### FILED JAN 22,2015 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32226-2-111 Respondent, ) ) 

### v. ) ) TROYJ. WILCOXON, ) OPINION PUBLISHED INPART ) Appellant. ) KORSMO,J.

- Troy Wilcoxon appeals from his three convictions relatedtothe burglary ofa casinolbowling alley in Clarkston. He challenges theuse ofa co-defendant's statement attheirjointtrial, the failure to giving a limitinginstruction concerningthat statement, an officer's testimony concerningthe celltowers thatprocessedtelephone calls betweenthe two defendants duringthe burglary, and the court'sdenial ofhisrequest for a continuance. We affirm. FACTS Mr. Wilcoxon and his co-defendant, JamesNollette, were charged after a burglary I 

# i in the early hours ofMay 23,2013, attheLancerLanes Casino} Mr. Wilcoxonworked

1 The casino is also referred to as Bridge Street Connection throughout thetrial record andbriefing. Wewill use the nameLancerLanes. 

# I I**~**No. 32226-2-111 State v. Wilcoxon

as a dealer at the casino, but Mr. Nollette did nothave a connection to the business. Prior to the burglary, both men had told others that LancerLanes would be a good burglary target becausethe security was poor. Notcoincidentally, at least according to the prosecutor'stheory ofthe case, Lancer Lanes had been the subject ofa failed burglary eightdays earlier. On that earlier occasion,

a man wearing a blackplastic bag over his body had enteredthe building afterhours and cutthe powerto the building's surveillance system by throwing a breaker switch.2 The "popping" ofthe electricity awakened Eric Glasson, a man who frequented LancerLanes and did oddjobs atthe establishment in exchange for food. Hehad fallen asleep while watching television withthe lights on. Glasson fled the building whenthe lights went out. His flight alerted the "bagman"burglarthat the building was occupied. The bagman also fled without taking any property. Onthe night ofMay 22, Mr. Wilcoxon invited Mr. Glasson tojoinhim, several other employees ofLancerLanes, and 

### Mr. Nollette, at the Candy Store, a Lewiston, Idaho strip club. Mr. Glasson accompanied 

### Mr. Wilcoxontothe 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 sufficientto obscure the identity ofthe burglar. No one was chargedwith attempted burglary for the incident. 2No. 32226-2-111 State v. Wilcoxon

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

a.m. LancerLanes 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 overhis 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 latertold 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. Therecords also identified the cell towerthat handled each ofthe 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 after2:00 a.m., Wilcoxon and Nollettejointly showed up at the home of their friend, Eric Bomar. They both appeared excited. Wilcoxon told Bomarthat he had "pulled offthe Lancerthing" and described how he had broken in to the establishment and taken the money. Charges ofsecond degree burglary, first degree theft, and conspiracy to commit burglary were filed against Mr. Wilcoxon. A single charge ofconspiracy to commit

3No. 32226-2-111 State v. Wilcoxon second degree burglary was filed against Mr. Nollette. Theprosecutor also filed notice of intentto seek an exceptional sentence against Mr. Wilcoxon, alleging that both the burglary and theft charges constituted major economic crimes and constituted a breach oftrustby 

### Mr. Wilcoxon. 

### Mr. Wilcoxon movedto severhis trial from Mr. Nollette'strial; 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 atthe end oftrial. Theparties agreed that SergeantBryonDenny couldpresentthe cell phone records becausethere was no local telephone official who could do so. The court authorized telephonic testimony from the telephone company officials ifdesired by the defense. At a subsequent hearing the day before trial, defense counsel moved in limine to prohibit any witness from testifying thatthe cell phone records showed that a telephone call was made from Lancer Lanes. The trial court granted the motion in part andprohibited 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 courtto expand the ruling to prohibitreference to the specific towers that routed the phone calls. Whenthatwas denied, counsel movedto continuethetrial in orderto seek an expertto testify. The court denied the continuance,

4No. 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 ofbusiness 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 seekto elicit opinion testimony from him. Sergeant Denny did testify for thejurythat cell phone calls generally were routed from the tower with the strongest signal belonging to the service provider to the tower providingthe strongest signal for the receiving party's service provider. While that often would mean the closesttower wouldprovide 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. Thejury was unable to reach a verdict in Mr. Nollette's case and a mistrial was declared. 3 Thejury did find Mr. Wilcoxon guilty on all three counts and also found the presence ofthe two aggravating factors on the theft and burglary offenses. The trial court, citing the two aggravating factors, imposed exceptional concurrent sentences of24 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 ofhis appeal.

