          THE STATE OF SOUTH CAROLINA
               In The Supreme Court

   The State, Respondent,

   v.

   Dennis Elvin Cervantes-Pavon, Petitioner.

   Appellate Case No. 2017-001910



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



               Appeal from Charleston County
          Kristi Lea Harrington, Circuit Court Judge


                     Opinion No. 27872
        Heard January 31, 2019 – Filed March 27, 2019


              REVERSED AND REMANDED


   Appellate Defender Susan Barber Hackett, of Columbia,
   for Petitioner.

   Attorney General Alan McCrory Wilson, Deputy
   Attorney General Donald J. Zelenka, Senior Assistant
   Deputy Attorney General Melody Jane Brown, and
   Assistant Attorney General Susannah Rawl Cole, all of
   Columbia; and Solicitor Scarlett Anne Wilson, of
   Charleston, all for Respondent.
JUSTICE HEARN: We granted Dennis Cervantes-Pavon's petition for a writ of
certiorari to determine whether the court of appeals erred in affirming the circuit
court's denial of immunity from prosecution under the Protection of Persons and
Property Act, (the Act) S.C. Code Ann. §§ 16-11-410 to 450 (2015). State v.
Cervantes-Pavon, Op. No. 2017-UP-258 (S.C. Ct. App. filed June 28, 2017). We
write today to clarify several points regarding the Act and remand for a new
immunity hearing.

                          FACTUAL BACKGROUND
      Cervantes-Pavon was indicted for murdering Raymond Muniz by stabbing
him with a sheetrock saw at their workplace. Both men worked on a construction
project at the Belk department store in Mount Pleasant. Prior to trial, Cervantes-
Pavon moved to dismiss the indictment, arguing he was immune from prosecution
under the Act.

       At the immunity hearing, Herbie Evans testified that on August 13, 2014, he
was working as a superintendent on the Belk project and became aware of a problem
between Muniz and Cervantes-Pavon. Cervantes-Pavon approached Evans and
stated Muniz was picking on him. Evans spoke with Muniz and informed him that
he would not tolerate any conflicts between employees and would send them home
if one occurred. Evans did not witness any interactions between Muniz and
Cervantes-Pavon on that day.

       José Somosa, through an interpreter, testified he worked with Muniz and
Cervantes-Pavon on the Belk project. Somosa recalled that the day before the
stabbing, Muniz had removed his shirt and attempted to fight Cervantes-Pavon, who
refused. The next day, Somosa was working as Cervantes-Pavon's helper on the
project by staying on the ground while Cervantes-Pavon worked on a ladder.
According to Somosa, each time Muniz walked by Cervantes-Pavon, Muniz would
say the two men should fight and Cervantes-Pavon would respond that he didn't want
any trouble.

       Somosa testified that at the end of the workday, Muniz again wanted to fight
Cervantes-Pavon. This time, Cervantes-Pavon "got angry," came down from the
ladder, and "later went over to the tools and grabbed that steel thing." Somosa
clarified the "steel thing" was a sheetrock saw approximately 10 inches long.
Somosa stated Cervantes-Pavon "grabbed a pipe," Muniz "grabbed like a metal thing
for framing," and the two "went at each other." Both men then dropped the metal
objects and began to fight hand-to-hand, with Muniz, the taller man, holding
Cervantes-Pavon around his neck. Somosa then saw Cervantes-Pavon remove the
saw from his waist underneath his shirt and stab Muniz once. Thereafter, both men
ran outside. According to Somosa, Muniz started the fight.

        The State predominantly cross-examined Somosa with two statements he had
previously given to police. In those statements, Somosa reported, among other
things, that he did not see the stabbing, Muniz and Cervantes-Pavon had engaged in
a fist fight the week before over a broom, the fight occurred in Muniz's work area,
and the two men were wrestling when Muniz was stabbed. Somosa expressed
dissatisfaction with his prior statements, which were recorded in English, claiming
the police "forc[ed] him to say things that [he] did not say" because the officer "spoke
more English than Spanish," and Somosa told him he "wasn't understanding."

       Cervantes-Pavon also testified through an interpreter. He stated his problems
with Muniz started when Muniz snatched a broom from him and continued when he
attempted to tell his boss about the incident. Muniz continued to verbally assault
Cervantes-Pavon by using homophobic slurs and threatening to kill him. On August
13, Muniz threatened him throughout the day, including with a pipe. According to
Cervantes-Pavon, he also picked up a pipe to defend himself, but Muniz struck him
in the stomach and jaw. He lost possession of the pipe, Muniz dropped his pipe, and
Muniz held him around the neck, strangling him. Cervantes-Pavon stated he grabbed
his saw and stabbed Muniz once in an attempt to stop him.

       Cervantes-Pavon argued he was entitled to immunity because he was in his
place of business, was not at fault in bringing about the conflict, and he had a
reasonable fear of imminent death or bodily harm. He contended he picked up the
pipe to defend himself and was unsuccessful, as he was injured. Cervantes-Pavon
asserted Muniz, the larger man, wrapped his arm around Cervantes-Pavon's neck,
and Cervantes-Pavon stabbed Muniz in order to be able to extricate himself from the
situation. Cervantes-Pavon pointed to the prior incidents between the two men as
contributing to his reasonable fear of death or bodily harm.

