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State v. Linson

Supreme Court of South Dakota

May 24, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TODD DAVID LINSON, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON APRIL 24, 2017

         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.

          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 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 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 su ficient to prove Linson knowingly possessed the images found in the ...


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