FILED 

JAN 22,2015 

In the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32226-2-111 

Respondent, ) 

) 

v. 	 ) 

) 

TROY J. WILCOXON, ) OPINION PUBLISHED IN PART 

) 


Appellant. ) 


KORSMO, J. - Troy Wilcoxon appeals from his three convictions related to the 

burglary of a casinolbowling alley in Clarkston. He challenges the use of a co-defendant's 

statement at their joint trial, the failure to giving a limiting instruction concerning that 

statement, an officer's testimony concerning the cell towers that processed telephone calls 

between the two defendants during the burglary, and the court's denial ofhis request for a 

continuance. We affirm. 

FACTS 

Mr. Wilcoxon and his co-defendant, James Nollette, were charged after a burglary I 

i in the early hours ofMay 23,2013, at the Lancer Lanes Casino} Mr. Wilcoxon worked 

1 The casino is also referred to as Bridge Street Connection throughout the trial 

record and briefing. We will use the name Lancer Lanes. 

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No. 32226-2-111 

State v. Wilcoxon 

as a dealer at the casino, but Mr. Nollette did not have a connection to the business. Prior 

to the burglary, both men had told others that Lancer Lanes would be a good burglary 

target because the security was poor. 

Not coincidentally, at least according to the prosecutor's theory of the case, Lancer 

Lanes had been the subject of a failed burglary eight days earlier. On that earlier occasion, 

a man wearing a black plastic bag over his body had entered the building after hours and 

cut the power to the building's surveillance system by throwing a breaker switch.2 The 

"popping" ofthe electricity awakened Eric Glasson, a man who frequented Lancer Lanes 

and did odd jobs at the establishment in exchange for food. He had fallen asleep while 

watching television with the lights on. Glasson fled the building when the lights went out. 

His flight alerted the "bagman" burglar that the building was occupied. The bagman also 

fled without taking any property. 

On the night ofMay 22, Mr. Wilcoxon invited Mr. Glasson to join him, several 

other employees ofLancer Lanes, and Mr. Nollette, at the Candy Store, a Lewiston, Idaho 

strip club. Mr. Glasson accompanied Mr. Wilcoxon to the establishment, where Mr. 

Wilcoxon paid his cover charge and purchased Mr. Glasson's first drink. Surveillance 

cameras as the Candy Store recorded the time ofthe group's arrival as 11 :57 p.m. on May 

22. At 12:51 a.m., less than hour later, Mr. Wilcoxon departed the group and did not return 

2 The disguise was sufficient to obscure the identity of the burglar. No one was 

charged with attempted burglary for the incident. 

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No. 32226-2-111 

State v. Wilcoxon 

to the Candy Store. The Lancer Lanes group ultimately departed the Candy Store at 2:29 

a.m. 

Lancer Lanes was burglarized between 1 :56 a.m. and 2:08 a.m. on May 23. 

Surveillance cameras (now equipped with battery backup) revealed that a single burglar, 

again dressed with a black garbage bag over his body, entered in the same manner as the 

May 15 attempted burglary and cut the power in the building. This time the burglar 

successfully stole $29,074. 

Video surveillance at the Candy Store showed Mr. Nollette talking on his cell phone 

with someone at 2:02 a.m. Mr. Nollette later told his friend Gary Solem that he had been 

on the telephone with a "friend" while the "friend" committed the burglary. Police 

obtained cell phone records that established Mr. Nollette was talking to Mr. Wilcoxon 

during the burglary. The records also identified the cell tower that handled each of the 

phone calls. A call lasting 84 seconds made by Wilcoxon to Nollette at 1 :59 a.m. was 

relayed by a cell tower within a couple hundred yards ofLancer Lanes. 

Sometime after 2:00 a.m., Wilcoxon and Nollette jointly showed up at the home of 

their friend, Eric Bomar. They both appeared excited. Wilcoxon told Bomar that he had 

"pulled offthe Lancer thing" and described how he had broken in to the establishment and 

taken the money. 

Charges of second degree burglary, first degree theft, and conspiracy to commit 

burglary were filed against Mr. Wilcoxon. A single charge of conspiracy to commit 

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No. 32226-2-111 

State v. Wilcoxon 

second degree burglary was filed against Mr. Nollette. The prosecutor also filed notice of 

intent to seek an exceptional sentence against Mr. Wilcoxon, alleging that both the burglary 

and theft charges constituted major economic crimes and constituted a breach of trust by 

Mr. Wilcoxon. 

