[¶ 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.
[¶ 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
[¶ 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
[¶ 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 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:
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
[¶ 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 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, 349 Or. 553, 567, 247 P.3d 309, 316 (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)
[¶ 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
Commonwealth v. Diodoro, 601 Pa. 6, 970 A.2d 1100, 1107 (2009), cert. denied, 558 U.S. 875, 130 S.Ct. 200, 175 L.Ed.2d 127 (2009); see also New v. State, 327 Ga.App. 87, 755 S.E.2d 568, 575-76 (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 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, 324 Wis.2d 506, 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.
[¶ 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
[¶ 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 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
[¶ 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.
State v. Ritchie, 349 Or. 572, 248 P.3d 405, 411, 413 (Or. 2011) (Kistler, J., dissenting).
