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State v. Yelovich

Court of Appeals of Washington, Division 2

October 24, 2017

STATE OF WASHINGTON, Respondent,
v.
STEVEN BRIAN YELOVICH, Appellant.

          MAXA, J.

         Steven Yelovich appeals his conviction for violating a felony no-contact order. The conviction related to his assault of Faith De Armond, the protected party. Yelovich claims that his altercation with De Armond occurred when he was defending his property -attempting to recover a cell phone that he alleges De Armond took from him.

         Yelovich argues the trial court erred by refusing to give a defense of property jury instruction. In the published portion of this opinion, we hold that the evidence did not support a defense of property jury instruction because Yelovich used force not to prevent his property from being taken, but to recover property after the taking had been completed and the property had been removed from his area of control. In the unpublished portion, we reject Yelovich's additional argument that the trial court erred in allowing the State to reopen its case after he testified.

         Accordingly, we affirm Yelovich's conviction.

         FACTS

         Assault and Arrest

         Yelovich and De Armond dated for several years before breaking up. A domestic violence no-contact order was in place that prevented Yelovich from contacting De Armond.

         According to Yelovich, on the morning of June 7, 2015, he was at his son's house packing boxes in the garage and moving them to his car. While he was working, Yelovich left several items unattended in his car, which had a broken passenger-side window. One of the items was a cell phone. As Yelovich was taking a box to his car, he caught a glimpse of someone walking down the street. At that time, he could not tell who the person was. When he reached his car, he noticed that his cell phone and other items were missing.

         Yelovich walked to the middle of the street and saw that the person in the street was De Armond. De Armond was repeatedly turning around and looking back toward Yelovich. Yelovich immediately believed that she had taken his cell phone.

         Yelovich got into his car and chased after De Armond. He drove to the end of the road a few blocks away and turned the corner before encountering De Armond. He parked his car, got out, and demanded that she return his phone. Yelovich knew at that point that he was violating the no-contact order. But he believed that the action was necessary before De Armond disappeared with his phone.

         Yelovich grabbed De Armond's purse strap and attempted to pull the purse from her, believing that the cell phone was in the purse. De Armond resisted, holding tightly to her purse. In the struggle, De Armond fell to the ground. After a bystander intervened, law enforcement officers arrived and arrested Yelovich.

         The State charged Yelovich with violating the no-contact order. The information alleged that Yelovich had assaulted De Armond, making the violation a felony under RCW 26.50.110(4).[1]

         Trial and Conviction

         At trial, the witnesses testified to the facts recited above. Yelovich proposed a jury instruction that included both defense of property and self-defense components. The trial court ruled as a matter of law that a defense of property instruction did not apply because Yelovich was not using force to prevent the cell phone from being taken; he was trying to recover the cell phone that was no longer in his possession.

         A jury convicted Yelovich of the felony contact order violation.[2] Yelovich appeals his conviction.

         ANALYSIS

         Yelovich argues that the trial court erred by refusing to give a defense of property jury instruction.[3] We disagree.

         A. Legal Background

         Violation of a domestic violence no-contact order typically is a gross misdemeanor. RCW 26.50.110(1)(a). The violation becomes a felony if it involves an assault. RCW 26.50.110(4).

         The State alleged that Yelovich assaulted De Armond by using force against her. As a defense to assault, the defendant may raise a defense that he or she used force while defending his or her personal property. Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 506, 125 P.2d 681 (1942). RCW 9A.16.020(3) states that the use of force is not unlawful

[w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.

         (Emphasis added.)

         "A criminal defendant is entitled to an instruction on his or her theory of the case if the evidence supports the instruction." State v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010). Regarding a self-defense or defense of another theory, a defendant is entitled to an instruction if there is "some evidence" to support that theory. Id. at 336-37 (self-defense); see also State v. Marquez, 131 Wn.App. 566, 578, 127 P.3d 786 (2006) (defense of another). The "some evidence" threshold is a low burden; the evidence does not even need to create a reasonable doubt. State v. George, 161 Wn.App. 86, 96, 249 P.3d 202 (2011). Because defense of property is addressed in the same statute as self-defense and defense of another, we apply the same rule to defense of property.

         The trial court must evaluate evidence supporting a defense of property instruction "from the standpoint of a reasonably prudent person who knows all the defendant knows and sees all the defendant sees." State v. Read, 147 Wn.2d 238, 242, 53 P.3d 26 (2002) (addressing self-defense). This analysis involves both subjective and objective components. Mat 242-43. For the subjective component, the court must "place itself in the defendant's shoes and view the defendant's acts in light of all the facts and circumstances the defendant knew when the act occurred." Id. at 243. For the objective component, the court must "determine what a reasonable person would have done if placed in the defendant's situation." Id. The ultimate question is whether the defendant subjectively believed that the use of force was necessary and whether that belief was objectively reasonable. See id.

         Whether the evidence is sufficient to support a defense of property instruction is a question of law that we review de novo. See State v. Fisher,185 Wn.2d 836, 849, 374 P.3d 1185 (2016) (stating rule for self-defense). In deciding whether such an instruction should have been given, we must view the evidence in the light most favorable to the defendant. Id. And the defendant can rely on any ...


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