Mr. Wilcoxon moved to sever his trial from Mr. Nollette's trial; he focused his 

argument primarily on the statements made by Mr. Nollette to Mr. Solem. After hearing, 

the trial court denied the motion to sever. Mr. Wilcoxon did not renew his motion to sever 

at the end of trial. 

The parties agreed that Sergeant Bryon Denny could present the cell phone records 

because there was no local telephone official who could do so. The court authorized 

telephonic testimony from the telephone company officials if desired by the defense. At a 

subsequent hearing the day before trial, defense counsel moved in limine to prohibit any 

witness from testifying that the cell phone records showed that a telephone call was made 

from Lancer Lanes. The trial court granted the motion in part and prohibited the 

prosecution from presenting evidence that the telephone call was made from inside Lancer 

Lanes. However, testimony that a specific telephone tower had handled a specific call was 

relevant and would be admitted. 

Defense counsel asked the court to expand the ruling to prohibit reference to the 

specific towers that routed the phone calls. When that was denied, counsel moved to 

continue the trial in order to seek an expert to testify. The court denied the continuance, 

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No. 32226-2-111 

State v. Wilcoxon 

noting both that the State was not using the officer as an expert and that the request came 

one hour before the end of business the day before trial. The motion was renewed when 

the sergeant testified at trial. The court again denied the continuance and noted that the 

sergeant was not testifying as an expert and that the prosecutor should not seek to elicit 

opinion testimony from him. 

Sergeant Denny did testify for the jury that cell phone calls generally were routed 

from the tower with the strongest signal belonging to the service provider to the tower 

providing the strongest signal for the receiving party's service provider. While that often 

would mean the closest tower would provide the service, various factors or obstructions 

could mean that a more distant tower would handle the call. Neither defendant testified at 

trial, but each called a sibling as their sole witness. 

The jury was unable to reach a verdict in Mr. Nollette's case and a mistrial was 

declared. 3 The jury did find Mr. Wilcoxon guilty on all three counts and also found the 

presence of the two aggravating factors on the theft and burglary offenses. The trial court, 

citing the two aggravating factors, imposed exceptional concurrent sentences of 24 months 

in prison on the burglary and theft convictions. Mr. Wilcoxon then timely appealed to this 

court. A commissioner granted his request for an accelerated hearing of his appeal. 

3 The records of this appeal do not indicate the resolution of that case. 

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No. 32226-2-II1 

State v. Wilcoxon 

ANALYSIS 

Mr. Wilcoxon contends that his right to confront witnesses against him was violated 

in two respects when the court permitted Mr. Nollette's statements to come in to evidence 

via Mr. Solem. We will treat those arguments as one before turning to two separate 

arguments Mr. Wilcoxon raises concerning the cell tower testimony presented by Sergeant 

Denny. 

Confrontation ofCo-Defendant 

Mr. Wilcoxon contends that his right to confront Mr. Nollette was violated by the 

failure ofthe court to sever the trials ofthe two defendants and the failure to sua sponte 

provide a limiting instruction for the jury. We conclude that there was no violation ofthe 

right to confrontation because Nollette's statements to Solem were not "testimonial" within 

the meaning ofthe Sixth Amendment. 

The Sixth Amendment guarantees the right of a criminal defendant "to be confronted 

with the witnesses against him." This protection has special significance in the context of 

co-defendants when one ofthem has made statements to the police that implicate the other 

defendant. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,20 L. Ed. 2d 476 (1968). 

There the court ruled that the defendant Bruton's confrontation rights were violated when 

the co-defendant's statement, implicating Bruton in a robbery, was admitted into evidence 

at their joint trial even though it was accompanied by a limiting instruction that told the jury 

only to consider the statement against the confessing defendant. Id. at 124-26. The court 

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No. 32226-2-111 

State v. Wilcoxon 

noted that severing trials or deleting the confession's reference to the co-defendant could be 

effective remedies. Id. at 131-34. 

