State v. Thomas
| Decision Date | 09 March 2023 |
| Docket Number | 38462-4-III |
| Parties | STATE OF WASHINGTON, Respondent, v. LINDEN K. THOMAS, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Linden Thomas appeals his convictions for disseminating, from his home computer, child pornography to others. He contends insufficient evidence supports his two convictions. He also argues that his trial counsel performed deficiently when failing to seek suppression of objects seized from his home and when failing to object to evidence of other misconduct. We reject his contentions and affirm his convictions. We however, remand for the striking of two community custody conditions imposed in his judgment and sentence.
This prosecution of Linden Thomas arises from his alleged sharing over the Internet of child pornography. We borrow the facts in part from findings of fact entered by the superior court after a bench trial.
Moscow Police Department Detective Eric Kjorness works with the Idaho Attorney General Internet Crimes Against Children Unit where he focuses on Internet crimes against children. He possesses expertise in digital forensics. On December 8 2017, Detective Eric Kjorness connected his work computer which employed specialty investigative software, with an IP address. During the connection, the investigative software flagged that child pornography files were being downloaded.
An IP address acts as a street address for an Internet connection. Every connection to the Internet possesses a unique IP address associated with its location. IP addresses are commonly used to identify computers on the Internet. An external IP address, like the one identified by Detective Eric Kjorness in this case, does not ascertain the specific computer making a connection, but it can identify the residence or business associated with the connection.
The investigative software used by Detective Eric Kjorness monitored an online network called "BitTorrent." Report of Proceedings (RP) at 65. BitTorrent is a P2P network used for sharing files across computers. A P2P network lacks a centralized server. Instead, each computer functions as both a server and a client, supplying and receiving files with bandwidth and processing distributed among all members of the network. Each user stores and transfers files directly from his or her computer. P2P networks are used for some legitimate purposes. Napster was one of the early P2P networks. But users commonly use the network for dissemination of child pornography "uTorrent" is one of many types of software that an individual may use to send and receive files on BitTorrent. As an individual downloads a file from the network, uTorrent simultaneously shares the files to others on the network. When one installs uTorrent on a computer, the program asks that the installer agree to share information. The installation process ensures that the user will participate in both searching and sharing so that the entire network community may benefit from the decentralized design.
Detective Eric Kjorness' investigative software detected the IP address associated with the connection and reported that uTorrent transferred the illicit files. The investigative software maintained a single connection with the specific IP address and downloaded files exclusively from that address.
Detective Eric Kjorness, through his specialty investigate software, connected four additional times with the same IP address. The direct connections all occurred on a single day, within a four-hour time frame. The five total connections resulted in the receipt of ten files. The files included two videos and eight photographs depicting minors engaged in sexually explicit conduct.
Detective Eric Kjorness requested an administrative subpoena for Cable One to determine the street address for the registration of the IP address from which his computer downloaded child pornography. Cable One responded that the IP address belonged to Linden Thomas with a physical address for the Internet subscription being 1410 6th Street, Clarkston, Washington. After learning that the IP address was located outside of Idaho, Detective Kjorness contacted Clarkston Police Department Detective Sergeant Bryon Denny and provided Denny with information collected by the investigation.
Clarkston Detective Byron Denny garnered a search warrant for 1410 6th Street. The search warrant listed the suspected crimes as dealing in depictions of minors engaged in sexual conduct in violation of RCW 9.68A.050, sending and bringing into the state of Washington such depictions in violation of RCW 9.68A.060, possessing depictions of minors engaged in explicit sex in violation of RCW 9.68A.070, and viewing such depictions in breach of RCW 9.68A.075. The search warrant authorized the search and seizure of the following evidence:
Clerk's Papers (CP) at 250-52. For each item listed in the warrant, the warrant added either statutory definitions found in RCW 9.68A.011 or detailed definitions regarding the evidence sought.
Law enforcement executed the search warrant at 1410 6th Street in Clarkston on January 4, 2018. At the time, Linden Thomas lived at the address with his wife, Diana, and her son, Kevin Tamme. Tamme had resided at the abode since December 2017, one month earlier. Thomas was not home when the officers arrived. After officers knocked and announced themselves, Tamme opened the door and let them inside.
Law enforcement officers searched numerous computers, phones, USB drives, digital storage cards, and loose hard drives in the residence. Officers seized multiple hard drives and an Apple computer for further forensic analysis.
Detective Brian Birdsell of the Lewiston Police Department and Detective Lawrence Mowery of the Moscow Police Department conducted forensic analysis of a hard drive found on a desk in the residence's basement. Their analysis revealed that the files downloaded to Detective Eric Kjorness' computer on December 8, 2017 came from this loose hard drive. The officers found the two downloaded files in the unallocated space on the hard drive. An "unallocated space" is an area employed by an operating system as space available for new files to be written and an area where deleted files are logged. Once a file is in an unallocated space, the file loses most of its identifying metadata and is no longer available to be viewed or shared. Specialized forensic software allows for examinations into an unallocated space.
Detectives Brian Birdsell and Lawrence Mowery found the files downloaded by Detective Kjorness on the seized hard drive in the form of complete images, link files, partial videos, and thumbnail images. A link file is a shortcut that points to where a specific file may be located on a computer. The actual files "pointed to" by the link files had been deleted. The analysis also revealed "carved images." RP at 117. Carved images are like books on a library book shelf that no longer have a "card catalog" or "index" identifying which user grabbed the image or the date of access. The forensic analysis detected the playing of one of the videos.
The files recovered from the seized hard drive comprised two videos constituting sexually explicit conduct as defined by RCW 9.68A.011(4)(a)(b) and eight images constituting sexually explicit conduct as defined by RCW 9.68A.011(4)(f). The person who downloaded and shared the images and videos would have known that the persons depicted where minors engaged in sexually explicit conduct.
According to Detective Eric Kjorness, the seized hard drive permitted access to the BitTorrent network with the uTorrent software. The hard drive maintained three user accounts under the names "guest," "Lin," and "administrator," although the analysis concluded that only the "Lin" account was active. The hard drive also contained references to five different e-mail accounts. On the hard drive, detectives found images of Linden Thomas' driver's license and passport and his wife's passport.
The detectives' forensic analysis revealed...
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