FILED DECEMBER 15, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 36140-3-III Respondent, ) ) v. ) ) MICHAEL PATRICK CARGILL, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. — Michael Cargill appeals from convictions for possession of a stolen
motor vehicle, possession of a controlled substance, and possession of a motor vehicle
theft tool. We affirm.
FACTS
Following a report that a shop had been broken into and a pickup truck and dirt
bike stolen, police recovered the stolen pickup truck and received a tip about the location
of the missing dirt bike. Sergeant Kurt Vigesaa followed up on the tip and discovered
Michael Cargill working on the dirt bike. The sergeant arrested Cargill and transported
him to jail. A search at the jail uncovered methamphetamine and shaved car keys.
Sergeant Vigesaa testified at trial that he interviewed Cargill in the patrol car and
was told that an unknown person had brought the dirt bike to the house. Vigesaa told No. 36140-3-III State v. Cargill
Cargill he was acting deceptively and not being honest with him. Cargill then admitted
that his brother stole the bike and delivered it to him; he had lied to the officer initially in
order to protect his brother. Defense counsel did not object to the testimony.
Cargill testified at trial that he did not know that the bike was stolen and had
believed it belonged to a friend. He told Vigesaa that he did not know to whom the bike
belonged. He knew that his brother had stored stolen property at the house, but initially
told the officer that there was no other stolen property present, which was untrue. He
admitted being “deceptive” with the officer.
The jury found Mr. Cargill guilty on the three noted counts. Mr. Cargill timely
appealed to this court. A panel heard oral argument October 23, 2019, and soon
thereafter stayed the case due to the Washington Supreme Court granting review of the
primary issue presented here. The stay was lifted June 18, 2020, upon the issuance of the
mandate in State v. Van Wolvelaere, 195 Wn.2d 597, 461 P.3d 1173 (2020).
The parties filed supplemental briefs concerning Van Wolvelaere. The panel then
considered the appeal without hearing further argument.
ANALYSIS
The appeal raises two issues: is a dirt bike a motor vehicle, and was counsel
ineffective for not objecting to the testimony that Mr. Cargill was “deceptive”? We
address the questions in the order listed, answer the first question in the affirmative, and
answer the second in the negative.
2 No. 36140-3-III State v. Cargill
Dirt Bike as Motor Vehicle
When this court initially considered this case, the governing authority was found
in the fractured opinions in State v. Barnes, 189 Wn.2d 492, 403 P.3d 72 (2017), and this
court’s version of Van Wolvelaere.1 Now that the Washington Supreme Court has
reached a consensus, we apply their Van Wolvelaere opinion.
At issue here is whether a dirt bike, a form of motorcycle designed primarily for
off-road use, is a “motor vehicle” within the meaning of the possession of a stolen motor
vehicle statute, RCW 9A.56.068. That statute makes it a crime to possess “a stolen motor
vehicle.” Id. The statute does not define the word “motor vehicle,” an oversight that has
led to extensive litigation.
Mr. Cargill argues that because a dirt bike cannot legally be driven on the
roadways of this state, it cannot constitute a “motor vehicle.” Supp. Br. of Appellant at
2-3. The State argues that the dirt bike at issue in this case fits the definition of
“motorcycle” found in the traffic code and notes that motorcycles are expressly defined
as a motor vehicle per RCW 46.04.330. Supp. Br. of Resp’t at 2-4.
At issue in Van Wovelaere was whether a snowmobile was a “motor vehicle.” The
Van Wolvelaere majority began its analysis by reference to the criminal code’s definition
of “vehicle” found in RCW 9A.04.110(29), noting that the criminal definition cross-
State v. Van Wolvelaere, 8 Wn. App. 2d 705, 440 P.3d 1005 (2019), rev’d, 195 1
Wn.2d 597, 461 P.3d 1173 (2020).
3 No. 36140-3-III State v. Cargill
referenced the definition of “motor vehicle” found in the traffic code. Van Wolvelaere,
195 Wn.2d at 600-601. In turn, the traffic code defines both the word “vehicle” and the
word “motor vehicle.” Id. at 601. It then combined those two definitions into the
following working definition:
So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function).
Id.
After defining the test, the court applied a two-step process—is the device in
question self-propelled, and is it capable of moving people or property on the roadways?
Id. at 602. The court concluded that a snowmobile was a self-propelled device under the
traffic code, citing to RCW 46.04.546. McFarland, 195 Wn.2d at 602. The remaining
question was whether the snowmobile was capable of moving and transporting people on
a public highway. Id. The majority determined that the traffic code permitted
snowmobiles on a public highway in certain circumstances. Id. at 603-604. The majority
then concluded that a snowmobile was a motor vehicle. Id. at 604-606.
