State of Iowa v. Jacob A. Boothby

• Court: Supreme Court of Iowa
• Decided: December 11, 2020
• Docket: 19-0454
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 19–0454

Submitted September 16, 2020—Filed December 11, 2020

Amended December 14, 2020

STATE OF IOWA,

Appellee,

vs.

JACOB A. BOOTHBY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Clinton County, Nancy Tabor

(trial), Judge, and Phillip J. Tabor (sentencing), District Associate Judge.

Defendant seeks further review of the court of appeals decision

declining to address ineffective-assistance-of-counsel claims but

preserving them for postconviction-relief proceedings. We conclude the ineffective-assistance claims fail. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT CONVICTION AFFIRMED.

Oxley, J., delivered the opinion of the court, in which all justices

joined.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart

(argued), Assistant Appellate Defender, for appellant. 2

Thomas J. Miller, Attorney General, Martha E. Trout (argued),

Assistant Attorney General, Mike Wolf, County Attorney, and James M.

McHugh, Assistant County Attorney, for appellee. 3

OXLEY, Justice.

As society becomes more attached to cell phones, cell site technology

seemingly makes tracking people look like following a breadcrumb trail

while their phones ping off cell towers along their route. The technology

is more complicated than that, and this case asks us to decide whether

testifying about the records created from that technology requires an

expert witness.

After a vehicle rammed the back of another car travelling down

190th Street just outside of Toronto, Iowa and a neighbor suggested Jacob Boothby may have mistaken the vehicle for his ex-girlfriend’s, investigating

officers used Boothby’s cell phone records to place him in the general

vicinity at the time of the incident. Following his convictions for assault

with a dangerous weapon and third degree criminal mischief, Boothby

claimed on direct appeal that his counsel was ineffective for not

challenging the phone records as inadmissible hearsay and not

challenging the officer’s testimony as an unqualified expert. We

transferred the appeal to the court of appeals, which concluded the record

was insufficient to determine whether counsel had tactical reasons for not

objecting and preserved the claims for postconviction-relief proceedings.

Boothby sought further review, which we granted to address as a

matter of first impression whether Iowa Rules of Evidence 5.701 and 5.702

require testimony concerning historic cell site data to be presented by an

expert. Having carefully reviewed the officer’s testimony and surveyed

other jurisdictions, we now hold that the specific testimony provided by

Officer Schroeder was not based on specialized knowledge and therefore

did not require an expert. As such, any challenge by his counsel would have been pointless, and Boothby’s ineffective-assistance claims fail. We

vacate the court of appeals decision preserving Boothby’s claims for 4

postconviction-relief proceedings and affirm Boothby’s district court

convictions.

I. Factual Background and Proceedings.

In the early morning hours of November 14, 2017, Bernadette Chell

was driving her boyfriend, Steven Duvall, to work. Duvall noticed a gray

SUV traveling in the opposite direction on the two-lane road, identifying it

as possibly a 1999 or 2000 “Blazer or Jimmy.” The SUV turned around

and began following them. Chell slowed to let it pass, but instead, the

SUV “slammed” Chell’s car. Chell and Duvall scrambled to call 911, and Chell sped up to try to get away. The SUV rammed their car a second time,

and Chell and Duvall got through to the police. Following the second

impact, the SUV “just turned off and disappeared,” and Chell and Duvall

stopped to wait for the police.

Neither Chell nor Duvall recognized the driver of the car or got a

license plate number. After the police arrived to speak with the couple,

Shawn Barten emerged from a nearby house. Barten was worried about

Shalan Miller, a friend who had borrowed his car and should have

returned by then. He told the officer that Miller’s on-again, off-again-

boyfriend, Jacob Boothby, had tried to call and text him and Miller

throughout the previous night and into the early morning hours and that

Boothby was mad at Barten for spending time with Miller.

Officer Jessup Schroeder took over the investigation a few days later

and went to speak with Boothby. At Boothby’s home, he observed a silver

Chevrolet Trailblazer with a missing bumper. In a conversation recorded

by a camera in Schroeder’s patrol car and played at trial, Boothby admitted

he contacted Barten and Miller many times the night before and early morning of November 14 but denied involvement in the hit-and-run 5

incident. He also showed Officer Schroeder the bumper from the

Trailblazer.

Officer Schroeder took possession of the bumper to further

investigate, but it had no evidence of paint transfer. Boothby later sent a

text to Officer Schroeder, claiming “I think that [Barten is] a snitch . . . so

i will give that lady the money but im not saying that i did it.” Officer

Schroeder also obtained a warrant for phone records from Boothby’s cell

phone company. Those records showed numerous calls and texts sent

from Boothby’s phone to both Barten’s and Miller’s cell phones throughout the time period leading up to the incident. The records also identified the

specific cell tower with which Boothby’s cell phone connected in making

each of those calls and texts.

The State charged Boothby with assault with a dangerous weapon

and third-degree criminal mischief, both aggravated misdemeanors. At

trial, Officer Schroeder testified about the cell phone records he obtained,

which were admitted as exhibits. He explained how he used the records

to identify the cell towers Boothby’s phone pinged when he made the

numerous calls leading up to the time of the incident and then plotted the

location of the cell towers on a map he created using Google Earth. He

also plotted the address of the incident near Toronto and Boothby’s home

address near Spragueville on the map and identified each tower’s “sectors”

and coverage radius. The map was introduced as an exhibit at trial.

Neither the State nor Boothby asked Officer Schroeder if he had any

particular expertise in reading or interpreting cell phone records. Boothby

did not object to the exhibits or Officer Schroeder’s testimony.

The jury convicted Boothby of both charges. The district court sentenced Boothby to two years in prison for each charge, to be served 6

consecutive to another sentence Boothby was serving related to other

charges involving Miller.

Boothby appealed, and we transferred the case to the court of

appeals. Recognizing he did not object below, Boothby argued his counsel

was ineffective for not challenging the cell tower records and related

testimony. Particularly, he argued the evidence should have been

presented by an expert and his cell phone records should have been

excluded as impermissible hearsay. The court of appeals concluded the

record was insufficient to address whether trial counsel had a tactical reason for not challenging the evidence and preserved Boothby’s claims for

postconviction-relief proceedings.

