DA 14

- 0491



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 16 MT 246

ST ATE OF MONTANA,

Plaintiff and Appellee,
v. JAMES MORRIS COLBURN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty

- Fi rst 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 Wr ight, Chief

A ppellate 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, Hamil ton , Montana
Submitted on Briefs: August 17, 2016

Decided: October 4, 2016 Filed:

__________________________________________ Clerk 10/04/2016

Case Number: DA 14-04912

Justice Jim Rice delivered the Opinion of the Court. ¶1 Defendant J ames 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, h e c hallenges his
convictions and we affirm, addressing the following issue: Was there sufficient evidence to support Colburn’s convictions of attempted s exual a buse of c hildren?

**PROCEDURAL AND FACTUAL BACKGROUN**  **D** ¶2 In July of 2010, Colburn was a houseguest of his superviso r , 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, s he asked Colburn via text message if she could use his personal computer in the converted garage. C olburn consented, and the supervisor discovered similar search terms on Colburn’s personal computer
. S he reported the se de tails 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 naked3

and some in various stages of undress, in sexually provocative poses. Agent Weg testified at trial that these i ma ges 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 indicate d , 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 , Co lburn 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 Age nt 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. O ne image featured a young - appearing female wearing a h eadband with the term “Club 17.” Agent Weg testi fied that “ Club 17 ” is a reference to a pornography company based in the4

Netherlands , and the company’s name serves to communicate that subjects used in the company’s images and videos are under the ag e 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 expect ed to obtain search results containing child pornography. ¶6 After the State rested its case - in

- chief, Colburn mo ved 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 m oved to dismiss the four counts of actual possession of child pornography, and th e 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 f or 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 do ubt. ’ ” 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 and5

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. Sw an , 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 defin es “[s] exual conduct”
as : (i) (F) lewd exhibitio n of the genitals, breasts, pub ic or rectal area, or other intimate parts of any pers on; 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 des ire 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 purpos e to commit a specific of fense, 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 res ult to amount to the commencement of the6

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 state d 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 Mo nt at 11, 597 P.2d at 1170; State v. Rains , 53 Mont. 424, 426, 164 P. 540 , 541, (1917)). The se 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 tri al 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 wi ll. 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 female s in sexual ly provocative poses had been downloaded onto Colburn’s computer. The S tate provided expert forensic testimony that the se 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 proper7

inf erences 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 challenge d Agent Weg about the significance of these search terms , which Agent Weg resisted: Q. A nd 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. Ih aven’t seen that. A nd that takes into consideration what else I find on a computer. Iw ould say, absent finding any child pornography, that would be the case. Agent Weg explained that Colburn’s search terms suggest ed he was seeking images or videos of underage subjects, and explained that the purpose behind those search terms
was co rroborated 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 n o direct evidence that Colburn had accessed or downloaded child pornography on the same dates as he entered the search

1 The j ury necessarily accepted the State’s posi tion that Co lburn had entered the search terms and downloaded the images onto his co mputer, a finding that Co lburn does not challenge on appeal.8

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

. F urther, 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 [possess ion of child pornography], not whether his plan was ultimately successful on the search dates in question.” C onsidering the evidence as a whole, we agree that Colburn committed an overt act “far enough towards the accomplishment of the desired result to amo unt 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 Mon t. 420, 880 P.2d 1340 (1994), where we reversed the def endant’s convict io n on th ree counts of

s exual assault on grounds of insufficient evidence. There, the def

endant made sexually provocative comments and gestures to th ree yo ung gi

rl s, which Co lburn argues bears “marked similari ty ” to his actions here. H owever, the Fuller case was tried before a judge, who stated, in contradict io n to the ul timate guilt y verdicts, that “the evidence does not show beyond a reasonable doubt that the defendant actually int ended to touch the vict ims.” Fuller, 266 Mont. at 423, 880 P.2d at 1342. We reversed based upon this single finding, and not upon the suf ficiency 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 ano ma lo us to the usual sufficiency of the evidence inquiry

.9

¶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 purpos es 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. S ection 45

- 4

- 103(1), MCA. As discussed above, the jury was presented with sufficient ev idence 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 br ief, Co lburn makes a br ief c onst itutional argument regarding content
- based bans on speech, claiming the State is unilaterally prohibit ing speech , such as his search terms. This issue was neit her presented at, nor ruled on at the Di strict Court, and we decline to address itf or the first time on appea l. 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.”).10

