THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Brandon Rashad Marshall, Jr., Appellant.

Appellate Case No. 2016-000870

Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 5674

Subm itted November 1, 2018 – Filed August 7, 2019

AFFIRMED

Appellate Defender Susan B. Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Assistant Attorney General Al phonso Simon, Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

WILLIAMS, J.: In this criminal appeal, Bra ndon Rashad Marshall, Jr. appeals his convictions for murder and possession of a firearm during the commission of a violent crime. On appeal, Marsh all argues the circuit court er red in denying him immunity under the Protection of Persons and Property Act (the Act), S.C. Code Ann. §§ 16-11-410 to -450 (2015). We affirm.FACTS/PROCEDURAL HISTORY

Marshall was indicted for murder and possessi on of a weapon dur ing the

commission of a violent crime a fter he shot and killed Anthony Williams (Victim) on May 22, 2014. Prior to trial, M arshall sought immunity from prosecution pursuant to the Act, and on Apr il 4, 2016, the circuit court co nducted an immunity hearing pursuant to State v. Duncan , 392 S.C. 404, 709 S.E. 2d 662 (2011). At the immunity hearing, the circuit c ourt admitted the video recordin g of Detective Burckhardt interviewing Marshall on the night of the incident ( the recorded interview).

During the immunity hearing, Mar shall testified he met Victim a pproximately three months prior to the shoot ing, and the two began a sexual relationship about one month later. At the time of the incident, Victim was also in a relationship with Ashley Butler. Victim and Butler resided together, but Victim was not on Butler's lease and was on trespass notice for Butler's apartment (the ap artment). On the night of the shooting, Marshall was invited to visit Butler and Victim at the apartment. Marshall stated he took his gun into the apartment because he argued with Butler's neighbor before, a nd he previously witnessed the neighbor severely

assault another man. Marshall testified that while he was at t he apartment, Victim and Butler got into an argument, s o he left the room. Marshall stated he returned

to the room when he heard Butler yelling, " Get off of me, you are always putting your hands on me." He also indi cated he heard Butler say she c ould not breathe. Marshall stated he saw Victim on top of Butler with one hand ar ound her neck and the other hand positioned to strik e her face. Marshall testifi ed he grabbed his gun off the table, inserted the clip , and told Victim he needed to stop and needed to leave. Victim left the apartm ent, and Marshall followed him.

Marshall stated he returned to th e back door to gather his belo ngings, but Butler did not want to open the back door , so she put his bag on the f ront porch. Marshall testified that after he put his bag, but not his gun, in his ca r, he saw Victim go back to the apartment, and he thought Victim was trying to kick in t he door. Marshall stated he approached Vi ctim in an attempt to calm Victim down a nd encourage

him to leave because he feared V ictim would get in trouble for violating the trespass notice. Marshall also t estified he was afraid Victim would attempt to kill

Butler if Victim was successful i n kicking in the door. Marshall stated Victim shoved him to the ground, and Mars hall was fairly certain his glasses fell off. Marshall testified he approached Victim again and tried to grab Victim's wrist, but Victim pulled away and resumed kicking and punching the door. When Marshall attempted to grab Victim's hand , Victim turned around and shove d him twice,knocking him into a tree. Marsha ll indicated he had a hard time getting up, and when he finally got up, Victim pushed him against the tree agai n, causing Marshall

to fall. Marshall indicated Vic tim got on top of him and hit h is face at least once while Marshall repeatedly told Vi ctim to get off of him. Accor ding to Marshall, he was not physically able to get Vic tim off of him because he was overweight and suffered from prior injuries st emming from automobile accidents . Marshall testified he was pretty sure he was on the ground when he turned over, threw back his hand, and fired the gun until it stopped firing. Marshall then ran to his car and drove away, but he quickly returned to the scene after police a rrived. Marshall

testified he believed Victim w as trying to kill him and Butler and that Victim

would have killed him had he not defended himself. According t o Marshall, he did

not make a definite decision to shoot Victim.

Marshall acknowledged hi s testimony during the immunity hearing differed from

what he told Detective Burckhard t in the recorded interview, bu t he indicated his memory was much better at the i mmunity hearing than it was "imm ediately after the traumatizing incident." The recorded interview differed fr om the immunity hearing testimony as to the distan ce between Marshall and Victi m when Marshall fired the gun and as to whether Marshall (1) had his glasses on when he shot Victim, (2) was standing or lying on the ground when he shot Vi ctim, (3) put the clip in the gun during Victim and Butler's argument or after Vi ctim shoved him, and (4) fired the gun continuousl y or stopped firing but resume d firing after Victim tried to get back up.