Our court has never addressed whether testimony about cell tower

records and related locations requires an expert witness. In the cases that

have reached our court of appeals, the officers were qualified as experts by

their training, and the court did not address whether the testimony

required an expert rather than a lay witness. We granted Boothby’s

application for further review to address this issue.

II. Standard of Review.

We review claims of ineffective assistance of counsel de novo. State

v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). “To succeed on a claim of

ineffective assistance of counsel, a claimant must establish by a

preponderance of the evidence: ‘(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.’ ” Id. at 320

(quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)). We deny an

ineffective-assistance claim if the defendant fails to show either prong. Id.

“Under the first prong, ‘we measure counsel’s performance against the standard of a reasonably competent practitioner.’ ” Id. (quoting State

v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)). We presume counsel 7

performed competently, “and the claimant must successfully rebut this

presumption by establishing by a preponderance of the evidence that

counsel failed to perform an essential duty.” Id. We consider the totality

of the circumstances to determine whether counsel’s performance was

reasonable under prevailing professional norms. Id.

Under the prejudice prong, Boothby must show “there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” State v. Harrison, 914

N.W.2d 178, 206 (Iowa 2018) (quoting Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (en banc)). To meet this standard, Boothby “must show

that, ‘absent the errors, the fact finder would have had a reasonable doubt

respecting guilt.’ ” Id. (quoting Ledezma, 626 N.W.2d at 143).

We are asked to decide whether Boothby’s counsel was ineffective in

two respects: (1) failing to object to U.S. Cellular phone records as

inadmissible hearsay, and (2) failing to object to Officer Schroeder’s

testimony using the U.S. Cellular records to create a map because he was

not qualified as an expert. If the evidence was properly admitted, counsel

could not have been ineffective and his claim must fail. See State v. Smith,

573 N.W.2d 14, 21 (Iowa 1997) (affirming denial of ineffective-assistance

claim where challenge to admission of evidence would have lacked merit).

III. Whether the U.S. Cellular Records are Inadmissible Hearsay.

Boothby argues the U.S. Cellular records in State’s exhibits 10 and

11 are inadmissible hearsay and his counsel was ineffective for failing to

object to their admission. The State argues the records are not hearsay 8

because there was no human “declarant”1 but even if they are hearsay,

they fall within the business records exception.

Hearsay is a (1) statement made by a (2) declarant (3) not made

while testifying at the current trial or hearing, which (4) the “party offers

into evidence to prove the truth of the matter asserted in the statement.”

Iowa R. Evid. 5.801(c)(2). We have previously recognized that phone

records fit the definition of hearsay. See State v. Lain, 246 N.W.2d 238,

242 (Iowa 1976) (“The telephone bill was a written hearsay statement, as

the State offered it to prove the telephone calls were in fact made as the bill purported to show.”). The U.S. Cellular records were introduced to

show that Boothby’s phone communicated with the cell towers identified

in the records at specific times around the time of the incident, satisfying

the requirement that the evidence be an out-of-court statement offered to

prove the matter asserted.

Under the business records exception to the hearsay rule, a party

may introduce records of regularly conducted activity if specific

requirements are met. Iowa R. Evid. 5.803(6). Those requirements

include:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) Making the record was a regular practice of that activity[.]

1Because the Certificate of Authenticity attached to the records indicates they

were generated “by (or from information transmitted by) a person with knowledge of those matters” and the State offered no contrary evidence, we need not address the State’s alternative argument about the lack of a human declarant. (Emphasis added.) 9

Id. r. 5.803(6)(A)–(C). A certification meeting the self-authentication

conditions of rule 5.902(11) can prove these requirements without the

need for a witness testifying at trial. Id. r. 5.803(6)(D).

The State introduced exhibit 10, which included a Certificate of

Authenticity signed by U.S. Cellular subpoena specialist Solangia Haddock

to provide the foundation for admitting the phone records. In the

certificate, Ms. Haddock certified that:

such records were made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;

such records were kept in the course of a regularly conducted business activity;

the business activity made such records as a regular practice;

if such record is not the original, such record is a duplicate of the original.

Ms. Haddock signed the Certificate of Authenticity under penalty of

perjury. This certificate meets the self-authentication requirements of rule

5.902(11), at least for most of the cell site records. See United States v.

Yeley-Davis, 632 F.3d 673, 678 (10th Cir. 2011) (“The certification and

affidavit signed by the Verizon records custodian establish that the phone

records are business records.”); Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008) (“The certifications provided by the State were evidence that

the cell phone records were records of regularly conducted business, and

therefore admissible hearsay.”).

We say “most” because not all pages of exhibit 10 fall within the

documents identified in the Certificate of Authenticity. Ms. Haddock

identified the certified records as “Subscriber Information, call records,

tower information, and text messages for [Boothby’s phone number] time period 11/13/2017 to 11/14/2017.” However, exhibit 10 appears to 10

include more than those identified documents. The exhibit consists of “19

of 19” pages of call records for the identified cell number including line

item details for calls made or received on November 13 and November 14,

2017. Those records are followed by a page containing a narrative,

purporting to explain how “[t]o convert Orig CLLI or Term CLLI to find the

cell tower location” and how “[t]o determine cell tower location.” The

narrative is in a different font than the nineteen-page report of calls, and

it is followed by a signature block for Camesha Daniel, a U.S. Cellular

Subpoena Compliance Specialist. The Certificate of Authenticity does not identify this narrative document as part of the documents to which the

certificate applies. The State failed to lay a sufficient foundation to

establish that this narrative page of exhibit 10 falls within the business

records exception to the hearsay rule.

Nonetheless, to the extent that page may have been introduced to

prove the truth of the matter asserted, i.e., how to convert the CLLI records

to find the cell tower locations or how to determine the cell tower locations,

its introduction did not prejudice Boothby and therefore cannot support

an ineffective-assistance claim. To meet the prejudice prong of his

ineffective-assistance claim, Boothby would have to show that without this

page of the exhibit, the jury would have had reasonable doubt about his

guilt. Harrison, 914 N.W.2d at 206. But no witness referenced that page

of the exhibit during the trial. Our review of Officer Schroeder’s testimony

detailing how he used specific lines of the call records to identify each cell

tower and its location makes clear he did not rely on the narrative to

determine the location of the towers. To the extent any juror even saw the

narrative as part of the exhibit, it would not have changed the outcome of Boothby’s trial. 11

While we conclude the narrative constituted inadmissible hearsay

not excepted by the business records exception, Boothby cannot satisfy

the prejudice prong of his ineffective assistance claim. See Thorndike, 860

N.W.2d at 319. Boothby’s ineffective assistance claim based on failure to

object to the admission of hearsay documents fails.

