State v. Yelovich

This opinion was filed for record

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 95192-6
V.

En Banc
STEVEN BRIAN YELOVICH,

Petitioner. Filed: $EP 2 fl 2018

YU,J.— Petitioner Steven Yelovich asks this court to consider whether an

individual defendant is entitled to a jury instruction on defense of property

pursuant to ROW 9A.16.020 as an affirmative defense to assault. While the issue

presented raises many interesting questions about the availability of the defense in

general assault cases, the facts of this case govern the outcome, and so we resolve

it on narrower grounds. We hold a defense of property jury instruction is not

available when there is a valid court order prohibiting the defendant from

contacting the protected party. We therefore affirm the Court of Appeals on

different grounds.
State V. Yelovich, No. 95192-6
r

FACTUAL AND PROCEDURAL BACKGROUND

Steven Yelovich and Faith De Armond dated for more than five years. 3

Verbatim Transcript ofProceedings(VTP)(Apr. 7, 2016) at 255; 4 VTP(Apr. 12,

2016) at 322. It is undisputed that at all times relevant to this case there was a

valid court order prohibiting Yelovich from contacting De Armond. 3 VTP (Apr.

7, 2016) at 256; Ex. 1. The order forbids Yelovich from "[cjoming near and from

having any contact whatsoever, in person or through others, by phone, mail or any

means, directly or indirectly" with De Armond. Ex. 1. It also prohibited Yelovich

from causing any physical harm or bodily injury to De Armond. Id.

On the day in question, Yelovich parked his car in the driveway of his son's

house. 3 VTP (Apr. 7, 2016) at 258-60. He was moving boxes from the garage,

and an approximately four-and-a-half-foot wood fence separated him and his car.

Id. at 260-61. After about an hour, Yelovich believed he saw someone through the

fence, but he could not identify the person. When he went to his car, which had a

broken passenger window, he saw that his cell phone and other personal

belongings were missing. Id. at 264-65. He saw De Armond walking down the

street, and he testified at trial that he "knew then that she did it," Id. at 265.

Yelovich was aware that he was prohibited from contacting De Armond, but

he thought the police would not arrive in time to recover his phone. Id. at 267.

Although he admitted it "was an irrational, radical move," he chased after her in
State V. Yelovich, No. 95192-6

his car. Id. When he found her a few blocks later, he got out of his car and

attempted to take her purse because he believed she had put his phone in it. Id. at

271-75. A struggle ensued, and De Armond testified that he was "bouncing [her]

off the ground." 4 VTP (Apr. 12, 2016) at 325. Her testimony was corroborated

by a Good Samaritan who intervened. He testified that he "saw a man straddling a

female. I saw him striking her," and "he was lifting her up offthe ground and

slamming her on the ground." 2 VTP (Apr. 6, 2016)at 125-26, 128.

Both the fire department and police responded to the incident. De Armond

was treated for minor injuries, including redness, bruising, and a small laceration.

Id. at 154-55. The responding police officer who interviewed De Armond noted

she seemed intoxicated and "[s]he had a really hard time keeping herself together."

Id. at 150.

The State charged Yelovich with one count of felony violation of a no-

contact order predicated on his assault ofDe Armond and one count of bail

jumping. Clerk's Papers(CP)at 47-48. At trial, he argued that he was entitled to a

jury instruction on defense of property because he was protecting his cell phone,

which he believed De Armond had stolen. The judge refused, reasoning that

Yelovich "was acting offensively, not defensively to protect property." 4 VTP

(Apr. 12, 2016) at 382. The judge explained,

I am not aware of a single case in the State of Washington or any
statutory authority that would let him do that, that would let him use
State V. Yelovich, No. 95192-6

force to recover property under such circumstances. I am unwilling to
instruct the jury that as a matter oflaw he could use force to get back
a cell phone that he believed had been wrongly taken. The law
doesn't support that.

Id. The jury was then instructed that to convict Yelovich of felony violation of a

no-contact order it must find each ofthe following elements proved beyond a

reasonable doubt:

(1) That on or about June 7, 2015, there existed a no-contact order
applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a
provision of this order;
(4) That the defendant's conduct was an assault; and
(5) That the defendant's act occurred in the State of Washington.

CP at 74(emphasis added). The jury convicted Yelovich as charged, and he

appealed only his felony violation ofthe no-contact order on the basis that he was

improperly denied a jury instruction. Id. at 62, 64. The Court of Appeals affirmed

the trial court, and Yelovich appealed. We granted review.

