## Facts

- Steven Wilson fought with Larry Curtis Harrison, a friend of Kenneth Bernardy.
- During or immediately after the altercation, Bernardy intervened and kicked Wilson in the head several times while Wilson was on the ground, injuring him.
- Bernardy wore soft tennis shoes.
- Bernardy testified he acted to protect Harrison, stating Wilson started the fight, was getting up to renew the attack, and a friend of Wilson was approaching to assist.
- Bernardy testified he did not believe his kicks would seriously injure Wilson because of his footwear.
- A jury convicted Bernardy of second-degree assault.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on defense of others where the defendant offered some evidence that he reasonably believed force was necessary to protect a third person from imminent harm.
2. Whether the omission of a defense-of-others instruction was prejudicial when that defense, if accepted, would require acquittal.

## Decision

- The court reversed the conviction and remanded for a new trial.
- The court held Bernardy was entitled to a defense-of-others instruction because his testimony provided some evidence supporting the defense when viewed in the light most favorable to him.
- The court held the failure to instruct was not harmless because it prevented the jury from considering a complete justification defense.

## Legal Principles

- A defendant is entitled to a jury instruction on a proposed defense if there is any evidence, however slight, supporting it when viewed most favorably to the defendant.
- Defense of others requires evidence that the defendant reasonably believed force was necessary to protect another person from imminent harm.
- The credibility of the defendant’s account, the reasonableness of the defendant’s belief, and whether the force used was reasonable are questions for the jury once the evidentiary threshold for the instruction is met.
- Withholding a supported justification instruction is reversible error when it may have affected the verdict, particularly where the defense would provide complete justification.

## Conclusion

Because Bernardy presented some evidence that he acted to protect a third person from imminent harm, the jury had to be instructed on defense of others; the trial court’s refusal to give that instruction required reversal and a new trial.


State v. Bernardy, 25 Wash. App. 146 (Wash. Ct. App. 1980)