                                                                                                10/04/2016

                                          DA 14-0491
                                                                                            Case Number: DA 14-0491
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 246



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JAMES MORRIS COLBURN,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 13-198
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Natalie Wicklund, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: August 17, 2016

                                                              Decided: October 4, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Defendant James Morris Colburn (Colburn) was charged with four counts of

Sexual Abuse of Children (referred to herein as “possession of child pornography”), and

five counts of Attempted Sexual Abuse of Children (referred to herein as “attempted

possession of child pornography”). After a jury trial, Colburn was convicted of two

counts of attempted possession of child pornography. On appeal, he challenges his

convictions and we affirm, addressing the following issue:

      Was there sufficient evidence to support Colburn’s convictions of attempted sexual
abuse of children?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2    In July of 2010, Colburn was a houseguest of his supervisor, at the youth

center/video store where he volunteered, staying in her converted garage. His supervisor

first became concerned when she noticed that, on the computer at the video store,

someone had entered the term “preteen pussy” in an internet search engine.            To

investigate further, she asked Colburn via text message if she could use his personal

computer in the converted garage. Colburn consented, and the supervisor discovered

similar search terms on Colburn’s personal computer. She reported these details to the

Stevensville Chief of Police, who applied for, obtained, and executed a search warrant of

the garage, removing Colburn’s personal computer.

¶3    A forensic examiner for the State of Montana, Agent Jimmy Weg, examined

Colburn’s personal computer and found eleven photographs that had been downloaded to

the computer’s hard drive. The pictures depicted young-appearing females, some naked

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and some in various stages of undress, in sexually provocative poses.         Agent Weg

testified at trial that these images had been downloaded to Colburn’s desktop computer

on four separate occasions, based on the internal timestamp the computer had assigned to

downloaded files.

¶4     Agent Weg also recovered the searching and browsing history from internet search

engines, discovering five separate searches from Colburn’s computer that indicated, in

his view, the user was seeking child pornography. On the respective dates of the charges,

for which the jury found Colburn guilty of attempted possession of child pornography,

Colburn had entered the search terms “preteen tube,” “preteen + tube + xxx,”

“preteentube.com,” “preteen pussy,” and “preteen pussy stores.”

¶5     Trial on the nine charged counts proceeded in April 2014.         The State called

Colburn’s supervisor, the Stevensville Chief of Police, and Agent Weg as witnesses.

Agent Weg testified that the computer files revealed that the first of the eleven recovered

images was initially downloaded onto Colburn’s computer on January 23, 2010. Agent

Weg further testified that search terms suggestive of child pornography were entered into

internet search engines via Colburn’s computer, and child images were downloaded onto

his computer’s hard drive, on alternating dates over the next six months. Agent Weg

testified as an expert witness, stating that, based on his training and experience, the

images recovered from Colburn’s computer constituted child pornography. One image

featured a young-appearing female wearing a headband with the term “Club 17.” Agent

Weg testified that “Club 17” is a reference to a pornography company based in the


                                         3
Netherlands, and the company’s name serves to communicate that subjects used in the

company’s images and videos are under the age of 17. He also testified that several of

the search terms, such as “preteen tube,” were terms of art within child pornography

culture that would be expected to obtain search results containing child pornography.

¶6     After the State rested its case-in-chief, Colburn moved as a matter of law for “a

finding of not guilty with regard to all nine counts[,]” based in part on insufficiency of

the evidence. The District Court denied the motion. The jury deadlocked on the counts

of actual possession, entering “[u]ndecided/[h]ung” on the verdict form rather than

selecting either “[g]uilty or [n]ot [g]uilty” for those charges. The jury acquitted Colburn

of three of the counts of attempted possession of child pornography, and found him guilty

on two of those counts. After the jury returned its verdict, the State moved to dismiss the

four counts of actual possession of child pornography, and the District Court granted the

motion. Colburn was sentenced in June 2014 on the two counts of attempted possession.

He appeals.

                               STANDARD OF REVIEW

¶7     “The standard of review for sufficiency of the evidence to support a jury verdict is

‘to determine whether, after viewing the evidence in light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Gardner, 2003 MT 338, ¶ 29, 318 Mont. 436, 80

P.3d 1262 (quoting State v. Bauer, 2002 MT 7, ¶ 15, 308 Mont. 99, 39 P.3d 689).

