FILED MARCH 9, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 38462-4-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) LINDEN K. THOMAS, ) ) Appellant. )
FEARING, J. — This appeal introduces us to peer to peer (P2P) online networks.
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.
FACTS
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. No. 38462-4-III State v. Thomas
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.
2 No. 38462-4-III State v. Thomas
“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
3 No. 38462-4-III State v. Thomas
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:
1. Any digital or physical image or movie containing or displaying depictions of a minor engaged in sexually explicit conduct. .... 2. All computers as defined as: .... 3. All computer network and system equipment as defined as: .... 4. Any and all evidence of, computer programs and software as defined as: .... 5. Any and all digital storage media as defined as: .... 6. Any and all cell or mobile phones. 7. Any digital cameras and/or traditional cameras that may contain undeveloped film.
4 No. 38462-4-III State v. Thomas
8. Any developed film, slides, or printed photographs, which include evidence of depictions of minors in sexually explicit conduct as well as images of possible child victims. 9. Any and all portable digital devices as defined as: .... 10. Any documentation pertaining to user attribution, vendor names and phone numbers, and all system and user sign-on password or access codes. To include any data security devices as defined as: .... 11. Peripheral computer equipment including printers, modems, or scanners. 12. Contents of volatile memory related to computers and other digital communication devices that would tend to show the current and recent use of the computer, use of encryption, use of other communications devices, routes of Internet and other digital communications traffic and passwords, encryption keys or other dynamic details necessary to preserve the true state of running evidence. 13. Any written or electronic documentation showing the use of, possession of, or affiliation with any online peer-to-peer or other file sharing network. 14. Any writing or physical evidence that tends to show who occupies the premises. Indicia of residency in, or ownership or possession of, the premises and any of the above items.
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
5 No. 38462-4-III State v. Thomas
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
6 No. 38462-4-III State v. Thomas
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 use of the “CC cleaner” program on the
hard drive. CC cleaner operates as an “anti-forensic software” because it cleans file
remnants, securely erases pictures and videos, and removes some registry entries. The
CC cleaner was used on the hard drive within three hours of Detective Eric Kjorness
downloading files from the drive. Because the user had not activated the CC cleaner to
entirely wipe the hard drive, the analysis found some files and file artifacts in the
7 No. 38462-4-III State v. Thomas
unallocated space. The file transfer to Detective Kjorness’ investigative computer
occurred from the allocated space on the hard drive. The CC Cleaner later moved those
files to the unallocated space.
During the execution of the search warrant, Linden Thomas arrived at the
residence. He agreed to an interview after advisement of his rights. Thomas told officers
that he worked as an IT manager for Rodeo Internet, a local Internet provider. Thomas
denied downloading or sharing any child pornography. Thomas admitted that he had
used BitTorrent and uTorrent. He told the officers that he had removed the seized hard
drive from his computer because of problems with the drive. During trial testimony,
Thomas denied erasing any file from the hard drive after its removal.
In his police interview, Linden Thomas, when asked by Detective Eric Kjorness
where the detective should look for child pornography, pointed to the loose hard drive on
the desk. Thomas uttered a similar comment to Detective Byron Denny when he pointed
the officer, “[w]ithout hesitation,” to the hard drive seized. RP at 148. During the
interview, Thomas later inconsistently denied that officers would find any child
pornography on the driver.
During the law enforcement interview, officers told Linden Thomas that they
found a link to child pornography on the hard drive and they disclosed the title of the
link. Thomas thereafter asked Detective Bryon Denny four times whether the officers
found the “actual video” on the hard drive. Detective Denny, during trial, characterized
8 No. 38462-4-III State v. Thomas
the question as strange because Thomas could not deny the presence of the link, but he
still wondered whether the file was on the hard drive.
Law enforcement officers discovered that Linden Thomas’ computer was the
computer used to download and share the illicit files. The computer sat in the basement
and had a user name of “Lin.” The computer lacked a password. Everyone operating the
computer would have done so under the default user name “Lin.” Each officer
acknowledged, during trial testimony, that he could not rule out that someone else may
have used this basement computer. During trial when asked why he believed that Linden
Thomas shared the illicit files, Detective Eric Kjorness testified:
The computer was named Lin, the user named Lin. . . . I know that on that computer one of the recent documents was a like a cover letter for job application with Mr. Thomas’ name and address at the top of it, talking about his experience with networking and [I]nternet type work. So, that⎯ that’s what led me to believe he was the person using the computer. . . . It was his full name, Linden Thomas.
