State v. Kierin M. Dennis

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Kierin Marcellus Dennis, Appellant.

Appellate Case No. 2019-001486

Appeal From Lexington County

Eugene C. Griffith Jr., Circuit Court Judge

Opinion No. 6082

Heard November 26, 2024 – Filed August 14, 2024

Withdrawn, Substituted, and Refiled October 30, 2024

REVERSED AND REMANDED

Chief Appellate Defender Robert Michael Dudek,

Appellate Defender Lara Mary Caudy, and Appellate

Defender Adam Sinclair Ruffin, all 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 Julianna E. Battenfield, all of

Columbia, and Solicitor Samuel R. Hubbard III, of Lexington,

for Respondent.

THOMAS, J.: Kierin Marcellus Dennis appeals his conviction for murder,

arguing the trial court erred in (1) relying on evidence from a prior immunity

hearing and mistrial; (2) denying him immunity under the Protection of Persons

and Property Act (the Act) 1; (3) finding he had a duty to retreat under the Act; (4)

finding self-defense was a jury issue; (5) finding he had a duty to avoid going to a

place he had the right to be; (6) admitting an aerial photograph; and (7) admitting a

model car door that was misleading. We reverse and remand.

FACTS

Dennis, at the time a recent graduate of Lexington High School (LHS), was

indicted for murder based on the stabbing of a student from the rival school, Dutch

Fork High School (DFHS), after a basketball game on February 17, 2014. The

stabbing occurred in the parking lot of a Cook-Out restaurant while Dennis was in

his vehicle. A pre-trial hearing on Dennis's entitlement to immunity under the Act

was held in November of 2014 before the Honorable Thomas Russo (the first

immunity hearing). Dennis and numerous LHS students testified, generally

supporting Dennis's claim of immunity. Numerous DFHS students testified,

generally not supporting the claim.

By order filed February 10, 2015, the court denied Dennis's request for immunity

under the Act, finding Dennis had not met his burden of proving the victim was in

the process of entering, or had entered, Dennis's vehicle. In addition, the court

found Dennis's allegation of such an entry or attempt to enter was not credible.

The court also concluded Dennis failed to establish the elements of self-defense.

Thus, the court denied Dennis immunity under the Act.

Dennis was tried in October of 2016. The jury deadlocked, was given an Allen2

charge, and remained deadlocked after more than ten hours of deliberation. The

Honorable Eugene C. Griffith Jr. declared a mistrial.

1

The Act is informally known as the "Stand Your Ground Law" and was enacted

by the South Carolina General Assembly in 2006 to provide a person "is immune

from criminal prosecution and civil action for the use of deadly force" in

circumstances that are permitted by the Act or by another provision of law. See

S.C. Code Ann. § 16-11-450(A) (2015); State v. McCarty, 437 S.C. 355, 366, 878

S.E.2d 902, 908 (2022).

2

Allen v. United States, 164 U.S. 492, 501 (1896) (defining the jury charge used to

encourage a deadlocked jury to reach a verdict).

In June of 2017, Dennis again filed a motion for immunity under the Act. Dennis

argued there was new evidence by Elizabeth Bettini and a manager at Cook-Out,

neither of whom were related to either school and both of whom witnessed the

events. Dennis also alleged there was new evidence from the pathologist, which

was introduced at trial, and new evidence of a 911 recording never produced at

trial and evidence from Ervin Meggett, a friend of the victim, who told

investigators in August of 2016 that the victim was the aggressor. At a hearing on

the motion held in August of 2017 before the Honorable Robert E. Hood (the

second immunity hearing), Dennis argued he was entitled to a new hearing based

on the new witnesses and evidence. He also argued the previous trial was a

mistrial, final, and "we start all over again."