“Whether sufficient evidence exists to convict a defendant is ultimately an analysis and


                                         4
application of the law to the facts and, as such, is properly reviewed de novo.” State v.

Gunderson, 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74 (citing State v. Swan, 2007

MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511).

                                     DISCUSSION

¶8    Was there sufficient evidence to support Colburn’s convictions of attempted sexual
abuse of children?

¶9    Section 45-5-625(1)(e), MCA (2013), provides: “A person commits the offense of

sexual abuse of children if the person . . . knowingly possesses any visual or print

medium, including a medium by use of electronic communication in which a child is

engaged in sexual conduct, actual or simulated.” The statute defines “[s]exual conduct”

as:

      (i) (F) lewd exhibition of the genitals, breasts, pubic or rectal area, or other
      intimate parts of any person; or
                                         . . .
      (ii) depiction of a child in the nude or in a state of partial undress with the
      purpose to abuse, humiliate, harass, or degrade the child or to arouse or
      gratify the person’s own sexual response or desire or the sexual response or
      desire of any person.

Section 45-5-625(5)(b)(i)(F), (ii), MCA (2013).

¶10   Section 45-4-103(1), MCA, addresses the inchoate offense of attempt: “A person

commits the offense of attempt when, with the purpose to commit a specific offense, the

person does any act toward the commission of the offense.”

¶11   We have stated that “not all acts towards the commission of a crime are sufficient

[to qualify as an attempt]. There must be an ‘overt act’ that reaches ‘far enough towards

the accomplishment of the desired result to amount to the commencement of the

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consummation.’” Gunderson, ¶ 59 (quoting State v. Mahoney, 264 Mont. 89, 97, 870

P.2d 65, 70 (1994); State v. Ribera, 183 Mont. 1, 11, 597 P.2d 1164, 1170 (1979)). We

have also stated that “‘there must be at least some appreciable fragment of the crime

committed, and it must be in such progress that it will be consummated unless interrupted

by circumstances independent of the will of the attempter.’” Mahoney, 264 Mont. at 97,

870 P.2d at 70 (quoting Ribera, 183 Mont at 11, 597 P.2d at 1170; State v. Rains, 53

Mont. 424, 426, 164 P. 540, 541, (1917)).          These principles were included in the

instructions given to the jury by the District Court.

¶12    Colburn argues that the State failed to meet its evidentiary burden at trial to prove

beyond a reasonable doubt that an appreciable fragment of the crime was, to paraphrase

Mahoney, “in such progress” that Mr. Colburn would have knowingly possessed child

pornography unless “interrupted by circumstances independent” of his own will.

Colburn’s argument focuses only on the evidence of the search terms, which he argues is

insufficient because “it only shows the fact that Mr. Colburn entered words.”

¶13    At trial, the State produced evidence that eleven images of youthful appearing

females in sexually provocative poses had been downloaded onto Colburn’s computer.

The State provided expert forensic testimony that these images were child pornography.

One of the images contained a reference to “Club 17,” a known pornography producer

that advertises the subjects in its images are no more than 17 years old. Even though the

jury did not convict Colburn of actual possession based upon these images, the evidence

was nonetheless properly before the jury, which could consider and make proper


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inferences from the images. See State v. Meredith, 2010 MT 27, ¶ 45, 355 Mont. 148,

226 P.3d 571 (“Montana law clearly permits a jury to draw inferences from

circumstantial evidence presented at trial.”) (internal citations omitted).

¶14    The State also produced evidence of various search terms entered on Colburn’s

computer, such as “preteen tube” and “preteen pussy.”1 Agent Weg testified that, “a

person who would search for preteen tube, from what I’ve seen, invariably is looking to

find child pornography.”         During cross-examination, Colburn’s defense counsel

challenged Agent Weg about the significance of these search terms, which Agent Weg

resisted:

       Q. And so it follows, doesn’t it, that those search terms used by an
       unsophisticated computer user could actually be used to find lawful adult
       pornography?