RP at 97-98.
Neither Kevin Tamme nor Diana Thomas admitted to using BitTorrent or
uTorrent. RP 91, 96-97. Law enforcement officers, during the search of the house’s
upstairs, located an Apple computer with access to the BitTorrent network. The officers
knew from the downloaded files that the child pornography did not come from that
computer.
9 No. 38462-4-III State v. Thomas
Detective Byron Denny examined the phone of Kevin Tamme and discovered
tranches of pornography opened in active Internet browsers. None of this pornography
depicted minors. Tamme denied possessing, distributing, or downloading child
pornography.
PROCEDURE
The State of Washington charged Linden Thomas with two counts of first degree
dealing in depictions of minors engaged in sexually explicit conduct and eight counts of
second degree dealing in depictions of minors engaged in sexually explicit conduct. The
charges arose from ten digital files shared on the P2P network to Detective Eric Kjorness’
work computer.
Thomas waived his right to a jury trial. During opening statement, defense
counsel highlighted that anyone in the residence and any guest could have accessed the
basement computer, on which law enforcement found the child pornography.
During cross-examination of the law enforcement officers, the defense questioned
whether the download and sharing could have been a mistake, whether officers found
indicia of ownership over the hard drive, and whether a person other than Linden Thomas
may have accessed the computer. Some of the questions posed to Detective Byron
Denny follow:
And when you say user attribution is at issue, what you are saying is determining who is responsible is at issue?
10 No. 38462-4-III State v. Thomas
RP at 159.
And so, it’s true then that anybody at that house, whether Mr. Thomas, Mrs. Thomas, Kevin, overnight guest, friends, family, whomever, anybody who sits down at that computer would just move the mouse or push a button and it’s⎯it’s open and ready to go?
RP at 164.
My question though is it’s true that you cannot say with 100 [percent] certainty or really any certainty whether or who was at the keyboard when any of this was happening?
RP at 168.
In response, the State introduced evidence that Linden Thomas had engaged in
other child pornography activity. During the redirect examination of Detective Bryon
Denny, the prosecuting attorney inquired:
Q Mr. Thomas admitted to activities involving pornography, didn’t he? A Yes, he did. Q He told you that he had looked at pornography recently? A Yes. MR. MONSON: Objection, leading. Q Did he tell you that he had looked at pornography recently? A Yes, he did. Q Did he tell you about downloading flash games? A Yes, he did. Q Anime undress games? A Yes. Q And for the record, an anime undress game, is that something associated with child pornography? A Yes, it is. MR. MONSON: Your Honor, I’m gonna object based on foundation. Q What⎯what is an anime undress game to your knowledge?
11 No. 38462-4-III State v. Thomas
A I will say that every child pornography case I’ve been involved with has had anime and it’s literally doing the act as a cartoon. Q So, his admission of downloading or participating in anime undress games was a red flag? A Yes. Q And Mr. Thomas told you that he had been involved in those activities? A Yes.
RP at 173-74.
During the cross-examination of Detective Brian Birdsell, the officer who
analyzed the hard drive, defense counsel asked and Birdsell conceded that Linden
Thomas’ wife, stepson, or a guest could have been at the basement computer when the
file sharing occurred. During redirect, the prosecuting attorney asked about other
computer files found:
Q All right. Did you find evidence on Mr. Thomas’ computer that the user name Lin had accessed child pornography prior to the December 8th date of the sharing? A Yes, what I would consider, yes. Q You found link files that predated the December 8? A Yes, link files and uTorrent fragments. Q Did you find recent searches on the computer when you analyzed it? A I found a search from 2016. Q 2016? A Yes. Q A year prior to this incident? A Yes. Q What was the⎯what was significant about that search? A The search term was for young boy. Q Is that something that you encounter in your investigations of child pornography, that kind of a search? A Yes.
