Martin, 2003 S.D. 153, ¶ 38, 674 N.W.2d 291, 302

(quoting State v. Dillon, 2001 S.D. 97, ¶ 14, 632 N.W.2d 37, 43-44). Again, because

Linson did not raise this issue with the circuit court, our review is limited to plain

error.

[¶14.] Linson concludes that multiplicity exists in this case because several of

the images were placed in the cache around the same time. The detective

performing the analysis on the computer testified that the images being charged

came from March 1, 2013, at 10:45 p.m. to 11:06 p.m., and March 2, 2013, at 10:01

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p.m. As explained above, however, the cached images are only evidence of past

possession of contraband; they are not contraband in themselves. We have

previously determined that the Legislature intended to impose separate

punishments for each instance of possessing an image of child pornography. See id.

¶ 41, 674 N.W.2d at 303. Accordingly, the time at which the images were placed in

the cache is not the relevant inquiry.

[¶15.] Even so, Linson maintains that the images here were not affirmatively

downloaded and thus Martin is inapplicable. However, to hold that Martin only

covers those images which have been downloaded on a computer would be too

narrow of a reading. Such a reading ignores that Linson had constructive

possession of each of those images and assumes that downloading is the only way to

possess an electronic image of child pornography. The underlying rationale of

criminalizing child pornography is “the protection of the children who would

otherwise be exploited during the production process of such material. This

protection rationale extends to each child in each picture found on [defendant’s]

computer[].” Id. ¶ 42, 674 N.W.2d at 303. SDCL 22-24A-3(3) prohibits the

possession of “any visual depiction of a minor engaging in a prohibited sexual act, or

in the simulation of such an act.” Similar to Martin, Linson was convicted of

possession of five separate images, each of which contained a different child.

Accordingly, this case falls within the purview of our decision in Martin, and

Linson’s conviction on all five counts does not violate double jeopardy. There is no

plain error for this Court to notice.

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Conclusion

[¶16.] From the evidence introduced at trial, the jury could find that Linson

knowingly possessed the five images of child pornography for which he was charged.

There is no plain error for this Court to notice with regard to the constitutionality of

SDCL 22-24A-3 or double jeopardy.

[¶17.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,

Justices, concur.

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