In order to comply with Bruton, Washington adopted CrR 4.4(c). State v. Hoffman, 

116 Wn.2d 51, 75,804 P.2d 577 (1991). That provision requires severance when one 

co-defendant's statement refers to the other co-defendant unless the statement is not 

offered into evidence or references to the co-defendant are deleted from the statement. 

CrR 4.4(c)(1)(i), (ii). Mr. Wilcoxon sought severance on this basis prior to tria1.4 

The United States Supreme Court revolutionized its confrontation clause 

jurisprudence in Crawfordv. Washington, 541 U.S. 36,124 S. Ct. 1354,158 L. Ed. 2d 177 

(2004). There the court concluded that the right of confrontation extended only to 

"witnesses" who "bear testimony" against the accused. Id. at 51. This "testimonial" 

hearsay rule reflected "an especially acute concern with a specific type of out-of-court 

statement." Id. "An accuser who makes a formal statement to the government officers 

bears testimony in a sense that a person who makes a casual remark to an acquaintance 

does not." Id. 5 

4 CrR 4.4(a)(2) provides that the failure to renew a pre-trial motion for severance 

acts as a waiver ofthe severance request. Because Mr. Wilcoxon did not renew his motion 

to sever at trial, he cannot rely upon the rule for relief and does not attempt to do so on 

appeal. 

5 The court subsequently concluded that statements made to government officials 

in order to obtain emergency aid were not testimonial in nature. Michigan v. Bryant, 

562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); Davis v. Washington, 

547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). 

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No. 32226-2-II1 

State v. Wilcoxon 

Armed with this new understanding of the confrontation clause, courts have had to 

apply the testimonial hearsay test to varying circumstances. The Washington Supreme 

Court recognized that Crawford was particularly concerned with the "involvement by a 

government official" in obtaining the testimonial hearsay. State v. Shafer, 156 Wn.2d 381, 

389, 128 P.3d 87 (2006) (child's disclosure of sexual abuse to her mother was not 

testimonial hearsay). "The proper test to be applied in determining whether the declarant 

intended to bear testimony against the accused is whether a reasonable person in the 

declarant's position would anticipate his or her statement being used against the accused in 

investigating and prosecuting the alleged crime." Id. at 390 n.8. 

Application ofthat standard leads us to conclude that Nollette's statement to his 

acquaintance Solem was not testimonial in nature. No government official was involved in 

obtaining the statement and a reasonable person would not believe it would be used against 

Mr. Wilcoxon for the prosecution of a crime. Mr. Nollette simply was bragging about a 

successful heist; he was not giving formal witness against his co-defendant. This statement 

was not "testimonial hearsay." Rather, it was a "casual remark" to an acquaintance. 

Crawford, 541 U.S. at 51. 

Accordingly, Mr. Wilcoxon's claim that the trial court needed to sever the cases to 

satisfy Bruton and its progeny fails. 6 Similarly, his argument that the court had a duty sua 

6 Mr. Wilcoxon did not contend in the trial court that the statements were 

inadmissible except for the Bruton claim. 

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No. 32226-2-III 

State v. Wilcoxon 

sponte to give a limiting instruction concerning the testimony also fails. As there was no 

constitutional violation, there is no basis for raising this claim initially on appeal. 7 

RAP 2.5(a)(3). Unlike the federal authority cited by Mr. Wilcoxon, there is no basis in 

Washington law for judges giving limiting instructions without request from a party. ER 105 

Uudge shall give limiting instructions "upon request"). A court is under no duty to give a 

limiting instruction sua sponte. See State v. Noyes, 69 Wn.2d 441,446-47,418 P.2d 471 

(1966). Accord, State v. Russell, 171 Wn.2d 118, 123-24,249 P.3d 604 (2011) ("Since 

Noyes, this court has continued to hold that absent a request for a limiting instruction, the 

trial court is not required to give one sua sponte."); State v. Athan, 160 Wn.2d 354, 383, 

158 P.3d 27 (2007) (the omission of a limiting instruction is not reversible error where 

defendant fails to request the instruction during trial); State v. Myers, 133 Wn.2d 26, 36, 

941 P .2d 1102 (1997) ("The failure of a court to give a cautionary instruction is not error if 

no instruction was requested."); State v. Hess, 86 Wn.2d 51,52,541 P.2d 1222 (1975) (no 

reversible error for the lack of a limiting instruction where no instruction requested). 

