State v. Colburn

Can Your Internet Searches Be Used as Evidence at a Montana Trial? State v. Colburn, 2018 MT 141

Boland Aarab PLLP

Sometimes. In State v. Colburn, 2018 MT 141, the Montana Supreme Court unanimously held that a trial judge did not abuse his discretion by letting jurors hear about a defendant’s internet searches at his retrial on child sexual-abuse charges. Because the defense had put the identity of the abuser at issue, Rule 404(b) allowed the evidence to prove identity. The Court also rejected a claim that the defendant’s earlier appellate lawyer was ineffective for not telling trial counsel about the remand in time to substitute the judge.

Key Takeaways

  • Under M. R. Evid. 404(b), other-acts evidence cannot be used to show character, but it can be used for purposes such as identity. The line “turns on the intended purpose of the evidence, not its substance” (Colburn ¶ 12, quoting State v. Blaz).
  • A defendant who argues that someone else committed the crime puts identity at issue, which can make related evidence admissible (¶ 13). The Court will affirm a correct ruling even if the trial court gave a different reason (¶ 14).
  • Rule 403 “favors admission”: unfair prejudice must substantially outweigh probative value before evidence is excluded (¶ 16).
  • Missing the 20-day deadline to substitute a judge after a remand is not structural error and is not presumed prejudicial (¶ 22; § 3-1-804(12), MCA).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · Later decisions · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

CitationState v. Colburn, 2018 MT 141, 391 Mont. 449, 419 P.3d 1196
CourtMontana Supreme Court (unanimous; opinion by Chief Justice Mike McGrath, joined by Justices McKinnon, Baker, Gustafson and Rice)
DecidedJune 12, 2018
DocketDA 17-0175, on appeal from the Twenty-First Judicial District, Ravalli County
ResultConvictions affirmed
Appellate counsel for Mr. ColburnCaitlin Boland Aarab, Boland Aarab PLLP
Read the opinionOfficial opinion (Montana Supreme Court docket, PDF)

Case documents

Read the full opinion (PDF) →

What did the Montana Supreme Court hold in State v. Colburn?

This was Mr. Colburn’s second appeal. In 2013 he was charged with incest against his daughter and with sexual intercourse without consent and sexual assault against another child. His first convictions were reversed in State v. Colburn, 2016 MT 41, because of how the trial court had applied the rape shield law (¶ 3).

Two things happened before the retrial:

  • Judge substitution. Trial counsel said he had not been served with the remittitur (the notice sending the case back), although appellate counsel had been. He missed the 20-day deadline to substitute the judge. The district court let him file a late motion, then denied it as untimely (¶ 3).
  • Internet searches. The court denied a motion to exclude evidence of Mr. Colburn’s computer searches (¶ 4). At trial, a state computer-crimes agent testified about repeated searches and website visits involving incest and sexual activity with children. The court did not allow the jury to see the websites’ actual content (¶ 5).

The jury acquitted Mr. Colburn of incest and convicted him on the other three counts. He received concurrent 50-year sentences (¶ 6).

The Supreme Court affirmed on both issues:

  1. The search evidence was admissible. On retrial, the defense presented evidence that one child had been abused by her own father, which put the abuser’s identity at issue. The searches, which the Court described as numerous and made during the same period as the abuse, were relevant to identity (¶ 13). The trial court had not relied on identity, but the Supreme Court affirms a correct result (¶ 14). The evidence was also not unfairly prejudicial under Rule 403 (¶¶ 16–19).
  2. No ineffective assistance. The defense did not show that appellate counsel had a duty to tell trial counsel that remittitur had issued (¶ 25). Because the first part of the Strickland test failed, the Court did not reach prejudice (¶ 26).

What did we argue, and how did the Court differ?

Our position on appeal.

  • Rule 404(b). We argued that the search evidence was improper propensity evidence. Searching for material online does not show a motive to commit hands-on abuse, and it does not show that any abuse happened by accident or mistake (¶¶ 10–11).
  • Rule 403. Even if the evidence was allowed for some purpose, we argued that it distracted the jury from the main issue and served mainly to inflame jurors. We compared the case to State v. Franks, 2014 MT 273, where the Court reversed because the State used other-acts evidence beyond its permitted purpose (¶¶ 15, 18).
  • Ineffective assistance. We argued that appellate counsel in the first appeal should have told trial counsel about the remittitur in time to substitute the judge. Had that happened, a different judge would have presided, with a reasonable probability of a different result (¶ 23).

The Court’s view.

