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State v. Colburn

Supreme Court of Montana

June 12, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
JAMES MORRIS COLBURN, Defendant and Appellant.

          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

          For Appellant: Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Hamilton, Montana.

          OPINION

          Mike McGrath Chief Justice.

         ¶1 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.

         ¶2 We restate the issues on appeal as follows:

         Issue One: Did the District Court abuse its discretion by admitting evidence of Colburn's Internet searches regarding incest and child pornography?

         Issue Two: Did Colburn receive ineffective assistance of counsel?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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 ...


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