      The State argued the issue was a "clear question of fact" regarding self-
defense, noting Cervantes-Pavon stabbed Muniz when Muniz was unarmed. The
State contended the evidence presented did not rise to a preponderance of the
evidence that Cervantes-Pavon acted in self-defense.

       The circuit court denied Cervantes-Pavon's motion. The court noted the Act
grants immunity if a movant proves the factors by a preponderance of the evidence.
The circuit court then determined:
      Based upon the testimony presented today I deny the defendant's
      request for immunity based upon the Protection of Persons and Property
      Act. The intent of the Act is for defensive not offensive protections.
      There must be an absence of aggression. The testimony that has been
      presented today is that the boss Mr. Evans had told both of them to cut
      it out, that there had been a mutual confrontation. Both the defendant
      and the victim had discarded the tools according to Mr. Somosa and at
      the time the victim was stabbed the victim was not armed and that the
      witness believed that the victim and defendant were merely wrestling.1

      The issue of self-defense presents itself as a jury question. I am denying
      your motion. I do not believe the testimony rises to a level beyond a
      preponderance of the evidence to grant the immunity designed by the
      legislature to protect someone from criminal prosecution. I'll note your
      exception to my ruling.

      After a three-day jury trial, Cervantes-Pavon was convicted of murder, and
the circuit court sentenced him to 30 years' imprisonment. Cervantes-Pavon
appealed, challenging the circuit court's denial of immunity because the circuit judge
applied the wrong legal standard and reached the wrong conclusion. The court of
appeals affirmed in an unpublished opinion pursuant to Rule 220(b), SCACR. We
granted Cervantes-Pavon's petition for a writ of certiorari to review the decision.



                                       ISSUE
      Did the court of appeals err in affirming the circuit court's denial of immunity
under the Act?



1
 Although our review today is limited primarily to legal issues, we note that this
characterization of Somosa's testimony is not supported by the record. Somosa
never stated he believed the parties were "merely wrestling." Rather, he
acknowledged he told authorities in a previous statement that Muniz and Cervantes-
Pavon began wrestling after the pipes were discarded and that they were wrestling
when Muniz was stabbed. Somosa never opined on the level of combat this
wrestling presented in his prior statement, and he testified during the immunity
hearing that Muniz's arms were around Cervantes-Pavon's neck when the two men
were fighting hand-to-hand.
                            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. Manning, 418 S.C. 38, 43, 791 S.E.2d 148, 150 (2016). This Court
reviews an immunity determination for abuse of discretion. Id. at 45, 791 S.E.2d at
151. A circuit court abuses its discretion when its ruling is based on an error of law,
or when grounded in factual conclusions, is without evidentiary support. State v.
Jones, 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016).

        "Section 16-11-450 provides immunity from prosecution if a person is found
to be justified in using deadly force under the Act." State v. Curry, 406 S.C. 364,
371, 752 S.E.2d 263, 266 (2013). To warrant immunity, a movant must show he
was without fault in bringing on the difficulty, he actually believed he was in
imminent danger of losing his life or sustaining serious bodily injury, and a
reasonably prudent man of ordinary firmness and courage would have entertained
the same belief. Id. n.4. He may also show that he actually was in imminent danger
and the circumstances would have warranted a man of ordinary firmness and courage
to strike the fatal blow to save himself from serious harm or death. Id. Section 16-
11-440(C) provides the movant has no duty to retreat if, at the time of the attack, he
was in a place where he has a legal right to be.

                                   DISCUSSION
       Cervantes-Pavon first argues the circuit court erred in denying him immunity
under the Act by applying the wrong legal standard. He contends the court required
him to prove his immunity "beyond a preponderance of the evidence," which
warrants reversal. Cervantes-Pavon further asserts that, viewing the evidence
presented under the proper standard, he should have been granted immunity. He
argues he was not at fault in bringing about the difficulty, had no duty to retreat in
his place of business, and feared losing his life or imminent serious injury because
Muniz was choking him.

       The State responds, contending first the circuit court merely misspoke in
stating the evidence did not rise beyond a preponderance. The State further argues
the circuit court did not abuse its discretion in denying immunity because Cervantes-
Pavon was the armed initial aggressor against an unarmed Muniz in mutual combat.
The State notes Somosa testified that Cervantes-Pavon became angry with Muniz's
comments, armed himself with a pipe and saw, and engaged in deadly combat with
Muniz. According to the State, even if Cervantes-Pavon was not the aggressor, the
combat was at least mutual, which makes a plea of self-defense unavailable. The
State argues the fact that Muniz was unarmed when Cervantes-Pavon stabbed him
is sufficient by itself to uphold the denial of immunity, citing Manning. The State
contends Cervantes-Pavon did not have a reasonable fear of death or great bodily
injury because he was not harmed during his prior fight with Muniz, had refused
Muniz's invitations to fight previously, and testimony demonstrated the two were
merely wrestling when the stabbing occurred.