       A. I haven’t seen that. And that takes into consideration what else I find
       on a computer. I would say, absent finding any child pornography, that
       would be the case.

Agent Weg explained that Colburn’s search terms suggested he was seeking images or

videos of underage subjects, and explained that the purpose behind those search terms

was corroborated by the multiple images of youthful-appearing females in sexual poses

actually found on Colburn’s computer, which had been downloaded after multiple

searches.

¶15    While it is correct the State introduced no direct evidence that Colburn had

accessed or downloaded child pornography on the same dates as he entered the search


1
 The jury necessarily accepted the State’s position that Colburn had entered the search terms and
downloaded the images onto his computer, a finding that Colburn does not challenge on appeal.
                                            7
terms, it is not correct that the State’s case demonstrated merely that “Colburn entered

words.” The particular “words” used by Colburn as search terms included terms of art

within child pornography culture.         Further, the State established that Colburn was

actually successful in accessing and downloading images of provocative youthful

subjects on other dates, some of which were interspersed among the dates on which the

charges were based. Taken as a whole, sufficient evidence was presented for the jury to

determine that Colburn had not just entered “mere words” into his internet search engine.

¶16    The State argues that “[t]he proper focus here is on all of the affirmative acts

Colburn took towards completion of [possession of child pornography], not whether his

plan was ultimately successful on the search dates in question.”               Considering the

evidence as a whole, we agree that Colburn committed an overt act “far enough towards

the accomplishment of the desired result to amount to the commencement of the

consummation.” Gunderson, ¶ 59. The evidence allowed the jury to permissibly find

Colburn had committed an overt act “far enough towards the accomplishment” of

possessing child pornography that the crime would be consummated. Mahoney, 264

Mont. at 97, 870 P.2d at 70; Gunderson, ¶ 59.2


2
  Colburn relies on State v. Fuller, 266 Mont. 420, 880 P.2d 1340 (1994), where we reversed the
defendant’s conviction on three counts of sexual assault on grounds of insufficient evidence.
There, the defendant made sexually provocative comments and gestures to three young girls,
which Colburn argues bears “marked similarity” to his actions here. However, the Fuller case
was tried before a judge, who stated, in contradiction to the ultimate guilty verdicts, that “the
evidence does not show beyond a reasonable doubt that the defendant actually intended to touch
the victims.” Fuller, 266 Mont. at 423, 880 P.2d at 1342. We reversed based upon this single
finding, and not upon the sufficiency of the evidence, as a whole, to support the verdict. Fuller,
266 Mont. at 423, 880 P.2d at 1343. The posture of Fuller is anomalous to the usual sufficiency
of the evidence inquiry.
                                             8
¶17    Colburn offers as an issue of law that evidence of “a second, dispositive step” on

his part “showing an attempt to access illegal content” was necessary for conviction,

arguing that, “[w]ithout a second step to indicate what content was actually sought, those

words remain plain speech – merely words.” However, the law has never required a

distinct “second step” in order for an “appreciable fragment of the crime” to be

completed for purposes of attempt. Mahoney, 264 Mont. at 97, 870 P.2d at 70. The

statute provides the crime of attempt can be based upon “any act” toward the commission

of the offense. Section 45-4-103(1), MCA. As discussed above, the jury was presented

with sufficient evidence to permit it to find the commission of an “overt act” that went far

enough to the accomplishment of obtaining child pornography to satisfy the statute, and

thus support the conviction. Gunderson, ¶ 59.

¶18    Affirmed.3



                                                     /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




3
  In his reply brief, Colburn makes a brief constitutional argument regarding content-based bans
on speech, claiming the State is unilaterally prohibiting speech, such as his search terms. This
issue was neither presented at, nor ruled on at the District Court, and we decline to address it for
the first time on appeal. See In re A.N.W., 2006 MT 42, ¶ 41, 331 Mont. 208, 130 P.3d 619
(“This Court does not consider an issue presented for the first time on appeal.”).
                                             9
Justice Laurie McKinnon, dissenting.

