State v. Colburn

• Decision Date: 04 October 2016
• Docket Number: DA 14–0491
• Citation: 386 P.3d 561,2016 MT 246,385 Mont. 100
• Parties: State of Montana, Plaintiff and Appellee, v. James Morris Colburn, Defendant and Appellant.
• Court: Montana Supreme Court

385 Mont. 100

386 P.3d 561

2016 MT 246

State of Montana, Plaintiff and Appellee,

v.James Morris Colburn, Defendant and Appellant.

DA 14–0491

Supreme Court of Montana.

Submitted on Briefs: August 17, 2016

Decided: October 4, 2016

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

Justice Jim Rice delivered the Opinion of the Court.

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 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 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 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 n , 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 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 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...