12 No. 38462-4-III State v. Thomas
Q Did you find link files access anime or anime type links on the computer? A Yes. Q And did those pre-date the December? A Not⎯let me back up. I want to correct that. Not link files, it’s web history. Q Web history. A So, [I]nternet history, yes. Q Okay. Internet history prior to 2017 where the user Lin had accessed anime? A Yes, in 2015. Q In 2015? A Yes. Q Were there other links of note prior to the December 17, 2017 date other than the anime or⎯ A 17th or 7th? Q December of 2017. A Oh, I thought you said December 17th. Q I probably did. A Okay. Sorry. There was link files before that, true that is correct. Q What was the nature that drew your attention to those links? A The names of the files. Q Indicative of what? A Of child pornography. Q That was⎯that was in 2015, 2016 you found those links in that history? A It was early in⎯it was earlier in 2017 like April/May and then there was a couple in July.
RP at 195-97. These dates were significant as they predated when Kevin Tamme lived at
the house and when an overnight guest stayed in the home.
The trial court found Linden Thomas guilty of the two counts of first degree
dealing in depictions of minors engaged in sexually explicit conduct and eight counts of
second degree dealing in depictions of minors engaged in sexually explicit conduct. The
13 No. 38462-4-III State v. Thomas
court later vacated seven of the convictions of second degree dealing in depictions of
minors, based on the State’s concession of lack of evidence.
The superior court entered findings of fact and conclusions of law. Finding of fact
3 reads:
The Court finds that on December 8, 2017 the pictures and videos that were admitted as exhibits P-3 through 12 were disseminated from a computer located in Clarkston, Asotin County, Washington.
CP at 157. Finding of fact 9 declares:
The Court finds that dissemination was done knowingly in this case. The user had to download “UTorrent,” access “BitTorrent,” search for the subject files, and then download and share those files.
CP at 157.
The superior court sentenced Linden Thomas on the low-end of his standard range
to 57 months of total confinement with 36 months of community confinement. The
following conditions of community custody were imposed:
(5) Pay supervision fees as determined by the Department of Corrections; .... 10. No access or use of the [I]nternet or any device which has the ability to access the [I]nternet without specific written permission from his Supervising Officer.
CP at 227.
14 No. 38462-4-III State v. Thomas
At sentencing, defense counsel requested that the court waive any costs and fees
based on financial hardship. The court, when imposing the sentence, waived the $100
DNA collection fee due to financial hardship, but not the $500 victim assessment.
When appealing, Linden Thomas requested an order of indigency. The superior
court found Thomas indigent because he had spent all of his funds on defending the
prosecution and had been incarcerated since May 13, 2021. Thomas no longer has an
income.
Linden Thomas moved the court to stay the appeal pending a decision from the
Washington Supreme Court in State v. Chambers, No. 101423-6. We deny the motion.
LAW AND ANALYSIS
On appeal, Linden Thomas argues his trial counsel performed ineffectively,
insufficient evidence supported his convictions, and the sentencing court imposed
unlawful community custody conditions.
Ineffective Assistance of Counsel
Search Warrant
Linden Thomas contends his trial counsel twice denied him his constitutional right
to the effective assistance of counsel. First, he argues his trial counsel performed
deficiently when counsel failed to suppress evidence seized pursuant to the search
warrant and statements Thomas made during the execution of the search warrant. He
argues that the search warrant violated the particularity requirement of the Fourth
15 No. 38462-4-III State v. Thomas
Amendment to the United States Constitution, because of its overbreadth. Because the
items listed in the warrant included items protected by the First Amendment, a greater
degree of particularity was required. The search warrant allowed search and seizure of
objects without regard to a connection to the alleged crimes. Thomas insists the trial
court would have granted a motion to suppress objects seized, and the court also would
have likely suppressed inculpatory statements of Thomas uttered during the execution of
the unlawful search warrant. According to Thomas, he suffered prejudice by reason of
counsel’s failure because the evidence seized was crucial for the State’s case.