The parties frame their arguments against this backdrop—each acknowledging
that a dirt bike is self-propelled—with the State arguing that the definition of motorcycle
resolves the issue while Mr. Cargill argues that dirt bikes are not supposed to be used on
the public roadways. We believe Van Wolvelaere resolves the argument against Mr.
Cargill.
4 No. 36140-3-III State v. Cargill
Van Wolvelaere turned on the fact that snowmobiles not only were physically
capable of transporting humans on roadways, they also were legally authorized to do so in
some circumstances. Id. at 602-604. The same can be said for dirt bikes. Not only are
they motorcycles, an item that the legislature classifies as a motor vehicle, but they are
designed to convey humans on hard surfaces such as dirt or concrete. They are capable of
carrying people on the public roadways. Off-road motorcycles also are legally authorized
to convey humans on the roadways in some circumstances. RCW 46.61.705(1).2
Accordingly, a dirt bike is a motor vehicle under Van Wolvelaere.
The evidence was sufficient to support the conviction for possession of a stolen
motor vehicle.
Effective Assistance of Counsel
Mr. Cargill argues that his counsel was ineffective in failing to object to Sergeant
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FILED DECEMBER 15, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 36140-3-III Respondent, ) ) v. ) ) MICHAEL PATRICK CARGILL, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. — Michael Cargill appeals from convictions for possession of a stolen
motor vehicle, possession of a controlled substance, and possession of a motor vehicle
theft tool. We affirm.
FACTS
Following a report that a shop had been broken into and a pickup truck and dirt
bike stolen, police recovered the stolen pickup truck and received a tip about the location
of the missing dirt bike. Sergeant Kurt Vigesaa followed up on the tip and discovered
Michael Cargill working on the dirt bike. The sergeant arrested Cargill and transported
him to jail. A search at the jail uncovered methamphetamine and shaved car keys.
Sergeant Vigesaa testified at trial that he interviewed Cargill in the patrol car and
was told that an unknown person had brought the dirt bike to the house. Vigesaa told No. 36140-3-III State v. Cargill
Cargill he was acting deceptively and not being honest with him. Cargill then admitted
that his brother stole the bike and delivered it to him; he had lied to the officer initially in
order to protect his brother. Defense counsel did not object to the testimony.
Cargill testified at trial that he did not know that the bike was stolen and had
believed it belonged to a friend. He told Vigesaa that he did not know to whom the bike
belonged. He knew that his brother had stored stolen property at the house, but initially
told the officer that there was no other stolen property present, which was untrue. He
admitted being “deceptive” with the officer.
The jury found Mr. Cargill guilty on the three noted counts. Mr. Cargill timely
appealed to this court. A panel heard oral argument October 23, 2019, and soon
thereafter stayed the case due to the Washington Supreme Court granting review of the
primary issue presented here. The stay was lifted June 18, 2020, upon the issuance of the
mandate in State v. Van Wolvelaere, 195 Wn.2d 597, 461 P.3d 1173 (2020).
The parties filed supplemental briefs concerning Van Wolvelaere. The panel then
considered the appeal without hearing further argument.
ANALYSIS
The appeal raises two issues: is a dirt bike a motor vehicle, and was counsel
ineffective for not objecting to the testimony that Mr. Cargill was “deceptive”? We
address the questions in the order listed, answer the first question in the affirmative, and
answer the second in the negative.
2 No. 36140-3-III State v. Cargill
Dirt Bike as Motor Vehicle
When this court initially considered this case, the governing authority was found
in the fractured opinions in State v. Barnes, 189 Wn.2d 492, 403 P.3d 72 (2017), and this
court’s version of Van Wolvelaere.1 Now that the Washington Supreme Court has
reached a consensus, we apply their Van Wolvelaere opinion.
At issue here is whether a dirt bike, a form of motorcycle designed primarily for
off-road use, is a “motor vehicle” within the meaning of the possession of a stolen motor
vehicle statute, RCW 9A.56.068. That statute makes it a crime to possess “a stolen motor
vehicle.” Id. The statute does not define the word “motor vehicle,” an oversight that has
led to extensive litigation.
Mr. Cargill argues that because a dirt bike cannot legally be driven on the
roadways of this state, it cannot constitute a “motor vehicle.” Supp. Br. of Appellant at
2-3. The State argues that the dirt bike at issue in this case fits the definition of
“motorcycle” found in the traffic code and notes that motorcycles are expressly defined
as a motor vehicle per RCW 46.04.330. Supp. Br. of Resp’t at 2-4.