The court refused to allow Dennis a new immunity hearing; however, it ruled

Dennis could proffer the new testimony. Dennis called new witnesses to support

his claim of immunity. Officer Caitlin Voravudhi, of the Lexington County Police

Department, testified she responded to a call at the Cook-Out the night in question

and there were approximately forty students there. With her vehicle camera

recording and audio being recorded from a microphone she wore, she began

interviewing people. She identified Bettini as one of the people and took a

statement. Bettini stated she was in the drive-through, saw about thirty teenagers

in the parking lot, heard cussing and screaming, and witnessed Dennis's vehicle

stop. She stated she then heard him yell, saw a guy ran to his vehicle and throw a

drink at him, and then saw about ten male teenagers run toward the vehicle, which

then pulled out. A small car then followed it. She called 911 and saw a third car

leave. Voravudhi never verified the 911 call, stating she passed the statements on

to an investigator. On her recording, a voice can be heard stating, "I saw

everything that happened" and "Somebody threw a drink." An employee of Cook-

Out can be heard saying he came out for a break and saw someone throw a cup at

and lean into Dennis's vehicle. Voravudhi also got a statement from the Cook-Out

employee, Zachary Lynch, in which he stated he saw a guy in a white shirt walk to

Dennis's car, "reach[] in the car as if to stab somebody." Lynch then saw another

guy walk up to the vehicle and throw a cup, followed by two guys getting in the

vehicle and the vehicle then leaving.

Janice Edwards Ross was qualified as an expert in forensic pathology. Based on

the direction of the knife wound, she testified the victim could have been leaning

over at the time he was stabbed. She opined the victim would have had to have

been bent over, almost parallel to the ground. She also opined there were many

scenarios that would have fit the wound, including if the victim had been standing,

the knife would have had to come up and down and if the victim had been stooped

over, it would have had to "go kind of straight parallel to the ground." Ross

testified it depended on how much the window was down and how tall the victim

was as to whether someone leaning in the window was consistent with the autopsy

findings.

Bettini testified she turned into Cook-Out and saw three kids in the road,

describing "they did not have happy faces." She looked to her right and saw

between thirty and forty teenagers, "hollering, cussing, [and] acting crazy." She

saw Dennis's SUV drive up, but kids blocked the road and called the driver names,

saying "I'm gonna f***ing kick your ass." They were running at his car and

throwing drinks at it. Bettini testified she called 911 and told the dispatcher there

was about to be a fight and when the car got stopped, the kid looked scared to

death. Bettini was afraid the students would hurt Dennis. She denied seeing a

knife, and told the dispatcher, "I just told you that I saw Cook[-]Out trays and a

drink being thrown . . . ." She next told the dispatcher she heard sirens, which she

assumed was why the kids backed away from Dennis's vehicle and he took off.

She testified she heard Dennis say either, "Y'all leave me the f*** alone," or "get

the f*** away from me." She described the kids as constantly moving around his

car and the scene as complete chaos. She assumed the reason Dennis did not leave

was because he would have run students over. She also testified that once the

police were on the scene, some of the students still in the parking lot were "cussing

[her] out and telling [her] that [she was] trying to get their friend in trouble . . . ."

She concluded, "All I remember is I looked at [Dennis's] face. He was stopped and

there [were] kids and they would not let him leave the parking lot." Bettini wrote

her statement as requested and never heard from anyone again until two years later

when the first trial was about to begin. At that time, the police called her and

asked her not to speak to the media if she was contacted. She next met with the

solicitor and was told the 911 tape had been lost.

Lynch testified he was working at Cook-Out that night and gave a statement

similar to Bettini's statement. When he heard people yelling, "He just got

stabbed," Lynch thought it was Dennis who got stabbed by the victim because the

victim leaned in the car window, hand forward. Lynch gave a second statement

the following morning. He described the victim leaning in with his right hand, not

his whole body but from his stomach up. He testified the window was "quite low"

but up a little bit. Lynch testified Dennis could have left, but he probably would

have run somebody over.

The first 911 call was from the restaurant manager. A 911 Computer Aided

Dispatch (CAD) event was created. The second 911 call was from Bettini;

however, no CAD event was created. Nikki Rodgers, of Lexington County 911,

testified her office received the calls the night of the incident. She explained some

calls were left off the relevant CAD report because the calls were associated with

different addresses. Years later, her office received a request for information on

calls that night and used a management information system that found eight

relevant calls. Several of the eight calls, including Bettini's, were not recorded.

The State recalled Alexis Brunson and Devon Chatman, of DFHS. Dennis

objected, arguing if the court was going to rely on the transcript of the first

immunity hearing for Dennis's witnesses, the State should not have the opportunity

to present its witnesses in person for the second immunity hearing. The court

allowed the State to continue.

The court then heard arguments on the merits of Dennis's motion, which it

described as "a motion to essentially have a second stand your ground hearing . . .