ISSUE

Whether it was reversible error for the trial court to refuse to instruct the jury

on the affirmative defense of defense of property?

ANALYSIS

Violation of a no-contact order is usually a gross misdemeanor, but it is

elevated to a class C felony if the restrained party assaults the protected party

during the violation. RCW 26.50.110(4). Therefore, assault is an essential
State V. Yelovich, No. 95192-6

element ofthe crime offelony violation of a no-contact order, and the State must

prove it occurred beyond a reasonable doubt. State v. Oster, 147 Wn.2d 141, 146,

52 P.3d 26(2002). The issue we must decide is whether Yelovich is entitled to

raise defense of property pursuant to RCW 9A.16.020 as an affirmative defense to

the assault element. We review the contested jury instruction de novo because it

was decided as a matter oflaw, as opposed to abuse of discretion when the

decision rests on the facts ofthe case. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d

743, 767, 389 P.3d 517(2017){oyjLOtmg Kappleman v. Lutz, 167 Wn.2d 1, 6, 217

P.3d 286 (2009)).

Yelovich relies on RCW 9A.16.020 to claim that he may use defense of

property as an affirmative defense. The statute states:

The use, attempt, or offer to use force upon or toward the person of
another is not unlawful . ..

. . .[wjhenever 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 personalproperty lawfully in his
or her possession, in case the force is not more than is necessary.

RCW 9A.16.020(3)(emphasis added). Yelovich argues the statute provides "a

valid affirmative defense whenever assault is charged or whenever assault is an

element of the charged crime," and therefore it may be used when the charged

crime is felony violation of a no-contact order. Suppl. Br. ofPet'r at 8. However,
State V. Yelovich, No. 95192-6

Yelovich's position ignores the critical role ofthe underlying no-contact order in

this case.

The no-contact order prohibits Yelovich from "having any contact

whatsoever" with De Armond and expressly forbids him from "[cjausing or

attempting to cause physical harm, bodily injury,[or] assault" Ex. 1 (emphasis

added). The standard language included in the order warns Yelovich that as the

restrained party, he "ha[s] the sole responsibility to avoid or refrain from violating

the order's provisions. Only the court can change the order upon written

application." Ex. 1, at 2(emphasis added). Despite this clear language, Yelovich

claims that when he is protecting his property, he has the right not only to contact

De Armond but also to use violent force against her, thus reducing his felony

violation to a misdemeanor.

In effect, Yelovich seeks to circumvent the plain language ofthe order while

avoiding the directive that any modifications must be made by "written

application" to the court. Id. This court rejected a similar argument in State v.

Dejarlais, 136 Wn.2d 939, 969 P.2d 90(1998). The defendant argued that the no-

contact order could not be enforced because the protected party consented to the

contact. Id. at 943. We held that consent "is not only inconsistent with, but would

undermine" the legislature's intent to protect victims of domestic violence. Id. at

944. Furthermore, the court explained, allowing parties to consent to contact
State V. Yelovich, No. 95192-6

"would result in a de facto modification" of the order, despite the order's terms that

it can be modified only after notice to all parties and a hearing. Id. at 945.

We apply the same reasoning here and decline to create an exception for

defense of property because doing so is inconsistent with the plain language of the

order and the legislature's policy. By the terms ofthe order, Yelovich has no

power to engage in self-help if doing so brings him into contact with De Armond.

This bright line rule ensures that victims are not left wondering whether conduct

prohibited by the no-contact order might later be deemed lawful. It therefore

furthers the legislature's goal to provide "victim[s] of domestic violence the

maximum protection from abuse." RCW 10.99.010.

In sum, Yelovich had "sole responsibility" for not violating the terms of a

valid court order that forbids him from contacting De Armond, and so he had no

authority to chase De Armond when he believed she had taken his phone.^ Ex. 1,

at 2. Accordingly, Yelovich is not entitled to a jury instruction on defense of

property because his conduct violated the court order.

'We do not address whether necessity can ever be a defense to violation of a no-contact
order because Yelovich concedes that he did not raise necessity as a defense. Suppl. Br. of Pet'r
at 8 n.3. We also note that in this instance, Yelovich had reasonable, legal alternatives because
he admitted at trial he could have called the police. 3 VTP (Apr. 7,2016) at 267.