The Washington and United States constitutions guarantee a criminal defendant
the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Sardinia, 42 Wn. App. 533, 538, 713
P.2d 122 (1986). An accused may raise a claim of ineffective assistance for the first time
on appeal because of constitutional issues it raises. State v. Kyllo, 166 Wn.2d 856, 862,
215 P.3d 177 (2009).
To prevail on an ineffective assistance of counsel claim, the defendant must show
that (1) defense counsel’s representation was deficient in that it fell below an objective
standard of reasonableness and (2) the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. McFarland, 127 Wn.2d 322,
334-35, 899 P.2d 1251 (1995). The reviewing court must presume counsel is effective,
and the defendant must show no legitimate strategic or tactical reason for counsel’s
16 No. 38462-4-III State v. Thomas
conduct. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Prejudice
requires the defendant to demonstrate a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceedings would have been different. Kyllo,
166 Wn.2d at 862. If one prong, performance or prejudice, is not established, the court
need not consider the other. State v. Kyllo, 166 Wn.2d 856, 862 (2009).
This appeal illustrates the overlapping nature of the two elements of an ineffective
assistance of counsel claim. Because the trial court likely would not have granted a
motion to suppress, defense counsel did not perform ineffectively, and Linden Thomas
experienced no prejudice.
Linden Thomas faults his trial counsel for failing to move to suppress objects
seized in executing the search warrant on the theory that the warrant lacked particularity
particularly in light of objects enjoying protection under the First Amendment. The
Fourth Amendment to the United States Constitution demands that a search warrant
“particularly describ[e] the place to be searched, and the persons or things to be seized.”
The particularity requirement seeks to prevent general searches, seizure of objects on the
mistaken assumption that they fall within the issuing magistrate’s authorization, and the
issuance of warrants on loose, vague, or doubtful bases of fact. State v. Perrone, 119
Wn.2d 538, 545, 834 P.2d 611 (1992). The requirement also eliminates the danger of
unlimited discretion in the executing officer’s determination of what to seize. State v.
Perrone, 119 Wn.2d 538, 546 (1992).
17 No. 38462-4-III State v. Thomas
For most search warrants, law enforcement satisfies the particularity requirement
when the warrant is as specific as the circumstances and the nature of the activity under
investigation permits. State v. Perrone, 119 Wn.2d 538, 547 (1992). If the warrant
involves materials potentially protected by the First Amendment, a greater degree of
particularity is required. State v. Vance, 9 Wn. App. 2d 357, 363, 444 P.3d 1214 (2019).
Thus, the search of computers or other electronic storage devices generally creates a
heightened particularity concern. State v. Keodara, 191 Wn. App. 305, 314, 364 P.3d
777 (2015). Nevertheless, even a generic or general description of the things to be seized
may suffice provided that law enforcement shows probable cause of a crime and a more
specific description is impossible with the information known to law enforcement at the
time the search warrant is obtained. State v. Perrone, 119 Wn.2d 538, 547 (1992). The
particularity of a search warrant should be tested in a common sense, practical manner,
rather than a hyper technical sense. State v. Perrone, 119 Wn.2d 538, 549 (1992); State
v. Olson, 32 Wn. App. 555, 557, 648 P.2d 476 (1982).
Linden Thomas relies on two recent cases addressing warrants authorizing
searches and seizures of evidence related to sexually explicit depictions of minors. He
analogizes the search of his residence to the searches in State v. Besola, 184 Wn.2d 605,
359 P.3d 799 (2015) and State v. McKee, 3 Wn. App. 2d 11, 413 P.3d 1049 (2018), rev’d,
193 Wn.2d 271, 438 P.3d 528 (2019).
18 No. 38462-4-III State v. Thomas
The search warrant in State v. Besola declared that the crime under investigation
was “Possession of Child Pornography R.C.W. 9.68A.070” and broadly authorized the
search of:
1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.
State v. Besola, 184 Wn.2d at 608-09 (2015). Based on the search warrant, law
enforcement seized computers, memory storage devices, CDs, and DVDs. Our Supreme
Court held that the search warrant did not meet the particularity requirement because it
cited the statute only once and failed to use language from RCW 9.68A.011 to describe
or limit the materials sought. Without a direct tie to RCW 9.68A.070, the provisions of
the search warrant were overbroad. The search warrant impermissibly allowed seizure of
items that would include lawful materials, such as adult pornography and photographs
that did not depict children engaged in sexually explicit conduct.