." By order filed October 16, 2017, the court denied the motion for immunity,

finding Dennis was not without fault in bringing on the difficulty because he

sought out the DFHS students, chose the situation, and chose not to leave via the

other exits available to him. The court also found the testimony of Dennis's fear

was in direct contradiction to the testimony of the DFHS students, and if he was in

fear, it was not a belief a reasonably prudent person would have entertained. The

court next found Dennis did not prove he had no other means to avoid the danger.

The court concluded,

Under the facts before this Court, [Dennis's] claim of

self-defense presents a quintessential jury question. . . .

The direct contradiction between witnesses creates an

issue for a jury to decide, not the trial court. Therefore,

immunity does not apply because [Dennis] has not

proven[,] beyond a preponderance of evidence

standard[,] . . . self-defense. The Court finds that

[Dennis] has not established the elements of self-defense

by the greater weight of the evidence.

Accordingly, the court found Dennis was not entitled to immunity under the Act.

Based on that finding, the court declined to rule as to whether Dennis was entitled

to a second immunity hearing. After a second trial, Dennis was convicted and

sentenced to thirty years' imprisonment. This appeal followed.

STANDARD OF REVIEW

"Circuit courts utilize pretrial hearings to determine whether a defendant is entitled

to immunity under the Act, employing a preponderance of the evidence standard."

State v. Cervantes-Pavon, 426 S.C. 442, 449, 827 S.E.2d 564, 567 (2019). An

appellate court "reviews an immunity determination for an abuse of discretion."

McCarty, 437 S.C. at 365, 878 S.E.2d at 908. "An abuse of discretion occurs when

the [circuit] court's ruling is based on an error of law or, when grounded in factual

conclusions, is without evidentiary support." Id. (quoting State v. Jones, 416 S.C.

283, 290, 786 S.E.2d 132, 136 (2016) (alteration in original).

LAW/ANALYSIS

A. Immunity Hearing After a Mistrial

Dennis argues the court erred in denying him a second immunity hearing after the

first trial ended in a mistrial. We agree.

We first find no merit to the State's argument that Dennis was precluded from

receiving a new immunity hearing because he failed to appeal the denial of

immunity after the first immunity hearing. In State v. Isaac, our supreme court

"clarif[ied] that an order granting a request for immunity under the Act is

immediately appealable because it is a final order in the case. However, an order

denying a request for immunity is not a final order in the case." 405 S.C. 177, 182,

747 S.E.2d 677, 679 (2013) (footnote omitted).

We next hold the court erred in denying Dennis's motion for a new, full immunity

hearing. "A mistrial is the equivalent of no trial and leaves the cause pending in

the circuit court." State v. Woods, 382 S.C. 153, 158, 676 S.E.2d 128, 131 (2009).

When a case ends in a mistrial, it is considered a nullity and begins "anew when

called again for trial." Id.; State v. Mills, 281 S.C. 60, 62, 314 S.E.2d 324, 326

(1984), cert. denied, 469 U.S. 930 (1984) ("When a mistrial occurs because of the

inability of a jury to agree on a verdict, it is the same as if no trial took place.");

Grooms v. Zander, 246 S.C. 512, 514, 144 S.E.2d 909, 910 (1965) (finding that

rulings of a trial judge in a proceeding ending in mistrial represent no binding

adjudication upon the parties as the mistrial leaves the parties in status quo ante).

After a mistrial, "rulings made with reference to the admissibility and competency

of the testimony result[] in no binding adjudication of the rights of the parties."

Keels v. Powell, 213 S.C. 570, 572, 50 S.E.2d 704, 705 (1948). Although a ruling

on immunity under the Act is not a ruling on the admissibility of evidence, we find

the situations analogous. Like evidentiary rulings, the decision on immunity is left

to the sound discretion of the trial court. See State v. Glenn, 429 S.C. 108, 116,

838 S.E.2d 491, 495 (2019) ("This Court reviews an immunity determination for

abuse of discretion. A trial court abuses its discretion when its ruling is based on

an error of law, or when grounded in factual conclusions, is without evidentiary

support." (internal citation omitted)); State v. Black, 400 S.C. 10, 16, 732 S.E.2d

880, 884 (2012) ("The admission or exclusion of evidence is left to the sound

discretion of the trial [court], whose decision will not be reversed on appeal absent

an abuse of discretion." (quoting State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240,