At the immunity hearing, Butler' s testimony differed from Marsh all's account of

the events. Butler testified th at on the night of the incident, an argument ensued

between her and Victim . Butler stated she spit at Victim, and Victim grabbed her and held her down on the couch. Butler testified that although she could not breathe when Victim held her down on the couch, s he believed it was because of the position she was in not because Victim was choking her. Bu tler averred Victim

did not choke her. She further t estified Victim did not hit he r, she never told Victim to stop hitting her, and she never believed Victim was g oing to kill her or seriously hurt her. She stated that throughout their relations hip, Victim never hit or

assaulted her.

According to Butler, Victim left when Marshall grabbed Victim w hile he was on top of her on the couch and told Victim to leave. After Marsha ll and Victim left,

Butler locked the back door. She testified Marshall knocked on the back door to get his things, she put them on the front porch, and she asked him to leave. Butler indicated Victim then knocked on the back door to get some clot hes. Butlertestified Victim knocked louder than Marshall, but she did not think he was trying to kick in the door, and she di d not fear he was going to hurt her. Butler stated she did not let Victim in, but she y elled through the door that she would get Victim's clothes from upstairs. Butler te stified she did not let Victim in because she feared she would get kicked out of her apartment as a result of the trespass notice, not

because she was afraid. As she w as coming down the stairs with Victim's clothes, Butler stated she heard gunshots . A photograph admitted into e vidence by the State showed that the police f ound Victim's clothes near the fr ont door.

Butler's neighbor also testifie d at the immunity hearing. She stated she awoke to the sound of gunshots, and then s he heard a male voice yell "you are messing with the wrong [person]." She testif ied she heard no pause in the g unshots.

Dr. Nicholas Batalis conducted Vi ctim's autopsy, which showed f our bullet wounds. He testified he did not observe any stippling or soot on Victim's injuries. Dr. Batalis explained soot will not travel further than six to twelve inches from the location where the gun was shot , and stippling will not travel more than two to four

feet. This indicated Marshall was not within close range when he shot Victim.

At the close of the immunity hearing, the circuit court denied Marshall's request for immunity under the Act, finding Marshall failed to show the ele ments of self-defense by a preponderance of the evidence. Specifically, the court noted the inconsistencies (1) within Marshall's testimony at the hearing, (2) between the

recorded statement and Marshall's testimony, (3) between Marsha ll's testimony and Butler's testimony, and (4) betwee n the scientific evidence and Marshall's theory of the case. The case pr oceeded to a jury trial, and Marshall was convicted of murder and possession of a weapon during the commission of a violent c rime. The circuit

court sentenced Marshall to concu rrent sentences of forty years ' imprisonment for murder and five years' imprisonm ent for the possession of a wea pon during the

commission of a violent cri me. This appeal followed. 1

ISSUE ON APPEAL

1 Marshall's counsel initially file d a motion to be relieved and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), which raised another issue on appeal. By order filed November 13, 2017, this court denied the motion to be relieved as counsel and ordered the parties to fully brief the issue of whe ther Marshall was entitled to immunity from prosecution pursuant to the Act.Did the circuit court err by de nying Marshall immunity from pro secution pursuant

to the Act?

STANDARD OF REVIEW

Circuit courts utilize pretrial h earings to determine whether a defendant is entitled to immunity under the Act, empl oying a preponderance of the evi dence standard. State v. Manning , 418 S.C. 38, 43, 791 S.E.2d 148, 150 (2016). Appellate court s review an immunity determinati on for abuse of discretion. Id . at 45, 791 S.E.2d at

151. A circuit court abuses its dis cretion when its ruling is based on an error of law or, when grounded in factual conclusions, is without eviden tiary support. State

v. Jones , 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016).

LAW/ANALYSIS

Marshall argues the circuit cour t erred in denying him immunity from prosecution under the Act. Specifically, Marsh all contends he established by a preponderance

of the evidence the elements re quired for immunity under the Ac t and the requisite

elements of self-defense because (1) he was without fault in br inging on the difficulty because Victim was th e initial aggressor, (2) he bel ieved he was in imminent danger and a reasonably prudent person would have held the same belief, (3) he was not engaged in unlawful activity at the time of the fatal altercation with Victim, and (4) he had no duty to retreat because the altercati on occurred in a public area of Butler's apartment complex. We disagree.

Subsection 16-11-450(A) of the South Carolina Code (2015) provi des, "A person who uses deadly force as permitted by the provisions of this ar ticle or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force . . . ." Subsection 16-11-440(C) provides:

A person who is not engaged in an unlawful activity

and who is attacked in anot her place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet f orce with force, including deadly force, if he reasona bly believes it is necessary to prevent death or great bodily injury to himself or another person or to prev ent the commission of a

violent crime as defined in Section 16-1-60.S.C. Code Ann. § 16-11-440(C) (2015).