"A party's failure to request a limiting instruction constitutes a waiver of that 

party's right to such an instruction and fails to preserve the claimed error for appeal." 

State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999). The failure to give 

7 In light of Bruton itself overturning a conviction because the court had given a 

limiting instruction rather than severing the trials, we question whether a limiting 

instruction can ever be required by Bruton. 

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No. 32226-2-111 

State v. Wilcoxon 

a limiting instruction is not constitutional error, while the failure to request an instruction 

waives the claim on appeal. For both reasons, the argument that the trial court sua sponte 

needed to give a limiting instruction fails. 

Although we conclude that there was no Sixth Amendment violation in this case, 

the result would be no different ifthere had been a constitutional violation. Errors of 

constitutional magnitude are harmless ifthe reviewing court is convinced, beyond a 

reasonable doubt, they did not contribute to the verdict. Chapman v. California, 

386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). That is the situation here. Although 

Mr. Nollette's statement that his "friend" had committed the burglary was somewhat 

prejudicial to Mr. Wilcoxon in light ofthe evidence connecting him to the telephone call, 

that evidence was primarily useful against Mr. Nollette on the conspiracy count-and the 

jury failed to reach a verdict on that count. With respect to Mr. Wilcoxon, the "friend" 

statement paled in light ofthe other evidence against. him, particularly his admissions to 

Eric Bomar. Ifthere had been error, it was harmless beyond a reasonable doubt. 

Mr. Wilcoxon's Sixth Amendment claims are without merit. The convictions are 

affirmed. 

The remainder ofthis opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions. 

RCW 2.06.040 

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No. 32226-2-111 

State v. Wilcoxon 

Cell Telephone Records 

Mr. Wilcoxon challenges Sergeant Denny's testimony concerning the location of 

the cell phone towers servicing the calls made in this case, arguing that it was irrelevant 

and lacked adequate foundation. We address those two arguments together and separately 

address his remaining claim that the court erred in denying his request for a continuance. 8 

Evidentiary Arguments. Trial judges have great discretion in the admission of 

evidence and decisions to admit or exclude evidence will be overturned only for manifest 

abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P .2d 960 (1995). 

Discretion is abused where it is exercised on untenable grounds or for untenable reasons. 

State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). A court also abuses 

its discretion when it applies the wrong legal standard. State v. Rafay, 167 Wn.2d 644, 

655,222 P.3d 86 (2009). 

Evidence is relevant if it makes "the existence of any fact that is of consequence to 

the determination of the action more probable or less probable." ER 401. Relevant 

evidence generally is admissible at trial, but can be excluded where its value is substantially 

outweighed by other considerations such as the possibility of confusing or misleading the 

jury. ER 402; ER 403. 

8 We do not separately address Mr. Wilcoxon's catch-all contention that cumulative 

errors deprived him of a fair trial. 

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No. 32226-2-111 

State v. Wilcoxon 

These considerations govern Mr. Wilcoxon's challenge to the relevance of the cell 

tower location information. The defense had sought to exclude testimony that the 

telephone records showed that a phone call had been made from inside Lancer Lanes. 

The court agreed and excluded that specific evidence, but denied a subsequent request to 

exclude testimony concerning which cell tower locations handled the telephone calls 

made by the two defendants that morning. Mr. Wilcoxon now argues that the tower 

location information was irrelevant since it could not pinpoint the location of the callers. 

He views the evidence too narrowly. As noted, the standard for relevance is 

whether the evidence makes another fact "more probable or less probable." In light of the 

testimony that the telephone calls are normally routed to the nearest cell tower used by the 

service provider that is in clear line of transmission to the caller, the location of the tower 

handling the calls was circumstantial evidence of the caller's location. More critically to 

this case, the information was particularly relevant to rebutting Mr. Wilcoxon's statement 

to police that after leaving the Candy Store he had gone to his sister's house in Lewiston 

and did not return to Clarkston that night. The cell phone evidence showed that after 

leaving the Candy Store in Lewiston, he placed calls that pinged off the Clarkston cell 

tower near Lancer Lanes. While not able to precisely locate where the calls had originated, 

the evidence tended to suggest a downtown Clarkston location rather than a Lewiston 

i 

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No. 32226-2-II1 

State v. Wilcoxon 

location. That evidence made the alibi statement to the police "less probable" and, 

therefore, was relevant. The trial court did not err in admitting the testimony. 