244 (2001))); id. ("An abuse of discretion occurs when the trial court's ruling is

based on an error of law or, when grounded in factual conclusions, is without

evidentiary support." (quoting State v. Jennings, 394 S.C. 473, 477–78, 716 S.E.2d

91, 93 (2011))). In some instances, a lengthy pretrial hearing may have been held

on the evidentiary matter in dispute. The fact that such issue may have been ruled

upon in the first trial does not preclude the defendant from making the same,

different, or additional arguments to the trial court on retrial regarding admission

or exclusion and does not preclude a different ruling. See Woods, 382 S.C. at 158,

676 S.E.2d at 131 ("A mistrial is the equivalent of no trial and leaves the cause

pending in the [trial] court."); State v. Smith, 336 S.C. 39, 43–44, 518 S.E.2d 294,

296 (Ct. App. 1999) ("Because a mistrial is the equivalent of no trial, the trial

[court] could not rely on any evidentiary rulings from the nugatory proceeding.").

While evidentiary rulings may not hold the inherent power to completely end a

prosecution, in many cases, they can have a similar effect when the controverted

evidence, such as a confession or blood test, is the key evidence offered by the

State.

Furthermore, jurisprudence from our sister state of Georgia suggests the grant of a

new trial restarts the entire prosecutorial process including an immunity hearing.

In State v. Hamilton, 839 S.E.2d 560, 564 (Ga. 2020), the trial court granted

Hamilton a new trial after her conviction of felony murder based on "general

grounds" and because "trial counsel rendered constitutionally ineffective assistance

by, among other things, failing to move for a pretrial determination on the issue of

immunity from criminal prosecution." The Georgia Supreme court affirmed, and

Hamilton filed a motion for immunity from prosecution under Georgia's "Stand

Your Ground" Act. Id. at 565. The court stated,

the trial court granted Hamilton a new trial . . . . And

'[w]hen a new trial has been granted by the court, the

case shall be placed on the docket for trial as though no

trial had been had . . . .' OCGA § 5-5-48 (emphasis

supplied). . . . When the trial court granted Hamilton's

new trial, the jury verdict against her was set aside. As a

result, when the State elected to retry Hamilton, she was

free to seek immunity from prosecution under OCGA §

16-3-24.2 before any new trial was conducted.

Id. at 565–66; see State v. Remy, 840 S.E.2d 385, 388–89 (Ga. 2020) (reiterating

that a defendant may file a motion for immunity after a mistrial is declared because

a mistrial is the equivalent of no trial at all). Although the defendants in both

Hamilton and Remy had not previously had immunity hearings, the court in each

found the mistrial restarted the clock on the defendant's ability to request

immunity.

The issue of the use of prior trial transcripts also arose in Hamilton. The State

argued the trial court erred in admitting the transcript from Hamilton's jury trial

and the transcript from the motion for a new trial hearing in the hearing on her

motion for immunity. Id. at 566. The court considered the admissibility of the

transcripts under its Rules of Evidence governing hearsay and its exclusions and

affirmed the trial court's admission of the transcripts. Id. at 571. However, the

court qualified its decision as follows:

A number of factors lead us to that conclusion. First,

there is no dispute that Hamilton's criminal case was

fully litigated over the course of an eight-day trial, and

that the same judge who presided over that—and who

observed the demeanor of witnesses being examined and

cross-examined—also presided over Hamilton's motion

for new trial and immunity hearings. Cf. [United States

v. Mathis, 559 F.2d 294, 298–99 (5th Cir. 1977)]

(reasoning that live testimony is generally favored and

considered more probative, at least in part, because the

factfinder is able to observe a witness's demeanor,

including during cross-examination). Second, the

witnesses' prior testimony would have been considered

one way or the other at the immunity hearing if they were

called to testify, whether that was because a witness was

re-subpoenaed and testified in a way that was materially

similar to his or her prior testimony, or because a witness

was re-subpoenaed and contradicted his or her prior

testimony, thus allowing the prior testimony's admission

as a prior inconsistent statement. . . . Third, the trial

court accounted for the potential for additional or

inconsistent testimony by giving both Hamilton and the

State an opportunity to 'hear testimony from any

additional witnesses and from witnesses that did testify at

trial if the witnesses had any additional newly discovered

evidence,' yet the State declined to present any such

witnesses or evidence. Finally, and perhaps most

importantly, Hamilton's 2011 trial—where many

witnesses recounted the events of the many years leading

up to [the victim's] death, as well as the events on the day

of his death less than a year before the witnesses

testified—was conducted more than eight years before

the hearing on her motion for immunity was held in

2019. . . . Given this unusual procedural posture, and

considering the totality of the circumstances, we cannot

say that the trial court abused its discretion by admitting

the transcripts from Hamilton's trial and the hearing on

her motion for new trial into evidence.

