SPOKANE, WA – The Washington State Court of Appeals, Division III has denied a 59-year-old Clarkston man’s appeal of his child pornography convictions. Linden K. Thomas was sentenced to 57 months in prison following a bench trial in September 2021. According to Department of Corrections records, he is being held at the Coyote Ridge Corrections Center in Connell. It is the largest prison by capacity in the state.
Thomas, who at the time worked as an IT manager for a local internet provider, contended insufficient evidence supported his two convictions. He also argued 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,” the Court of Appeals wrote in its Opinion.
The case against Thomas began on December 8, 2017, when Moscow Police Department Detective Eric Kjorness (pronounced “Churn-ess”) connected his specialty investigative software with a particular IP address. He works with the Idaho Attorney General Internet Crimes Against Children (ICAC) Unit where he focuses on Internet crimes against children and possesses years of expertise in digital forensics.’ During the connection, Kjorness’ 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 Court describes in its ruling.
“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,” the Court says. “Detective Eric Kjorness…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 10 files, according to court documents.
“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,” the opinion says. “Cable One responded that the IP address belonged to Linden Thomas with a physical address for the Internet subscription being…[in] Clarkston, Washington.”
After learning that the IP address was located outside of Idaho, Kjorness contacted Clarkston Police Department Detective Sergeant Bryon Denny and provided him with information collected by the investigation.
“Clarkston Detective Byron Denny garnered a search warrant for [the address]. 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,” court documents say.
A search warrant was executed at the Clarkston home on January 4, 2018.
“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 [a] forensic analysis of a hard drive found on a desk in the residence’s basement,” court documents say. “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,” the Court explains. “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, court documents add.
“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 the Court.
The detectives’ forensic analysis reportedly revealed the 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 Court explains. “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 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, Thomas arrived home. He agreed to an interview after he was advised of his rights.
“Thomas told officers that he worked as an IT manager for…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,” the Court says.
In his police interview, Thomas, when asked by Kjorness where the detective should look for child pornography, reportedly 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,” court documents say. “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 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.”
The State of Washington charged 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 10 digital files shared on the P2P network to Detective Kjorness’ work computer, court documents say.
During a bench trial in Asotin County Superior Court, Thomas was convicted on all counts, but the 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 sentenced Thomas on the low end of the standard range to 57 months of total confinement with 36 months of community confinement.
In his appeal, Thomas contended 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 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,” court documents say. “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.”
To prevail on an ineffective assistance of counsel claim, the Court of Appeals says the defendant must show that (1) the defense counsel’s representation was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.
Thomas next blamed 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,” court documents say.
Because the trial court would have likely permitted the evidence, the Court of Appeals says it found 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.”
Thomas also challenged 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,” the Court of Appeals says. “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.”
Thomas did not challenge the findings that the files downloaded to Detective Kjorness’ computer 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,” court documents say. “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.”
Meanwhile, Thomas challenged two conditions of his community custody and 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,” court documents say.
The superior court also imposed a condition that prohibits 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,” the Court of Appeals says.
“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,” the Opinion concludes.