In State v. McKee, the search warrant listed the suspected crimes as “‘Sexual
Exploitation of a Minor RCW 9.68A.040’ and ‘Dealing in depictions of minor engaged
in sexually explicit conduct RCW 9.68A.050.’” State v. McKee, 3 Wn. App. 2d 11, 18-
19 (2018). The warrant authorized the seizure of a cellphone to collect a variety of
19 No. 38462-4-III State v. Thomas
information and data “showing evidence of the above listed crimes.” State v. McKee, 3
Wn. App. 2d 11, 18 (2018). The appellate court, relying on State v. Besola, observed that
the search warrant cited and identified the crimes under investigation but did not use the
language in the statutes to limit the data sought from the cell phone. The warrant gave an
overbroad description of the items sought and allowed law enforcement to search and
seize lawful data when the warrant could have been made more particular. After
perusing the affidavit supporting the warrant, the court reasoned that more details could
have been provided to meet the particularity requirement.
State v. Besola and State v. McKee teach, in part, what detail of information does
not suffice for a search warrant satisfying the particularity requirement. We look to some
other decisions to adjudge what information in the warrant meets constitutional muster.
In State v. Vance, 9 Wn. App. 2d 357 (2019), the search warrant authorized the
search of evidence of the crimes of “‘RCW 9.68A.050 Dealing in depictions of a minor
engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a
minor engaged in sexually explicit conduct.’” State v. Vance, 9 Wn. App. 2d at 361.
The warrant qualified the items to be seized by using the statutes as a guide. The search
warrant listed the types of electronic devices and media capable of being used to commit
the crimes and described all accompanying objects that may be related to the commission
of the crime. This court upheld the search warrant because it continually utilized the
language of the statute to circumscribe the items sought. Unlike in State v. Besola and
20 No. 38462-4-III State v. Thomas
State v. McKee, the warrant regularly referenced the statutory language limiting the
evidence that officers could seize. Thus, the warrant was sufficiently particular to cover
only data and items connected to the crime. The consistent references limited the
discretion of the executing officers. The only potential improvement for the warrant was
an inclusion of the definition of “sexually explicit conduct” in RCW 9.68A.011(4).
A common sense reading of the search warrant for Linden Thomas’ residence
shows sufficient particularity. The warrant identifies the crimes by name and statute.
The warrant described the particular evidence sought. It particularizes its search for
“[a]ny digital or physical image or movie containing or displaying depictions of a minor
engaged in sexually explicit conduct.” CP at 250 (emphasis added). The warrant
includes statutory definitions from RCW 9.68A.011 to modify and describe the terms.
The warrant does not simply list in its heading the alleged crimes. When using statutory
terms, the warrant specifies a variety of electronic devices and media capable of
containing evidence of the alleged crime. Any breadth of the list resulted from the
circumstances and the nature of the activity under investigation. Linden Thomas does not
suggest how the warrant could have read with more specificity. The warrant only
authorized the search and seizure of items related to the commission of the suspected
crimes.
21 No. 38462-4-III State v. Thomas
Propensity Evidence
Linden Thomas next blames his trial counsel for failing to object to the admission
of prejudicial propensity evidence. The State twice presented propensity evidence: (1)
testimony that Thomas earlier downloaded an anime undress game, and (2) testimony
about the presence on the seized hard drive of link files with names that indicated use of
child pornography in April, May, and June 2017. Thomas insists the trial court would
have sustained an objection to admissibility. According to Thomas, the evidence did not
fall under an exception found in ER 404(b), such as absence of mistake, accident, or
identity. The dates supporting the earlier link files were significant to this case because
they undercut any argument that Kevin Tamme may have shared the child pornography at
issue.
ER 404(b) provides that evidence of prior misconduct, or “bad acts,” is not
admissible to “prove the character of a person in order to show action in conformity
therewith.” This type of character evidence is also known as criminal propensity
evidence. State v. Slocum, 183 Wn. App. 438, 442, 333 P.3d 541 (2014). The same
evidence, however, may be admissible for other purposes, depending on its relevance and
the balancing of the probative value and danger of unfair prejudice. State v. Slocum, 183
Wn. App. 438, 448 (2014). For example, the evidence may be admissible as proof of
“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” ER 404(b). Evidence of prior misconduct is admissible when the
22 No. 38462-4-III State v. Thomas
party seeking to admit the evidence (1) proves by a preponderance of the evidence that
the misconduct occurred, (2) identifies the purpose for the evidence’s admission, (3)
establishes the evidence’s relevancy to prove an element of the crime charged, and the
trial court (4) weighs the evidence’s probative value against its prejudicial effect. State v.
