IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 54276-5-II

Respondent,

v.

KYLE ANTHONY PAGEL, UNPUBLISHED OPINION

Appellant

WORSWICK, J. — Kyle Pagel appeals his convictions for one count of second degree 

burglary and one count of first degree trafficking in stolen property. Pagel argues that he 

received ineffective assistance of counsel because his trial counsel failed to conduct a reasonable 

investigation, and that the accomplice liability statute, RCW 9A.08.020, is unconstitutionally 

overbroad and in violation of the First and Fourteenth Amendments. We hold that Pagel did not 

receive ineffective assistance of counsel. We do not reach the issue of whether the accomplice 

liability statute is overbroad because Pagel raises the issue for the first time on appeal and cannot 

show a manifest constitutional error. Accordingly, we affirm.

FACTS

I. BACKGROUND

In May 2019, Kyle Pagel, Brad Conners, and Jason Bennet went to a burned-out building 

to collect metal and sell it. Evan Krill, a neighbor to the building, saw three men and a black 

Chevrolet pickup truck approach the building. Krill then observed one of the men, wearing a red 

shirt, and another wearing black emerge from the building carrying pipe. Krill contacted the 

Filed

Washington State

Court of Appeals

Division Two

June 22, 2021
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sheriff’s department and described what he saw. The three men then put the pipe in the pickup 

truck and left in it.

Krill then drove to Sutter Metals, a nearby scrap metal yard. There, Krill saw a black 

Chevrolet pickup truck and one of the men he saw at the building. Krill again called the sheriff’s 

department and reported what he saw at Sutter Metals. Krill identified Pagel as the man in the 

red shirt. 

Pagel sold copper pipe to Sutter Metals for $85.15; $30 in cash and $55.15 in a check. 

Thurston County Sheriffs arrived at Sutter Metals and stopped the black pickup truck. Bennett 

and Conners were in the truck, and sheriff deputies later discovered Pagel hiding on the Sutter 

Metals property. Sheriff deputies arrested Pagel, and the State charged him with one count of 

burglary in the second degree and one count of trafficking in stolen property in the first degree. 

Pagel was charged with burglary as both a principle under RCW 9A.52.030, and as an 

accomplice under and RCW 9A.08.020.

II. TRIAL

The case proceeded to trial in October 2019. The day before trial, Pagel’s counsel

requested a continuance, stating: 

[M]y client is asking to continue. He did give me names and numbers of potential 

defense witnesses who have had similar dealings as are alleged in this case with a 

codefendant, Bradley Conners. I was able to reach and talk to one of those 

witnesses. I’ve left phone messages for the others.

Verbatim Report of Proceedings (VRP) (Oct. 21, 2019) at 39. The trial court denied Pagel’s 

motion.
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On the morning of the first day of trial, Pagel again requested a continuance. Pagel asked 

the court for time to call Conners as a witness to provide the court with information “material to 

the defense.” VRP (Oct. 22, 2019) at 5-6. Counsel stated:

I was not able to get a recorded statement. I was not able to subpoena him. I did 

not have a phone number or a location of his home or address that was good 

information until yesterday. My understanding is that if Mr. Conners were to 

testify that his testimony would be material to the defense. This is someone who 

was disclosed to me earlier. I did not have good contact information at the time. I 

did not have a phone number for him. My office, by way of my private 

investigator – my office investigator made contact with him yesterday afternoon 

and was able to follow up by going out to his place of work and his residence last 

night. This is newly discovered information. I’m stating that I did not have this 

contact information until yesterday, and I’ve attempted to follow up on that.

VRP (Oct. 22, 2019) at 5-6.

According to counsel, his private investigator informed Conners that counsel worked for 

Pagel, and if Conners testified he may wish to seek his own legal counsel. Counsel explained to 

the court:

As an offer of proof, Your Honor, it is my understanding that Mr. Conners would 

testify as to the material elements of knowing or knowingly as to Mr. Pagel’s 

knowledge as to whether they had permission to go into the building, whether my 

client’s state of mind at the time was that based on a conversation he had had with 

Mr. Conners that he thought they had permission both to go into the building, to 

take the scrap and to sell the scrap. My understanding is that Mr. Conners made 

those disclosures which would be beneficial to the defense if he would take the 

stand, but I again followed the duties as I see them under the RPCs to advise him 

he may wish to seek legal counsel. And after receiving that letter I can tell the 

court that we were not able to get a recorded statement.

VRP (Oct. 22, 2019) at 10.

The State responded:

So, if that is in fact what Mr. Conners would say, the state would certainly want to 

interview him and on the record. What he’s saying would be used against him 

most certainly. It would be evidence against Mr. Conners quite certainly. . . . 

