COLORADO COURT OF APPEALS                                       2017COA107


Court of Appeals No. 15CA0699
El Paso County District Court No. 13CR3832
Honorable Thomas K. Kane, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lawson P. Garrison,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE WEBB
                        Booras and Freyre, JJ., concur

                         Announced August 10, 2017


Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Castle Rock, Colorado, for
Defendant-Appellant
¶1     The common knowledge and experience of an ordinary person

 have become one marker of the boundary separating lay from

 expert testimony. This case involves lay witness testimony about

 e-mail. So, one might wonder whether this ubiquitous person

 would be aware that

      the record of each e-mail transmission includes an Internet

       Protocol (IP) address from which the transmission initiated;

      the IP address can be linked to an Internet service provider

       (ISP); and

      in turn, the ISP can often trace the IP address to the physical

       address of a particular ISP customer?

¶2     Despite the dramatic increase in use of e-mail, we join the few

 jurisdictions to have addressed this question and conclude that

 such a person would not be aware of these facts, at least in the

 combination used by the prosecution to explain how the

 investigation began with charges against the victim, but led to

 evidence of criminal acts by defendant, Lawson P. Garrison. And

 because this information was the glue that held much of the

 prosecution’s case against Garrison together, he is entitled to a new

 trial on the charges of first degree perjury, attempt to influence a

                                    1
 public servant (three counts), and conspiracy to attempt to

 influence a public servant.

¶3    Turning to Garrison’s second issue, the trial court did not

 abuse its considerable discretion in denying him a continuance of

 the trial. And because the charges of possessing a defaced firearm

 and felony menacing were unrelated to IP addresses, his conviction

 by a jury on those charges stands affirmed.

                 I. Facts and Procedural Background

¶4    According to the prosecution’s evidence bearing on the two

 issues raised on appeal,1 Garrison had an affair with the victim’s

 wife. After the affair ended, Garrison and his wife set up through

 Google a Gmail account in the victim’s name. Using that account,

 they began sending themselves derogatory and threatening e-mails.

¶5    Based on these e-mails, Garrison and his wife made several

 police reports against the victim and provided related documents to

 the police. They sought a protection order against the victim and

 testified about the e-mails at the hearing. The police filed charges

 against the victim.


 1 The Attorney General concedes that both the improper expert
 testimony and continuance issues were preserved.

                                   2
¶6     Seeking evidence to support these charges, the police obtained

 a subpoena concerning the Gmail account. In response, Google

 identified two IP addresses. The police associated these addresses

 with two ISPs. After being subpoenaed, the ISPs identified one IP

 address as the home of Garrison’s wife, where Garrison lived at the

 time, and the other as her employer. When interviewed by police,

 both Garrison and his wife denied having set up the account.

¶7     Even so, all charges against the victim were dropped, the

 investigation focused on the Garrisons, and they were charged.

 Garrison’s wife pleaded guilty to several charges. Garrison elected

 to go to trial but he did not testify. His theory of defense was that

 the victim had hacked into his home computer and the server at his

 wife’s workplace, changing the IP addresses used to access the

 Gmail account. This process is called “spoofing.”

     II. The Trial Court Did Not Abuse Its Discretion in Refusing to
                     Grant Garrison a Continuance

¶8     If the trial court erred in denying Garrison a continuance and

 he could show prejudice, he would be entitled to a new trial on all

 charges. So, we begin with this contention.




                                    3
¶9     On the first day of trial — March 3, 2015 — defense counsel

  renewed her motion for a continuance that she had made at the

  trial readiness conference four weeks earlier. She conceded that

  Garrison “d[id] not want a continuance,” but argued that she was

  not prepared for trial because the case required “specialized

  computer knowledge,” she did not “get approval for [an] expert until

  January 30th,” and she had “only met with [the expert] one time.”

¶ 10   The prosecutor opposed the continuance for the following

  reasons:

             This is one more delay causing one more
             frustration and anxiety from the victims, from
             the police officers that I have spent the last,
             you know, two weeks scheduling and going
             though all the reports. Again over a thousand
             pages of reports and discovery. This is the
             second time, well, that I prepped for this trial
             in its entirety.

