Oral Argument December 3, 2014
Appeal from Asotin Superior Court. Docket No: 13-1-00116-2. Judge signing: Honorable William D Acey. Judgment or order under review. Date filed: 01/31/2014.
Andrea Burkhart (of Burkhart & Burkhart PLLC ), for appellant.
Benjamin C. Nichols, Prosecuting Attorney, and Curtis L. Liedkie, Deputy, for respondent.
Authored by Kevin M. Korsmo. Concurring: Laurel H. Siddoway, George B. Fearing.
[185 Wn.App. 536]
Kevin M. Korsmo, J.
[¶1] Troy Wilcoxon appeals from his three convictions related to the burglary of a casino/bowling alley in Clarkston. He challenges the use of a codefendant'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 of his request for a continuance. We affirm.
[¶2] Mr. Wilcoxon and his codefendant, James Nollette, were charged after a burglary in the early hours of May 23, 2013, at the Lancer Lanes Casino. Mr. Wilcoxon worked 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.
[¶3] 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. The " popping" of the electricity awakened Eric [185 Wn.App. 537] 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.
[¶4] On the night of May 22, Mr. Wilcoxon invited Mr. Glasson to join him, several other employees of Lancer 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 at the Candy Store recorded the time of the 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 to the Candy Store. The Lancer Lanes group ultimately departed the Candy Store at 2:29 a.m.
[¶5] 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.
[¶6] 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 of Lancer Lanes.
[185 Wn.App. 538] [¶7] 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 off the Lancer thing" and described how he ...