He’s going to need counsel. 
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VRP (Oct. 22, 2019) at 12. The trial court denied Pagel’s motion for a continuance, stating, 

“[Q]uite frankly I find it difficult to believe that anyone’s going to waive their Fifth Amendment 

right and make statements on the witness stand that’s going to lead to their conviction and 

charging of this crime.” VRP (Oct. 22, 2019) at 13. The trial court also noted, “I don’t find it 

particularly credible that this other individual’s going to testify to this effect.” VRP (Oct. 22, 

2019) at 13. However, the court noted in its ruling that it would add Conners to the list of 

potential defense witnesses, and informed the parties that the court would allow Conners to 

testify if he appeared.

Later in the proceedings, counsel informed the court that his office had served a subpoena 

on Conners to appear at 1:30 p.m. Counsel also stated that he made arrangements for attorney 

Preston White to be present to represent Conners should he arrive. White informed the court of 

his presence in the courtroom to assist Conners. 

Later that same day, counsel stated: “Your Honor, I’d like to make a record that Mr. 

White was here in the courtroom from approximately 1:30 to about 2:20 p.m. During that time it 

does not appear that Mr. Bradley Conners showed up.” VRP (Oct. 22, 2019) at 155.

The owner of the burned-out building testified. He explained that the building suffered a 

major fire in November, 2018, and was later fenced off. The owner testified that the fence was 

erected to keep people out of the property. At the time of the burglary, the building was in the 

process of being reconstructed, and the owner had no plans to remove the plumbing. The owner 

did not know Pagel, Bennett, or Conners, and had not given them permission to enter the 

property or remove anything from the property.
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Pagel then testified that Conners told him they had permission to go in and collect the 

metal. Pagel testified that he did not go into the building but admitted going onto the property 

and helping the two other men carry the pipe to the pickup truck. Pagel admitted that he used his 

I.D. to sell the pipe to Sutter Metals.

The trial court’s jury instructions included an instruction on accomplice liability. The 

accomplice liability instruction stated, in pertinent part:

A person is an accomplice in the commission of a crime if, with knowledge that it 

will promote or facilitate the commission of the crime, he or she aids another 

person in committing the crime. The word ‘aid’ means all assistance whether 

given by words, acts, encouragement, support, or presence. A person who is 

present at the scene and ready to assist by his or her presence is aiding in the 

commission of the crime. However, more than mere presence and knowledge of 

the criminal activity of another must be shown to establish that a person present is 

an accomplice.

Clerk’s Papers (CP) at 64.

The jury found Pagel guilty of second degree burglary and first degree trafficking in 

stolen property. Pagel timely appeals.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Pagel argues that he was denied effective assistance of counsel because his counsel failed 

to conduct a timely investigation and secure the attendance of Conners at trial. We disagree. 

A. Standard of Review

Ineffective assistance of counsel is a mixed question of law and fact that we review de 

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate ineffective 

assistance, Pagel must show that (1) defense counsel’s performance was deficient, and (2) that 

the deficient performance resulted in prejudice to the defendant. State v. Linville, 191 Wn.2d 
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513, 524, 423 P.3d 842 (2018) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d. 674 (1984)). The failure to demonstrate either prong ends our inquiry. State 

v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018). 

B. Ineffective Assistance

To demonstrate deficient performance, Pagel must show on the record on appeal that his 

counsel’s performance was not objectively reasonable based on consideration of all the 

circumstances. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017). We strongly presume 

counsel’s performance was effective and reasonable. State v. Emery, 174 Wn.2d 741, 755, 278 

P.3d 653 (2012); State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). The failure to 

interview certain witnesses may constitute deficient performance. State v. Jones, 183 Wn.2d 

327, 340, 352 P.3d 776 (2015). “There is no claim for ineffective assistance of counsel when the 

challenged action goes to a legitimate trial strategy or tactic.” State v. Kolesnik, 146 Wn. App. 

790, 801, 192 P.3d 937 (2008). Accordingly, the threshold for deficient performance is high. 

State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To demonstrate prejudice, Pagel must 

show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” State v. Gregory, 192 Wn.2d 1, 22, 427 P.3d 621 (2018)

(quoting Strickland, 466 U.S. at 694). 