7
State V. Yelovich, No. 95192-6

CONCLUSION

Because Yelovich was subject to a valid court order prohibiting him from

contacting De Armond, we hold that Yelovich is not entitled to a defense of

property jury instruction to rebut the assault element. We therefore affirm the trial

court and the Court of Appeals on different grounds.
State V. Yelovich, No. 95192-6

WE CONCUR:

~7A\A liAAA^'hc

I
state V. Yelovich, No. 95192-6

No. 95192-6

WIGGINS, J. (concurring in result only)—The majority reaches the correct

conclusion in this case, but it does so for the wrong reasons. We are not asked to

decide whether the protection of property can serve as a complete defense to the

crime of violation of a no-contact order. It is clear that it cannot. Instead, we must

decide whether defense of property can be used to rebut the single essential element

of assault, which elevates the violation from a gross misdemeanor to a felony. The

majority fails to apply the plain language of RCW 9A.16.020 and rewrites the law in

an understandable but misguided attempt to protect victims from abusers who violate

domestic no-contact orders. The majority also misapprehends the consequences of

permitting a limited defense of property under the plain language of RCW 9A.16.020.

The defense does not rewrite no-contact orders to justify assaults, nor does it

undermine the legislature's intent to protect victims of domestic violence.

Consequently, I would instead hold that an affirmative defense under RCW 9A.16.020

is generally available to rebut the element of assault in felony violation of a no-contact

order. But because Steven Yelovich sought to recover rather than protect his property,

the defense was not available to him in this case. Thus, I would also affirm.
 state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

I. Defense of property

In most circumstances, the violation of a domestic violence no-contact order is a

gross misdemeanor. RCW 26.50.110(1 )(a). However, if the violation involves an

assault, it becomes a felony. RCW 26.50.110(4).

Here, the State alleged that Yelovich violated a no-contact order by assault.

Clerk's Papers(CP)at 3-4. Based on that charge, the trial court instructed the jury as

follows:

To convict the defendant of the crime of felony violation of a court
order as charged in Count I, each of the following five elements of the
crime must be proved beyond a reasonable doubt:

(1)That on or about June 7, 2015,there existed a no-contact order
applicable to the defendant;

(2)That the defendant knew of the existence of this order;

(3)That on or about said date, the defendant knowingly violated a
provision of this order;

(4) That the defendant's conduct was an assault, and

(5)That the defendant's act occurred in the State of Washington.

CP at 74 (emphasis added). Thus, assault was an essential element of the crime.

State V. Oster, 147 Wn.2d 141, 146, 52 P.3d 26(2002). The jury was further instructed

on the elements required to find that an assault had occurred.

The fact that the no-contact violation included an alleged assault elevated

Yelovich's violation from a gross misdemeanor to a felony. Without the assault,

Yelovich would have still been charged with violating the no-contact order, but the

offense would have been a gross misdemeanor, not a felony. RCW 26.50.110. As a
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

result, the trial court also instructed the jury on the lesser included offense of violation

of a court order;

The defendant is charged in count I with Felony Violation of a
Court Order. If, after fuirand careful deliberation on this charge, you are
not satisfied beyond a reasonable doubt that the defendant is guilty, then
you will consider whether the defendant is guilty of the lesser crime of
Violation of a Court Order.

A person commits the crime of violation of a court order when he
or she knows of the existence of a court order and knowingly violates
such order.

CP at 79-80.

Yelovich argues that he should have been able to raise a defense of protection

of property to rebut the element of assault in the charge of felony violation of a no-

contact order. If successful in convincing the jury on a defense of property, Yelovich

would have been guilty only of a misdemeanor violation of a no-contact order, not a

felony violation.

Whether defense of property is a valid affirmative defense to the element of

assault in felony violation of a domestic violence no-contact order is a question of first

impression. To answer this question, we must interpret the language of and

relationship between RCW 9A.16.020, which specifies the situations in which the use

of force is not unlawful, and RCW 26.50.110, which criminalizes the violation of

protection orders.

Our first priority in statutory interpretation is to "ascertain and carry out . . .

legislative intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result oniy)

P.3d 4 (2002). We first examine the plain language of the statute "as '[t]he surest

indication of legislative intent.'" State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740

(2015)(alteration in original) (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d

354(2010)). To interpret a statute's plain language, we examine the text of the statute,

'"as well as "the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole.'"" Id. (quoting Ervin, 169 Wn.2d at

820)(quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005))); see also

Campbell & Gwinn, 146 Wn.2d at 11 (stating that "meaning is discerned from all that

the Legislature has said in the statute and related statutes which disclose legislative

intent about the provision in question"). We may not interpret a statute in a way that

renders a portion "'meaningless or superfluous.'" State v. K.L.B., 180 Wn.2d 735, 742,

328 P.3d 886 (2014)(quoting Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 601, 278

P.3d 157 (2012)).