  • On Rule 404(b), the Court held that by pointing to another abuser, the defense “specifically and intentionally” put identity into the trial, and the search evidence was relevant to it (¶ 13).
  • On Rule 403, the Court reasoned that because the jury acquitted on both incest counts, the evidence “did not distract or incite the jury’s hostility.” It distinguished Franks because the defense did not claim the State had used the evidence beyond its permitted purpose (¶ 18).
  • On ineffective assistance, the Court held that failing to give notice of remittitur is not an error “so serious” that counsel was not functioning as the Sixth Amendment requires. It noted that the brief cited no case imposing that duty (¶ 25). The Court also repeated that the right to substitute a judge is statutory, not constitutional, so missing the deadline is not presumed prejudicial (¶ 22).

No justice dissented.

What did Colburn change in Montana law?

Colburn did not overrule any earlier case. It applied the Court’s recent Rule 404(b) decisions (Blaz, Daffin and Madplume) and made three practical points:

  1. The defense theory can open the door. When the defense argues that someone else committed the offense, evidence the State offers to prove identity may come in under Rule 404(b) (¶ 13).
  2. Acquittals matter on appeal. A split verdict can undercut a claim that the jury was inflamed (¶ 18).
  3. No recognized duty to relay remittitur. On this record, the Court found no authority requiring appellate counsel to notify trial counsel that a case had been sent back (¶ 25).

Later Montana Supreme Court decisions regularly cite Colburn for the standard of review for evidence rulings and for its statement of Rule 403. See Later decisions citing this case below.

Which Montana laws and rules apply?

When might Colburn apply to you?

  • Your digital history comes up in a case. Rule 404(b) applies in civil and criminal trials. Whether searches, messages or posts come in often depends on the purpose the other side states for them.
  • You argue that someone else is responsible. Pointing to another person can make identity a live issue, and that can change what evidence the other side may use.
  • Your case is sent back for a new trial. The 20-day window to substitute the judge runs from the filing of the remittitur in district court, so counsel need to watch the docket closely (§ 3-1-804(12), MCA).

Every evidence ruling turns on the record and the stated purpose of the evidence.

How difficult is an evidence-ruling appeal in Montana?

These appeals are difficult:

  • Abuse of discretion. District courts have “broad discretion” over evidence. To reverse, the appellant must show the court “acted arbitrarily without conscientious judgment or exceeded the bounds of reason” (¶ 7).
  • Rule 403 favors admission. The risk of unfair prejudice must substantially outweigh the evidence’s value (¶ 16), and weighing the two is left to the trial court’s discretion (¶ 17).
  • The right-result rule. The Supreme Court will affirm a correct ruling even when the trial court relied on a different reason (¶ 14).
  • Ineffective assistance. The Court reviews these claims de novo (¶ 8), but it starts from a “strong presumption” that counsel acted reasonably, and the defendant must prove both deficient performance and prejudice (¶¶ 21, 24, 26).

Statutes and rules

  • M. R. Evid. 404: other crimes, wrongs or acts. Unchanged since 1990.
  • M. R. Evid. 403: exclusion for unfair prejudice. Unchanged since adoption in 1977.
  • § 3-1-804, MCA: substitution of district judges. Last amended by Supreme Court order effective July 1, 2015, before this case.
  • § 45-5-502, MCA: sexual assault. Amended several times since the 2013 charges, most recently in 2025.
  • § 45-5-503, MCA: sexual intercourse without consent. Amended since the 2013 charges, most recently in 2025.
  • § 45-5-507, MCA: incest. Amended since the 2013 charges, most recently in 2025.
  • § 45-5-511, MCA: provisions applicable to sexual crimes, including the rape shield rule. Last amended in 2009.
  • Mont. Const. art. II, § 24: rights of the accused.

Later decisions citing this case

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Colburn in this appeal, and the Court affirmed his convictions. We publish every published decision in our appeals, whatever the disposition, because the record shows how Montana evidence law actually works. The same questions come up in every trial we handle: what the evidence is offered to prove, and whether its value outweighs its prejudice. That preparation carries into our serious trucking and injury cases and catastrophic injury cases, where the admissibility of records, recordings and prior conduct can decide the result. When you hire Boland Aarab, you work with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Can “other acts” evidence be used against someone at a Montana trial? Not to show that the person has a bad character and acted in line with it. It can be admitted for other purposes, such as motive, intent or identity, and what counts is the purpose the evidence is offered for (Colburn ¶ 12; M. R. Evid. 404(b)).

When does prejudicial evidence get excluded in Montana? Only when the danger of unfair prejudice, confusion or delay substantially outweighs the evidence’s probative value. Evidence is unfairly prejudicial if it arouses hostility or sympathy without regard to its value, confuses the jury or distracts from the main issues (Colburn ¶ 16).

What happens if a lawyer misses the deadline to substitute a judge after a remand? It can be raised as ineffective assistance, but the right to substitute is statutory, not constitutional. Missing the deadline is not structural error and is not presumed to have caused prejudice (Colburn ¶ 22; § 3-1-804(12), MCA).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.