State v. Colburn, 2016 MT 246 (Oct. 4, 2016) (Rice, J.; McKinnon, J., dissenting) (5-2, aff’d)
Issue: Whether sufficient evidence supported Colburn’s convictions of attempted sexual abuse of children.
Short Answer: Yes.
Facts: Colburn was a houseguest of his supervisor at the youth center/video store where he volunteered, staying in her converted garage. His supervisor noticed that someone had entered the term “preteen pussy” into a search engine on the video store computer. She texted Colburn to ask if she could use his person computer in the converted garage. He consented, and she found similar terms on that computer. She reported her findings to the police chief, who obtained and executed a search warrant of the garage, removing Colburn’s computer.
A forensic exam of the computer revealed 11 photos downloaded to the computer’s hard drive that depicted young-appearing females in sexually provocative poses. The forensic examiner also discovered five separate searches on the computer indicating, in the agent’s view, that the computer user was seeking child pornography.
The state charged Colburn with four counts of sexual abuse of children and five counts of attempted sexual abuse of children, all based on possession and attempted possession of child pornography.
Procedural Posture & Holding: At trial, the state called the supervisor, the police chief, and the forensic examiner. After the state rested, Colburn moved for a finding of not guilty as a matter of law based on insufficiency of the evidence. The district court denied the motion. The jury deadlocked on the counts of possession, acquitted Colburn of three counts of attempted possession, and found him guilty on two counts of attempted possession. The state moved to dismiss the four counts of actual possession, and the district court granted the motion. Colburn appeals, and the Supreme Court affirms.
Reasoning: While the state introduced no direct evidence that Colburn had accessed or downloaded child pornography on the same dates as he entered the search 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. Additionally, the state established that Colburn actually accessed and downloaded images of provocative youthful subjects on other dates. Taken as a whole, this evidence is sufficient to support the jury’s conviction.
Justice McKinnon’s Dissent (joined by Justice Cotter): The elements of the offense that the state had to prove possession of child pornography beyond a reasonable doubt were (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 is not relieved of its burden to prove each element of the offense 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.
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. “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.” ¶ 23.