I begin with RCW 9A.16.020, which specifies the situations in which the use of

force is not unlawful. Relevant here is RCW 9A.16.020(3), which discusses when

force may be used to defend property:

The use, attempt, or offer to use force upon or toward the person of
another is not unlawful in the following cases:

. . . Whenever 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.
state V. Yelovicfi, No. 95192-6
(Wiggins, J., concurring in result only)

The statute has no limiting language, stating that the use of force is not unlawful

"[w]henever" a party uses reasonable force to prevent interference with his or her

property. Id. (emphasis added). The statute does not define "whenever," but the

ordinary definition is very broad: "at any or all times that: in any or every instance in

which . . . ." Webster's Third New International Dictionary 2602(2002). Thus, the

plain language of the statute authorizes the use of force in any instance in which a

party uses a reasonable amount of force to prevent interference with his or her

personal property. RCW 9A.16.020(3). The defense of property is commonly used as

an affirmative defense in assault cases.

For example, in State v. Bland, the Court of Appeals held that the jury was

improperly instructed on a defense of property. 128 Wn. App. 511, 513, 116 P.3d 428

(2005). Bland invited Moore to stay at his house after she had been released from jail.

Id. The two argued, and Bland chased Moore into a bedroom while holding a gun. Id.

Bland argued that he acted to prevent Moore from damaging his property. Id. Because

the jury instructions failed to properly instruct the jury on Bland's theory of defense of

property, the court remanded the case for further proceedings. Id.] see also Peasley

V. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942)(holding that

the jury should have been instructed on defense of property in a case of alleged

assault where the defendant argued he was preventing the victim from taking

property).

The plain language of RCW 9A.16.020 does not limit the use of this defense to

those cases in which assault is charged independently. As a result, the plain language
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

of RCW 9A.16.020 would apply to the element of assault in felony violation of a

domestic violence no-contact order. The defense, if successful, justifies only the use

of force to protect property. The affirmative defense does not justify the violation of a

no-contact order. Thus, a successful defense is successful only in refuting the singular

assault element, not the entire crime. This does not "circumvent the plain language"

of a no-contact order. Majority at 6. It simply reduces the crime from a felony violation

of a no-contact order predicated on assault to a gross misdemeanor violation of a no-

contact order.

However, the majority concludes that the legislative intent and the public policy

underlying domestic violence no-contact orders require us to interpret RCW 26.50.110

as prohibiting the defense in this context. Majority at 7. Based on the language of

RCW 26.50.110, I respectfully disagree.''

RCW 26.50.110 is part of the comprehensive legislative scheme of addressing

and preventing domestic violence. It criminalizes the violation of protection orders:

(1)(a) Whenever an order is granted under this chapter . . . and the
respondent or person to be restrained knows of the order, a violation of
any of the following provisions of the order is a gross misdemeanor,
except as provided in subsections (4) and (5) of this section:

(4) Any assault that is a violation of an order issued under this
chapter . . . and that does not amount to assault in the first or second
degree . . . is a class C felony, and any conduct in violation of such an
order that is reckless and creates a substantial risk of death or serious
physical injury to another person is a class C felony.

^ I also note that the majority falls to support its conclusion with any statutory language, choosing
Instead to focus on the language of the no-contact order. Majority at 6. In fact, the majority fails
to even engage in a statutory analysis of the statutes at issue here.
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

RCW 26.50.110. The legislature created the domestic violence protection order so

that victims of domestic violence have "easy, quick, and effective access to the court

system." Laws of 1992, ch. 111, § 1. It found that protective orders are a "valuable

tool to increase safety for victims and to hold batterers accountable." Id. The

legislature also made numerous general findings about the evils of domestic violence:

Domestic violence is a problem of immense proportions affecting
individuals as well as communities. Domestic violence has long been
recognized as being at the core of other major social problems: Child
abuse, other crirhes of violence against person or property, juvenile
delinquency, and alcohol and drug abuse. Domestic violence costs
millions of dollars each year in the state of Washington for health care,
absence from work, services to children, and more. The crisis is growing.

Domestic violence must be addressed more widely and more
effectively in our state: Greater knowledge by professionals who deal
frequently with domestic violence is essential to enforce existing laws, to
intervene in domestic violence situations that do not come to the
attention of the law enforcement or judicial systems, and to reduce and
prevent domestic violence by intervening before the violence becomes
severe.

Id. Based on this language, it is clear that the legislature intended to protect victims of

domestic violence from future harm through the creation of protective orders.