Sexsmith, 138 Wn. App. 497, 504, 157 P.3d 901 (2007).
During the cross-examination of Detectives Byron Denny and Brian Birdsell,
defense counsel elicited from the detective’s evidence that the computer on which the
crime occurred lacked passwords limiting access to the device. Through examination of
witnesses, counsel emphasized that any of the home’s residents could have committed the
crime. On redirect, the State rebutted the idea that anyone could have shared the child
pornography from the computer by introducing testimony from detectives that Linden
Thomas admitted to downloading an anime undress game, a form of child pornography,
and testimony that the basement computer possessed links to child pornography predating
the stepson’s residing in the home.
The State’s proffered testimony of other misconduct bore relevance to the defense
of Linden Thomas that the State could not prove who downloaded and shared the
pornography. The use of other crimes and acts to rebut a claim of accident or to rebut
any material assertion by a party is a well-established exception to ER 404(b). State v.
Hernandez, 99 Wn. App. 312, 321, 997 P.2d 923 (1999). We disagree with Thomas that
holding the State to its burden of proof that he was the person who downloaded and
23 No. 38462-4-III State v. Thomas
shared the depictions at issue is different than asserting a mistake, accident, or wrong
identity.
Counsel’s failure to object to evidence cannot prejudice the defendant unless the
trial court would have ruled the evidence inadmissible. State v. McLean, 178 Wn. App.
236, 248, 313 P.3d 1181 (2013). Because the trial court would have likely permitted the
evidence, we find no prejudice, let alone that defense counsel performed ineffectively.
Defense counsel forwarded the best argument that could be summoned in light of the
evidence pointing to Linden Thomas as the disseminator of child pornography.
Sufficiency of Evidence
Linden Thomas challenges the sufficiency of the evidence supporting his
convictions by assigning error to many of the findings of fact entered by the trial court.
These include, in part or whole, findings of fact 3 and 9, on which findings we focus.
Based on his challenge to the findings of fact, Linden Thomas argues the State
failed to prove beyond a reasonable doubt that he “knowingly disseminated” on uTorrent
files with depictions of minors. He underscores that the State never presented evidence
of the terms, to which he agreed when using the software. Thomas emphasizes that the
State presented no evidence of affirmative acts to send the files through the torrent to
another. According to Thomas, knowing that files might be shared does not point to him
being the disseminator.
24 No. 38462-4-III State v. Thomas
The test for determining the sufficiency of the evidence is whether any rational
trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). In challenging the sufficiency of the evidence,
the defendant necessarily admits the truth of the State’s evidence and all reasonable
inferences that can be drawn from it. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182
(2014). The substantial evidence standard is highly deferential as the reviewing court
must view all the evidence in the light most favorable to the State and all inferences must
be drawn in favor of the State and interpreted most strongly against the defendant. State
v. Salinas, 119 Wn.2d 192, 201 (1992). The court must also defer to trial court on the
persuasiveness of the evidence, witness credibility, and conflicting testimony. State v.
Homan, 181 Wn.2d 102, 106 (2014).
Under substantial evidence review, the court deems circumstantial evidence as
reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Specific criminal intent may be inferred from the accused’s conduct based on logical
probability. State v. Delmarter, 94 Wn.2d 634, 638 (1980).
Following a bench trial, appellate review is limited to determining whether
substantial evidence supports the challenged findings of fact and whether the findings
support the trial court’s conclusions of law. State v. Smith, 185 Wn. App. 945, 956, 344
P.3d 1244 (2015). Substantial evidence exists when evidence sufficient to persuade a
fair-minded, rational person that the findings are true. State v. Smith, 185 Wn. App. 945,
25 No. 38462-4-III State v. Thomas
956 (2015). Unchallenged findings of fact are verities on appeal. State v. Lohr, 164 Wn.
App. 414, 418, 263 P.3d 1287 (2011).
RCW 9.68A.050 delimits the crime of dealing in depictions of minors engaged in
sexually explicit conduct. The statute reads, in pertinent part:
(1)(a) A person . . . commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree when he or she: (i) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through (e); or (ii) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through (e). .... (2)(a) A person . . . commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the second degree when he or she: (i) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (f) or (g); or (ii) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (f) or (g).