  As to Garrison’s expert witness, the prosecutor argued that he had

  “in my receipt what the expert is going to testify to so apparently

  he’s prepared to testify.”

¶ 11   The trial court denied the motion. The court explained that

  “[t]he procedural history of this case includes a lot of motions to

  continue” and the “risk of prejudice that has been argued by



                                     4
  [defense counsel] can be managed by the court.” Specifically, the

  court said that Garrison’s expert would be allowed to testify even

  though he had not been timely endorsed.

                     A. Standard of Review and Law

¶ 12   A trial court’s denial of a motion for a continuance is reviewed

  for an abuse of discretion. People v. Faussett, 2016 COA 94M, ¶ 12.

  “A trial court abuses its discretion in denying a motion to continue

  if, under the totality of the circumstances, its ruling is manifestly

  arbitrary, unreasonable, or unfair.” Id. (citation omitted).

¶ 13   “No mechanical test exists for determining whether the denial

  of a request for a continuance constitutes an abuse of discretion.”

  Id. (citation omitted). Rather, “the answer must be found within the

  circumstances of each case, particularly in the reasons presented to

  the trial judge at the time of the request.” People v. Roybal, 55 P.3d

  144, 150 (Colo. App. 2001).

                                B. Analysis

¶ 14   Garrison first argues that the trial court should have granted a

  continuance because his new trial counsel “inherited the case just

  two months prior and was running an entirely different defense

  than the prior public defender.” But Garrison fails to explain why


                                     5
  the “different defense” could not have been developed earlier, such

  as if it had arisen from newly discovered evidence.

¶ 15   In any event, the record shows that prior defense counsel was

  well aware of the technical aspects of this case. When that counsel

  first requested and received a continuance on February 3, 2014, he

  argued that there was “[p]retty complex internet legal service that

  needs be done before I can even subpoena the materials that I’m

  going to need to prepare for trial.” Later, on May 5, 2014, defense

  counsel requested and received another continuance because he

  had “received 10 disks . . . which includes Google search warrant

  executions, videos, computer forensic information. And that’s all

  information that is beyond the scope of my expertise.”

¶ 16   At that time, defense counsel also advised the court, “I have a

  request in for approval for an expert to help me review all of the

  computer forensics in this case.” True, successor counsel later told

  the court that the expert had not been approved until January. But

  this delay of over seven months must be attributed to the defense.

¶ 17   As well, the record supports the trial court’s finding that since

  the original trial date of April 1, 2014, numerous continuances had

  already been granted — three of which were at Garrison’s request.


                                    6
  See People v. Casias, 2012 COA 117, ¶ 21 n.3 (There was no abuse

  of discretion where “the case had been pending for over two and a

  half years,” and “the court had already granted defendant two

  continuances.”).

¶ 18   Still, Garrison argues that a continuance should have been

  granted because this was his new counsel’s first request. But

  Garrison cites no authority, nor have we found any in Colorado,

  that prior continuances are disregarded once new counsel has been

  appointed. To the contrary, in People in Interest of J.T., 13 P.3d

  321, 322 (Colo. App. 2000), the division upheld denial of a

  continuance, even though new counsel had been appointed “three

  weeks before,” because “the case had been pending for over six

  months and had been previously continued twice at [defendant’s]

  request.”

¶ 19   Undaunted, Garrison argues that a continuance was needed

  because his new counsel was not prepared for trial. And during the

  trial, his counsel repeatedly sought a continuance on this basis.

  But the record belies this argument. It shows that Garrison’s

  counsel “gave an opening statement; examined and cross-examined

  witnesses” extensively, including the police officers who testified


                                     7
  about IP addresses, as discussed below; “preserved objections to

  evidence; gave significant input on jury instructions; and presented

  a lengthy closing argument.” People v. Alley, 232 P.3d 272, 274

  (Colo. App. 2010) (upholding denial of a continuance).

¶ 20   For these reasons, we discern no abuse of the court’s

  discretion.