Previously, we have relied on this intent when deciding whether to recognize a

complete defense to the crime of violating a no-contact order.

For example, we have refused to recognize consent as a defense to the crime

of violating a domestic violence no-contact order. State v. Dejarlais, 136 Wn.2d 939,

942, 969 P.2d 90 (1998). We held that "allowing consent as a defense is not only

inconsistent with, but would undermine, [the legislature's] intent." Id. at 944. We also
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

noted that "[t]he statutory elements of the crime of violation of a protection order do

not address consent. Nor did the Legislature affirmatively establish consent as a

defense elsewhere in RCW 26.50." /d.^at 943.

Here, however, we are faced with a different question. We are not deciding

whether the protection of property can serve as a complete defense to the crime of

violation of a no-contact order. It is clear that it cannot. Instead, we must decide

whether defense of property can be used to rebut the essential element of assault in

felony violation of a no-contact order.

Unlike Dejarlais, here, the legislature has explicitly permitted the affirmative

defense for the use of force to protect property. "[WJhenever" a party uses reasonable

force to protect his or her property, the defense of property may apply. RCW

9A.16.020(3). Assault, which necessarily involves the use of force, is an essential

element of the crime of felony violation of a no-contact order, RCW 26.50.110(4), and

the word "whenever" is unambiguous—it does not exclude any context.

In contrast, we recognized in Dejarlais that the misdemeanor crime of violation

of a no-contact order did not address consent or any other applicable defenses. 136

Wn.2d at 943. Thus, the situation in that case was fundamentally different. We may

not interpret RCW 9A.16.020 in a way that renders any portion meaningless or

superfluous. K.L.B., 180 Wn.2d at 742. Because the legislature has explicitly

permitted the defense of property "whenever" a party uses reasonable force to protect

his or her property, the statutory language of the laws at issue permits the defense.
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

Neither does the application of the defense to the element of assault undermine

the legislature's Intent to protect victims of domestic violence. The defense does not

exculpate a defendant from violating the terms of a no-contact order, contrary to the

majority's claims otherwise. Majority at 6. At most, the application of the defense, if

found credible by a jury, would lower the crime from a class C felony to a gross

misdemeanor. RCW 26.50.110. In either case, the State will still "hold batterers

accountable" for violating a court's order of no-contact. Laws of 1992, ch. 111, § 1.

Given the language of the statutes at issue, and the fact that even in defense

of property situations defendants will still be accountable for violating a no-contact

order, I would hold that defense of property is generally available to rebut the element

of assault in felony violation of a no-contact order predicated on assault.

The use of force to recover property

Here, Yelovich used force against Faith De Armond in an attempt to recover his

already stolen property. Thus, we must also determine whether the defense of

property includes the right to use force to recover stolen property. Based on the

statutory language and the modern trend of the common law, I would hold that the

defense does not justify the use of force to recover stolen property.

RCW 9A.16.020(3) reads as follows:

The use, attempt, or offer to use force upon or toward the person of
another is not unlawful . . . :

...[wjhenever used by a party about to be injured ... in preventing
or attempting to prevent. . . malicious interference with real or personal
property lawfully in his or her possession, in case the force is not more
than is necessary.
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

The statute has three main requirements. First, the defendant must be "about to be

injured." Id. Second, the defendant must be "preventing or attempting to prevent"

interference with property. Id. Third, that property must be "lawfully in [the defendant's]

possession." Id.

These requirements make it clear that defense of property must be used

defensively rather than offensively. Once the interference with the defendant's

property is complete, the defendant is not "about to be injured," nor can he "prevent[]

or attempt[ ] to prevent" the interference. Id. Instead, at that point, any injury to the

defendant has occurred, and any use of force necessarily involves the recovery of

property, rather than the prevention of the thief's interference with that property.

Additionally, a defendant may use reasonable force only to protect property that is

"lawfully in his or her possession." Id. When the interference with the defendant's

property is complete, that property is no longer in the defendant's possession. As a

result, once the defendant loses control of the property and can no longer act to

prevent the interference, defense of property no longer applies.

Although the statutory language is clear that defense of property does not apply

to situations involving the recovery of property, Yelovich makes two arguments that

the use of force to recover property is sanctioned—either under the statute or under

the common law. First, Yelovich argues that a malicious interference with property is

not complete once an owner loses possession of his or her property. Second, he

argues that there is a common law right to use reasonable force to recover property.

10
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

as long as the recovery is acconnplished during a "fresh pursuit." I address each of

these arguments in turn and find neither persuasive.