Id. (internal footnote omitted).

In this case, the second immunity hearing was not held before the judge who

conducted the first trial nor the judge who heard the first immunity hearing. In

addition, there were less than three years between the first immunity hearing and

the second immunity hearing and less than a year between the first trial and the

second immunity hearing. We find the unusual circumstances relied upon by the

Georgia Supreme Court are absent here, and the court erred in relying on

transcripts rather than making its own credibility findings and weighing the

evidence. See McCarty, 437 S.C. at 372, 878 S.E.2d at 911 ("[T]he circuit court

must weigh the evidence and make its own credibility and factual findings before

reaching a decision as to immunity."); State v. Chhith-Berry, 437 S.C. 527, 542–

43, 878 S.E.2d 352, 360 (Ct. App. 2022), reh'g denied, (Oct. 20, 2022), cert.

denied, (May 24, 2023) ("[T]he [trial] court's [immunity] ruling must be based

solely on the evidence presented at a pretrial hearing, while the jury's verdict must

be based solely on the evidence presented at trial, which may be considerably

different." (quoting Cervantes-Pavon, 426 S.C. at 452, 827 S.E.2d at 569)).

We hold the court erred in failing to conduct a new immunity hearing and by

relying on transcripts to rule on Dennis's entitlement to immunity. Accordingly,

we remand for a new immunity hearing. If immunity is granted, the conviction is

set aside. If immunity is denied, the conviction stands and Dennis is entitled to

appeal the denial of immunity and the trial issues. The trial court on remand is to

consider only the evidence at the new hearing. See McCarty, 437 S.C. at 375, 878

S.E.2d at 913 (remanding for an immunity hearing "because the circuit court is in

the best position to assess witness credibility and make the necessary findings of

fact"); Glenn, 429 S.C. at 123, 838 S.E.2d at 499 (remanding where the circuit

court did not address the elements of self-defense in denying immunity);

Cervantes-Pavon, 426 S.C. at 452–53, 827 S.E.2d at 569 (remanding where the

circuit court erred by, inter alia, finding that the immunity issue presented a jury

question, while making it "clear[] we are not ordering a new trial, only a new

hearing to determine whether Cervantes-Pavon is entitled to immunity under the

Act," and rejecting the State's contention that there was evidence from the

immunity hearing to support the court's ruling); id. (directing the trial court on

remand "to rely only upon evidence presented at the new hearing on remand"). We

acknowledge that almost ten years have passed since the initial immunity hearing.

While the use of contemporaneous, live testimony is the proper mode of evidence

on the remand of this case, neither party is precluded from requesting to use prior

sworn testimony if it can prove under the Rules of Evidence that doing so is

necessary.

B. Merits of Dennis's Claim of Immunity

Dennis argues he was entitled to immunity under the Act. As noted above, we find

the proper course is to remand "because the circuit court is in the best position to

assess witness credibility and make the necessary findings of fact." McCarty, 437

S.C. at 375, 878 S.E.2d at 913. However, we review Dennis's remaining issues

regarding his claim of immunity.

1. Conflicting Evidence

Dennis first argues the court erred in finding that because there was conflicting

evidence as to Dennis's entitlement to immunity, self-defense was a jury issue. We

agree.