3 The records ofthis appeal do not indicate the resolution ofthat case. 5No. 32226-2-II1 State 

### v. Wilcoxon ANALYSIS Mr. Wilcoxon contends that his right to confront witnesses againsthim was violated in two respects when the courtpermitted Mr. Nollette's statements to come in to evidence via Mr. Solem. We will treatthose arguments as one before turningtotwo separate arguments Mr. Wilcoxon raises concerningthe cell towertestimony presentedby Sergeant Denny. Confrontation of Co-Defendant Mr. Wilcoxon contends that his rightto confront Mr. Nollette was violatedby the failure ofthe courtto severthetrials ofthe two defendants andthe failure to sua sponte provide a limiting instruction for thejury. We conclude thatthere was no violation ofthe rightto confrontation becauseNollette's statements to Solem were not "testimonial" within the meaning ofthe Sixth Amendment. The Sixth Amendment guarantees the right ofa criminal defendant "tobe confronted withthe witnesses against him." This protectionhas special significance in the context of co-defendants when one ofthem has made statements to the police that implicate the other defendant. Bruton v. UnitedStates, 391 U.S. 123, 88 S. Ct. 1620,20 L. Ed. 2d476 (1968). There the court ruled thatthe defendant Bruton's confrontationrights were violated when the co-defendant's statement, implicating Bruton in a robbery, was admitted into evidence at theirjointtrial even though it was accompanied by a limiting instruction that told thejury only to considerthe statement againstthe confessing defendant. 

### Id. at 124-26. The court

6No. 32226-2-111 

### State 

### v. Wilcoxon noted that severing trials ordeleting the confession's reference to the co-defendantcould be effective remedies. 

### Id. at 131-34. In orderto comply with

### Bruton, Washington adopted CrR4.4(c). 

### State v. Hoffman, 116 Wn.2d 51, 75,804P.2d 577 (1991). Thatprovision requires severance when one co-defendant's statementrefers to the other co-defendantunless the statement is not offered into evidence orreferences tothe co-defendant are deleted from the statement. CrR4.4(c)(1)(i), (ii). Mr. Wilcoxon sought severance onthis basis priorto tria1.4 The United States Supreme Courtrevolutionized 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 thatthe right ofconfrontation extended only to "witnesses" who "beartestimony" against the accused. 

### Id. at 51. This "testimonial" hearsay rule reflected "an especially acute concern with a specific type ofout-of-court statement." 

### Id. "An accuser who makes a formal statementto the governmentofficers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." 

### Id.5

4 CrR4.4(a)(2)provides thatthe failure to renew a pre-trial motion for severance acts as a waiver ofthe severance request. BecauseMr. Wilcoxon did not renew his motion to sever at trial, he cannotrely uponthe rule for reliefand does not attemptto do so on appeal. 5 The court subsequently concluded that statements made to government officials in orderto obtain emergency aid werenot 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). 7No. 32226-2-II1 State v. Wilcoxon Armed with this new understanding ofthe confrontation clause, courts have had to apply the testimonial hearsay test to varying circumstances. The Washington Supreme Court recognized that Crawfordwas 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 ofsexual abuse to her mother was not testimonial hearsay). "Thepropertest to be applied in determining whetherthe declarant intended to beartestimony against the accused is whether a reasonableperson in the declarant's position would anticipate his orher statementbeing used againstthe accused in investigating and prosecutingthe alleged crime." 

### Id. at 390 n.8. Application ofthat standard leads us to conclude that Nollette's statementto his acquaintance Solem was not testimonial in nature. No government official was involved in obtainingthe statement and a reasonableperson would not believe it would be used against Mr. Wilcoxon for the prosecution ofa 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 satisfyBruton and its progeny fails. 6 Similarly, his argumentthat 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. 8No. 32226-2-III State v. Wilcoxon sponte to give a limiting instruction concerningthe 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 forjudges giving limiting instructions without request from a party. ER 105 Uudge shall give limiting instructions "uponrequest"). A court is underno 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 courthas continuedtohold that absent a request for a limiting instruction, the trial court is notrequiredto give one sua sponte."); State v. Athan, 160 Wn.2d 354, 383, 158 P.3d 27 (2007) (the omission ofa limiting instruction is notreversible 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 ofa courtto 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 ofa limiting instruction where no instruction requested). "Aparty's failure to request a limiting instruction constitutes a waiver ofthat party's rightto 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 ofBruton itselfoverturning a conviction becausethe court had given a limiting instructionrather than severingthe trials, we question whether a limiting instruction can ever be required by Bruton. 9No. 32226-2-111 State v. Wilcoxon

