Monday, June 05, 2017

Possession of Child Pornography, Sufficiency of the Evidence and Double Jeopardy

This post examines a recent opinion from the Supreme Court of South Dakota: State v. Linson, 2017 WL 2292160 (2017). And, as courts usually do, the Supreme Courrt begins the opinion by explaining how and why the prosecution arose:
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 [South Dakota Codified Laws] 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 time.
State v. Linson, supra. 
The opinion goes on to explain that
[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. . . .
State v. Linson, supra. 
The first issue Linson raised in his appeal was “[w]hether the evidence was sufficient to prove Linson knowingly possessed the images found in the temporary-internet-file cache of the computer.” State v. Linson, supra.  The Supreme Court began its analysis of the argument by explaining that
`[w]e 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).

To prove the crime possessing, distributing, or otherwise disseminating child pornography under [South Dakota Codified Laws] 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 evidenceId. ¶ 11, 681 N.W.2d at 93.
State v. Linson, supra (emphasis in the original).
The Supreme Court goes on to explain that
[t]his 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 (U.S. Court of Appeals for the 5th Circuit 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 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 can raise serious issues of inadvertent or unknowing possession.’ United States v. Kain, 589 F.3d 945, 949 (U.S. Court of Appeals for the 8th Circuit 2009) (citing United States v. Romm, 455 F.3d 990, 998-1001 (U.S. Court of Appeals for the 9th Circuit 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.
State v. Linson, supra (emphasis in the original).
The court then goes on to explain that
[w]e 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.
State v. Linson, supra (emphasis in the original).
The Supreme Court goes on to explain that
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 18U.S. Code § 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 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. Knowledge about the functioning of the cache or how to access the images 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, 19Berkeley 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.
State v. Linson, supra.
The Court then went on to explain that
[d]rawing 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:

`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))
State v. Linson, supra.
For these and other reasons, the Supreme Court ultimately held that
[f]rom 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 [South Dakota Codified Laws] 22-24A-3 or double jeopardy.        

State v. Linson, supra. The court therefore affirmed Linson’s conviction. State v. Linson, supra.

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