¶ 21   Further, even if the trial court abused its discretion, to obtain

  a reversal, Garrison must also “demonstrate actual prejudice

  arising from denial of the continuance.” People v. Denton, 757 P.2d

  637, 638 (Colo. App. 1988). But the prejudice argued by Garrison

  involves only charges related to the IP testimony:

                After the motion to continue was initially
                denied, the only option left was to present a
                significantly hampered defense with a blind
                expert and without the ability to understand
                the technological intricacies of computer
                hacking, spoofing and how to find evidence of
                hacking or spoofing.

  He does not even suggest that the continuance denial caused

  prejudice related to his convictions for possessing a defaced firearm

  and felony menacing. Thus, because we have given Garrison a new

  trial on his convictions related to the IP testimony, as discussed in

  the next section, no prejudice has occurred.


                                      8
¶ 22      In sum, we discern no basis for reversal in denying Garrison’s

  motion for a continuance.

         III. The Trial Court Abused Its Discretion by Allowing Police
       Officers, Testifying as Lay Witnesses, to Testify About Tracing IP
                                   Addresses

¶ 23      Before trial, defense counsel noted her “concern about the . . .

  type of evidence that the [prosecution] is going to attempt to

  introduce via lay witnesses, being police officers.” She asked that

  “police officers not be able to give expert testimony” on computer

  evidence. The prosecutor responded that the police officers’

  testimony did not require any specialized knowledge because it

  involved “get[ting] a warrant and compar[ing] two sets of data . . .

  which they do all the time.” The trial court declined to rule,

  explaining that it would “listen to the evidence” and “handle it as it

  happens.”2

¶ 24      Mark Garcia, one of the investigating detectives, was the first

  officer to take the witness stand. Testifying as a lay witness, he




  2Despite this forewarning, the prosecutor did not seek leave to
  endorse as an expert an officer whose report of a forensic
  examination of Garrison’s computer had been produced to the
  defense.

                                       9
  explained that during the investigation, warrants were issued for

  “emails, facebook messages, and stuff like that.” He added,

            You can get the actual emails, text messages if
            they are still there and have not been
            destroyed, as well as you can get the internet
            protocol address on where the messages are
            coming from or who set up the account. When
            you go online, you set up an account, you fill
            out all the documents.3

  The trial court overruled defense counsel’s objection that Garcia

  was giving expert testimony.

¶ 25   Next, Garcia testified:

            We sent Google a production of records for the
            internet protocol address. We provided
            Go[o]gle with the email address of [the Gmail
            account] and email addresses that basically
            were being used. Go[o]gle then provided the
            internet protocol addresses. They provided

  3 As one court explained, “[a]n IP number, also known as an
  Internet Protocol (‘IP’) address, ‘is the unique address assigned to a
  particular computer connected to the Internet. All computers
  connected to the Internet have an IP address.’ Daniel J. Solove,
  Digital Dossiers and the Dissipation of Fourth Amendment Privacy,
  75 S. Cal. L. Rev. 1083, 1145 (2002). ‘IP addresses are either static
  — associated with one computer — or dynamically assigned. The
  latter is usually the case for patrons of dial-up Internet Service
  Providers (ISP) . . . . Static addresses are undoubtedly easier to
  trace, but ISPs generally log the assignments of their dynamic
  addresses.’ Elbert Lin, Prioritizing Privacy: A Constitutional
  Response to the Internet, 17 Berkeley Tech. L.J. 1085, 1104 n.101
  (2002).” United States v. Steiger, 318 F.3d 1039, 1042 (11th Cir.
  2003).

                                    10
            two. And what we get is just numbers. And
            with the numbers that [sic] we did the
            research . . . .

  Again, the trial court overruled defense counsel’s objection.

