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.
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 In the unpublished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.
we affirm Yelovich's conviction.
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.
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.
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.
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.
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
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
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
convicted Yelovich of the felony contact order
violation. Yelovich appeals his conviction.
argues that the trial court erred by refusing to give a
defense of property jury instruction. We disagree.
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).
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
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.
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.
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