"A claim of immunity under the Act requires a pretrial determination using a

preponderance of the evidence standard, which [appellate] court[s] review[] under

an abuse of discretion standard of review." State v. Jones, 416 S.C. 283, 290, 786

S.E.2d 132, 136 (2016) (quoting State v. Curry, 406 S.C. 364, 370, 752 S.E.2d

263, 266 (2013)). "[J]ust because conflicting evidence as to an immunity issue

exists does not automatically require the [trial] court to deny immunity; the [trial]

court must sit as the fact-finder at this hearing, weigh the evidence presented, and

reach a conclusion under the Act." State v. Gray, 438 S.C. 130, 141, 882 S.E.2d

469, 475 (Ct. App. 2022), reh'g denied (Jan. 23, 2023), cert. denied (Oct. 3, 2023)

(alterations in original) (quoting Cervantes-Pavon, 426 S.C. at 451, 827 S.E.2d at

569). "[T]he [trial] court, in announcing its ruling, should at least make specific

findings on the elements on the record." Id. (alterations in original) (quoting

Glenn, 429 S.C. at 123, 838 S.E.2d at 499). See State v. Ford, 439 S.C. 261, 271,

886 S.E.2d 710, 715 (Ct. App. 2023), cert. denied (Mar. 5, 2024) ("[T]he circuit

court, sitting as fact-finder, must make specific findings that support its immunity

decision."); Gray, 426 S.C. at 142, 882 S.E.2d at 475 (reversing the trial court's

denial of Gray's motion for immunity under the Act because the court

"impermissibly abdicated its role as the fact-finder at Gray's immunity hearing").

The court here likewise deferred to the jury, stating the following:

Under the facts before this Court, [Dennis's] claim of

self-defense presents a quintessential jury question. . . .

The direct contradiction between witnesses creates an

issue for a jury to decide, not the trial court. Therefore,

immunity does not apply because [Dennis] has not

proven[,] beyond a preponderance of evidence

standard[,] . . . self-defense. The Court finds that

[Dennis] has not established the elements of self-defense

by the greater weight of the evidence.

We find the court erred in deferring to the jury because there were conflicts in the

evidence. We acknowledge the State's argument that the court made findings as to

the elements of self-defense and its use of the phrases regarding deference to the

jury did not affect his analysis. However, we conclude the findings were

interspersed with deference to the jury and in violation of the law requiring the

court to be the fact-finder at an immunity hearing.

2. Duty to Retreat/Avoid the Danger

Dennis next argues both circuit court judges erred by denying him immunity based

upon the legally erroneous reason that he had the duty to retreat and that his

allegation of fear was neither credible nor reasonable. We address these elements

of self-defense in the context of the Act for the trial court's edification on remand.

The Act provides immunity from prosecution for a person who has used deadly

force after a trial court determines the person was justified in using such force.

The general four elements a defendant must meet to justify the use of deadly force

under the common law of self-defense are the following:

First, the defendant must be without fault in bringing on

the difficulty. Second, the defendant must have actually

believed he was in imminent danger of losing his life or

sustaining serious bodily injury, or he actually was in

such imminent danger. Third, if his defense is based

upon his belief of imminent danger, a reasonably prudent

man of ordinary firmness and courage would have

entertained the same belief. If the defendant actually was

in imminent danger, the circumstances were such as

would warrant a man of ordinary prudence, firmness[,]

and courage to strike the fatal blow in order to save

himself from serious bodily harm or losing his own life.

Fourth, the defendant had no other probable means of

avoiding the danger of losing his own life or sustaining

serious bodily injury than to act as he did in this

particular instance.

Glenn, 429 S.C. at 116, 838 S.E.2d at 495.

The Act provides immunity as follows:

(A) A person who uses deadly force as permitted by the

provisions of this article 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, unless the person against whom deadly

force was used is a law enforcement officer acting in the

performance of his official duties and he identifies

himself in accordance with applicable law or the person

using deadly force knows or reasonably should have

known that the person is a law enforcement officer.

S.C. Code Ann. § 16-11-450 (2015) (emphasis added). "'[A]nother applicable

provision of law' includes the common law of self-defense." Glenn, 429 S.C. at

117, 838 S.E.2d at 496.

Dennis argues the court erred in denying immunity based on Dennis's failure to

retreat and because he went to Cook-Out. In its order, the court found Dennis

sought out the DFHS students and chose the situation, which is in contradiction to

Dennis's right to be there. In addition, the court found Dennis chose not to leave

using other exits available to him, indicating the application of the duty to retreat

element of self-defense.

Dennis claimed immunity under both sections 16-11-440(A) and (C) of the Act.