¶ 26   Then, Garcia took the investigation to its culmination:

            Q. And you have said there was two numbers.
            So they were associated with that [Gmail]
            account?

            A. Yes.

            Q. And in your investigation, did you
            determine where those two IP addresses
            belong?

            A. Yes.

            Q. Who belonged to those IP addresses?

            A. Yes.

            Q. What did you determine in your
            investigation?

            A. One belonged to Century Link and another
            belonged to Comcast.

            Q. And did you review the investigation as it
            pertains to the IP addresses for those two?

            A. Along with Officer Calloway.

            Q. And what did that investigation reveal?
            Were you able to determine based on your
            investigation with Comcast and Century Link
            who owned those IP addresses?




                                    11
            Defense counsel: Objection. I renew my
            objection.

            The Court: Overruled. There’s been an
            adequate foundation in the context of the
            investigation for this officer to testify. It
            doesn’t step over into expert testimony in my
            view. Overruled. You may answer that
            question.

            A. Yes, we completed a production of records
            search warrant and sent them to the
            companies requested on who owns the IP
            addresses.

            Q. And what was the result of that
            investigation?

            A. One address returned back to [Garrison’s
            wife’s home] . . . . And the other one returned
            back to her employer . . . .

¶ 27   Officer Charles Calloway testified next, also as a lay witness.

  By now, the trial court had given defense counsel a standing

  objection. According to Calloway:

            Q. You got an IP address, a couple of IP
            addresses that you said were associated with
            the [Gmail account]. You said that you sent
            those to your computer guys, investigation
            folks?

            A. Yes.

            Q. And then what is the next step in the
            process?




                                   12
            A. . . . those IP addresses came to Century
            Link and Comcast which I sent search
            warrants to both Century Link and Comcast.

            Q. What were the results of those search
            warrants?

            A. One came back to the address [of Garrison’s
            wife and the other to her employer] . . . .

¶ 28   At the end of Calloway’s testimony, the trial court asked him a

  juror’s question: “Regarding the warrant to Google, what specific

  information was requested? Was there just a date range only

  requested or specific account names only?” Calloway answered:

            The warrant to Google what I was requesting is
            all pretty much everything I can get from
            Google: The names, log in times, log out times.
            Anything dealing with that account. And what
            they produced back is to gave [sic] me a disk
            which had a lot of information on there. And
            one of the sheets on the paper were IP
            addresses. And those had — there were two
            distinct IP addresses . . . . [B]ut those two IP
            addresses it was determined came from
            singularly from Century Link and Comcast.

            And the thing with Google when people create
            a[n] account with Google like any [of] us can go
            on Google and create an account, that’s like a
            public account type. So what they give you is
            an IP addresses back. And then from there
            you see who is the provider. Century Link and
            Comcast. And so another warrant had to be
            done that way to find out where those
            locations are coming from. Because the IP
            address is as it says like an address of that

                                   13
              computer specific on there. So that’s the
              information I got back.

¶ 29     The “sheets of paper” to which Calloway referred included the

  following undifferentiated character string:

              Google Confidential and Proprietary *
              ############### GOOGLE SUBSCRIBER
              INFORMATION Name: [victim] e-Mail:
              [victim]@gmail.com Status: Deleted End of
              Service Date: 2013/06/05-20:52:19-UTC4
              Services: Doritos, Gmail, Google Talk, Google+,
              Has Google Profile, Has Plusone, Picasa Web
              Albums, Web History Created on:
              2012/09/12-19:33:40-UTC IP:
              72.164.141.178, on 2012/09/12-19:33:40-
              UTC Language Code: en +-------------------------
              +----------------+--------+
              | Time                  | IP Address       | Type |
              +-------------------------+----------------+--------+
              | 2013/05/19-13:18:51-UTC | 75.71.210.36
              | Login || 2013/05/04-16:21:52-UTC |
              75.71.210.36 | Login || 2013/04/19-
              15:52:58-UTC | 72.164.141.178 | Logout |
              2013/04/19-15:49:12-UTC | 2.164.141.178 |
              Login || 2013/04/19-15:44:56-UTC |
              72.164.141.178 | Logout || 2013/04/19-
              15:36:15-UTC | 72.164.141.178 | Login |
              2013/04/19-15:20:12-UTC | 2.164.141.178 |
              Logout || 2013/04/19-15:09:08-UTC |
              72.164.141.178 | Login |+------------------------
              -+----------------+--------+
              ############## * Google Confidential and
              Proprietary * ###############




  4   UTC is a worldwide time standard, not a time zone.

                                       14
                          A. Standard of Review

¶ 30   As always, a trial court’s evidentiary rulings — including those

  involving expert testimony — are reviewed for an abuse of

  discretion. People v. Howard-Walker, 2017 COA 81, ¶ 44. The trial

  court abuses its discretion if, among other things, its decision “is

  based on a misunderstanding or misapplication of the law.” People

  v. Thompson, 2017 COA 56, ¶ 91.