1. Pre-trial Investigation

First, Pagel argues that his counsel was deficient because he should have vigorously 

pursued an interview with Conners well before trial started. But the record shows that counsel 

made efforts to reach out to potential defense witnesses but was able to reach only one. Counsel 

was not able to locate Conners or obtain his contact information until the day before trial. Thus, 
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counsel could not have interviewed Conners because he could not find him, and Pagel fails to 

show on this record that counsel was deficient in his efforts to locate witnesses. Moreover, the 

record shows that once counsel did have Conners’s information, counsel had his office 

investigator contact Conners and interview him. After counsel informed Conners that he may 

wish to seek his own legal counsel, Conners apparently declined to make a statement. Thus, it is 

clear from the record that Pagel’s counsel pursued an interview with Conners as soon as he had 

Conners’s contact information, and that Conners became uncooperative.

Pagel argues that this case is controlled by State v. Jones, 183 Wn.2d at 337. In Jones, 

defense counsel failed to interview three eyewitnesses that were listed in discovery materials. 

183 Wn.2d at 337. There, defense counsel offered no reasons for failing to interview the 

witnesses, despite them being listed in the incident report. Jones, 183 Wn.2d at 338. Our 

Supreme Court determined Jones’s defense counsel was deficient, stating that ineffectiveness 

when counsel does not interview a witness “depends on the reason for the trial lawyer’s failure to 

interview. In Jones, trial counsel offered absolutely no reason for failing to interview these three 

witnesses.” 183 Wn.2d at 340.

Pagel’s case is distinguishable. Here, counsel reached out to multiple witnesses but could 

not locate Conners’s contact information until the day before trial. Once counsel received the 

contact information, his office conducted an investigation and attempted to obtain a recorded 

statement. Thus, the record here shows that Pagel’s counsel, unlike in Jones, interviewed 

Conners and attempted to obtain a statement, but Conners became uncooperative. Accordingly, 

Pagel’s trial counsel was not deficient for failing to conduct a pretrial investigation.
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2. Motion for Continuance

Second, Pagel argues that his trial counsel should have sought a continuance based on his 

need to locate and interview Conners before trial. In the same paragraph, however, Pagel 

concedes that his trial counsel obtained a one-week continuance before trial and sought a second 

continuance the day before trial.1 Thus, Pagel’s counsel was not deficient for failing to seek a 

continuance. 

3. Recorded Statement

Third, Pagel argues that his trial counsel should have obtained a recorded statement from 

Conners and served him with a subpoena before the start of trial. But Conners was under no 

obligation to consent to a recording. Indeed, counsel’s investigator was unable to obtain a 

recording once Conners was informed that Pagel’s counsel could not represent Conners. 

Additionally, counsel obtained a subpoena for Conners to appear, but Conners did not comply. 

Under the circumstances, counsel’s attempts were reasonable, and his performance was not 

deficient. 

4. Renewed Request for Continuance

Pagel argues that his defense counsel was deficient for not renewing his request for a 

continuance when Conners failed to appear for trial. But this decision falls into defense 

counsel’s trial strategy. Given that the trial court had granted one continuance, denied another 

on the first day of trial, but accepted adding Conners to Pagel’s witness list, it falls within 

 

1 Pagel argues that his trial counsel “never mentioned Conners” in his motion. Br. of Appellant 

at 10. However, the record on appeal shows that Hansen informed the court: “[M]y client is 

asking to continue. He did give me names and numbers of potential defense witnesses who have 

had similar dealings as are alleged in this case with a codefendant, Bradley Conners.” VRP (Oct. 

21, 2019) at 39. 
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counsel’s tactical discretion of whether or not it was prudent to make another motion to the court 

after Conners did not show up. Because this argument goes to a legitimate trial strategy, it fails.

5. Material Witness Warrant

Finally, Pagel argues that his defense counsel should have sought a material witness 

warrant for Conners. He argues that he was prejudiced by his counsel’s deficient performance 

because had he been present in court and called as a witness, Conners would have testified that 

he told Pagel that they had permission to go into the building and retrieve the metal. We

disagree. 

CrR 4.10(a) provides, in pertinent part:

The [material witness] warrant shall issue only on a showing . . . that

(1) The witness has refused to submit to a deposition ordered by the court 

pursuant to rule 4.6; or

(2) The witness has refused to obey a lawfully issued subpoena; or

(3) It may become impracticable to secure the presence of the witness by 

subpoena.

Here, Pagel’s trial counsel did not request a material witness warrant, despite Conners 

failing to appear after he was issued a subpoena. However, even assuming that counsel’s

decision not to request a material witness warrant during trial proceedings fell below the 

objective standard of reasonableness, Pagel cannot show prejudice. 

