State v. Colburn, 419 P.3d 1196

James Morris Colburn was retried in October 2016 on charges including sexual assault and sexual intercourse without consent against a minor after this Court reversed his earlier convictions and remanded for a new trial.
Before retrial, Colburn moved (late) to substitute the presiding judge; the District Court denied the motion as untimely.
Trial counsel sought to exclude evidence of Colburn’s extensive internet search history for incest/child-sexual-content; the District Court denied that motion but barred showing the websites’ actual content to the jury.
A State computer-crime agent testified about repeated, specific search terms (e.g., "dad and daughter sex," "preteen pussy") occurring during the period of the alleged abuse; Colburn was acquitted of incest but convicted on three other counts and sentenced to concurrent 50-year terms.
Colburn appealed, raising: (1) that admission of his internet searches was improper propensity evidence under M. R. Evid. 404(b)/403; and (2) ineffective assistance of counsel for failure to secure judge substitution after remittitur.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of internet search history (404(b)/403)	Colburn: searches were improper propensity evidence and unfairly prejudicial	State: searches were relevant for identity, intent/motive, and absence of mistake; not admitted to show propensity	Court: Evidence admissible for non-propensity purposes (identity, motive); 403 balance did not show unfair prejudice; no abuse of discretion
Ineffective assistance for failure to secure judge substitution	Colburn: appellate counsel failed to notify trial counsel of remittitur, causing untimely substitution motion and prejudice	State: no deficient performance or prejudice; no duty for appellate counsel to notify trial counsel	Court: Appellate counsel’s failure not shown to be objectively deficient; Colburn failed Strickland first prong; no need to reach prejudice prong

State v. Colburn, 382 Mont. 223, 366 P.3d 258 (Mont. 2016) (prior reversal and remand; defendant may introduce evidence putting identity at issue)
State v. Blaz, 388 Mont. 105, 398 P.3d 247 (Mont. 2017) (Rule 404(b) non-exclusive permissible purposes and analysis)
State v. Daffin, 387 Mont. 154, 392 P.3d 150 (Mont. 2017) (purpose, not substance, controls admissibility under Rule 404(b))
State v. Madplume, 386 Mont. 368, 390 P.3d 142 (Mont. 2017) (Rule 403 balancing favors admission; prejudice must substantially outweigh probative value)
State v. Franks, 376 Mont. 431, 335 P.3d 725 (Mont. 2014) (limiting permissible use of prior-bad-act evidence; reversal where state exceeded offered purpose)
Swan v. State, 331 Mont. 188, 130 P.3d 606 (Mont. 2006) (failure to timely move for judge substitution may implicate ineffective assistance but substitution right is nonconstitutional)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance standard)