        In denying immunity, the circuit court relied on the fact that Muniz was not
armed when Cervantes-Pavon stabbed him. The State relies on our decision in
Manning to argue this is sufficient to uphold the court's decision. While we did
ultimately affirm a denial of immunity in Manning and noted the victim was
unarmed, the issue before us was only whether the court of appeals erred in requiring
the trial court to conduct a complete testimonial evidentiary hearing before ruling on
immunity. See Manning, 418 S.C. at 43, 791 S.E.2d at 150. Moreover, Manning is
distinguishable because there was no contact between the victim and the defendant
in that case, whereas here, Cervantes-Pavon alleged Muniz was strangling him. See
id. at 45, 791 S.E.2d at 151. Further still, both parties here were armed with metal
pipes at the outset of the fight that ultimately resulted in the stabbing, removing it
from the realm of their past encounters that ended with no serious injuries.
Accordingly, while the fact a victim is unarmed is a relevant consideration under the
Act, it does not automatically prohibit immunity, as the State contends. Similarly,
the fact a defendant armed himself does not, in and of itself, make him the aggressor
in a given confrontation. See Jones, 416 S.C. 283, 786 S.E.2d 132 (affirming a
circuit court's grant of immunity where movant armed herself with a knife for
protection before victim grabbed and shook her).

       We next turn to the circuit court's finding that the immunity issue presented a
jury question. The Act requires the circuit court to determine whether a movant is
entitled to immunity. See State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011)
(setting forth the procedure, burden of proof, and standard of review for an immunity
determination). Some cases in which a defendant seeks immunity under the Act may
present a "quintessential jury question" regarding self-defense. Such was the case
in Curry, where the circuit court denied immunity2 because testimony of the victim's
and defendant's witness varied substantially, the defendant testified he pulled a gun
because he believed victim was lunging at him but the evidence showed victim was

2
  The defendant in Curry moved for immunity under the Act at the directed verdict
stage. Curry, 406 S.C. at 369, 752 S.E.2d at 265.
shot six times in the back, and defendant told investigators he "blacked out" during
the shooting. Curry, 406 S.C. at 369, 752 S.E.2d at 265. But just because conflicting
evidence as to an immunity issue exists does not automatically require the court to
deny immunity; the court must sit as the fact-finder at this hearing, weigh the
evidence presented, and reach a conclusion under the Act. Of course, at the
conclusion of any given hearing, if the circuit court determines the movant has not
met his burden of proof as to immunity, the case will go to trial, and the issue of self-
defense may—depending upon the evidence presented at trial—be presented to the
trial jury.

       We believe the circuit court's immunity ruling was controlled by multiple
errors of law3, and combined with the court's erroneous characterization of Somosa's
testimony, this amounted to an abuse of discretion. While the State contends there
is evidence from the immunity hearing to support the court's ruling, we are unable
to discern a legally correct basis on which the court relied. For example, the circuit
court correctly noted that a movant must demonstrate an absence of aggression, but
the record contains no evidence that Cervantes-Pavon initiated the fight. The issue
of mutual combat presents a closer question. However, it is not clear this was a basis
for the ruling, as the court merely noted there had been a "mutual confrontation" and
gave no further factual findings or conclusions of law on this issue.4 The circuit
court appears to have based its ruling on the findings that the parties had discarded
their metal objects, Cervantes-Pavon was armed while Muniz was not, and the two
men were merely wrestling when the stabbing occurred. Because these were
erroneous bases on which to deny immunity, we reverse the circuit court's decision
on this issue and remand for a new hearing.

      To be clear, we are not ordering a new trial, only a new hearing to determine
whether Cervantes-Pavon is entitled to immunity under the Act. In addition,
although the State cited to trial testimony to support the court's rulings in its brief,

3
 We also note the court's error in stating the Act required Cervantes-Pavon to prove
he was entitled to immunity "beyond" a preponderance of the evidence, instead of
"by" a preponderance of the evidence. While we readily understand the court may
have simply misspoken given its correct recitation of the standard immediately
before the erroneous statement, this is one of several errors of law that contribute to
our ultimate conclusion.
4
 While the Act does not require a written order upon an immunity determination,
specific findings of fact and conclusions of law are critical to reviewing courts,
particularly given the gravity of the circumstances these cases necessarily involve.
we agree with our sister state of Georgia that, "while the trial court's pretrial
immunity ruling and the jury's verdict on a claim of self-defense may apply the same
statutory justification standard, the court's 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." Sifuentes
v. State, 746 S.E.2d 127, 131 n.3 (Ga. 2013). Consequently, we have limited our
review to the evidence presented at the immunity hearing. Likewise, the circuit court
is to rely only upon evidence presented at the new hearing on remand.

REVERSED AND REMANDED.

BEATTY, C.J., FEW, JAMES, JJ., and Acting Justice Paul E. Short, concur.