A. Malicious interference with property

Yelovich first argues that malicious interference with property is incomplete

when a victim discovers that his or her property has been stolen and the thief is still

within sight of the victim. Neither the language of the statute nor the case law supports

this position.

First, RCW 9A.16.020(3) implies that a malicious interference with property is

complete once the victim no longer has possession of the property. The statute

permits a person to use reasonable force to prevent a "malicious interference with real

or personal property lawfully in his or her possession." Id. "Possession" is "the act or

condition of having in or taking into one's control or holding at one's disposal . . .

something owned, occupied, or controlled . . . ." Webster's, supra, at 1770. Thus,

once a thief has possession of the property, the defendant lacks possession and the

statute no longer applies.

Second, other jurisdictions with similarly worded statutes have held that

interference with property is complete once a thief takes possession of property and

moves that property away from a defendant's control. For example, in People v.

Oslund, the Colorado Court of Appeals held that a defendant was not entitled to a

defense of property instruction when he pursued and punched a thief who had

allegedly stolen property from the defendant's car. 2012 COA62, Ulj 23-26, 292 P.3d

1025, 1029. The court concluded that "the theft was completed when [the thief] not

11
state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

only exercised control of the property, but moved it away from an area within

defendant's control." Id. Tf 24.

The Hawaii Supreme Court relied on similar reasoning when it held that "'[a]n

essential element of the so-called justification defenses^^^ is that a direct causal

relationship be reasonably anticipated to exist between the defender's action and the

avoidance of harm.'" State v. Marley, 54 Haw. 450, 472-73, 509 P.2d 1095 (1973)

(quoting United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972)). As a result,

Hawaii and other states require that the defendant be present during the thief's

interference with the property for defense of property to apply. See id.] see also State

V. Nelson, 329 N.W.2d 643, 646(Iowa 1983)("[T]he criminal act that defendant seeks

to prevent or terminate must be committed in defendant's presence.").

Here, the harm to be avoided in ROW 9A.16.020(3) is the deprivation of the

defendant's possession of property. "When [the defendant] is not present at the time

of wrongful taking, or the property is elsewhere, there is no necessity or urgency that

would call for the use offeree to prevent the wrongful activity." Nelson, 329 N.W.2d at

646. Once the thief obtains possession of the property and the defendant must pursue

him or her to regain possession, the malicious interference is complete, and the

defense of property statute does not apply.

^ "Prevention or termination of the commission of a crime is only one of several 'justification'
defenses. Some of the others are self-defense, defense of another, and defense of property."
State V. Marley, 54 Haw. 450, 470, 509 P.2d 1095(1973).

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

As a result, I would hold that malicious interference with property is complete

once the thief obtains possession of the defendant's property and moves that property

beyond the defendant's control.

B. Common law right to use force to recover property

Yelovich next argues that there is a common law defense that permits the use

offeree to recover property so long as the property is recovered during a fresh pursuit.

Fresh pursuit is a common law doctrine, now codified in RCW 10.93.120, that permits

law enforcement officials to make arrests outside of their usual jurisdiction when they

are in "fresh pursuit." State v. Malone, 106 Wn.2d 607, 609-10, 724 P.2d 364 (1986).

The statute defines "fresh pursuit" as "pursuit without unreasonable delay." RCW

10.93.120(2). The statute also incorporates the common law definition of "fresh

pursuit." Id. The common law definition has five elements; relevant here are

unnecessary delay, continuous and uninterrupted pursuit, and '"a relationship in time

between the commission of the offense, commencement of the pursuit, and

apprehension of the suspect.'" CityofTacoma v. Durham, 95 Wn. App. 876, 879, 978
R2d 514(1999)(quoting City of Wenatchee v. Durham,43 Wn.App. 547, 550-51, 718

R2d 819 (1986)). Yelovich argues that the same principles underlying "fresh pursuit"

apply in defense of property cases where a defendant immediately pursues a thief in
an attempt to recover stolen property.

For example, in Estes v. Brewster Cigar Co., this court held that a person may

use reasonable force in retaking property immediately after a theft occurs: "In retaking

[property] from a thief whom he pursues immediately after the theft, he may call

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

persons to his aid and use such force as may be reasonably necessary to accomplish

his purpose without liability except for excess of force." 156 Wash. 465, 472, 287 P.

36 (1930). We recognized that a contrary rule would prevent property owners from

retaking property from thieves whom they witness stealing:

A contrary rule would prevent an owner of property who caught a thief in
the act of carrying away his property from retaking the property by force
or by putting the thief in fear, contrary to that general principle that a man
has the right to protect his property against the unlawful invasion of
another by such acts of force as are necessary to so protect it.

