State v. Colburn, 385 Mont. 100

In 2010 Colburn was staying in his supervisor’s converted garage; she saw child‑pornography–related search terms on the video store computer and then checked Colburn’s personal computer with his consent. The supervisor reported findings to police who seized Colburn’s computer under warrant.
Forensic exam recovered 11 downloaded images depicting young‑appearing females in sexualized poses and internet search history with multiple searches using terms like “preteen tube” and “preteen pussy.”
The State’s expert testified the images constituted child pornography and that the search terms are terms of art in child‑pornography culture; timestamps showed downloads on several dates over a six‑month span.
Colburn was charged with four counts of possession and five counts of attempted possession of child pornography; the jury deadlocked on possession counts (later dismissed), acquitted three attempt counts, and convicted Colburn on two attempt counts.
Colburn appealed challenging sufficiency of the evidence for the attempted‑possession convictions, arguing the searches alone were only "words" and insufficient as an overt act toward possession.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to support convictions for attempted possession of child pornography	The State: search terms (terms of art) plus prior successful downloads and images on the computer constitute overt acts toward possession and support attempt convictions	Colburn: entry of search terms alone is mere speech/words and not an "overt act" reaching an appreciable fragment of the crime absent a second dispositive step showing access to illegal content	Affirmed: viewing evidence in prosecution's favor, a rational juror could find overt acts ‘‘far enough’’ toward possession to constitute attempt

State v. Gunderson, 357 Mont. 142, 237 P.3d 74 (Mont. 2010) (defines overt‑act threshold for attempt review)
State v. Mahoney, 264 Mont. 89, 870 P.2d 65 (Mont. 1994) (attempt requires appreciable fragment that would be consummated absent interruption)
State v. Ribera, 183 Mont. 1, 597 P.2d 1164 (Mont. 1979) (overt‑act requirement articulated)
State v. Meredith, 355 Mont. 148, 226 P.3d 571 (Mont. 2010) (jury may draw inferences from circumstantial evidence)
State v. Fuller, 266 Mont. 420, 880 P.2d 1340 (Mont. 1994) (insufficiency reversal on attempt/intent issues)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (constitutional standard for sufficiency of the evidence)