Just ice Laurie McKinno n, di ssent ing. ¶19 The issue presented in this appeal i s whether the State produced sufficient evidence of an overt act indicat ing that Col burn, absent an in

tervening circumstance independent of C olburn’s will, would have consummated the crime of possession of child pornography . The only evidence of an overt act produced in support of c ounts six and nine, attem pted possessio n of

c hild pornography

on the speci fic dates of May 30, 2010, and July 17, 2010, was that Colburn entered words int o the search field of an In ternet search engine. An expert witness indicated these were search terms that could lead to child pornography ci tes. While this, together wi th o ther ci rcumstant ia l evidence, may be enough fo r a jury to find Co lburn harbored the requisi te criminal mens rea to commit the of fense, iti s insufficient proof fo r a “rat io nal trier of f act [to find] the elements of the of fense beyo nd a reasonable doubt.” S tate v. Fuller, 266 Mont. 420, 422, 880 P.2d 1340 (1994). A s in Fuller, reviewing an attem pt convict io n presents an issue “relat ing to the fundamental principle subsumed in this standard: that the prosecution must establish each and every element of the c harged offense by proof b ey ond 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 attem

pt statute provides: “ [a] person commits the of fense of attem pt when, wi th the purpose to commit a specific offense, the person does any act toward the commission of the offense.” Sect io n 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.” S ection 45

– 5

–625(1)(e), MCA. T he elements of the of fense th us clearly provide that the state must prove bey ond 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 may11

not be relieved of

i ts burden of

p roving each and every element of the offense merely by charging an attem

pt to commit the crime. T he State must prove that the image Colburn would have possessed on May 30, 2010, and July 17, 2010, was that of a c hild invo lved in sexual conduct. ¶21 An overt act is not simply an affi rmat ive act or an act in preparation; iti s an act towards

c onsummation of

the offense: This Court has stated that an overt act ‘m ust reach far enough towards the accomplishment of

the desi red resul t to amo unt to the co mmencement of the consummat io n. ’ I n addi tion , the Court st at ed that ‘there must be at le ast some appreciable fragment of the crime commi tted, and i

t m ust be in such progress that itw ill be consummated unless int errupted by circumstances independent of the will o f the attem

pter.’ State v. Ribera , 183 Mont. 1, 11, 597 P.2d 1164, 1170 (1979) (ci ting S tate v. Rains , 53 Mont. 424, 164 P. 540 (1917)); see also State v. Mahoney , 264 Mont. 89, 97, 870 P.2d 65 (1994). This requi rement in the law exists in order to ensure that the State, by charging only an attem pt, is not relieved of

i ts burden of

p roving e ach element of the offense. A

criminal penal

ty may b e based only u pon the defendant’s act io ns which, absent an int erruption independent of the def endant, would have resul

ted in the commissio n of an offense. ¶22 Here, the State fa iled to prove that Colburn co m pleted an appreciable fragment of the crime or that the crime would have been co mpleted had an int ervening circumstance not occurred beyond Co lburn’s control . Im portantly, the jury was unable to decide whether images downloaded by Co lburn on other dates c onst ituted child pornography and, as a resul

t, the State di smissed counts one th

rough fo ur. O f the remaining five attem pt charges, the jury

f ound the State had not proven three of the counts. While evidence offered in support of these other counts may be circumstantial

e vidence of

C olburn’s intent on the two co unts fo r which he was convicted, the State i s not relieved of i ts burden of proving the remaining elements of the offense12

fo r 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. A t most, there was only speculat io n, based on the evidence presented on other counts fo und insufficien t by the jury, that Colburn would have eventually possessed a pornographic image of a child on the dates charged. ¶23 As m

uch as we di slike child pornography and want to protect children, it is impermissible to impose a criminal penalt y on the basis of an act which is only speculat ive as to the offense that would have been committed. Idis sent fro m the Court’s co nclusio n that there was sufficient evidence of

an overt act by Co lburn upon which the jury c ould find an attem

pt to possess child pornography

.

/S/ LAURIE McKINNON
Just ice Patricia Cotter jo ins in the foregoing dissent.

/S/ PATRICIA COTTER