IV. Whether an Expert Witness is Required to Present Historical Cell Site Data.

Boothby argues only an expert can explain use of historical cell site

records to create the map introduced at trial and opine about locations

based on those records. He also argues Officer Schroeder was not qualified

as an expert, so the testimony should not have been admitted.

Until 2017, the only requirements for use of lay opinion testimony

under our rules of evidence were that the opinion be “[r]ationally based on

the witness’s perception” and “[h]elpful to clearly understanding the

witness’s testimony or to determining a fact in issue.” Iowa R. Evid.

5.701(a)–(b). In 2017, we added subsection (c), which limits “testimony in

the form of an opinion” offered by a lay witness to “one that is: . . . c. Not

based on scientific, technical, or other specialized knowledge within the

scope of rule 5.702.” Id. r. 5.701(c); 7 Laurie Kratky Doré, Iowa Practice

Series: Evidence § 5.701:1, at 755 (2019–2020 ed. 1999) [hereinafter Doré, Iowa Practice Series]. Such testimony is “routed instead to the rules

governing the admission of expert testimony.” Doré, Iowa Practice Series

§ 5.701:1, at 764–65; see also Iowa R. Evid. 5.702 (allowing “[a] witness

who is qualified as an expert by knowledge, skill, experience, training, or

education [to] testify in the form of an opinion”).

Subsection (c) is patterned after the federal rules, which added the same limitation to Federal Rule of Evidence 701 in 2000. Fed. R. Evid. 12

701 advisory committee’s note to 2000 amendment; Doré, Iowa Practice

Series § 5.701:1, at 755. According to the committee notes,

the distinction between lay and expert witness testimony is that lay testimony “results from a process of reasoning familiar in everyday life,” while expert testimony “results from a process of reasoning which can be mastered only by specialists in the field.”

Fed. R. Evid. 701 advisory committee’s note to 2000 amendment (quoting

State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)). Many courts have

applied a “ ‘process of reasoning’ approach for distinguishing lay from

expert testimony.” King v. United States, 74 A.3d 678, 682–83 (D.C. 2013)

(adopting the Second Circuit’s process of reasoning approach and

concluding officers could offer lay testimony where “the reasoning process

the officers employed to interpret the street language was the everyday

process of language acquisition”); see also United States v. Garcia, 413

F.3d 201, 215 (2d Cir. 2005) (“[I]n considering the third prerequisite for

lay opinion testimony, a court must focus on ‘the reasoning process’ by

which a witness reached his proffered opinion.” (quoting 4 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 701.03[1],

at 701–14 (Joseph M. McLauglin ed., 2d ed. 2004) [hereinafter Weinstein]).

“If the opinion rests ‘in any way’ upon scientific, technical, or other specialized knowledge, its admissibility must be determined by reference

to Rule 702, not Rule 701.” Garcia, 413 F.3d at 215 (quoting Weinstein

§ 701.03[1], at 701–14)).

This is our first opportunity to address whether testimony is lay or

expert under the revised rules of evidence, i.e., whether the evidence is

“based on scientific, technical, or other specialized knowledge.” Iowa R.

Evid. 5.702. Determining whether opinion testimony is lay or expert “requires a case-by-case analysis of both the witness and the witness[]’s 13

opinion.” United States v. Smith, 591 F.3d 974, 983 (8th Cir. 2010). Before

we look at the specific testimony provided by Officer Schroeder, it is helpful

to first understand what evidence is available from cell site data and how

it is used in police investigations to assist in our determination of whether

Officer Schroeder improperly gave opinion testimony based on scientific,

technical, or specialized knowledge.

A. Historical Cell Site Data. “Cell phones are like two-way radios.

They require a transceiver to transmit the phone calls, and those

transceivers are called cell sites or cell towers.” Alexandra Wells, Ping! The Admissibility of Cellular Records to Track Criminal Defendants, 33 St. Louis

U. Pub. L. Rev. 487, 491 (2014) [hereinafter Wells] (footnote omitted). Cell

towers are generally arranged in a honeycomb-shaped grid to avoid

coverage gaps, with a cell site or cell tower located at the intersection of

three different hexagonal areas. Id. “This shape is better than other

potential configurations, such as a circle, as it allows the towers to leave

no area without service.” Id.

A number of factors determine a particular cell tower’s coverage

area, including “[t]he number of antennas operating on the cell site, the

height of the antennas, topography of the surrounding land, and

obstructions (both natural and man-made).” Aaron Blank, The Limitations

and Admissibility of Using Historical Cellular Site Data to Track the Location

of A Cellular Phone, 18 Rich. J.L. & Tech. 3, 5 (2011) [hereinafter Blank].

The cell tower’s range is essentially a mathematical calculation of the area

of the circle around the cell tower, with the furthest distance of cell service

serving as the radius. Id. at 5 n.12. A cell tower’s range may vary from

up to thirty miles from the cell site to around one mile from the cell site. Id. at 5. Urban areas often have overlapping cell sites located every one- 14

half to one mile, whereas rural areas often have cell sites every three to

five miles. Id.

“When a user places a call, the cell phone connects to the cell site

with the strongest signal.” Id. at 6. Although the cell phone must be

within the coverage area of the tower it connects to, “the tower with the

strongest signal . . . is not always the cell tower geographically closest to

the cell phone.” Wells at 493. Rather, a number of factors affect which

tower a cell phone connects to, including technical characteristics of the

cell sites, characteristics of the phone making the connection, and environmental and geographic factors. Id.

Cell phones can be tracked by two main methods: “(1) Global

Positioning Systems [GPS] and (2) cell site data—which include both real-

time and historical data.” Id. at 489. GPS tracking involves satellite-based

navigation systems that receive signals from cell phones and convert the

delivery speed of the signal into distance to provide an accurate reading of

the phone’s location. Id. at 489–90. Real-time and historical cell site data

both use cellular technology to locate a cell phone and differ only in the

timing of when the signal is observed. Id.