¶ 31   When an abuse of discretion occurs, “[w]e review

  nonconstitutional trial errors that were preserved by objection for

  harmless error.” Howard-Walker, ¶ 44 (citation omitted).

  Evidentiary rulings involving experts are reviewed as such errors.

  Under this standard, reversal results only if the error “substantially

  influenced the verdict or affected the fairness of the trial

  proceedings.” Id. (citation omitted).

                                  B. Law

¶ 32   CRE 701 governs admission of lay testimony:

             [i]f the witness is not testifying as an expert,
             the witness’ testimony in the form of opinions
             or inferences is limited to those opinions or
             inferences which are (a) rationally based on the
             perception of the witness, (b) helpful to a clear
             understanding of the witness’ testimony or the
             determination of a fact in issue, and (c) not


                                     15
               based on scientific, technical, or other
               specialized knowledge within the scope of Rule
               702.

¶ 33      After Garrison’s trial, our supreme court “clarified the

  standard that distinguishes lay testimony from expert testimony,”

  Howard-Walker, ¶ 50, in three opinions: Marsh v. People, 2017 CO

  10M; Venalonzo v. People, 2017 CO 9, ¶¶ 17-25; and People v.

  Ramos, 2017 CO 6.

¶ 34      Take the standard first. To determine “whether testimony is

  lay testimony under CRE 701 or expert testimony under CRE 702,

  the trial court must look to the basis for the opinion.” Venalonzo,

  ¶ 23.

¶ 35      Then consider its reasoning. To distinguish between lay and

  expert testimony, “the proper inquiry is not whether a witness

  draws on her personal experiences to inform her testimony; all

  witnesses rely on their personal experience when testifying.” Id. at

  ¶ 22. Rather, “the nature of the experiences that could form the

  opinion’s basis . . . determines whether the testimony is lay or

  expert opinion.” So, expert testimony “is that which goes beyond

  the realm of common experience and requires experience, skills, or

  knowledge that the ordinary person would not have.” Id.


                                      16
¶ 36   The supreme court recognized that this “distinction can be a

  difficult one.” Id. at ¶ 24. To be sure, “[t]his is particularly the case

  when the witness is a police officer.” Howard-Walker, ¶ 51.

                              C. Application

                               1. Trial Error

¶ 37   The controlling question is would “ordinary citizens . . . be

  expected to know certain information or to have had certain

  experiences.” Venalonzo, ¶ 24 (citation omitted). Summarizing

  several cases in which the distinction between lay and expert police

  officer testimony has been addressed provides context for answering

  this question.

¶ 38   The saga begins with People v. Stewart, 55 P.3d 107, 122

  (Colo. 2002), where a police officer testified about a crime scene

  investigation and accident reconstruction without being qualified as

  an expert. In finding an abuse of discretion, the supreme court

  held that the officer’s testimony about his observations of the crime

  scene and investigation were admissible as lay opinion testimony.

  But his “deductions about . . . the vehicle’s direction, position, and

  speed” during the accident required specialized training and




                                     17
  knowledge and were therefore admissible only as expert testimony.

  Id. at 124.

¶ 39   In People v. Veren, 140 P.3d 131, 138-39 (Colo. App. 2005),

  cited with approval in Venalonzo, the division considered a police

  officer’s testimony “that possession of a large amount of

  nonprescription pseudoephedrine is indicative of a person’s intent

  to use such a product as a precursor in the manufacture of

  methamphetamine.” The division recognized that “certain basic

  information about drugs may properly fall within the scope of lay

  opinion testimony.” Id. at 139. Even so, it held that “the amount of

  pseudoephedrine required to manufacture methamphetamine is not

  within the common knowledge of ordinary citizens, but rather

  requires specialized knowledge.” Id. The division did not explain

  the basis on which it drew this line.