Pagel argues that Conners would have testified that he told Pagel they had permission to 

go into the building, but the only indication that Conners would have so testified is counsel’s 

offer of proof. And counsel arranged for an attorney to represent Conners, undoubtedly to advise 

Conners of his Fifth Amendment right to remain silent. Had Conners appeared, it is highly 

unlikely that he would have testified in a manner that incriminated himself. We agree with the 

trial court when it noted, “I don’t find it particularly credible that this other individual’s going to 
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testify to this effect.” VRP (Oct. 22, 2019) at 13. Thus, Pagel cannot show that his counsel’s 

performance prejudiced him.

II. CONSTITUTIONALITY OF RCW 9A.08.020

Pagel argues for the first time on appeal that the accomplice liability statute, RCW 

9A.08.020, is unconstitutionally overbroad, and that the trial court’s jury instruction was 

therefore also overbroad. Pagel argues that RCW 9A.08.020 allows conviction for protected 

speech. We do not consider this argument. 

We will not generally review error not raised in the trial court. RAP 2.5; State v. 

Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). Where a party claims constitutional error, 

we preview the merits of the claim to determine whether the argument is likely to succeed. State 

v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001). A party may raise an error for the first time on 

appeal if (1) it is a manifest error that (2) affects a constitutional right. RAP 2.5(a)(3); Kirkman, 

159 Wn.2d at 926. An error is “manifest” where a party shows that the constitutional error 

actually prejudiced the defendant at trial. Kirkman, 159 Wn.2d at 934-35. Our Supreme Court 

has “rejected the argument that all trial errors which implicate a constitutional right are 

reviewable under RAP 2.5(a)(3).” Kirkman, 159 Wn.2d at 934. Accordingly, we construe 

exceptions to RAP 2.5(a) narrowly. Kirkman, 159 Wn.2d at 935. 

RCW 9A.08.020(3) provides:

A person is an accomplice of another person in the commission of a crime if:

(a) With knowledge that it will promote or facilitate the commission of the crime, 

he or she:

(i) Solicits, commands, encourages, or requests such other person to commit it; or

(ii) Aids or agrees to aid such other person in planning or committing it; or

(b) His or her conduct is expressly declared by law to establish his or her 

complicity.
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First, Pagel’s claim raises a constitutional issue because it challenges the constitutionality 

of the accomplice liability statute under the First Amendment to the U.S. Constitution. Although 

Pagel raises a constitutional issue, he cannot show a manifest error.

All three divisions of this court have held that RCW 9A.08.020 is not unconstitutionally 

overbroad. In State v. Coleman, Division One explained that the statute “avoids protected 

speech activities that are not performed in aid of a crime and that only consequentially further the 

crime.” 155 Wn. App. 951, 961, 231 P.3d 212 (2010) review denied, 170 Wn.2d 1016, 245 P.3d 

772 (2011). 

In State v. Ferguson, we explained, 

Because the statute’s language forbids advocacy directed at and likely to incite or 

produce imminent lawless action, it does not forbid the mere advocacy of law 

violation that is protected under the holding of Brandenburg.

2 Agreeing with and 

adopting Division One’s rationale in Coleman, we also hold that the accomplice 

liability statute is not unconstitutionally overbroad.

164 Wn. App. 370, 376, 264 P.3d 575 (2011). 

In State v. Holcomb, Division Three rejected an argument that both Coleman and 

Ferguson were wrongly decided. 180 Wn. App. 583, 590, 321 P.3d 1288 (2014) review denied

180 Wn.2d 1029, 331 P.3d 1172 (2014). The Holcomb court concluded the statute was 

constitutional, explaining, “[T]he accomplice liability statute has been construed to apply solely 

when the accomplice acts with knowledge of the specific crime that is eventually charged, rather 

than with knowledge of a different crime or generalized knowledge of criminal activity.” 180 

Wn. App. at 590. 

 

2 Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
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Pagel argues, however, that we should reject all these holdings because their reasoning is 

flawed. He argues that the statute’s use of “aid” can involve “pure speech.” Br. of Appellant at 

18-22. But we rejected that argument in State v. McPherson, 186 Wn. App. 114, 120, 344 P.3d 

1283 (2015). We explained: “‘aiding’ was limited to acts that also involved conduct, so 

Ferguson’s and Coleman’s reliance on case law involving conduct was not misplaced. We 

adhere to the prior decisions and analysis in Coleman, Ferguson, and Holcomb, and 

McPherson’s challenge to the accomplice liability statute fails.” McPherson, 186 Wn. App. at 

120-21.

Pagel cannot show a manifest error because the trial court would have overruled any 

objection to the accomplice liability jury instruction based on these precedents. Thus, Pagel 

cannot show that he would have been actually prejudiced at trial. Accordingly, we need not 

reach Pagel’s challenge to the RCW 9A.08.020. We affirm. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Worswick, J.

We concur:

Lee, C.J.

Cruser, J.