Real-time cell site data is obtained through viewing the cell phone’s activity and signals in real time, meaning at that instant. Thus, this largely happens when police officers survey a particular cell phone’s activity. On the other hand, historical cell site data . . . is information obtained after the cell phone’s activity is recorded using the cell companies’ records of that activity.

Id. at 490 (footnotes omitted).

This case involves use of historical cell site data. “Often historical

cell site records only indicate the date, time, and duration of calls, whether

calls are inbound or outbound, and show the originating and terminating cell sites for calls received or placed on the phone.” Blank at 13. Cell 15

phone companies collect this data to bill customers and track call volume.

Wells at 499. Thus, historical cell site data includes information about

which towers a cell phone pinged at particular times and, although the

data shows a cell phone was within the broad range of a cell site, it cannot

provide a precise location at any given moment. Id.

With this background, we turn to the specific testimony provided by

Officer Schroeder and challenged by Boothby.

B. Officer Schroeder’s Testimony. When asked to explain the cell

phone records he had subpoenaed, Officer Schroeder testified,

So [exhibit 11] is a spreadsheet that U.S. Cellular provides that has a location of their cellphone towers and the corresponding codes that we use from the cellphone records [in exhibit 10] so that we can determine which cellphone towers and which sectors of each tower the cellphone used.

The State then asked Officer Schroeder to describe what he did with the

records. Specific to the cell tower issue, Officer Schroeder explained,

“[t]here’s also a column labeled original CLLI that has a code that consists

of numbers of letters and this column is a way how we determine what

cellphone tower was utilized by the phone number.” After that

explanation, the State and Officer Schroeder had the following exchange:

Q. And so then that tells you which tower was used? A. That’s correct. Based on the information in the original CLLI column, we can determine the physical location of the tower, the physical address where it’s located, and then also by that fourth character, the number, it tells us which sector of the tower is being utilized by the phone. Typically cellphone towers are separated into three sectors. If you would think of a cellphone tower at the center and then a circle around it, they are typically separated into three sectors from the tower.

Q. And so the sector with the information provides what details to you as an investigator? A. The sector information tells us which sector or direction from the tower that the cellphone is, what direction from the tower, roughly.

Q. And so how do you go from the—at one column the originating CII column to knowing the physic[al] location of 16 the tower? A. The exhibit that you gave me, No. 11, the spreadsheet with all the locations, it has the original CLLI number and then by looking at that, you can look over and get the actual physical address of the tower where it’s located, where the tower actually sits, and then also it provides information for each tower as to where each sector starts. It goes by degrees in the 360-degree circle, so you can roughly show where the sectors start and end for the three sectors for each tower.

Q. And so using this information, you looked at the cellphone records. What did you observe? A. Um, in that time frame that I mentioned before, early morning hours of the 14th starting around 5:13 to 5:31, there was numerous calls that had been made from Mr. Boothby’s cellphone, and all those calls utilized three towers that were in the Toronto, Iowa, area, and I was able to determine first the physical location of the address of the towers and then I went back and was able to determine what sectors the phone was using for each of those towers.

Officer Schroeder then explained the map admitted as exhibit

12:

This is a Google Earth map that I made. It has Mr. Barten’s residence pinpointed on the map up by Spragueville. It has the location of Shawn Barten’s trailer west of Toronto. The city of Toronto itself is displayed on this map. The city of Lost Nation, the city of Wheatland, and then there are circles around each of the three towers I mentioned before with lines coming from the center where the towers are out to the edge of the circle to indicate where the sectors were.

Officer Schroeder next described how to interpret the map,

And then if you look at the three pinpoints where the cellphone towers are, you’ll see lines coming out from the center there. These are the lines that I used to mark out the different sectors for each of these individual towers. So for example, up here on the tower north of Lost Nation, you can see two lines coming out to the west and to the east and then one to the bottom and then the same for the tower down here in Wheatland.

These lines that come out from the center of the tower are just to mark out the sectors and then also the same over here for the tower by Lowden. Now, what I tried to do was make them different colors to try to be able to differentiate them looking at this map because as you can see, some of 17 them overlay each other. Another thing you will notice is it looks like some of the circles are bigger than others.

U.S. Cellular does provide information of the relative radius range of the towers, and you can measure that using Google Earth, so if you notice here on the tower over by Lowden, there’s quite a large circle for that one. You can’t actually see it all. U.S. Cellular indicated that the radius range for that, I believe, was maybe 34,000 or 37,000 meters, so usually Google Earth you can measure that out. That’s why there’s different circles for each of the towers.

The map created by Officer Schroeder is reproduced below. 18

Following a discussion of the timing of the calls in the records, the

State asked Officer Schroeder to explain specifically what the map meant:

Q. . . . And then so based on your training and experience, what is this information telling us? A. This information tells me that Mr. Boothby’s phone was in the sectors of those towers that—where Mr. Barten’s residence or the rough location of where the incident occurred. His cellphone was in that area or in those sectors on the morning of the 14th.

Q. Does it give us exact locations? A. No, it does not. The record would only indicate that his phone would be somewhere roughly in those sectors. It cannot pinpoint his exact location.

(Emphasis added.)

To summarize, Officer Schroeder testified about how he used the

U.S. Cellular records to create a map from the Google Earth program that

identified Boothby’s home address and the address near the incident,

three specific cell towers used by Boothby’s phone in the minutes leading

up to the time of the incident, the direction of the phone from the relevant

tower when the call was connected, and the range of each tower as

identified by U.S. Cellular. We now look at how other jurisdictions have

treated similar testimony to determine whether Officer Schroeder provided

expert testimony without being properly qualified to then determine whether Boothby’s counsel was ineffective for failing to challenge the

testimony on that basis.

