County District Court No. 13CR3832 Honorable Thomas K. Kane,
Cynthia H. Coffman, Attorney General, Ellen M. Neel,
Assistant Attorney General, Denver, Colorado, for
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 public servant
(three counts), and conspiracy to attempt to influence a
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.
Facts and Procedural Background
4 According to the prosecution's evidence bearing on the
two issues raised on appeal,  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.
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."
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.
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
10 The prosecutor opposed the continuance for the following
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.
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 [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.
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
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 the
"different defense" could not have been developed
earlier, such as if it had arisen from newly discovered
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. 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]
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 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
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.
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.
22 In sum, we discern no basis for reversal in denying
Garrison's motion for a continuance.
The Trial Court Abused Its Discretion by Allowing Police
Officers, Testifying as Lay Witnesses, to ...