¶ 40   In Romero v. People, 2017 CO 37, ¶ 10, a sexual assault on a

  child case, the supreme court considered a police officer’s testimony

  as a lay witness about the concept of “grooming” a victim.5 The


  5“‘Grooming’ is a process sexual predators use to shape a child’s
  perspective and lower the child’s inhibitions with respect to later
  criminal sexual acts. See Daniel Pollack & Andrea MacIver,
  Understanding Sexual Grooming in Child Abuse Cases, 34 Child L.

                                    18
  court held that “an ordinary citizen could not be expected to

  possess the experience, skills, or knowledge required to understand

  the concept of ‘grooming’ as it relates to sexual predation.” Id. at

  ¶ 15. This is so because “[t]he methods sex offenders use are not

  necessarily common knowledge.” Id. (citation omitted). The court

  based this conclusion on out-of-state authority.

¶ 41   In Ramos, ¶ 9, the supreme court held that an ordinary citizen

  could not be expected to differentiate between “blood cast-off” and

  “blood transfer.” The court noted that the testifying officer had

  referred to his nineteen years of experience investigating crime

  scenes.

¶ 42   Finally, only one division of this court has applied Venalonzo

  in a published criminal case. Howard-Walker, ¶¶ 52-53. The

  division found an abuse of discretion in admitting lay testimony

  because “we strongly doubt that ordinary citizens can determine

  whether a gun depicted in a video was real or fake.” Id. at ¶ 53.

  Similar to Veren, however, the division did not explain how it came

  to this conclusion.



  Prac. 161, 161 (2015).” State v. Muccio, 890 N.W.2d 914, 924
  (Minn. 2017).

                                    19
¶ 43   Of course, “[w]hether a witness’s testimony is lay or expert

  depends on the facts and surrounding circumstances of the case

  and ‘requires a case-by-case analysis of both the witness and the

  witness’s opinion.’ United States v. Smith, 591 F.3d 974, 982-83

  (8th Cir. 2010).” Venalonzo, ¶ 17. Two tools have been identified

  for chopping through the thicket of case-by-case analysis:

  precedent (Romero) and the testifying officer’s reliance on lengthy

  experience (Ramos). But Veren and Howard-Walker emerged

  without having relied on either tool.

¶ 44   A closer look at Venalonzo shows that the reviewing court’s

  own experience and common sense inform the decisional process,

  even without an evidentiary basis.

            The ordinary person has spent time with
            children and could reasonably be expected to
            know that they are not as accurate or
            perceptive as adults. Similarly, an ordinary
            person could be expected to know that
            children are more apt to share information
            with their peers than with adults, especially if
            they are unsure whether they may have done
            something wrong and fear being punished.
            Because an ordinary person who interacts with
            children can recognize these behaviors without
            additional training or specialized experience,
            this information is lay opinion testimony.

  Venalonzo, ¶ 28.


                                    20
¶ 45     With only this much for guidance, we turn to the arcane

  intricacies of IP addresses. The trial court did not make findings on

  what — if anything — an ordinary person would be expected to

  know about this subject.6 Instead, the court admitted the

  testimony as being part of “the context of the investigation.”

¶ 46     Yet, the prosecution’s attempt to present testimony about the

  course of an investigation does not open the floodgates to improper

  lay testimony by the investigating officers. Recall, where an officer’s

  testimony is “based not only on her perceptions and observations of

  the crime scene,” but also on specialized knowledge or experience,

  the officer “must be properly qualified as an expert.” Stewart, 55

  P.3d at 124.

¶ 47     Instead, the question remains: What would “ordinary

  citizens . . . be expected to know” about IP addresses? Venalonzo,

  ¶ 22 (citation omitted). The record does not provide an answer. Nor

  would that question likely be the subject of evidence, unless the

  trial court held a People v. Shreck, 22 P.3d 68 (Colo. 2001), hearing.