State V. Steels, 150 Wash. 466, 473, 273 P. 742(1929).

Secondary sources also discuss this common law rule. The Restatement

(Second) of Torts permits the use of force to recover property under certain conditions:

"The use of force against another for the sole purposes of retaking possession of a

chattel is privileged if(a) all the conditions stated in §§ 101-106 exist,^^^ or(b)the other

knowingly causes the actor to believe that they exist." Restatement (Second) of

Torts § 100 (Am. Law Inst. 1965). Washington Practice defines the rule as follows:

There is a difference between preventing a person from disturbing
one's present possession and using force to retake possession. One
whose possession is momentarily interrupted may use reasonable force
to retake possession. If there has been a considerable time lag, the
person dispossessed is required to use his legal remedies. A demand
for possession, unless it reasonably appears useless, should be made
before force is used to recapture the chattel. The force must be used to
regain the property and not for a personal attack.

2 Those conditions Include (1) tortious taking of the chattel by another, (2) the actor is entitled to
immediate possession of the chattel, (3) the actor acts promptly after the dispossession, (4) the
actor requests the return of the chattel, (5) the actor uses force for the purpose of regaining
possession of the chattel, and (6)the use offorce is reasonable to regain possession of the chattel
and is not likely to cause death or serious bodily harm. Restatement §§ 101-106.

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and

Practice § 14.26, at 595 (4th ed. 2013)(footnotes omitted).

However, the common law is applicable in Washington only "so far as it is not

inconsistent with the Constitution and laws of the United States, or of the state of

Washington." ROW 4.04.010. For example, in State v. Bravo Ortega, we determined

whether it was unlawful to arrest a gross misdemeanor suspect without a warrant if

the officer was not present when the offense occurred, but the arrest was made by a

team of officers who were sharing information. 177 Wn.2d 116, 297 P.Sd 57 (2013).

The common law permitted an officer "to arrest a suspect for a misdemeanor without

a warrant only if the offense was committed in the officer's presence." id. at 123

(emphasis added). But, the State argued, "the common law presence rule d[id] not

prohibit teams of officers from making arrests based on shared information." id. at

124.

The common law rule to which the State referred was codified and amended

by ROW 10.31.100, which permitted an officer to arrest a suspect for specific,

enumerated offenses committed outside of the officer's presence. For all other

offenses, ROW 10.31.100 allowed a warrantless arrest to be made only '"when the

offense is committed in the presence of the officer.'" id. at 123-24 (quoting ROW

10.31.100). The offense at issue in Ortega was not one of the enumerated offenses,

and thus ROW 10.31.100 permitted the warrantless arrest only if the officer was

present during the offense, id.

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

We held that "although the state of the law prior to the adoption of a statute

must be considered when construing the legislative intent, 'where, as here, a statute

is plain and unambiguous, it must be construed in conformity to its obvious meaning

without regard to the previous state of the common law.'" Id. at 125 {quoting State ex

rel. Madden v. Pub. Util. Dist. No. 1 of Douglas County, 83 Wn.2d 219, 222, 517 P.2d

585 (1973)). Thus, we held that even if the arrest had been permitted by the common

law, "the unambiguous language of the statute removed that possibility." Id.

Here, applying the common law doctrine of fresh pursuit to defense of property

would be inconsistent with RCW 9A.16.020(3). The common law doctrine of fresh

pursuit allows the offensive use of force to retrieve property that has already

transferred possession. The statute, however, establishes that defense of property

may only be used defensively, to prevent the interference with property when the

defendant is about to be injured and the property is still in his or her lawful possession.

Yelovich's reliance on the common law is misplaced, as the common law doctrine is

inconsistent with the relevant statutes and thus is not applicable. RCW 4.04.010.

Furthermore, the trend of modern law in Washington and across the country

has been to limit the circumstances in which individuals may engage in violent self-

help, like the forcible recovery of stolen property. State v. Valentine, 132 Wn.2d 1, 18,

935 R2d 1294 (1997)("'[T]he trend in this country has been away from the old rule

and toward the resolution of disputes in court.'" (alteration in original) (quoting

Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1226 (1983))). During

the past two decades, this court has recognized that "'[t]he concept of self-help is in

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

decline.'" Id. at 17 (quoting State v. Koonce, 89 N.J. Super. 169, 214A.2d 428, 436

(1965)). We have held that '"self-help as a practical remedy is anachronistic'" and

'"that the common law rule is outmoded in our modern society.'" Id. at 19 (quoting

People V. Curtis, 70 Cal. 2d 347, 353, 450 P.2d 33, 74 Cal. Rptr. 713(1969); Fields v.