C. Survey of Other Jurisdictions’ Treatment of Historical Cell

Site Date. On the surface, many of the jurisdictions that have considered

this question appear divided. However, in recent years, a trend has

emerged among courts that have considered whether and when an expert

is required to testify about historical cell site data. 19

Many earlier cases considering this issue held historical cell site

data did not require an expert, offering little discussion. See, e.g., United

States v. Baker, 496 F. App’x 201, 204 (3d Cir. 2012) (concluding that

creation of a map using cell site data did not require special knowledge);

United States v. Feliciano, 300 F. App’x 795, 801 (11th Cir. 2008) (per

curiam) (concluding testifying officer did not provide expert testimony but

“simply reviewed the cellular telephone records and a summary of those

calls, which identified cellular towers for each call, and based on his

personal knowledge concerning the locations of certain cellular towers, testified that, at the time of the call, [an accomplice’s] cellular telephone

was nowhere near the arrest location”); Perez v. State, 980 So. 2d 1126,

1131 (Fla. Dist. Ct. App. 2008) (concluding records custodians did not

provide expert testimony where they “simply factually explained the

contents of phone records” (quoting Gordon v. State, 863 So. 2d 1215,

1219 (Fla. 2003) (per curiam))); State v. Hayes, No. M2008–02689–CCA–

R3–CD, 2010 WL 5344882, at *10 (Tenn. Crim. App. Dec. 23, 2010) (“The

detective merely testified that he saw the locations of the cell phone towers

listed on the cell phone records and plotted those locations on a map. . . .

We conclude that a layperson could plot the locations of the towers on a

map and draw the same inference [of location]; therefore, his testimony

did not require specialized knowledge . . . and the trial court did not err by

allowing the testimony.”).

The Maryland Court of Special Appeals reached the opposite

conclusion in Wilder v. State. 991 A.2d 172, 176 (Md. Ct. Spec. App. 2010)

(“[T]he trial court abused its discretion by permitting testimony about

cellular tower site location without qualifying the State’s witness as an expert . . . .”). After considering many of the cases cited above, the

Maryland court concluded “the better approach is to require the 20

prosecution to offer expert testimony to explain the functions of cell phone

towers, derivative tracking, and the techniques of locating and/or plotting

the origins of cell phone calls using cell phone records.” Id. at 198. That

court “recognize[d] that cellular telephone technology has become

generally understood,” but concluded the testifying detective’s “testimony

implicated much more than mere telephone bills.” Id. at 199. The court

believed that the officer’s elaboration on the phone records by use of a

software program to “plot the locations from which Wilder used his cell

phone” required specialized knowledge or skills, requiring the witness to be qualified as an expert. Id. at 199–200.

Maryland’s highest court later endorsed this holding in State v.

Payne. 104 A.3d 142, 154–55 (Md. 2014). That court observed,

Detective Edwards engaged in a process to derive his conclusion that [the defendant and a co-conspirator’s] cell phones communicated through the Menlo Park and Balmoral Towers cell towers that was beyond the ken of an average person; his conclusions regarding the communication path also required that he be qualified as an expert witness.

Id. at 154. The court concluded that the detective needed to be an expert

to interpret the cell data and understand how to plot it on a map. Id. at

154–55.

More recent cases have addressed the issue in a more nuanced

manner, focusing on the specific testimony presented. A federal court in

Illinois recognized that some information regarding historic cell site data

required expert testimony, while other information did not. See United

States v. Evans, 892 F. Supp. 2d 949, 953–54 (N.D. Ill. 2012). In United

States v. Evans, the state sought to use an officer to introduce a map of

the location of cell towers pinged by the defendant’s phone at specific times and then estimate the general location of the defendant’s phone during an

eighteen-minute period based on the phone’s communications with two 21

specific cell towers by using “granulization theory.” Id. at 952. The court

concluded that “using Google Maps to plot these locations does not require

scientific, technical, or other specialized knowledge and that these exhibits

are admissible through lay opinion testimony under Rule 701.” Id. at 953.

“Understanding how . . . factors affect a cell phone’s ability to

connect a particular tower, however, cannot be said to be within the

perception of the untrained layman,” and, therefore, attempting to explain

the function of cell towers required expert testimony. Id. at 954. Thus,

witnesses could

provide lay opinion testimony concerning (1) the call data records obtained for [the defendant’s] phone and (2) the location of cell towers used by [the defendant’s] phone in relation to other locations relevant to the crime; but if [they] wish[] to testify concerning . . . how cellular networks operate, i.e., the process by which a cell phone connects to a given tower . . . [they] must first meet the demands of Rule 702 and Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593–94, 113 S. Ct. 2786, 2796–97 (1993)].

Id.

The Evans court drew its line based on the “process of reasoning”

standard identified in the advisory committee rules applied by courts in

other situations faced with determining whether testimony was lay or

expert. Id. at 953–54. Relaying information contained in phone records

and using that information to plot locations on a map use a “process of

reasoning familiar in everyday life” rather than “reasoning which can be

mastered only by specialists in the field.” Id. (quoting Fed. R. Evid. 701

advisory committee’s note to 2000 amendment). It is also consistent with

many of the earlier cases cited above that considered the issue.

Since Evans, the trend among courts has been to draw a similar line

between use of historical cell phone data to generate a map identifying the location of cell towers with which a cell phone pinged at the times identified 22

in phone records on the one hand and testifying about how a cell tower

functions and using that information to locate a cellphone at the time it

made a call on the other. In United States v. Henderson, the United States

Court of Appeals for the Tenth Circuit observed that an officer’s “recitation

of business records” was not improper expert testimony where “the

majority of his statements required nothing more than knowing the

meaning of abbreviations.” 564 F. App’x 352, 363 (10th Cir. 2014). When

asked to provide a conclusion about the location of the defendant based

on the data, the officer did not cross the line into expert opinion testimony because he qualified his answer by saying no one used the phone to make

a phone call within that tower’s range, rather than saying the defendant

was in any particular location. Id. The Tenth Circuit recognized the

officer’s testimony merely “reflected the collated call information (including

tower and sector) contained in other exhibits (also admitted without

objection) with the spatial information contained in” the admitted map

exhibit. Id. at 363 n.10.

The court later distinguished the Henderson holding in United States

v. Yeley-Davis. 632 F.3d at 683–84. There the court held that a witness

who first described how cell phone signals are transmitted and the factors

that determine which cell tower a phone will connect to, and then testified

a phone was in a particular location using that information, gave expert

testimony. Id. Like the Evans court, the Tenth Circuit drew its line based

on whether the “process of reasoning” utilized by the witness was one

“familiar in everyday life” or could “be mastered only by specialists in the

field.” Id. at 684 (quoting Fed. R. Evid. 701 advisory committee’s note to

2000 amendment). Missouri courts have come to a similar conclusion. In State v.

Patton, the defendant to a murder charge claimed to be in his cousin’s 23

house sleeping at the time of the murder. 419 S.W.3d 125, 128–29 (Mo.