  No such hearing was held.



  6   The trial court did not have the benefit of Venalonzo when it ruled.

                                      21
¶ 48   Everyone would agree that e-mail has become “a significant

  form of communications.” 1 Raymond T. Nimmer, Information Law

  § 8:53, Westlaw (database updated May 2017). At least 250

  reported Colorado cases refer to “e-mail.” For this reason, an

  ordinary person may have some idea of what role an IP address

  plays in e-mail. Likewise in Veren, 140 P.3d at 139, the

  methamphetamine epidemic may have explained the division’s

  willingness to conclude — without record support — that ordinary

  people probably know Sudafed contains an ingredient that can be

  used to manufacture methamphetamine.

¶ 49   But the testimony by Detective Garcia and Officer Calloway

  went much farther.

¶ 50   Would the character string produced by Google be more than a

  maze to the ordinary person? Probably not. See Ali v. State, No.

  1252 Sept. Term 2014, 2017 WL 128636, at *5 (Md. Ct. Spec. App.

  Jan. 13, 2017) (unpublished opinion) (“[T]he detective based his

  conclusions on subpoenaed documents that were not themselves

  self-explanatory, but required some degree of specialized training

  and erudition to interpret.”). But the officers picked out the IP

  addresses.


                                    22
¶ 51   Yet, even if an ordinary person could also pick out the IP

  addresses, why would such a person know more than Officer

  Calloway? After all, he acknowledged that after having received

  these addresses from Google, he sent them to the department’s

  computer investigators to identify the associated ISPs.

¶ 52   And what reason would an ordinary person have to

  understand the final step in the investigation — an ISP’s ability to

  trace an IP address to a particular customer’s physical location?

  The Attorney General does not suggest such a reason, nor can we

  discern one.

¶ 53   Still, because Colorado courts have not yet “addressed the line

  between lay and expert testimony in the context of” IP addresses,

  “case law from other jurisdictions is informative.” Venalonzo, ¶ 21.

  In Ali, 2017 WL 128636, at *5, the court said, “the nature of an IP

  address, and particularly the arcane question of whether each IP

  address is ‘unique’ to a particular device or network, is a question

  of computer science that is beyond the ken of ordinary laypersons

  and, hence, ‘ordinarily should be the subject of expert testimony.’”

  (Citation omitted.) See also Hydentra HLP Int’l Ltd. v. Luchian, No.

  1:15-CV-22134-UU, 2016 WL 5951808, at *11 (S.D. Fla. June 2,


                                    23
  2016) (unpublished opinion) (“In this case, the testimony of Jason

  Tucker is plainly offered to support the broad claim that Defendants

  themselves uploaded some of the copyright videos onto their

  websites based upon his review of the 111 IP addresses. This

  proposition is an inference well beyond what witnesses perceive in

  their day-to-day lives.”); cf. NTP Marble, Inc. v. AAA Hellenic Marble,

  Inc., No. 09-CV-05783, 2012 WL 607975, at *6 (E.D. Pa. Feb. 27,

  2012) (unpublished opinion) (“The dispute implicates the

  significance of unique IP addresses and web-based email accounts.

  How these tools are obtained, maintained, monitored, controlled,

  and accessed are not matters of ‘common knowledge.’”) (decided

  based on judicial notice).

¶ 54   The relative paucity of precedent addressing common

  knowledge of IP addresses may be explained because in the vast

  majority of reported cases, testimony on IP addresses has been

  presented through expert witnesses.7 In any event, the Attorney

  General does not cite authority contrary to Ali and Hydentra.8


  7See, e.g., United States v. Wyss, 542 F. App’x 401, 404-06 (5th Cir.
  2013) (unpublished opinion) (expert testified on the examination
  and comparisons of the defendant’s IP addresses); United States v.
  Weste, 419 F. App’x 507, 509 (5th Cir. 2011) (unpublished opinion)