State, 178 ind. App. 350, 382 N.E.2d 972, 975 (1978)). By recognizing the danger of

self-help "to promote violence and increase[]the chances of someone getting injured

or killed," id. (quoting Fields, 382 N.E.2d at 975), "we opt for the orderly resolution

through the courts over what is essentially 'street justice,"' id. at 18 (quoting Evans v

City of Bakersfield, 22 Cal. App. 4th 321, 27 Cal. Rptr.2d 406, 412 (1994)).

Consequently, we have limited the common law defenses of self-help in

circumstances like the right to resist unlawful arrest. Id. at 20.

The majority of jurisdictions now refuse to recognize a right to violent self-help

in order to recover, rather than protect, property. See, e.g., Yocum v. State, 777 A.2d

782, 784 (Del. 2001)("[Tjhe use offeree in the protection of property does not extend

to efforts to retrieve the property after the theft is accomplished.. . . To hold otherwise

would sanction a form of vigilantism in which a property owner could employ force in

pursuing a suspected thief or trespasser."); People v. Scearce,87 R3d 228, 231 (Colo.

App. 2003)(endorsing "the basic public policy that'even rightful owners should not be

permitted to . . . use force to regain their property, once it has been taken'" (alteration

in original)(quoting State v. Miller, 622 N.W.2d 782, 786(Iowa Ct. App. 2000))). Miller

also stands for the proposition that "[w]e align ourselves with the majority of states

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 state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

that do not recognize a claim-of-right defense to violent reclannations of property." 622

N.W.2dat787.

The sound reasoning of the majority rule is apparent in cases like this one.

Here, Yelovich pursued De Armond on a mere suspicion that she had stolen his

phone. He engaged in violent conduct in order to "retrieve" a phone that De Armond

may or may not have had. A passerby noticed the altercation and intervened. While

not the case here, it is not difficult to imagine a circumstance in which that passerby

becomes another victim of violent force by attempting to break up the altercation.

The right to engage in violent self-help undoubtedly increases the risk of

someone getting injured and killed. Valentine, 132 Wn.2d at 17-19. While the

defendant's property rights '"can be protected and vindicated through legal processes,

. . . loss of life or serious physical injury cannot be repaired in the courtroom.'" Id. at

20(quoting State v. Westlund, 13 Wn.App. 460, 467, 536 P.2d 20(1975)). As a result,

because the right to use force to recover property tends to "'make matters worse, . . .

create violence where none would have otherwise existed or encourage further

violence, . . . [and potentially] lead[ ]to serious injury or death to the [defendant], the

police or innocent bystanders,"' I would hold there is not a modern common law right

to use force to recover stolen property. Id. (quoting Westlund, 13 Wn. App. at 467).

I. Defense of property jury instruction

The final issue is whether Yelovich was entitled to a jury instruction on defense

of property. While defense of property may be used to rebut the element of assault in

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

felony violation of a no-contact order predicated on assault, I would hold that Yelovich

was not entitled to the Instruction as a matter of law.

"A defendant 'Is entitled to have the jury Instructed on [his] theory of the case If

there Is evidence to support that theory. Failure to so Instruct Is reversible error.'" State

V. Han/ill, 169 Wn.2d 254, 259, 234 P.3d 1166 (2010)(alteration In original)(quoting

State V. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052(1997).

Here, there was no evidence to support an Instruction on defense of property.

When Yelovich used force against De Armond, he was not preventing or attempting

to prevent a malicious Interference with property. The property—his cell phone—had

already been taken. As a result, the phone was no longer In his possession, and

Yelovich was acting solely In an attempt to recover property. As discussed above,

there Is no modern, valid defense to use force to recover property that has already

been reduced to another's possession.

Yelovich was also not present at the time of the alleged taking. He merely

suspected De Armond of theft—no phone was recovered from De Armond at the

scene."[Wjhen [a defendant] pursues an Innocent person under the belief that he has

committed a wrong to his property, no matter how strong may be his belief, he Is liable

for any Injury caused the person." Estes, 156 Wash, at 472.

As a result, Yelovich was not entitled to a defense of property Instruction In

these circumstances.

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state V. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

CONCLUSION

Yelovich was not entitled to a defense of property instruction. While the majority

holds accordingly, it does so for the wrong reasons. Therefore I respectfully concur in

result only.

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state v. Yelovich, No. 95192-6
(Wiggins, J., concurring in result only)

21