State v. Linson, 2017 SD 31

On March 3, 2013, officers seized a home computer after Linson provided the login password; forensic analysis found 41 images in his user-profile cache and 360 images in unallocated space.
Linson’s browser history included searches using terms associated with child pornography (e.g., “preteen,” “Lolita”); some adult searches were also present.
A grand jury indicted Linson on five counts under SDCL 22-24A-3(3), each count tied to a separate image recovered from the cache.
At trial the jury convicted Linson on all five counts; the court imposed consecutive penitentiary terms (with portions suspended) and Linson appealed.
On appeal Linson challenged (1) sufficiency of evidence to prove knowing possession of cached images, (2) vagueness of SDCL 22-24A-3, and (3) double jeopardy/multiplicity for multiple convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proved Linson knowingly possessed images in the browser cache	State: repeated searches for child pornography and control of the user profile support constructive knowing possession	Linson: cached files are not themselves contraband; no evidence he knew of or could access cache or exercised control over cached files	Affirmed — cached images are evidence of possession; jury could infer knowing, constructive possession from searches, exclusive profile access, and unallocated-space images
Whether SDCL 22-24A-3 is unconstitutionally vague for criminalizing viewing	State: statute criminalizes possession, not mere viewing; conduct here involved possession by control	Linson: statute fails to put public on notice that viewing could be criminalized	No plain error; not preserved below and, on facts, this is possession not mere viewing
Whether multiple convictions violated double jeopardy (multiplicity)	State: Legislature intended separate punishments for possession of each distinct image	Linson: images placed in cache around same time reflect a single course of conduct and not separate possessory acts	No plain error; each image depicted a different child and convictions for each image are separately punishable under precedent

State v. Bausch, 889 N.W.2d 404 (S.D. 2017) (standard for reviewing denial of judgment of acquittal)
State v. Barry, 681 N.W.2d 89 (S.D. 2004) (possession requires dominion or right of control with knowledge)
State v. Martin, 699 N.W.2d 460 (S.D. 2005) (Legislature intended separate punishments for possession of distinct child-pornography images)
United States v. Kain, 589 F.3d 945 (8th Cir. 2009) (temporary internet and orphan files are evidence of prior possession but not conclusive of knowing possession)
Marsh v. People, 389 P.3d 100 (Colo. 2017) (presence of photos in internet cache alone does not automatically establish knowing possession)
Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009) (intentionally seeking and viewing child pornography online constitutes knowing control)
State v. Riley, 841 N.W.2d 431 (S.D. 2013) (constructive possession can be dominion over premises where contraband is found)
State v. Mercer, 782 N.W.2d 125 (Wis. Ct. App. 2010) (repetitive searches and navigation to child-porn sites support inference of intentional seeking and possession)