Submitted on Briefs: February 28, 2018
District Court of the Twenty-First Judicial District, In and
For the County of Ravalli, Cause No. DC 2013-49 Honorable
James A. Haynes, Presiding Judge
Appellant: Caitlin Boland Aarab, Boland Aarab PLLP, Great
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Hamilton,
McGrath Chief Justice.
This appeal stems from an October 2016 jury trial, which
found James Morris Colburn guilty of sexual assault and
sexual intercourse without consent against a minor.
We restate the issues on appeal as follows:
One: Did the District Court abuse its discretion by admitting
evidence of Colburn's Internet searches regarding incest
and child pornography?
Two: Did Colburn receive ineffective assistance of
AND PROCEDURAL BACKGROUND
In 2013, Colburn was charged with two counts of incest
against his daughter, C.C., one count of sexual intercourse
without consent against a minor, R.W., and two counts of
sexual assault against, R.W. A jury found Colburn guilty on
all charges. Colburn appealed and this Court reversed his
convictions and remanded for a new trial based on the
District Court's application of the "rape
shield" law, § 45-5-511, MCA. Following remittitur,
the District Court held a status hearing. The State expressed
its intention to retry the case. Colburn's trial counsel
stated he had not been served with remittitur and that this
was the first indication he had that the State intended to
retry the case. Appellate counsel had been served. The same
judge who presided over Colburn's first jury trial and
his separate trial for possession and attempted possession of
child pornography charges, was set to preside over his second
trial. Trial counsel expressed the desire to substitute the
judge and acknowledged his failure to move for the
substitution within the twenty-day time limit. The District
Court allowed trial counsel to file a late written motion for
substitution with an explanation for the delay. On May 27,
2016, the District Court denied the motion for substitution
as untimely, without a hearing.
Prior to the second trial, trial counsel filed a motion in
limine to exclude evidence of Colburn's use of his
computer to look for child pornography and evidence
concerning his alleged possession of child pornography. The
District Court denied the motion.
The second trial took place on October 3, 4, 5, and 7, 2016.
During trial, a State Computer Crime Unit agent testified
regarding his examination of Colburn's Internet search
activity. The agent testified that the computer showed
significant and repeated searches and visitation to websites
that offer stories and material related to incest or sexual
activities with children. The District Court precluded the
actual content of the websites from being shown to the jury.
The jury found Colburn not guilty of incest, but guilty of
the other three charges. The District Court sentenced Colburn
to concurrent fifty-year terms of imprisonment for each
conviction. Colburn appeals the denial of trial counsel's
late motion to substitute the District Court judge and ...