A person acts “knowingly” when:
(i) He or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) He or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.
26 No. 38462-4-III State v. Thomas
RCW 9A.08.010(1)(b).
Linden Thomas does not challenge findings that the files downloaded to Detective
Kjorness’ computer on December 8, 2017, came from the hard drive from the basement
desk. Thomas admitted to removing the hard drive from his computer and admitted to
using BitTorrent and uTorrent. Although the State did not introduce the agreement to
which Thomas consented when downloading uTorrent, the State provided testimony that,
when one installs uTorrent on a computer, the program asks that the installer agree to
share information.
Based on this and other evidence, we conclude that the trial court could, when
drawing reasonable inferences, conclude that Linden Thomas knowingly disseminated
child pornography. The evidence showed Thomas as the only person who accessed the
BitTorrent network. Thomas engaged in work that required knowledge of computer
software. Any knowledgeable user of BitTorrent knew that others could access the
pornography from Thomas’ computer. uTorrent works by downloading files at the same
time the files are being shared out.
While relying on State v. Peppin, 186 Wn. App. 901, 347 P.3d 906 (2015), and
State v. Vance, 9 Wn. App. 2d 357, 362 (2019), Linden Thomas argues that
RCW 9.68A.050 required him to perform an affirmative act to disseminate the
depictions. Neither State v. Vance nor State v. Peppin provide any proposition that an
27 No. 38462-4-III State v. Thomas
“affirmative act” is required to convict. In Peppin, this court reviewed a conviction of
first-degree possession of depictions of a minor engaged in sexually explicit conduct and
conducted no review of the sufficiency of the evidence. The appeal concerned a claimed
violation of privacy rights and, in the unpublished portion, sentencing issues. In a
subsequent personal restraint petition, In re Personal Restraint of Peppin, No. 34866-1-
III, slip op. at 3 (Wash. Ct. App. July 31, 2018) (unpublished)
https://www.courts.wa.gov/opinions/pdf/348661_order.pdf, the decision noted that the
accused had presented expert testimony at trial about a program called “Round Up.” The
testimony established that the default settings of this program were confusing and
allowed sharing for public browsing. This expert testimony persuaded the superior court,
after a bench trial to acquit the accused.
State v. Vance also did not consider the sufficiency of the evidence or review the
statutory requirements of knowing dissemination. In short, Linden Thomas presents no
authority claiming that the State was required to prove an affirmative act, other than
downloading the P2P program and child pornography, in order to show knowing
dissemination.
Linden Thomas attacks other factual findings. We agree findings of fact 8 and 14,
regarding his purported admission to using the CC cleaner program, lacked substantial
evidence in the trial testimony. No witness testified to such admission at trial. The
findings, however, were not important to the finding of guilt.
28 No. 38462-4-III State v. Thomas
Community Custody Conditions
Linden Thomas challenges two conditions of his community custody. The State
concedes error in both conditions.
Linden Thomas challenges a condition that he pay the supervision fees determined
by the Department of Corrections. This fee is a discretionary legal financial obligation.
Former RCW 9.94A.703(2)(d) (2021). This court may allow reversal of the condition
when the trial court did not intend to impose discretionary fees. State v. Dillon, 12 Wn.
App. 2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020);
State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018). The trial court
found Thomas indigent, and the court only imposed mandatory legal financial
obligations. Thus, this condition should be stricken.
The superior court also imposed a condition that prohibits Linden Thomas from
accessing or using the Internet without the specific written permission of his supervising
officer. This condition is overly broad as it prohibits constitutionally protected activity
and is not narrowly tailored to his offense. The condition is unreasonable when it
substantially limits his use of the Internet for employment purposes. Similar overbroad
conditions have been struck by other courts. In re Personal Restraint of Sickels, 14 Wn.
App. 2d 51, 73, 469 P.3d 322 (2020).
29 No. 38462-4-III State v. Thomas
CONCLUSION
We affirm the convictions of Linden Thomas for dealing in depictions of minors
engaged in sexually explicit conduct. We remand to the superior court to strike the
community custody conditions that demand payment of community custody supervision
fees and that restrict Internet use.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Lawrence-Berrey, A.C.J.
______________________________ Pennell, J.