¶19    The issue presented in this appeal is whether the State produced sufficient evidence of an

overt act indicating that Colburn, absent an intervening circumstance independent of Colburn’s

will, would have consummated the crime of possession of child pornography. The only evidence

of an overt act produced in support of counts six and nine, attempted possession of child

pornography on the specific dates of May 30, 2010, and July 17, 2010, was that Colburn entered

words into the search field of an Internet search engine. An expert witness indicated these were

search terms that could lead to child pornography cites.        While this, together with other

circumstantial evidence, may be enough for a jury to find Colburn harbored the requisite

criminal mens rea to commit the offense, it is insufficient proof for a “rational trier of fact [to

find] the elements of the offense beyond a reasonable doubt.” State v. Fuller, 266 Mont. 420,

422, 880 P.2d 1340 (1994). As in Fuller, reviewing an attempt conviction presents an issue

“relating to the fundamental principle subsumed in this standard: that the prosecution must

establish each and every element of the charged offense by proof beyond a reasonable doubt.”

Fuller, 266 Mont. at 422 (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781 (1979)).

¶20    Montana’s attempt statute provides: “[a] person commits the offense of attempt when,

with the purpose to commit a specific offense, the person does any act toward the commission of

the offense.” Section 45-4-103(1), MCA. The criminal offense of possessing child pornography

occurs when a person “knowingly possesses any visual or print medium . . . in which a child is

engaged in sexual conduct, actual or simulated.” Section 45–5–625(1)(e), MCA. The elements

of the offense thus clearly provide that the state must prove beyond a reasonable doubt that (1)

the person acted knowingly; (2) the person possessed the image; (3) the image was that of a

child; and (4) the image involved the child in sexual conduct, actual or simulated. The State may

                                            10
not be relieved of its burden of proving each and every element of the offense merely by

charging an attempt to commit the crime. The State must prove that the image Colburn would

have possessed on May 30, 2010, and July 17, 2010, was that of a child involved in sexual

conduct.

¶21    An overt act is not simply an affirmative act or an act in preparation; it is an act towards

consummation of the offense:

               This Court has stated that an overt act ‘must reach far enough towards the
       accomplishment of the desired result to amount to the commencement of the
       consummation.’ In addition, the Court stated that ‘there must be at least some
       appreciable fragment of the crime committed, and it must be in such progress that
       it will be consummated unless interrupted by circumstances independent of the
       will of the attempter.’

State v. Ribera, 183 Mont. 1, 11, 597 P.2d 1164, 1170 (1979) (citing State v. Rains, 53 Mont.

424, 164 P. 540 (1917)); see also State v. Mahoney, 264 Mont. 89, 97, 870 P.2d 65 (1994). This

requirement in the law exists in order to ensure that the State, by charging only an attempt, is not

relieved of its burden of proving each element of the offense. A criminal penalty may be based

only upon the defendant’s actions which, absent an interruption independent of the defendant,

would have resulted in the commission of an offense.

¶22    Here, the State failed to prove that Colburn completed an appreciable fragment of the

crime or that the crime would have been completed had an intervening circumstance not

occurred beyond Colburn’s control. Importantly, the jury was unable to decide whether images

downloaded by Colburn on other dates constituted child pornography and, as a result, the State

dismissed counts one through four. Of the remaining five attempt charges, the jury found the

State had not proven three of the counts. While evidence offered in support of these other counts

may be circumstantial evidence of Colburn’s intent on the two counts for which he was

convicted, the State is not relieved of its burden of proving the remaining elements of the offense
                                            11
for the specific dates charged on May 30 and July 17. There was no evidence presented of what

the image would have been—that the image would have been that of a child—or that the child

would have been engaged in sexual conduct. At most, there was only speculation, based on the

evidence presented on other counts found insufficient by the jury, that Colburn would have

eventually possessed a pornographic image of a child on the dates charged.

¶23    As much as we dislike child pornography and want to protect children, it is impermissible

to impose a criminal penalty on the basis of an act which is only speculative as to the offense that

would have been committed. I dissent from the Court’s conclusion that there was sufficient

evidence of an overt act by Colburn upon which the jury could find an attempt to possess child

pornography.



                                                          /S/ LAURIE McKINNON


Justice Patricia Cotter joins in the foregoing dissent.



                                                          /S/ PATRICIA COTTER




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