To warrant immunity under the Act , there must be a pretrial det ermination where

the accused must demonstrate the elements of self-defense, save the duty to retreat,

to the satisfaction of the cir cuit court by a preponderance of the evidence. State v. Curry , 406 S.C. 364, 370–71, 752 S.E.2d 263, 266 (2013). The accuse d must show (1) he was without fault in bringing on the difficulty; (2 ) he actually believed he was in imminent danger of losing his life or sustaining seri ous bodily injury, or he actually was in such imminent danger; and (3) if his defense was based upon his belief of imminent danger, a rea sonably prudent man of ordinary firmness and courage would have held the sa me belief, or if he actually was in imminent danger,

the circumstances "would warrant a man of ordinary prudence, fi rmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life." Id . at 371 n.4, 752 S.E.2d at 266 n.4.

We find the circuit court did no t abuse its discretion in holdi ng Marshall was not entitled to immunity because he fa iled to prove the elements of self-defense by a preponderance of the e vidence due to incons istencies in the record. In recent precedent, our supreme court has clarified when inconsistent ev idence warrants a denial of immunity from pr osecution under the Act. See State v. Cervantes-Pavon

, 426 S.C. 442, 448–451, 827 S.E.2d 564, 567–69 (2019); State v. Andrews , Op. 27894 (S.C. Sup. Ct. filed June 19, 2019) (Shearouse Adv. Sh. N o. 25 at 9–12). "[J]ust because conflicting evid ence as to an immunity issue ex ists does not automatically require the court to deny immunity; the court must sit as the factfinder at this hearing, weigh the evidence presented, and reach a conclusion under

the Act." Cervantes-Pavon , 426 S.C. at 451, 827 S.E. 2d at 569. "Thus, the relevant inquiry is not merely wh ether there is a conflict in the evidence but, rather, whether the accused has proved an entitlement to immunity under the Act by a preponderance of the evidence." Andrews , Op. 27894 at 11–12.

Marshall points to State v. Douglas to support his contention that immunity should have been granted. 411 S.C. 307, 768 S.E.2d 232 (Ct. App. 2014). In Douglas

, this court held the accused proved he acted in self-defense by a preponderance of

the evidence when he shot the victim after the victim assaulted him and refused to

leave the accused's house. Id . at 314, 319, 768 S.E.2d at 236, 240. However, this

case differs from Douglas because the physical evidence presented in Douglas was consistent with the accused's testimony. Id. at 319–20, 768 S.E.2d at 239–40. In the instant case, the circuit c ourt found numerous inconsistencies called Marshall's credibility into question and re sulted in Marshall failing to e stablish entitlement toimmunity by the preponderance of the evidence. Such inconsiste ncies included the sequence of events leading up to the shooting, whether Marshall was standing and whether he was wearing his glasse s when he fired the shots towa rds Victim,

whether the shots were continu ous, when Marshall put the clip in the gun, and the

distance between Marshall and Vi ctim when Marshall fired the gu n. The court

also noted inconsistencies betw een Marshall's testimony and But ler's testimony, including what led to the initial argument between Butler and V ictim, whether Victim was choking and hitting Bu tler, and the intensity with w hich Victim was knocking on the back door. Based on these inconsistencies, the circuit court found Marshall's testimony was unreliabl e and prevented the court fro m finding he

established the relevant elements of self-d efense by a preponderance of the

evidence.

The circuit court specifically noted Marshall did not establish by a preponderance

of the evidence that he was w ithout fault in bringing about the difficulty. See Curry , 406 S.C. at 371 n.4, 752 S.E. 2d at 266 n.4 (explaining to est ablish selfdefense, the accused must show h e was without fault in bringing on the difficulty);

State v. Jackson , 227 S.C. 271, 278, 87 S.E.2d 681, 684 (1955) ("[O]ne cannot through his own fault bring on a difficulty and then claim the right of self-defense . . . ."); State v. Wigington , 375 S.C. 25, 32, 649 S.E.2d 185, 188 (Ct. App. 2007) ("[O]ne who provokes or initiates an assault cannot escape crim inal liability by invoking self[-]defense . . . ." (first alteration in original) (quoting State v. Bryant

, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999))). In State v. Slater , our supreme court noted it could be reasonabl y calculated that the accused brought on the difficulty when he approached an altercation that was already u nderway with a loaded weapon by his side. 373 S. C. 66, 70, 644 S.E.2d 50, 52 (2007). In the instant case, following the argum ent between Victim and Butler, the parties separated before Marshall, who was aware Victim was angry, appr oached Victim at the back door of the apartmen t and inserted himself—and his gun—into Victim's

interactions with Butler. Mars hall repeatedly grabbed Victim's wrist and hand, causing Victim to become aggravated and shove Marshall. Based on Marshall's actions, the circuit court found Marshall did not establish by a preponderance of the evidence that he was without fault in bringing about the di fficulty.

Based upon our review of the reco rd, we find the circuit court properly weighed the evidence presented and did not abuse its discretion in deny ing immunity under

the Act.

CONCLUSIONThus, the circuit court's denial of immunity is

AFFIRMED. 2

HUFF and SHORT , JJ., concur.

2 We decide this case without oral argument pursuant to Rule 215 , SCACR.