Mr. Wilcoxon also argues that the court erred in permitting Sergeant Denny to 

testify concerning the telephone records. He waived any objection to this testimony by 

failing to object below. When this issue first arose at a pretrial hearing, the question was 

whether the document would be admitted as a business record through a certificate from 

the records custodian or if Sergeant Denny, who had training in reading the records and 

explaining how cell towers worked, would testify. The defense did not object to the 

proposed testimony then or later at trial. That failure dooms his current argument. 

"A party who objects to the admission of evidence on one ground at trial may not 

on appeal assert a different ground for excluding that evidence." State v. Price, 

126 Wn. App. 617, 637, 109 P.3d 27 (2005). "And a theory not presented to the trial court 

may not be considered on appeal." Id. That is the case here. Neither defendant ever 

objected at trial to the ability of Sergeant Denny to testify. He explained his training for 

understanding the records and how cell towers function. The trial court accepted the 

foundation and cautioned the prosecutor not to seek information beyond the sergeant's 

training and experience. That restriction was honored. Moreover, no opinion testimony 

was sought from Sergeant Denny. Therefore, questions of whether or not he was a 

qualified expert are irrelevant. The issue was whether he had the experience that allowed 

13 

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No. 32226-2-II1 

State v. Wilcoxon 

him to discuss the records. The trial court was satisfied that he knew what he was talking 

about and the record bears out that determination. 

The defense waived any objection to the sergeant's testimony. Even if there had 

been an objection, there was an adequate foundation for the testimony. Accordingly, this 

argument, too, is without merit. 

The court did not err in admitting the phone records and permitting the testimony 

concerning them. 

Continuance Request 

Mr. Wilcoxon also argues that he was denied due process when his eve of trial 

request for a continuance was denied. The trial court acted within its discretion because 

the defense never established a need for the expert witness. 

The decision to grant or deny a motion for continuance rests within the sound 

discretion of the trial court, and the reviewing court will not disturb the trial court's ruling 

absent a showing that the trial court abused its discretion. State v. Bailey, 71 Wn.2d 191, 

195,426 P.2d 988 (1967). When deciding whether to grant a continuance, trial courts may 

consider many factors, including surprise, diligence, redundancy, due process, materiality, 

and maintenance of orderly procedure. State v. Eller, 84 Wn.2d 90,95, 524 P.2d 242 

(1974); RCW 10.46.080. When a case has been previously continued, an even stronger 

i 

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No. 32226-2-III 

State v. Wilcoxon 

showing in support ofthe subsequent request is necessary. State v. Barnes, 58 Wn. App. 

465,471,794 P.2d 52 (1990), aff'd, 117 Wn.2d 701, 818 P.2d 1088 (1991). 

The court did not abuse its discretion in denying the continuance request. The 

request was made on the eve of a joint trial that had been previously continued. The codefendant did not want his trial continued any further. A continuance for Mr. Wilcoxon 

would have resulted in a de facto severance of the trials, even though a motion to sever 

had failed at an earlier hearing. The motion was ostensibly brought for the purpose of 

responding to Sergeant Denny's testimony, even though there was no objection to his 

testimony and no indication that anything he would say about the records was subject to a 

contrary viewpoint. 9 Indeed, the defense never was able to tell the court that there was 

any missing information that an expert witness could provide that was important to the 

defense. The contents of Sergeant Denny's expected testimony had been disclosed and 

the witness made available for interview. There was no surprising information disclosed 

that justified an extension of time for the defense to prepare. 

The trial court had very tenable grounds for denying the late continuance request. 

The defense did not establish that there was missing evidence that it needed time to 

9 At trial, defense counsel extensively cross-examined the sergeant and developed 

the limitations ofthe cell tower records for the jury. 

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No. 32226-2-III 

State v. Wilcoxon 

develop. Accordingly, there was no violation ofthe defendant's right to prepare for trial. 

The court did not abuse its discretion in denying the continuance. 

Affirmed. 

WE CONCUR: 


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