"[A] trial court should first consider whether the defendant has proved the elements

of self-defense by a preponderance of the evidence. If the defendant has failed to

meet the elements of reasonable fear or the duty to retreat, the court should then

determine whether section 16-11-440(A) or (C) is applicable." Id.

Section 16-11-440(A) provides the following:

(A) A person is presumed to have a reasonable fear of

imminent peril of death or great bodily injury to himself

or another person when using deadly force that is

intended or likely to cause death or great bodily injury to

another person if the person:

(1) against whom the deadly force is used is in the

process of unlawfully and forcefully entering, or has

unlawfully and forcibly entered a dwelling, residence, or

occupied vehicle, or if he removes or is attempting to

remove another person against his will from the

dwelling, residence, or occupied vehicle; and

(2) who uses deadly force knows or has reason to believe

that an unlawful and forcible entry or unlawful and

forcible act is occurring or has occurred

S.C. Code Ann. § 16-11-440(A) (2015) (emphasis added). "Section 16-11-440(A)

may, under appropriate facts, replace the reasonable fear element of self-defense

by providing a presumption that the person's fear was reasonable under certain

circumstances . . . ." Glenn, 429 S.C. at 118, 838 S.E.2d at 496. Here, Dennis was

in his vehicle at the time of the incident, which is included in the presumption of

reasonable fear in the Act. As to findings regarding fear, Dennis argues, "Oddly,

[the court] found [he] failed to prove this second element, that he actually was in

imminent danger . . . or he believed he was . . . because [he] did not avoid the

situation at the Cook[-]Out." The court also found "the testimony as to the 'fear in

his eyes,' given by [Bettini] and [Dennis, is] in direct contradiction with the

testimony of the" DFHS students. Dennis maintains he met the third element of

self-defense—a reasonably prudent person of ordinary firmness and courage would

have likewise believed he was in imminent danger—and that he was in fact in such

imminent danger. The court found Dennis did not meet this element because there

was "inconsistent testimony." However, the court did not elaborate, and as we

previously discussed, we find the court's deferral of factfinding to the jury on

contradictory evidence was erroneous.

"The presumption of subsection (A) does not apply, however, 'if the victim has an

equal right to be in the dwelling or residence.'" Id. (quoting State v. Jones, 416

S.C. 283, 292, 786 S.E.2d 132, 137 (2016)). We find the same analysis applies to

one's vehicle. Thus, although the victim also had the right to be at Cook-Out, he

did not have the right to be in Dennis's occupied vehicle, as Dennis did, during the

confrontation. Therefore, the presumption that Dennis's fear was reasonable

applied to the extent he met his burden of showing the victim was unlawfully in or

entering his vehicle.

"[I]n cases where the defendant has not proved the duty to retreat element by a

preponderance of the evidence, the court should then consider whether section

16-11-440(C) is applicable . . . ." Id. at 118–19, 838 S.E.2d at 496. Section

16-11-440(C) provides:

A person who is not engaged in an unlawful activity and

who is attacked in another 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 force with force, including deadly force,

if he reasonably believes it is necessary to prevent death

or great bodily injury to himself or another person or to

prevent the commission of a violent crime . . . .

S.C. Code Ann. § 16-11-440(C) (2015) (emphasis added). "Where the section is

applicable, it replaces the duty to retreat element required to establish self-

defense." Glenn, 429 S.C. at 118, 838 S.E.2d at 496.

On remand, the trial court must make specific findings of fact in compliance with

any applicable presumptions afforded to Dennis in the Act.

C. Evidentiary Issues at Trial

We decline to reach the evidentiary issues raised by Dennis. See State v. Mekler,

379 S.C. 12, 17, 664 S.E.2d 477, 479 (2008) (affirming this court's decision

reversing defendant's conviction and granting a new trial, but finding it

unnecessary to address another issue concerning the admission of evidence decided

by this court, noting whether the issue would arise on retrial and its resolution

would depend upon the evidence and testimony presented, and would be for the

trial judge's consideration); Futch v. McAllister Towing of Georgetown, Inc., 335

S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not

address remaining issues on appeal when its determination of a prior issue is

dispositive). However, we note that if the circuit court on remand denies Dennis

immunity and he appeals, he may raise these evidentiary issues.

CONCLUSION

We reverse and remand for a new immunity hearing in accordance with this

opinion.

REVERSED AND REMANDED.

KONDUROS and GEATHERS, JJ., concur.