                                     24
¶ 55   These two cases further persuade us that the concept of an

  e-mail transmission including an IP address, which can be linked to

  an ISP, and in turn traced to the physical location of a particular

  ISP customer, is not within the knowledge or experience of ordinary

  people. Thus, because some of the police testimony on direct

  examination was based on particular experience and specialized

  knowledge within the scope of Rule 702, we conclude that the trial




  (Expert testified “that the IP addresses from which several of the
  threatening emails were sent could be traced to [the defendant].”);
  United States v. Kassir, No. S204CR356(JFK), 2009 WL 910767, at
  *2 (S.D.N.Y. Apr. 2, 2009) (unpublished opinion) (“Testimony linking
  [an organization] to various email addresses and websites allegedly
  operated by [the] [d]efendant” was admissible, however a “hearing is
  necessary to determine whether [the witness] is qualified to testify
  as an expert on this subject.”); Leser v. Penido, 947 N.Y.S.2d 441,
  442 (N.Y. App. Div. 2012) (expert linked the defendant’s IP
  addresses and a telephone number to the subject website and to his
  own business website).
  8 But see United States v. Walpole, 543 F. App’x 224, 228 (3d Cir.

  2013) (unpublished opinion) (“That she was permitted to describe
  what an IP address is . . . does not amount to plain error. While
  [that] term[] may not be common in everyday conversation, the
  prevalence of online photo-sharing — where IP addresses . . . are
  constantly used — indicates that it was not plainly erroneous to
  allow the agent to name these commonly used features of computer
  communication without being qualified as an expert . . . .”).

                                    25
  court abused its discretion in admitting this portion of the

  testimony as lay testimony.9 See CRE 701(c).

                             2. Harmless Error

¶ 56   “The inquiry is not at an end, however, because we review a

  trial court’s abuse of discretion on a preserved, nonconstitutional

  issue for harmless error.” Romero, ¶ 16. For the following three

  reasons, we further conclude that because the error was not

  harmless, reversal is required.

¶ 57   First, one need look no further than the opening statement to

  see the importance of the IP address testimony. As the prosecutor

  explained, based on the threatening e-mails being sent to Garrison

  and his wife, the police officers “first cited [the victim] for

  harassment,” and then “put together a stalking case against [the

  victim], arrested him, [and] put him in jail.” Not until investigators

  traced the IP addresses did they determine that the e-mails had not

  been sent by the victim. According to the prosecutor, “we were

  9 Given this conclusion, we need not address the Attorney General’s
  argument that because testimony on spoofing first arose during
  defense counsel’s cross-examination of Officer Calloway, redirect on
  this subject was not improper expert testimony from a lay witness.
  Nor need we address Garrison’s argument about improper expert
  testimony from the prosecution’s rebuttal witness, which is unlikely
  to arise on retrial.

                                      26
  close to prosecuting a case against [the victim] until this relaventory

  [sic] information” surfaced.

¶ 58   Second, while no direct evidence showed that Garrison had

  used the Gmail account — which he denied — the investigators’

  ability to trace many of those e-mails to an IP address linked to his

  home must have loomed large over the jury’s deliberations. But

  apart from this linkage, and with his wife also having been

  implicated in both IP addresses, the evidence that Garrison knew

  the Gmail account did not belong to the victim was far from

  overwhelming. See id. (“We cannot hold, with a lack of

  overwhelming evidence, that the trial court’s abuse of discretion

  was harmless error.”).

¶ 59   Third, unlike in Marsh, ¶ 42, the IP address testimony was

  neither brief nor merely “general background information.”

¶ 60   In the end, we conclude that Garrison is entitled to a new trial

  on his convictions for first degree perjury, attempt to influence a

  public servant (three counts), and conspiracy to attempt to

  influence a public servant, all of which turned on the e-mails which

  the Garrisons presented as having come from the victim.




                                    27
                            IV. Conclusion

¶ 61   The judgment is affirmed in part and reversed in part. The

  case is remanded for further proceedings consistent with this

  opinion.

       JUDGE BOORAS and JUDGE FREYRE concur.




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