CONSIDERED ON BRIEFS ON APRIL 24, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE BRADLEY G. ZELL
J. JACKLEY Attorney General MATTHEW W. TEMPLAR Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
J. BLOUIN Minnehaha County Public Defenders Office Sioux
Falls, South Dakota Attorneys for defendant and appellant.
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.
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.
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 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. 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." There were also
adult pornography searches that were done around the same
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.
Whether the evidence was su ficient to prove Linson knowingly
possessed the images found in the ...