Ct. App. 2013). The cousin’s house was only four miles from the site of

the murder, so there was overlapping coverage of cell sites in the area. Id.

at 132. The court recognized that “[r]eading the coordinates of cell sites

from phone records and plotting them on a map is not a scientific

procedure or technique, and the Frye [v. United States, 293 F. 1013, 1014

(D.C. Cir. 1923)] standard is not applicable.” Id. at 130. However,

“analysis of the many variables that influence cell site signal strength,”

which was “actually probative of whether Patton was in one area rather than the other . . . amount[ed] to opinion testimony that is properly the

province of an expert.” Id. at 132. Notably, in Patton, the crime site and

the defendant’s alibi site were both located within the coverage of the

overlapping cell towers, and the testimony crossed into expert testimony

because opining that a cell phone was closest to the pinged tower to then

place him at the crime scene was based on the witness’s analysis of the

“many variables that influence cell site signal strength.” Id. The Missouri

Supreme Court later endorsed Patton in State v. Blurton. 484 S.W.3d 758,

771 (Mo. 2016) (en banc).

The Nevada Supreme Court recognized a similar distinction in

Burnside v. State. 352 P.3d 627, 636–37 (Nev. 2015) (en banc).

The key to determining whether testimony about information gleaned from cell phone records constitutes lay or expert testimony lies with a careful consideration of the substance of the testimony—does the testimony concern information within the common knowledge of or capable of perception by the average layperson or does it require some specialized knowledge or skill beyond the realm of everyday experience?

Id. at 636. Thus, an officer who created a map identifying the location of

cell sites used by the defendants’ phones did not need to qualify as an expert to testify about the map. Id. However, a Sprint employee, who 24

explained how cell signals are transmitted and what determines which cell

tower has the strongest signal, based his testimony on specialized

knowledge gained through his employment, which required him to be

qualified as an expert. Id. at 636–37.

In reaching a similar conclusion, the New Hampshire Supreme

Court offered a unique perspective. In State v. DePaula, records

custodians employed by major cell phone service providers and a police

analyst testified about cell towers as well as a map with plotted cell tower

pings. 166 A.3d 1085, 1090 (N.H. 2017). In determining whether these witnesses provided lay or expert testimony, the court noted it had

“previously found that individuals can present limited lay testimony

regarding matters which, if discussed in detail, would require expert

testimony.” Id. at 1098 (discussing the horizontal gaze nystagmus test

used for determining whether a person is under the influence of alcohol).

The court reasoned that just as an officer who testifies about performing

a horizontal gaze nystagmus test but does not understand the neurological

processes testifies as a lay witness, so too an officer presenting testimony

of historical cell site data without addressing the inner workings of the

towers presented only lay testimony. Id.

Many other jurisdictions have come to the same or a substantially

similar conclusion, including Ohio, State v. Johnson, 110 N.E.3d 800, 807

(Ohio Ct. App. 2018) (“Testimony regarding a comparison of cell phone

data records to locations where crimes occurred does not require

‘specialized knowledge, skill, experience, training, or education’ regarding

cellular networks.” (quoting State v. Daniel, 57 N.E.3d 1203, 1218 (Ohio

Ct. App. 2016))), New Mexico, State v. Carrillo, 399 P.3d 367, 376 (N.M. 2017) (“Had the State limited [the records custodian’s] testimony to just

the call detail report record and the cell tower report, we would find no 25

error. However, [the custodian] proceeded to testify about how cell towers

operate and interact with cell signals to locate the general origin of a cell

phone call. This second category of testimony requires the ‘scientific,

technical, or other specialized knowledge’ to assist ‘the trier of fact to

understand the evidence or determine a fact in issue.’ ” (quoting New

Mexico R. Evid. 11-702)), and Maine, State v. Wyman, 107 A.3d 641, 648

(Me. 2015) (“A witness who testifies to the contents of cell phone billing

records should be qualified as an expert if her testimony employs some

form of specialized knowledge. Specialized knowledge is not necessary, however, when a witness conveys only the factual information displayed

on cell phone billing records.” (footnote omitted)).

Kansas confronted the issue most recently in State v. Timley. 469

P.3d 54, 61 (Kan. 2020). The Kansas court discussed Patton and Blurton

and concluded the detective’s “testimony was much more akin to Blurton

than to Patton.” Id. at 62.

As in Blurton, [the detective] input the Sprint data—which was, itself, admitted without objection—into a program in order to more comprehensibly digest the information, i.e., to produce maps. [The detective] did not definitively represent that Timley was present at any given point at any given time— just that his phone connected to particular towers at particular times and from particular directions, as depicted on the maps generated from the Sprint data. According to [the detective], Timley’s phone had to have been somewhere in the direction of the cone emanating from each tower on the exhibits—if not necessarily the area of the cone—regardless of whether other towers were overburdened.

Id. Therefore, the detective’s testimony was properly admitted as lay

testimony. Id.

Some courts recognize there is a line to be drawn but seemingly

move it closer to the expert side in more situations by precluding lay testimony beyond the mere recitation of information contained in the 26

phone records. See State v. Edwards, 156 A.3d 506, 521, 522–23, 526

(Conn. 2017) (holding a witness who testified about the “azimuth” and

“bismuth” of coverage areas acted as an expert when the witness “relied

on data he obtained from Verizon to conduct his analysis, the process he

used to arrive at his conclusions was beyond the ken of average juror[,

and] even the trial court acknowledged that [the witness] had an expertise

that allowed him to be more knowledgeable on the subject of cell phone

data than the average juror”); Collins v. State, 172 So. 3d 724, 743 (Miss.

2015) (en banc) (recognizing “testimony that simply describes the information in a cell phone record . . . [or] merely informs the jury as to

the location of cell phone towers” is proper lay testimony but “agree[ing]

with the Maryland Court of Appeals that the better approach is to require

‘expert testimony to explain the functions of cell phone towers, derivative

tracking, and the techniques of locating and/or plotting the origins of cell

phone calls using cell phone records’ ” (quoting Wilder, 991 A.2d at 198)).

In United States v. Natal, the Second Circuit observed that it “need

not hold that all evidence related to cell phone towers necessarily requires

expertise,” but the court went on to “caution that the line between

testimony on how cell phone towers operate, which must be offered by an

expert witness, and any other testimony on cell phone towers, will

frequently be difficult to draw.” 849 F.3d 530, 536 (2d Cir. 2017) (per

curiam). The court advised “both litigants and district courts . . . to

consider seriously the potential need for expert testimony.” Id.