a limiting instruction is not constitutional error, while thefailure to request an instruction waives the claim on appeal. Forboth reasons, the argumentthat the trial court sua sponte needed to give a limiting instruction fails. Although we conclude that there was no Sixth Amendmentviolation 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 onthe conspiracy count-andthe jury failed to reach a verdict onthat count. With respect to Mr. Wilcoxon, the "friend" statementpaled 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

10No. 32226-2-111 State v. Wilcoxon Cell Telephone Records Mr. Wilcoxon challenges Sergeant Denny'stestimony 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 claimthat the court erred in denying his request for a continuance.8 EvidentiaryArguments. Trialjudges have great discretion in the admission of evidence and decisions to admit or exclude evidence will be overturned only for manifest abuse ofdiscretion. 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 ifit makes "the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable." ER401. Relevant evidence generally is admissible at trial, but can be excluded where its value is substantially outweighed by other considerations such as the possibility ofconfusing or misleading the jury. ER402; ER403.

8 We do not separately address Mr. Wilcoxon's catch-all contentionthat cumulative errors deprived him ofa fair trial. 11

### No. 32226-2-111 State v. Wilcoxon These considerations govern Mr. Wilcoxon's challenge to the relevance ofthe cell tower location information. The defense had soughtto exclude testimony that the telephone records showed that aphone call had been made from inside LancerLanes. 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 ofthe callers. He views the evidence too narrowly. As noted, the standard for relevance is whether the evidence makes another fact "moreprobable or less probable." In light ofthe testimony that the telephone calls are normally routed to the nearest cell towerused by the service providerthat is in clear line oftransmission to the caller, the location ofthe tower handling the calls was circumstantial evidence ofthe 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 offthe Clarkston cell tower near LancerLanes. 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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# I iNo. 32226-2-II1 State v. Wilcoxon location. That evidence made the alibi statement to the police "lessprobable" 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 apretrial hearing, the question was whether the document would be admitted as a business record through a certificate from the records custodian or ifSergeantDenny, who had training in reading the records and explaining how cell towers worked, would testify. The defense did not object to the proposedtestimony then or later at trial. That failure dooms his current argument. "Aparty who objects to the admission ofevidence 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 ofSergeantDenny to testify. He explained his training for understanding the records and how cell towers function. The trial court accepted the foundation and cautioned the prosecutornot 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 ofwhether or not he was a qualified expert are irrelevant. The issue was whether he had the experience that allowed



### 13i 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 ifthere 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 oftrial 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 ofthe trial court, and the reviewing court will not disturb the trial court's ruling absent a showing thatthe trial court abused its discretion. State v. Bailey, 71 Wn.2d 191, 195,426 P.2d 988 (1967). When deciding whetherto grant a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance oforderly procedure. State v. Eller, 84 Wn.2d 90,95, 524 P.2d 242 (1974); RCW 10.46.080. When a case has beenpreviously continued, an even stronger



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# I 14 

# I I J**~** , , , jNo. 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 requestwas made on the eve ofajointtrial thathadbeenpreviously continued. The codefendant did not wanthis trial continued any further. A continuance for Mr. Wilcoxon would have resulted in a de facto severance ofthe trials, even though a motionto sever had failed at an earlier hearing. The motion was ostensibly brought for thepurpose of responding to Sergeant Denny'stestimony, even though there was no objection to his testimony and no indicationthat anything he would say aboutthe records was subjectto a contraryviewpoint.9 Indeed, the defense never was able to tell the courtthatthere was any missing informationthat an expertwitness could provide that was importanttothe defense. The contents ofSergeantDenny's expectedtestimony had been disclosed and the witness made available for interview. Therewas no surprising information disclosed thatjustified an extension oftime for the defense to prepare. The trial court had very tenable grounds for denying the late continuancerequest. The defense did not establishthat there was missing evidence that it neededtime to

9 Attrial, defense counsel extensively cross-examined the sergeant and developed the limitations ofthe cell towerrecords for thejury.

15No. 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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