Property disputes, property damage, or outright theft sometimes occur following a romantic breakup or a fight between romantic partners. While it is understandable for a person to want to retrieve their property, trying to get the property back in violation of a no-contact order could result in criminal charges. Washington civil protection order attorneys know that the theft or property damage may not provide a successful defense to those charges.
A Washington appeals court recently reviewed a case in which the defendant raised a defense of property defense surrounding the violation of a no-contact order. A domestic violence no-contact order prevented the defendant from contacting a woman he had previously dated for several years.
According to the defendant, he was loading boxes from his son’s garage in his car. He left his cell phone in the car, which had a broken window. He saw someone walking down the street but could not tell who it was. When he went back to his car, he found his cell phone and other items were gone.
He realized the person he saw was his former girlfriend and suspected she took his phone. The defendant got in his car and chased after her. When he reached her, he got out of the car and demanded she give back the phone. He knew he was violating the no-contact order but thought his actions were necessary to get the phone back.
He grabbed her purse strap and tried to get the purse away from her. She fell during the struggle.
The defendant was arrested and charged with violating a no-contact order. The State also alleged he assaulted his former girlfriend. Although a violation of a domestic violence no-contact order is generally a gross misdemeanor, it becomes a felony when it includes an assault.
At trial, the defendant proposed a jury instruction for defense of property. The trial court found the instruction did not apply because the defendant was trying to get the phone back rather than prevent it from being taken. The defendant was convicted of felony violation of a no-contact order. He appealed, arguing that the trial court erred in refusing to give the defense of property instruction.
Under RCW 9A.16.020, the use of force is lawful by a person about to be injured to prevent or attempt to prevent “malicious interference with real or personal property lawfully in his or her possession…” if no more force than necessary is used. A defendant is entitled to an instruction on his theory of the case if the evidence supports it. The appeals court applied the same standard to defense of property as is applied to self-defense because they are addressed in the same statute. Under Washington law, a defendant is entitled to an instruction on self-defense if there is “some evidence” supporting a self-defense theory. The evidence is evaluated from the perspective of a reasonably prudent person with the knowledge and observations that the defendant has. The trial court must subjectively view the defendant’s actions in light of the information the defendant knew at the time, while objectively considering what a reasonable person would have done in those same circumstances.
The appeals court considered the evidence in the light most favorable to the defendant. The defendant argued he was justified in using force because his former girlfriend had taken his phone. The appeals court noted, however, that the defendant’s testimony was that he had used force to get the phone back after it had been taken from the immediate area. The issue, then, was whether the defendant could rely on a defense of property defense when the force was to recover property rather than to prevent it from being taken.
The appeals court looked at the statutory language. First, the statute provides that force is not unlawful when used by a party who is “about to be injured…” The appeals court noted that once the property is taken, the party has already been injured. Furthermore, the statute allows the use of force in “preventing or attempting to prevent” an interference with property. Again, the appeals court found a party could not be engaged in attempting to prevent the interference once the interference had already been completed. Finally, the property must be lawfully in the possession of the person using force. Once an interference has occurred, the property is in someone else’s possession. The issue, then, was whether interference with the property had been completed in this case.
Finding no case law directly on point, the appeals court looked at cases in other jurisdictions, which did not allow the defense in similar circumstances when a defendant tried to recover the item immediately. The court noted that generally the defense is not available unless the defendant is present at the time of a criminal act.
The appeals court held that a property owner cannot use force to defend his property when the interference with the property occurs outside his presence, when the interference is complete and the property is not in the owner’s possession anymore, and when the property has been removed from the area in the owner’s control.
The court found the instruction was inappropriate. The defendant was not present when the phone was allegedly taken. The interference had been completed, and someone else had possession of the phone when he discovered it was missing. Finally, the defendant’s former girlfriend had left the car and was a few blocks away from the defendant’s area of control when he used force. Thus, even if the defendant’s former girlfriend took the phone, the theft had already been completed when the defendant chased after her. He was trying to get the phone back when he accosted her, rather than trying to prevent a theft. The appeals court found the statutory defense of property was unavailable under the facts.
The appeals court affirmed the defendant’s conviction.
Violating a no-contact order to try to retrieve property that has been taken can result in criminal charges. A party to a no-contact order who has property stolen should consider reporting the theft to the police.
The Washington civil protection order attorneys at Blair & Kim, PLLC, understand the issues involved in civil protection orders. If you are seeking an order or opposing an order being pursued against you, call us at (206) 622-6562 to discuss your case.
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Image: FreeImages.com / Natalia Pankova