Yet other courts seemingly require an expert to testify about any

historic cell site data. In many of these cases, testimony was presented

through an expert below, and reviewing courts endorsed that decision without much discussion. See, e.g., United States v. Reynolds, 626 F.

App’x 610, 613–14 (6th Cir. 2015); United States v. Schaffer, 439 F. App’x 27

344, 346 (5th Cir. 2011) (per curiam); United States v. Machado-Erazo, 950

F. Supp. 2d 49, 52 (D.D.C. 2013), aff’d, 901 F.3d 326 (D.C. Cir. 2018);

United States v. Jones, 918 F. Supp. 2d 1, 4 (D.D.C. 2013); People v.

Hollinquest, 119 Cal. Rptr. 3d 551, 559–60 (Ct. App. 2010); State v.

Marinello, 49 So. 3d 488, 509–10 (La. Ct. App. 2010); Francis v. State, 781

N.W.2d 892, 895 (Minn. 2010); Commonwealth v. Bryant, 67 A.3d 716,

722 (Pa. 2013). While other courts question whether such evidence should

ever be introduced by lay witnesses, their ultimate holding is consistent

with the Evans line. See, e.g., United States v. Hill, 818 F.3d 289, 295–96 (7th Cir. 2016) (“Agent Raschke’s testimony in this case included

statements about how cell phone towers operate. In our view, this fits

easily into the category of expert testimony . . . .”).

The West Virginia Supreme Court of Appeals rejected the Evans line

in State v. Johnson. 797 S.E.2d 557, 566 (W. Va. 2017). The state called

a deputy as a witness and asked in-depth questions about the operations

of cell towers, including discussion of “beamwidth” and “NEID numbers.”

Id. at 566–69. In particular, the deputy testified

that cell phone calls and text messages belonging to [the defendant, her co-conspirators, and the victim] were made in the vicinity of cell towers that were near the crime scene. With respect to [the defendant], based upon this testimony, the jury could infer that she was in the area of the crime scene near the time of the murder.

Id. at 560 (footnote omitted). After discussing both Evans and Payne, the

West Virginia court declined to follow Evans “because lay ‘witnesses . . .

not only read the records to the jury, but the[y] dr[a]w the ultimate

conclusion that the records could show the caller was in a specific

location[.]’ ” Id. at 565–66 (alterations in original) (quoting Wells at 511). Ultimately, the court held “that a witness must be qualified as an expert

under Rule 702 of the West Virginia Rules of Evidence in order to present 28

evidence of cell phone historical cell site data.” Id. at 566. The court

rejected the state’s characterization of the officer’s testimony as merely

relating facts gleaned from the stipulated phone records where the officer

testified at least four times that his testimony was based on his training,

including training specific to cell tower mapping. Id. at 569.

D. Application to Officer Schroeder’s Testimony. Having

surveyed the various approaches, we agree with the growing majority of

jurisdictions that draw the line between lay and expert testimony involving

historical cell site data based on the underlying information supporting the testimony. If the witness conveys inferences that can be drawn from

factual information contained in the phone records using “a process of

reasoning familiar in everyday life,” such as plotting data on a map, the

testimony qualifies as lay testimony. This includes opinions about the

generalized location of a phone within the coverage area of the pinged

tower—as long as the opinion is premised on factual information from the

phone company. However, when a witness relies on specialized knowledge

about how a cell tower functions, such as the numerous factors that

determine why a phone pings off one cell tower instead of another, to opine

about the coverage area of a tower or a cell phone’s location, that witness

must first be qualified as an expert.

We recognize this may be a fine distinction,2 but it is a logical one

recognized by a number of courts and the federal rules commentary

2Other courts have recognized the distinction between Rule 701 and 702 is a fine one. See United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006) (“[T]he line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 ‘is a fine one[.]’ ” (quoting 3 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual 701–14 (9th ed. 2006))); United States v. Ayala–Pizarro, 407 F.3d 25, 28 (1st Cir. 2005) (“[T]he line between expert testimony under [Federal Rule of Evidence] 702 . . . and lay opinion testimony under [Federal Rule of Evidence] 701 . . . is not easy to draw.” (first and third alteration in original) (quoting United States v. Colón Osorio, 360 F.3d 48, 52–53 (1st Cir. 2004))). 29

explaining the purpose for the scientific, technical, or specialized

knowledge distinction between expert and lay testimony. The rules created

that distinction “to eliminate the risk that the reliability requirements set

forth in Rule 702 will be evaded through the simple expedient of proffering

an expert in lay witness clothing.” Fed. R. Evid. 701 advisory committee’s

note to 2000 amendment. Even so, rule 702 “does not interdict all

inference drawing by lay witnesses.’ ” United States v. Graham, 796 F.3d

332, 364 (4th Cir. 2015) (quoting United States v. Perkins, 470 F.3d 150,

156 (4th Cir. 2006), rev’d on other grounds, 824 F.3d 421 (4th Cir. 2016) (en banc)). Limiting a lay witness’s testimony to inferences drawn from

facts using “reasoning familiar in everyday life” eliminates reliability

concerns because a juror is able to use her own reasoning to evaluate the

witness’s opinion. The same is not true when an expert witness testifies

based on “scientific, technical, or specialized knowledge” that is outside

the understanding of an average juror’s reasoning. In that case, the expert

witness’s qualifications become much more important to a juror’s ability

to evaluate his testimony. See, e.g., Ranes v. Adams Lab’ys, Inc., 778

N.W.2d 677, 686 (Iowa 2010) (discussing district courts’ “well-recognized

role as guardians of the integrity of expert evidence” by evaluating the

“witness’s qualifications and the reliability of the witness’s opinion” as part

of the court’s gatekeeping function).