At issue in Van Wovelaere was whether a snowmobile was a “motor vehicle.” The
Van Wolvelaere majority began its analysis by reference to the criminal code’s definition
of “vehicle” found in RCW 9A.04.110(29), noting that the criminal definition cross-
State v. Van Wolvelaere, 8 Wn. App. 2d 705, 440 P.3d 1005 (2019), rev’d, 195 1
Wn.2d 597, 461 P.3d 1173 (2020).
3 No. 36140-3-III State v. Cargill
referenced the definition of “motor vehicle” found in the traffic code. Van Wolvelaere,
195 Wn.2d at 600-601. In turn, the traffic code defines both the word “vehicle” and the
word “motor vehicle.” Id. at 601. It then combined those two definitions into the
following working definition:
So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function).
Id.
After defining the test, the court applied a two-step process—is the device in
question self-propelled, and is it capable of moving people or property on the roadways?
Id. at 602. The court concluded that a snowmobile was a self-propelled device under the
traffic code, citing to RCW 46.04.546. McFarland, 195 Wn.2d at 602. The remaining
question was whether the snowmobile was capable of moving and transporting people on
a public highway. Id. The majority determined that the traffic code permitted
snowmobiles on a public highway in certain circumstances. Id. at 603-604. The majority
then concluded that a snowmobile was a motor vehicle. Id. at 604-606.
The parties frame their arguments against this backdrop—each acknowledging
that a dirt bike is self-propelled—with the State arguing that the definition of motorcycle
resolves the issue while Mr. Cargill argues that dirt bikes are not supposed to be used on
the public roadways. We believe Van Wolvelaere resolves the argument against Mr.
Cargill.
4 No. 36140-3-III State v. Cargill
Van Wolvelaere turned on the fact that snowmobiles not only were physically
capable of transporting humans on roadways, they also were legally authorized to do so in
some circumstances. Id. at 602-604. The same can be said for dirt bikes. Not only are
they motorcycles, an item that the legislature classifies as a motor vehicle, but they are
designed to convey humans on hard surfaces such as dirt or concrete. They are capable of
carrying people on the public roadways. Off-road motorcycles also are legally authorized
to convey humans on the roadways in some circumstances. RCW 46.61.705(1).2
Accordingly, a dirt bike is a motor vehicle under Van Wolvelaere.
The evidence was sufficient to support the conviction for possession of a stolen
motor vehicle.
Effective Assistance of Counsel
Mr. Cargill argues that his counsel was ineffective in failing to object to Sergeant
Vigesaa’s testimony that he disbelieved Cargill’s initial story. This argument fails to
meet the heavy burden placed on such contentions.
Well-settled standards govern review of this claim. An attorney’s failure to
perform to the standards of the profession will require a new trial when the client has
been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 333-335, 899
P.2d 1251 (1995). Courts must be highly deferential to counsel’s decisions when
2 The legislature also has established a process for registering off-road vehicles for on-road use. RCW 46.16A.435(1), (2).
5 No. 36140-3-III State v. Cargill
evaluating ineffectiveness claims. A strategic or tactical decision is not a basis for
finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel’s performance using a two-
prong test that requires determination whether or not (1) counsel’s performance failed to
meet a standard of reasonableness and (2) actual prejudice resulted from counsel’s failures.
Id. at 690-692. When a claim fails one prong, a reviewing court need not consider both
Strickland prongs. Id. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726
(2007). If the evidence necessary to resolve the ineffective assistance argument is not in
the record, the claim is not manifest and cannot be addressed on appeal. McFarland, 127
Wn.2d at 334.
Mr. Cargill argues that his counsel should have objected to Sergeant Vigesaa’s
testimony that Cargill was not honest with him. The decision was a tactical choice that
cannot be second-guessed now. At trial, Mr. Cargill gave a third version of events,
claiming that he did not know the vehicle was stolen and that it belonged to a friend.
Previously, he first told the officer that an unknown person brought the item to the house,
and then he told the officer that his brother had stolen it and brought it to the house.
The fact that he initially was being deceptive with the officer was clearly before
the jury because of the two different stories he gave to the officer. The sergeant’s belief
that Cargill was being deceptive with him added nothing to the narrative other than to
6 No. 36140-3-III State v. Cargill
explain why he continued to ask about the ownership of the dirt bike.3 The statement did
not constitute significant prejudice under these circumstances and counsel understandably
would not want to call further attention to the conflicting stories by objecting.
Mr. Cargill has not established that his counsel erred, let alone that he was
significantly prejudiced by the unchallenged testimony. Accordingly, he has not met his
burdens under Strickland. Counsel did not perform ineffectively.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Korsmo, J.
WE CONCUR:
_________________________________ Pennell, C.J.
_________________________________ Siddoway, J.
3 It might have been a relevant fact if the voluntariness of the statement was at issue or if the nature of the interrogation was somehow of concern at trial.