Here, Officer Schroeder testified that he identified calls placed from

Boothby’s phone between approximately 5:13 a.m. and 5:31 a.m., around

the time of the incident. That testimony relayed only facts contained in

the phone records. Similarly, when he identified from the phone records

which sector of which cell tower each phone call pinged, along with the physical address of each cell tower, Officer Schroeder relayed factual

information that required nothing more than knowing what the codes 30

meant in the phone records contained in exhibit 10 and the corresponding

cell tower records contained in exhibit 11. See Henderson, 564 F. App’x

at 363 (noting “the majority of [the officer’s] statements required nothing

more than knowing the meaning of abbreviations”). Likewise, Officer

Schroeder presented factual information when he platted the location of

Boothby’s residence, the location of the incident near Barten’s house, and

the location of three cell towers on a Google Earth map. Each of those

facts involved nothing more than entering street addresses into the Google

Earth map program. See Hayes, 2010 WL 5344882, at *10 (“The detective merely testified that he saw the locations of the cell phone towers listed on

the cell phone records and plotted those locations on a map. . . . [A]

layperson could plot the locations of the towers on a map . . . .”).

In identifying the location of the three sectors for each of the three

cell towers and drawing them on the map, Officer Schroeder testified

exhibit 11 “provides information for each tower as to where each sector

starts. It goes by degrees in the 360-degree circle, so you can roughly

show where the sectors start and end for the three sectors for each tower.”

With respect to drawing the circles around each tower to identify their

respective coverage areas, Officer Schroeder testified

U.S. Cellular does provide information of the relative radius range of the towers, and you can measure that using Google Earth . . . . U.S. Cellular indicated that the radius range for [the tower near Lowden], I believe, was maybe 34,000 or 37,000 meters, so usually Google Earth you can measure that out.

A careful review of Officer Schroeder’s testimony reveals he merely

used factual data from U.S. Cellular identifying the relative radius range

for each specific tower and Google Earth’s measurement features to identify the sectors and create a circle representing the coverage radius

around each tower. See Smith, 591 F.3d at 983 (requiring “a case-by-case 31

analysis of both the witness and the witness[]’s opinion”); Burnside, 352

P.3d at 636 (“The key to determining whether testimony about information

gleaned from cell phone records constitutes lay or expert testimony lies

with a careful consideration of the substance of the testimony . . . .”). This

testimony distinguishes this case from Collins v. State, where the officer

“never testified regarding how he determined the service area of each

antenna or that it was the actual service area.” 172 So. 3d at 740.

The Kentucky Supreme Court recently concluded similar evidence

presented lay rather than expert testimony in Torrence v. Commonwealth. 603 S.W.3d 214, 223–25, 228 (Ky. 2020). Torrence was charged with

assault following a shooting at a Louisville residence. Id. at 216. Torrence

claimed he was picking up his daughter eleven miles away at the time of

the shooting. Id. at 217. Detective Snider described the cell site records

he subpoenaed and explained how the records identified the cell towers

Torrence’s phone used to place two calls as well as “a directional degree

reading based on a 360-degree circle or compass . . . [that] indicated the

direction of the call or text relative to the tower.” Id. at 224.

Using a Google Maps program displayed to the jury, Detective Snider

plotted the location of the towers used to make the calls, the location of

the shooting, and the location where Torrence claimed he picked up his

daughter. Id. Detective Snider then drew a “pie wedge” for each call,

showing the direction of the phone from each cell tower when it interacted

with the tower. Id. The Court agreed that “anyone could read the records,

open a Google™ Maps program on a computer, enter the addresses,

locations, or coordinates including latitude and longitude, and obtain the

same results . . . [which] meant Detective Snider’s testimony qualified as lay testimony.” Id. at 225; cf. Patton, 419 S.W.3d at 131 (recognizing that

while historical cell tower records cannot be used to specifically locate a 32

phone, they do “indicate that a phone was located somewhere within a cell

site’s geographic coverage area”).

Given the strictly factual basis for Officer Schroeder’s identification

of the sectors and radius range for each tower, such testimony qualified

as lay testimony.

When then asked to opine about what these facts meant, Officer

Schroeder was careful to qualify his opinion about whether Boothby’s

phone was in the area of the incident. He testified only that the phone

“was in the sectors of those towers that—where Mr. Barten’s residence or the rough location of where the incident occurred. His cellphone was in

that area or in those sectors on the morning of the 14th.” (Emphasis

added.) When asked if the map gave exact locations, Officer Schroeder

testified, “No, it does not. The record would only indicate that his phone

would be somewhere roughly in those sectors. It cannot pinpoint his exact

location.”

This testimony stayed on the lay opinion side of the line. Officer

Schroeder confined his testimony to identifying the location of cell towers

pinged by Boothby’s phone, the direction of Boothby’s phone from the

towers when it pinged on them, and the radius range for each tower.

Importantly, Officer Schroeder did not base his opinion on how cellular

technology works but only on the factual data received from U.S. Cellular.

See Graham, 796 F.3d at 364–65 (“[The records custodian’s] testimony as

to cell sites’ range of operability required no greater than the same minimal

technical knowledge. The district court did not abuse its discretion in

admitting this testimony by a lay witness.”); Blurton, 484 S.W.3d at 772

(holding witnesses who confined their testimony to the general trajectory of the phone and did not attempt “to pinpoint the defendants’ exact

location within a small geographic area” did not need to be qualified as 33

experts because a lay “witness could still reasonably infer Mr. Blurton’s

general path of travel from Garnett to Cole Camp without using specialized

skill or knowledge”).

Having reviewed Officer Schroeder’s specific testimony, we conclude

it was based on factual information obtained from the U.S. Cellular records

rather than any specialized knowledge about how cell towers operate and

resulted from “a process of reasoning familiar in everyday life.” Evans, 892

F. Supp. 2d at 953 (quoting Fed. R. Evid. 701 advisory committee’s note

to 2000 amendment). Officer Schroeder presented only lay testimony, and Boothby’s claim that his counsel was ineffective for failing to challenge his

qualifications as an expert necessarily fails.

We nonetheless echo the Second Circuit’s “caution that the line

between testimony on how cell phone towers operate, which must be

offered by an expert witness, and any other testimony on cell phone

towers, will frequently be difficult to draw.” Natal, 849 F.3d at 536. While

Officer Schroeder aptly walked the tight line in this case, the large, rural

area and the distance between relevant locations aided his ability to do so.

V. Conclusion.

Boothby’s counsel was not ineffective for failing to challenge the

phone records or Officer Schroeder’s testimony because the challenges

would have been unsuccessful. We therefore vacate the court of appeals’

decision preserving the ineffective-assistance claims for postconviction-

relief proceedings and affirm Boothby’s conviction.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

CONVICTION AFFIRMED.